NO. 95-096
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
ANCH CO,
Plaintiff and Appellant,
JIM HUNT, TERRY SARRAZIN and CARL0
CEIRI, Commissioners of Park County;
and PARK COUNTY, a political subdivision
of the State of Montana, and ROBERT H.
BURNS, HORATIO W. BURNS, SETH S. BURNS, APR 2 3 19%
LINDSAY H. BURNS and CAMERON H. BURNS,
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Defendants and Respondents. B ~ E R IOF WPFICME G U W N ~ .
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APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Robert J. Boyd, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Belinda D. Rinker, Bozeman, Montana
For Respondent:
David L. Weaver, Bozeman, Montana; Leanne M.
Schraudner, Schraudner & Hillier, Bozeman, Montana
Submitted on Briefs: January 11, 1996
Decided: April 23, 1996
Filed:
Justice william E. Hunt, Sr. delivered the Opinion of the Court.
Appellant, Swandal Ranch Company, appeals the November 1994
judgment of the Sixth Judicial District Court, Park County,
granting Park County a prescriptive easement to "Wallrock Road."
We affirm.
The sole issue raised on appeal is: did the District Court err
in concluding that Park County had established a county road
through the Swandal Ranch by prescriptive use?
FACTS
The Swandal Ranch Company (SRC) owns Sections 29 and 30,
Township 4 North, Range 8 East, in Park County, Montana. The
predecessors to SRC, Nels and Thora Swandal, acquired citle to the
land in 1946. In 1993, SRC commenced action to quiet title to a
stretch of roadway on the ranch, which is commonly referred to as
Wallrock Road.
Wallrock Road begins at Highway 89, about three miles north of
Wilsall, Montana, and continues through the Swandal Ranch in
Sections 29 and 30 until it reaches a point in neighboring Gallatin
County. Sometime between 1990 and 1992, SRC began locking a gate
at the entrance of its land on Wallrock Road.
SRC then began proceedings to quiet title to Wallrock Road
against the Park County Commissioners and Park County (Park
County). Park County answered SRC's complaint by asserting that
the county had established a public easement through prescriptive
use and pursuant to the statutory process. According to SRC's
brief, prior to trial SRC moved for summary judgment on Park
2
County's claim of an easement by statutory process and the District
Court granted the motion. The issue of the county's claim to an
easement by statutory process has not been raised in this appeal.
The owners of the property adjoining SRC's land, Robert H.
Burns and family (Burns), were granted permission to intervene as
defendants. The Burns alleged they held a private easement to
Wallrock Road based on prescriptive use.
A bench trial was held in August 1994. Witnesses testified
that Wallrock Road was used by area landowners, hunters, loggers,
and recreationists. Park County introduced the maintenance records
for Wallrock Road. A Park County employee testified that the
county had maintained the road from 1956 to 1989, this included
installing a culvert in the mid-1950's. Maintenance ceased after
SRC began locking the gate to the entrance of the ranch.
Other evidence included area maps that identified Wallrock
Road as a county road. Park County also presented a 1950
declaration by Park County Commissioners that Wallrock was a county
road, and the subsequent publication of the Commissioners' meeting
minutes containing this declaration in a local newspaper.
Following the trial, the District Court concluded that the
Burns had not established a prescriptive easement to the road, but
that Park County had. Judgment was entered and Wallrock Road was
declared a Park County road.
SRC appeals.
STANDARD OF REVIEW
A district court's findings of fact will not be set aside
unless they are clearly erroneous. Rule 52 (a), M.R. Civ.P. ; Glenn v .
Grosfield (Mont. 19951, 906 P.2d 201, 202, 52 St.Rep. 1150, 1151.
Conclusions of law by a district court are reviewed to determine
whether the tribunal's interpretation of the law is correct.
Public Lands Access, Inc. v. Boone and Crockett (1993), 259 Mont.
279, 283, 856 P.2d 525, 527.
DISCUSSION
Did the District Court err in concluding that Park County had
established a county road through the Swandal Ranch by prescriptive
use?
On appeal, SRC argues that Park County's claim of a
prescriptive easement to Wallrock Road fails for two reasons.
First, SRC contends Park County failed to prove the element of
adversity necessary to establish a prescriptive easement. Second,
SRC alleges that the public use of Wallrock Road was permissive and
therefore could not ripen into prescriptive use.
In Montana, a prescriptive easement is created by operation of
the law. See Woods v, Houle (1988), 235 Mont. 258, 160-62, 766
P.2d 250, 252. To establish either a public or private easement by
prescription, the party claiming the easement must show "open,
notorious, exclusive, adverse, continuous and uninterrupted use of
the easement claimed for the full statutory period. The statutory
period is five years." Section 70-19-404, MCA; Unruh v. Tash
(3_995), 271 Mont. 246, 250, 896 P.2d 433, 435. The elements of
prescriptive easement have been defined through case law. See
Rappold v. Durocher (1993), 257 Mont. 329, 849 P.2d 1017; Lemont
Land Corp. v. Rogers (1994), 269 Mont. 180, 887 P.2d 724.
In prior cases, this Court has discussed the public
acquisition of a prescriptive easement to a private road:
That the public may acquire the right by prescription to
pass over private land is undisputed and such is the law
in Montana. To establish the existence of a public road
by prescription it must be shown that the public followed
a fixed and definite course continuously and
uninterruptedly for the prescribed statutory period
together with an assumption of control and adverse to the
owner. . .
Granite County v. Komberec (1990), 245 Mont. 252, 257, 800 P.2d
166, 169.
SRC first contests the District Court's findings and
conclusions with respect to the requirement of adversity.
Specifically, SRC argues that the evidence presented by Park County
failed to prove the element of adversity.
In order for a claim 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." Rappold, 849 P.2d at 1019 (citing Keebler v. Harding
(1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356-57).
In support of its argument, SRC argues that evidence regarding
the declaration of Wallrock Road as a county road was misconstrued
by the District Court. This evidence was used by the District
Court in Finding of Fact No. 58:
That the action of the Park County Commissioners
specifically declaring that portion of the Wallrock Road
traversing .Sections 29 and 30 of Township 4 North, Range
8 East as a county road on October 3 , 1950, and published
in the Livingston Enterprise on Monday, November 27,
1950, a newspaper of general circulation in Park County,
was sufficient to give the Plaintiffs and their
predecessors in interest, actual knowledge of the adverse
use and hostile claim of Park County. , .
SRC contends that the County Commissioner's 1950 declaration of
Wallrock Road as a county road and the subsequent publication of
its meeting minutes in the local newspaper were not intended to
assert an adverse claim to Wallrock Road. Instead, SRC contends
that the Commissioners made the 1950 declaration merely to
facilitate a related land purchase, and that the Commissioners did
not intend to put the affected landowners on notice of an adverse
claim.
Park County has conceded that the October, 1950 action by the
County Commissioners was legally inadequate to create a county road
through the statutory process. Park County's claim to statutory
easement was dismissed by partial summary judgment prior to trial,
and has not been raised for review on this appeal.
In spite of this, the evidence regarding the 1950 declaration
and subsequent publication of the minutes is relevant to a claim of
prescriptive easement. Regardless of the intent of the
Commissioners, this evidence can be used to support a finding that
SRC had knowledge of Park Countyfs adverse claim to Wallrock Road
Next, SRC argues the evidence of the maintenance of Wallrock
Road was intermittent and nonexclusive, and therefore does not
support the element of adversity.
However, the record indicates that the maintenance was not
"intermittent" rather, that it was performed on a regular basis
every year. While the records were not available for the entire
period from 1950 to 1992, a Park County employee, Robert Youngberg,
testified that he had either graded or directed the maintenance of
Wallrock Road to the Gallatin County line from 1956 until his
retirement in 1989. The county discontinued maintenance only after
SRC began locking the gate to the entrance to the ranch on Wallrock
Road. Additional evidence established that Park County had
improved the road by installing a culvert on Wallrock Road in
Section 29 in the mid-1950's.
Furthermore, the 1950 declaration and records of road
maintenance represent only a portion of Park County's evidence
supporting the element of adversity. Park County provided other
evidence indicating adverse use. Several witnesses testified that
the road was used to support logging and timber hauling, provide
access to seasonal residences, and to haul livestock. The county
presented several maps, including a "Clerk Recorders Mapn of 1936,
and a 1960 State of Montana document entitled "Montana County
Maps," both of which delineate the road through Sections 29 and 30
as a Park County road.
A District Court's findings of fact must be supported by
substantial evidence, which is the amount of relevant evidence a
courtesy are permissive in nature and therefore the use cannot be
construed as adverse. Public Lands, 856 P.2d at 528. SRC argues
that witnesses, including the Burns and the Swandals agree that the
shared use of the road was an agreeable neighborly practice.
In contrast, Park County presented members of the general
public, besides the neighboring Burns, who testified that they had
not sought permission from SRC to use Wallrock Road. Furthermore,
Park County argued that prior to the annual maintenance of Wallrock
Road, county employees did not contact the Swandals for permission
to grade the road. Park County also argues that SRC's theory of
"neighborly accommodation" does not apply in this situation because
Park County is not claiming a private prescriptive easement.
Therefore, by its very nature, "neighborly accommodationn is not
relevant.
At trial, both sides presented evidence as to whether use of
the road was permissive or adverse. A review of the record shows
that Park County submitted substantial evidence to show the use of
the road was not permissive, this Court has held that a district
court sitting as a fact finder, is in the best position to
determine whether use was permissive or adverse. Granite, 800 P.2d
at 169.
The District Court found and we agree that the substantial
evidence supports a finding that the use of Wallrock Road was not
neighborly accommodation, and was therefore not permissive.
Affirmed .
Justice