NO. 96-059
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
ROGER A. KESSINGER AND JOANNE
M. KESSINGER, husband and wife,
Plaintiffs and Appellants,
DONALD MATULEVICH AND JOAN
MATULEVICH, husband and wife,
Defendants, Respondents,
and Cross-Appellants.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted 0. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas R. Bostock, Warden, Christiansen, Johnson &
Berg, Kalispell, Montana
For Respondent:
Kenneth E. O'Brien, Hash, O'Brien & Bartlett,
Kalispell, Montana
Submitted on Briefs: May 16, 1996
Decided: October 22, 1996
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal and cross appeal from the Eleventh Judicial
District Court, Flathead County. Following a nonjury trial and
view of the disputed road, the District Court awarded private
prescriptive easement rights to Plaintiffs Roger and Joanne
Kessinger, Defendants Donald and Joan Matulevich, and two nonparty
witnesses, John Winnie and Tom Beeson, over the disputed road.
Plaintiffs appeal and Defendants cross appeal. We affirm in part
and reverse in part.
We address the following issues on appeal:
A.. Did the District Court err in declaring that a private
prescript i ve easement had been established over the road in
question i n favor of the Defendants Donald and Joan Matulevich?
2 Did the District Court err in declaring that a private
prescript ve easement had been established over the road in
question by two nonparties and their successors in interest?
We address the following issues on cross appeal.
3. Did the District Court err in finding that the general
public had not used the road.in question sufficiently to ripen into
a public prescriptive easement?
4. Did the District Court err in declaring that a private
prescriptive easement had been established over the road in
question in favor of the Plaintiffs Roger and Joanne Kessinger?
FACTUAL AND PROCEDURAL BACKGROUND
Rogers Lake is located approximately 30 miles west of
Kalispell, Montana. Rogers Lake Road, a county road, provides
2
access to the Rogers Lake area. At a point north of the properties
of the Plaintiffs Roger and Joanne Kessinger (Kessingers) and
Defendants Donald and Joan hatulevich (Matuleviches), Rogers Lake
Road forks. The north fork provides public access to Rogers Lake
while the south fork provides access to private property.
Approximately one and one-half miles north of Kessingers' property,
the Rogers Lake Road ceases to be a county road and turns into a
dirt and gravel road, commonly known as Rogers Lane. See Appendix
A. Rogers Lane (the road) runs south and crosses the lakeshore
properties of Matuleviches (Lots 12 and 13), Frank Bear (Lots 10
and 11) and Kessingers (Lots 1 through 91, respectively. After the
road passes Kessingers' property, the road becomes a trail and
crosses U.S. Forest Service land, land owned by Plum Creek Timber
Company and ultimately winds around Rogers Lake. This road
provides the exclusive means of ingress and egress to and from
Kessingers' property.
In 1993, Kessingers unified ownership of Lots 1 through 9
which formerly had been owned in four separate tracts. Richard
Siegfried (Siegfried) and Lawrence West (West) are two
predecessors-in-interest to Kessingers' property. Siegfried
purchased Lots 4 through 9 in 1976 and West purchased Lot 3 in
1977. When purchased, both Siegfried and West's lots were
undeveloped. However, both fenced, gated and posted their
respective properties within two years of purchase. Siegfried did
so in 1977-1978 and West did SO by 1979. Both used a three-strand
barbed-wire gate to block access to the road. In addition to his
3
gate I Siegfried erected an entry way to his property by placing a
main cross beam atop two large timber poles on either side of the
road. West, in addition to his gate, physically blocked the road
with his pickup.
Siegfried built a home on his lots in 19'79 and West built a
home on his lot by 1980. Siegfried used his property mainly as a
vacation residence, but did reside there permanently from 1989 to
1993. West lived on his property as a permanent resident from 1980
to 1985 and from 1987 to 1990. During their periods of occupancy,
both Siegfried and West maintained their gates. Just as for the
Kessingers now, the road was the only means for Siegfried and West
to access their properties. Both Siegfried and West testified that
they believed the road was private and that they erected and
maintained the gates to keep the general public out. However, they
both additionally testified that they did not object to their
neighbors using the road to access the U.S. Forest Service and Plum
Creek Timber Company land to the south of their properties.
Matuleviches first purchased a 10.35 acre parcel by Rogers
Lake in 1973. Subsequently they purchased two lakeshore lots, one
in 1974 and the other in 1983. During their vacations at Rogers
Lake, Matuleviches used the road, as it crosses what is now
Kessingers' property, to access U.S. Forest Service land and Plum
Creek Timber Company land for recreational purposes. Matuleviches
used the road for a variety of recreational purposes such as to
walk, sightsee, occasionally gather firewood and cross country ski.
Additionally, prior to 1984, Matuleviches used the road to access
4
a spring located on Plum Creek Timber Company property to gather
drinking water in plastic jugs. However, in 1984, Matuleviches
developed a deep well on their property and subsequently reduced
their use of the spring for drinking water. Between 1973 and 1977,
few other people lived in the same area as Matuleviches;
consequently, no one objected to their use of the road.
Matuleviches continued using the road after Siegfried and West
purchased their lots and placed gates across the road, without
objection from either owner.
Additional neighbors, John Winnie (Winnie) and Tom Beeson
(Beeson), also used the road to access the U.S. Forest Service land
and Plum Creek Timber Company land. Winnie purchased his property
in 1973, while Beeson did not purchase his property until 1983.
Like Matuleviches, Winnie and Beeson used the road for recreational
purposes only. As seasonal residents, Winnie and Beeson used the
road to do such things as walk, sightsee, cross country ski and
collect water from the spring on Plum Creek Timber Company land.
While they used the road despite Siegfried and West's gates, they
testified that they honored the gates by leaving them as they found
them.
Kessingers initiated this suit in the District Court for the
Eleventh Judicial District, Flathead County. In a effort to secure
legal access to their property, Kessingers brought a quiet title
action alleging a private prescriptive easement over a road
crossing the property of Matuleviches and Bear. Kessingers further
sought an injunction to prevent Matuleviches or Bear from
5
interfering with Kessingers' right to use the road. Matuleviches
counterclaimed alleging that they, or alternatively the public, had
a prescriptive easement over the road as it crosses Kessingers'
property. Bear similarly answered, but subsequently Bear and
Kessingers resolved the issues between them by mutual settlement
and the District Court dismissed the claims between them with
prejudice.
Following a bench trial and view of the road in dispute, the
District Court entered judgment awarding Kessingers a private
prescriptive easement over the road as it crosses Matuleviches'
property. Additionally, the District Court awarded Matuleviches
and two nonparties, John Winnie and Tom Beeson, private
prescriptive easements over the road as it crossed Kessingers'
property. From that judgment, Kessingers appeal and Matuleviches
cross appeal. We affirm in part and reverse in part.
Our standard of review for a district court's findings of fact
is provided by Rule 52(a), M.R.Civ.P., which in part provides:
Findings of fact . . shall not be set aside unless
clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge of the
credibility of the witpesses
We have adopted the following three-part test to interpret
this rule:
First, the Court will review the record to see if
the findings are supported by substantial evidence.
Second, if the findings are supported by substantial
evidence we will determine if the trial court has
misapprehended the effect of evidence. Third, if
substantial evidence exists and the effect of the
evidence has not been misapprehended, the Court may still
find that "[Al finding is 'clearly erroneous' when,
although there is evidence to support it, a review of the
6
record leaves the court with the definite and firm
conviction that a mistake has been committed."
Public Lands Access Ass'n, Inc. v. Boone and Crockett Club Found.,
Inc. (1993), 259 Mont. 279, 283, 856 P.Zd 525, 527 (quoting
Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323,
820 P.2d 1285, 1287).
Our standard of review relating to a district court's
conclusions of law is whether the tribunal's interpretation of the
law is correct. Public Lands, 856 P.2d at 527.
A prescriptive easement is created by operation of law.
Swandal Ranch Co. v. Hunt (Mont. 1996), 915 P.2d 840, 843, 53
St.Rep. 361, 362. When establishing either a public or private
easement by prescription, 'the party claiming the prescriptive
easement must show "open, notorious, exclusive, adverse, continuous
and uninterrupted use of' the easement claimed for the full
statutory period." Swandal, 915 P.2d at 843. The statutory period
is five years. Section 70-19-404, MCA. The burden is on the party
seeking to establish the prescriptive easement to prove all
elements of the prescription. Public Lands, 856 P.2d at 527. To
establish a prescriptive right, the prescriptive claimant must
show, by clear and convincing evidence, that the use was .adverse
and not by permission of the landowner. Kostbade v. Metier (1967),
150 Mont. 139, 143, 432 P.2d 382, 385.
DISCUSSION
1. Did the District Court err in declaring that a private
prescriptive easement had- been established over the road in
question in favor of the Defendants Donald and Joan Matulevich?
7
Public Lands Access Ass'n, Inc. v. Boone and Crockett Club Found.,
Inc. (1993), 259 Mont. 279, 283, 856 P.2d 525, 527 (quoting
Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323,
820 P.Zd 1285, 1287).
OLK standard of review relating to a district cowrt 's
conclusions of law is whether the tribunal's interpretation of the
law is correct. Public Lands, 856 P.2d at 527.
A prescriptive easement is created by operation of law.
Swandal Ranch Co. v. Hunt (Mont. 1996), 915 P.2d 840, 843, 53
St.Rep. 361, 362. When establishing either a public or private
easement by prescription, the party claiming the prescriptive
easement must show "open, notorious, exclusive, adverse, continuous
and uninterrupted use of the easement claimed for the full
statutory period." Swandal, 915 P.2d at 843. The statutory period
is five years. Section 70-19-404, MCA. The burden is on the party
seeking to establish the prescriptive easement to prove all
elements of the prescription. Public Lands, 856 P.2d at 527. To
establish a prescriptive right, the prescriptive claimant must
show, by clear and convincing evidence, that the use was adverse
and not by permission of the landowner. Kostbade v. Metier (1967),
150 Mont. 139, 143, 432 P.2d 382, 385.
DISCUSSION
1. Did the District Court err in declaring that a private
prescriptive easement had been established over the road in
question in favor of the Defendants Donald and Joan Matulevich?
Kessingers argue that the District Court's finding that
Matuleviches had established a private prescriptive easement over
the road in dispute as it crosses Kessingers' land was not
supported by substantial evidence. Kessingers contend that
Matuleviches' use of the road was not adverse, but rather based on
permissive use. Further, Kessingers assert that the Matuleviches
used the road only for access to recreational activities which
could not give rise to a presumption of adverse use. Finally,
Kessingers maintain that even if Matuleviches had established a
private prescriptive easement prior to Siegfried and West
purchasing their properties, Siegfried's and West's acts created
reverse adverse possession and thereby destroyed any such easement.
We agree.
The District Court stated in Finding of Fact No. 7 'I [tlhat at
no time during such use did [Matulevichesl ever seek permission for
such use from either [Kessingersl or their predecessors in
interest." The District Court then went on to state in Finding of
Fact No. 8 that Matuleviches' use met all the requirements of a
prescriptive easement, including that of adversity. We disagree.
As a finding of fact, this is not supported by substantial
evidence; as a conclusion of law, it is incorrect.
"To be adverse, the use of the alleged easement must be
exercised under a claim of right and not as a mere privilege or
license revocable at the pleasure of the owner of the land; such
claim must be known to, and acquiesced in by, the owner of the
land." Public Lands, 856 P. 2d at 527 (citation omitted). "If the
8
owner shows permissive use, no easement can be acquired since the
theory of prescriptive easement is based on adverse use." Public
Lands, 856 P. 2d at 527 (citation omitted).
"Neighborly accommodation is a form of permissive use which,
by custom, does not require permission at every passing." Lemont
Land Corp. v. Rogers (1994), 269 Mont. 180, 186, 887 P.2d 724, 728
(citing Public Lands, 856 P.2d at 528). We have stated that:
A use of a neighbor's land based upon mere
neighborly accommodation or courtesy is not adverse and
cannot ripen into a prescriptive easement. Thus where
the use of a way by a neighbor was by express or implied
permission of the owner, it was held that the continuous
use of the way by the neighbor was not adverse and did
not ripen into a prescriptive right.
Public Lands, 856 P.2d at 528 (quoting Wilson v. Chestnut (1974),
164 Mont. 484, 491, 525 P.2d 24, 27).
A property owner erecting a gate across a road located on his
property provides strong evidence that use of the road past the
gate is permissive only. We have stated that:
The fact that the passage of a road has been for years
barred by gates or other obstructions to be opened and
closed by the parties passing over the land, has always
been considered as strong evidence in support of a mere
license to the public to pass over the designated way.
Public Lands, 856 P.2d at 528 (quoting Maynard v. Bara (1934), 96
Mont. 302, 307, 30 P.2d 93, 95).
Siegfried and West both testified that they gated, fenced and
posted their properties during the years 1977 to 1979 and enforced
their gates throughout their periods of ownership. They both
testified that the purpose of the gates was to keep the general
public out. Further, while they actively discouraged the general
9
public from using the road, they did not object to their neighbors'
continued use of the road for access to recreational activities on
U.S. Forest Service and Plum Creek Timber Company land to the south
of their properties. Moreover, while Matuleviches testified that
they continued to use the road after the gates were in place, they
also testified that their use of the road was a "neighborly thing"
and that any discussibn concerning Siegfried's or West's explicit
permission for them to use the road "just never came up."
Siegfried and West, by actively prohibiting the general public
from using the road, but not objecting to their neighbors' use,
gave Matuleviches implied permission to use the road as it crossed
their properties. This implied permission, based on a general
attitude of "neighborly accommodation" prevented Matuleviches' use
of the road from ripening into a prescriptive easement.
The District Court in its Finding of Fact No. 6 states that
Matuleviches used the road (I. regularly under claim of right by
foot, vehicle, recreational vehicle and cross country skis."
Substantial evidence supports this finding of fact that
Matuleviches' use of the road was for recreational purposes only
and therefore could not, as.a matter of law, raise the presumption
of adverse use. Public Lands, 856 P.2d at 528-29.
Matuleviches testified that they were seasonal residents and
used the road for recreational purposes. Prior to 1993,
Matuleviches primarily walked along the road for a variety of
recreational uses such. as to hike, sightsee, occasionally gather
firewood and cross country ski. Additionally, prior to 1984,
10
Matuleviches used the road to access a spring located on Plum Creek
Timber Company property to gather drinking water in plastic jugs.
However, in 1984, Matuleviches developed a deep well on their
property and subsequently reduced their use of the spring for
drinking water. Matuleviches' seasonal use of the road was only
recreational. Recreational use is insufficient to raise a
presumption of adverse use. Public Lands, 856 P.Zd at 528-29.
Therefore, Matuleviches did not establish a private prescriptive
easement based on their recreational use of the road.
Finally, Kessingers maintain that even if Matuleviches had
established a private prescriptive easement prior to Siegfried and
West purchasing their properties, Siegfried's and West's acts 'of
putting up gates and allowing Matuleviches to use the road based on
permissive use destroyed such an easement. We also addressed this
issue in Public Lands:
Section 70-17-111(3), MCA, provides that a servitude
is extinguished II... (3) by the performance of any act
upon either tenement by the owner of the servitude or
with his assent which is incompatible with its nature or
exercise [.I I' We have held, on the basis of that
statute, that if a prescriptive easement exists,
subsequent acts inconsistent with the claim by
prescription, support the conclusion that the
prescriptive easement has been extinguished.
Public Lands, 856 P.2d at 531-32 (citations omitted). We further
explained that the right hostile to the easement holder must be
brought to the easement holder's attention and the hostile use must
continue for the full statutory period. Public Lands, 856 P.2d at
531. Based on the foregoing, we held that the defendants'
predecessors-in-interest 'had established reverse adverse
11
possession. They performed a hostile act by blocking off the
disputed road, and the purported owner of the easement, the public,
adhered to a walk-in policy over a I?-year period. Consequently,
any prescriptive easement the public may have established was lost.
Public Lands, 856 P.2d at 532.
Similarly, Siegfried and West demonstrated hostile acts which
were inconsistent with Matuleviches' purported prescriptive
easement. During the years 1977 to 1979, Siegfried and West gated,
posted and fenced their properties. They enforced their gates to
keep the general public out, but allowed Matuleviches access to the
road based on neighborly accommodation. Matuleviches testified
that they recognized the use of the road as a "neighborly thing."
For a period of over ten years, Siegfried and West allowed
Matuleviches to use the road. Just as in Public Lands, Siegfried's
and West's acts created reverse adverse possession. Therefore, any
prescriptive easement Matuleviches may have established was lost.
We conclude that Matuleviches failed to establish a private
prescriptive easement over the road as it crosses Kessingers'
property. Therefore, we reverse that part of the District Court's
judgment and order that grants a private prescriptive easement to
Matuleviches.
2. Did the District Court err in declaring that a private
prescriptive easement had been established over the road in
question by two nonparties and their successors in interest?
The District Court awarded private prescriptive easements over
the disputed road to two nonparty witnesses, John Winnie and Tom
12
Beeson, and their successors-in-interest. Kessingers assert that
the District Court erred in granting a private prescriptive
easement to Winnie and Beeson because they were not parties to this
lawsuit. Kessingers argue § 25-g-201, MCA, allows a court to
adjudicate only those rights between plaintiffs and defendants.
Matuleviches argue that Winnie and Beeson, as members of the
public, testified to help prove that a public prescriptive easement
existed over Rogers Lane. Further, Matuleviches argue that based
on Winnie's and Beeson's testimony the District Court could have
decided to grant a public prescriptive easement, but simply "chose
to restrict the 'public easement' to certain specified members of
the public."
We recently decided this issue in Warnack v. Coneen Family
Trust (19941, 266 Mont. 203, 879 P.2d 715. A person who is not a
party to the action, cannot.be a party to the judgment. Warnack,
879 P.2d at 718. In Warnack, we explained:
[Ilt is a fundamental principle of our jurisprudence
that it is only against a party to the action that a
judgment can be taken and that the judgment is not
binding against a stranger to the action.
Warnack, 879 P.2d at 718 (citation omitted). This rule also
applies to judgments awarded in favor of a nonparty. Warnack, 879
P.2d at 718. Furthermore, this fundamental principle underlays the
language set forth in 5 25-g-201, MCA:
Whose rights determined in judgment. Subject to the
provisions of Rule 54(b) M.R.Civ.P., judgment may be
given for or against one or more of several plaintiffs
and for or against one or more of several defendants, and
it may, when the justice of the case requires, determine
the ultimate rights of the parties on each side as
between themselves.
13
Although Winnie and Beeson lived in the area of the disputed
road and did testify as to their use of the road, they were not
parties to this lawsuit. Accordingly, we reverse that part of the
District Court 1s judgment and order that grants a private
prescriptive easement to John Winnie and Tom Beeson.
3. Did the District Court err in finding that the general
public had not used the road in question sufficiently to ripen into
a public prescriptive easement?
On cross appeal, Matuleviches argue that the public has a
prescriptive easement right to use the road. Matuleviches contend
that they, like Winnie and Beeson, are members of the public.
Therefore, as members of the public, they have collectively used
the road for twenty years in the same manner and thereby have
established a public prescriptive easement over the road. We
disagree.
In Issue 1, we held that Matuleviches failed to establish a
private prescriptive easement because they used the road for
recreational purposes based only on neighborly accommodation.
Prescriptive easements may be proved by public or private use.
However, in either case, the claimant must show open, notorious,
exclusive, adverse, continuous and uninterrupted use of the
easement for the full statutory period. Granite County v. Komberec
(1990), 245 Mont. 252, 257, 800 P.2d 166, 169 (overruled on other
grounds). Therefore, just as the evidence of Matuleviches' use of
the road was not sufficient to establish a private prescriptive
easement, this same evidence is not sufficient to establish a
14
public prescriptive easement. Matuleviches used the road for
recreational purposes based on neighborly accommodation. This kind
of use will not establish a prescriptive easement.
Moreover, Matulevichesj actions support a conclusion that they
did not view the road as public, but rather that they also viewed
the road as private. Matuleviches placed a "Private Road" sign
along the road and indicated through their conduct that they felt
the road was private and not open to the public. For example,
Matuleviches did not sign a petition circulated in 1985-86
submitted to the Flathead County Commissioners to open the road as
a county road. Matuleviches' use and conduct concerning the road
does not support a conclusion that the road is public, but rather
that it is private.
In Issue 2, we held that Winnie and Beeson could not be
granted a private prescriptive easement because they were not
parties to this action. However, because Winnie and Beeson
testified under Matuleviches' claim that a public prescriptive
easement existed, we will consider whether their use of the road
contributed to the establishment of a public prescriptive easement.
Our holding and discussion in Public Lands is again directly
on point. In Public Lands, plaintiffs asserted a public
prescriptive easement over Dupuyer Canyon Road. However, we found
that plaintiffs' use of the road was not adverse, but instead due
to neighborly accommodation. Public Lands, 856 P.2d at 528. We
based this decision on the fact that defendant had erected gates
across the disputed road and plaintiffs and other members of the
15
public honored them by leaving the gates as they had found them.
Public Lands, 856 P.2d at 528. Similarly, Winnie and Beeson
honored the gates erected by Siegfried and West. When Winnie and
Beeson traveled past the gates, they left them as they found them.
That is, if the gate was closed when they came upon it, they would
close it after passing through.
Furthermore, in Public Lands, we found that plaintiffs used
the road only to gain access to recreational activities and that
type of use failed to raise a presumption of adverse use. Public
Lands, 856 P.2d at 528-29.- Likewise, Winnie and Beeson used the
road solely for recreational purposes such as walking, sightseeing,
cross country skiing and collecting water from the spring on Plum
Creek Timber Company land. This recreational use of the road could
never establish adverse use. Consequently, the testimony of Winnie
and Beeson did not demonstrate the establishment of a public
prescriptive easement.
Matuleviches, Winnie and Beeson all used the road for
recreational purposes with the implied permission of both Siegfried
and West. Therefore, their combined use of the road was not
adverse and, consequently, they failed to establish a public
prescriptive easement. Accordingly, we affirm that part of the
District Court's judgment and order declaring that the general
public did not establish a public prescriptive easement over the
disputed road.
16
4. Did the District Court err in declaring that a private
prescriptive easement had been established over the road in
question in favor of the Plaintiffs Roger and Joanne ICessinger?
On cross appeal, Matuleviches argue that if Matuleviches,
Winnie and Beeson do not hake a private prescriptive right to use
the road, then Kessingers do not have a private prescriptive right
either. Instead, Matuleviches assert that they had given
Kessingers permission to use the road to access Kessingers'
property. We find this argument unpersuasive.
On appeal, Matuleviches bear the burden of establishing that
the judgment of the District Court is erroneous. Walsh v.
Ellingson Agency (19801, 188 Mont. 367, 373, 613 P.Zd 1381, 1384.
While Matuleviches assert that Kessingers' use of the road was
permissive, they fail to establish that the District Court's
findings in this regard are not supported by substantial evidence
or are otherwise clearly erroneous; nor do they establish error by
the District Court in interpreting the law. We will not presume
error on the part of the District Court. Walsh, 613 P.2d at 1384.
Accordingly, we affirm that part of the District Court's judgment
and order declaring that Kessingers are entitled to a private
prescriptive easement over the road as it crosses Matuleviches'
property for the purposes of ingress and egress.
We affirm in part and reverse in part.
Justice
We concur:
18
1
, RodE’RS:
. . - ,- ..- I’kKF 5illi
I
I P
0
a
i
,i
I
_ - - -- 3
-_-..;,;1:
-- I”
October22, 1996
CERTIFICATE OF SERVICE
I herebycertify that the following certified order was sent by United Statesmail, prepaid,to the
following named:
ThomasR. Bostock
Warden, Christiansen,
Johnson Berg
&
P.O. Box 3038
Kalispell,MT 59903-3038
Kenneth O’Brien
E.
Hash, O’Biien & Bartlett
P.O. Box 1178
Kalispell,MT 59903-1178
ED SMITH
CLERK OF THE SUPREMECOURT
STATEOF MONTANA