Hitshew v. Butte/Silver Bow County

No

No. 97-670

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 26

KENNETH E. HITSHEW

and DOROTHY J. HITSHEW,

Petitioners, Appellants, and

Cross-Respondents,

v.

BUTTE/SILVER BOW COUNTY;

a political subdivision of the State of

Montana, JOHN DOE CORPORATION; and

UELAND RANCHES, INC., a Montana

business corporation,

Respondents, Respondents, and

Cross-Appellants.

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APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Silver Bow,

The Honorable John W. Whelan, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

John Leslie Hamner, Butte, Montana

For Respondent:

William M. O'Leary, Corette, Pohlman & Kebe, Butte, Montana (Butte-Silver Bow County); William M. Kebe,
Jr., Corette, Pohlman & Kebe, Butte, Montana (Ueland Ranches, Inc.)

Submitted on Briefs: August 6, 1998

Decided: February 18, 1999

Filed:

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__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

¶1. Kenneth E. Hitshew and Dorothy J. Hitshew (the Hitshews) appeal from the
March 3, 1997 order of the Second Judicial District Court, Silver Bow County,
entering summary judgment in favor of Butte-Silver Bow County (the County), John
Doe Corporation, and Ueland Ranches, Inc. (Ueland). The County cross-appeals
from the April 16, 1997 order of the District Court denying its request for certain
costs. We affirm in part, reverse in part, and remand this cause for further
proceedings consistent with this opinion.

¶2. We restate the issues as follows:

¶3. 1. Did the District Court err in granting the County's and Ueland's motions for
summary judgment and denying the Hitshews' petition for declaratory judgment?

¶4. 2. Did the District Court err in denying the County's request for the costs of
survey maps and an aerial photograph?

BACKGROUND

¶5. In July 1993, the Hitshews entered into a contract with Ueland for the purchase
of a triangle-shaped tract of real property located in Silver Bow County (hereinafter
"Tract A"). German Gulch Road is an undedicated, county-maintained road which
travels through the entire length of Tract A in a south-easterly direction. According
to the certificate of survey for Tract A, the south edge of German Gulch Road forms

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the southern property boundary of Tract A. Ueland owns the land to the south of
German Gulch Road. When Ueland sold Tract A to the Hitshews, it reserved an
easement over German Gulch Road to access its property. Before the sale of Tract A,
Ueland had erected a fence thirty feet from and parallel to the southern edge of the
road. After purchasing Tract A, the Hitshews erected a fence along the northern
edge of the road. A cattle guard is located inside Tract A at the extreme northeast
corner of the triangle where German Gulch Road intersects Tract A.

¶6. German Gulch Road has been utilized by the public and referenced on various
maps since the turn of the century. Since 1959, the road has been referenced on maps
prepared by the State Highway Commission as a road maintained by Silver Bow
County. The County's maintenance of German Gulch Road includes spreading and
blading gravel to maintain the road's surface, ditch digging, and snow removal. The
road has never been gated or fenced to prevent travel over Tract A, and no
landowner has denied the County access to the road.

¶7. Sometime after the sale of Tract A, the County approached Ueland about
establishing a service road over property owned by Ueland from German Gulch
Road to the site of the County's Tax Increment Financing Industrial District Number
2 (TIFID No. 2) where a silicon manufacturing plant was to be built. The County
needed this service road for ingress and egress to construct water and sewer facilities
in TIFID No. 2. Ueland granted the County use of its existing easement over German
Gulch Road, as well as a temporary easement for the period beginning April 25,
1996, and ending August 1, 1996, to construct a service road over its property from
German Gulch Road to TIFID No. 2. Ueland and the County agreed that
construction of the service road would begin at the extreme northeast corner of Tract
A, where German Gulch Road intersects Tract A, and continue in a southeasterly
direction approximately one mile to TIFID No. 2.

¶8. On April 26, 1996, the County began construction of the service road. The
County removed the cattle guard located at the intersection of German Gulch Road
and Tract A, and Ueland assisted in removing a portion of the fence south of German
Gulch Road. Thereafter, the Hitshews came upon the construction site and were
distressed to find that the cattle guard and a portion of the southern fence had been
removed. The Hitshews commenced an action against the County, Ueland, and the
unknown corporation slated to build the silicon manufacturing plant for damages
arising from the alleged trespass on their property. In the same complaint, the

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Hitshews sought a declaratory judgment, asking the court to determine the County's
rights in and to the use of German Gulch Road.

¶9. The County and Ueland (collectively the Respondents) responded by filing
motions to dismiss for failure to state a claim upon which relief may be granted
pursuant to Rule 12(b)(6), M.R.Civ.P. Upon submission of the parties' briefs on the
motions, the District Court ordered a hearing to take place November 25, 1996. At
the hearing, in addition to the pleadings, Respondents presented testimony from
Robert Everly, a licensed surveyor in Montana, Don Ueland, co-owner of Ueland
Ranches, Inc., and Jim Johnston, the Director of Public Works for the County.
Respondents also presented various exhibits including an aerial photograph, a map
prepared by the State Highway Commission, and survey maps prepared by Mr.
Everly. In accordance with Rule 12(b), M.R.Civ.P., the court converted the pending
motions to dismiss to motions for summary judgment and allowed the parties time to
brief the matter.

¶10. On March 3, 1997, after a second hearing, submission of the parties' briefs, and
oral argument, the court issued an order and memorandum granting the County's
motion for summary judgment, granting in part and denying in part Ueland's
motion for summary judgment, and denying the Hitshews' petition for declaratory
judgment. The court held: no question of fact existed regarding the County's
prescriptive easement over German Gulch Road; no question of fact existed
regarding Ueland's reserved easement over German Gulch Road; and no question of
fact existed regarding Ueland's ownership of the southern fence and strip of land
lying in between the fence and the southern edge of German Gulch Road. However,
the court held that a question of fact existed regarding the ownership of the cattle
guard which had been removed. The dispute over ownership of the cattle guard was
the subject of a later summary judgment motion. On this motion, the court granted
summary judgment in favor of the Hitshews and awarded them $500 in damages
resulting from the unlawful removal of their cattle guard.

¶11. On March 10, 1997, the County filed with the court a bill of costs including costs
incurred for the preparation of survey maps and an aerial photograph used at the
hearing. The Hitshews objected to these costs on the ground that they were not
incurred in preparation for the hearing. The Hitshews filed a notice of motion to
settle bill of costs. On April 16, 1997, the court issued an order and memorandum
settling the dispute over costs in favor of the Hitshews.

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¶12. The Hitshews appeal the court's March 4, 1997 order granting the Respondents'
motions for summary judgment. The County cross-appeals the court's April 16, 1997
order denying its request for costs related to the preparation of survey maps and the
aerial photograph.

DISCUSSION

Issue One

¶13. Did the District Court err in granting the County's and Ueland's motions for summary
judgment and denying the Hitshews' petition for declaratory judgment?

¶14. We review appeals from summary judgment rulings de novo. Axtell v. M.S. Consulting, 1998 MT 64,
¶ 21, 288 Mont. 150, ¶ 21, 955 P.2d 1362, ¶ 21. We apply the same summary judgment evaluation, based
on Rule 56, M.R.Civ.P., as the district court. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264,
900 P.2d 901, 903. In Bruner, we set forth our inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the
burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine
issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine
whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by
a district court as to whether the court erred.

Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).

¶15. The Hitshews argue that genuine issues of material fact exist in this case,
making summary judgment improper. First, the Hitshews argue that a question of
fact exists as to whether the County's use of German Gulch Road is permissive or
prescriptive. The Hitshews cite Warnack v. Coneen Family Trust (1994), 266 Mont.
203, 216, 879 P.2d 715, 723, for the rule that the party claiming a prescriptive
easement has the burden of proving each and every element of prescription. Without
further analysis or citation to the record, the Hitshews assert that the County failed
to meet its burden of proving each and every element of prescription. We disagree.

¶16. An easement by prescription is created by operation of law. Rettig v. Kallevig
(1997), 282 Mont. 189, 193, 936 P.2d 807, 810. Generally, a party claiming an

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easement by prescription must establish open, notorious, exclusive, adverse,
continuous, and uninterrupted use of the claimed easement for the statutory five-
year period. Rettig, 282 Mont. at 193, 936 P.2d at 810. We have applied this same
criteria, although worded differently, in the context of public prescriptive easements.
In Granite County v. Komberec (1990), 245 Mont. 252, 257, 800 P.2d 166, 169, we
held:

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 definite course continuously and
uninterruptedly for the prescribed statutory period together with an assumption of control
adverse to the owner . . . .

Because a public prescriptive easement is "public," the element of exclusivity is not
required in establishing the existence of a public prescriptive easement.

¶17. To be "open and notorious," the use of a claimed right must give the landowner
actual knowledge of the claimed right, or be of such a character as to raise a
presumption of notice. Mildenberger v. Galbraith (1991), 249 Mont. 161, 167, 815
P.2d 130, 134-35. To be "continuous and uninterrupted," the use of a claimed right
must not be abandoned by the user or interrupted by an act of the landowner.
Komberec, 245 Mont. at 257, 800 P.2d at 169. To be "adverse," the use or
assumption of control of a claimed right must be exercised under a claim of right and
not as a mere license revocable at the pleasure of the landowner. Public Lands Access
Ass'n v. Boone & Crockett (1993), 259 Mont. 279, 283, 856 P.2d 525, 527. The
landowner must know about and acquiesce in the user's claim of right. Boone &
Crockett, 259 Mont. at 283, 856 P.2d at 527.

¶18. Regarding proof of adversity, we have held that regular maintenance of a
roadway by the party asserting a prescriptive easement is evidence of adverse, rather
than permissive, use. Rafanelli v. Dale (1996), 278 Mont. 28, 37, 924 P.2d 242, 248.
Similarly, we have held that the public's use coupled with a county government's
regular maintenance of a roadway without the landowner's permission is evidence of
adverse use. Rasmussen v. Fowler (1990), 245 Mont. 308, 312, 800 P.2d 1053, 1056;
McClurg v. Flathead County Comm'rs (1980), 188 Mont. 20, 24, 610 P.2d 1153, 1156.
The fact that a roadway has been barred by gates or other obstructions to be opened

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and closed by the parties passing over the land is strong evidence that use of the
roadway is permissive rather than adverse. Boone & Crockett, 259 Mont. at 285, 856
P.2d at 528.

¶19. At the summary judgment hearing, the County presented the following evidence
in support of its position that a public prescriptive easement exists over German
Gulch Road. Mr. Hitshew testified that from 1989 until the time of the summary
judgment hearing, a total of seven years, he was aware that the public was using
German Gulch Road and that the County was maintaining the road. Mr. Hitshew
testified that he never erected gates, other barriers, or signs on the road to create the
impression that use of the road was permissive. He testified that he never verbally
notified the County that its use and maintenance of the road was permissive. The
record is void of any evidence that the public abandoned its use of the road. Don
Ueland testified that during his family's ownership of the Ueland property,
approximately 70 years, the public has used German Gulch Road without restriction.
Jim Johnston testified that for the entire period he has served as Public Works
Director for the County, 22 years, the County has maintained German Gulch Road
and has used it without restriction. For approximately 40 years, German Gulch Road
has been referenced on maps prepared by the State Highway Commission as a road
maintained by Silver Bow County.

¶20. Applying these facts to the law, we determine that the County presented
sufficient evidence establishing that the public's use of German Gulch Road was
open, notorious, continuous, uninterrupted, and adverse for the statutory five-year
period, or, that "the public followed a definite course continuously and
uninterruptedly for the prescribed statutory period together with an assumption of
control adverse to the owner."

¶21. Once the County established all the elements of prescription, the burden shifted
to the Hitshews to prove permissive use or license. Warnack, 266 Mont. at 216, 879
P.2d at 723. If a landowner shows permissive use, no easement can be acquired
because the theory of prescriptive easement is based on adverse use. Boone &
Crockett, 259 Mont. at 283-84, 856 P.2d at 525. The Hitshews argue that the
County's use of German Gulch Road was permissive because it was based on
neighborly accommodation. See Boone & Crockett, 259 Mont. at 284, 856 P.2d at 528
("use of a neighbor's land based upon mere neighborly accommodation or courtesy is
not adverse"). However, at the summary judgment hearing and on appeal, the

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Hitshews failed to present evidence of neighborly accommodation. No evidence
appears of record indicating that neighborly accommodation was the local custom
concerning use of German Gulch Road. A party opposing summary judgment must
present facts of a substantial nature and cannot rely on speculative, fanciful, or
conclusory statements. Sprunk v. First Bank System (1992), 252 Mont. 463, 466, 830
P.2d 103, 105. Mere conclusory statements are insufficient to raise a genuine issue of
material fact. Sprunk, 252 Mont. at 466-67, 830 P.2d at 105. Based on the absence of
evidence establishing permissive use, we conclude that the District Court did not err
in finding that no question of fact existed regarding the public's prescriptive
easement over German Gulch Road.

¶22. Next, the Hitshews argue that a question of fact exists as to whether the County
exceeded the scope of its prescriptive easement by constructing the service road to
TIFID No. 2. We have held that "if an easement is not specifically defined, it need
only be such as is reasonably necessary and convenient for the purpose for which it
was created." Strahan v. Bush (1989), 237 Mont. 265, 268, 773 P.2d 718, 720.
Similarly, we have held:

no use may be made of the right-of-way different from the use established at the time of
the creation of the easement so as to burden the servient estate to a greater extent than was
contemplated at the time the easement was created.

Leffingwell Ranch, Inc. v. Cieri (1996), 276 Mont. 421, 431, 916 P.2d 751, 757. Applying
these rules, the Hitshews argue that the scope of the County's prescriptive easement
includes only travel over and maintenance of German Gulch Road. The Hitshews allege
that the County exceeded the scope of its easement when it left German Gulch Road and
constructed the service road. The Hitshews premise this allegation on the assertion that the
true property boundary of Tract A is not the southern edge of German Gulch Road but
rather the southern fence located thirty feet from and parallel to the southern edge of
German Gulch Road. Upon this assertion, the Hitshews reason that in constructing the first
thirty feet of the service road and traveling over property allegedly owned by the
Hitshews, the County unduly exceeded the scope of its prescriptive easement over German
Gulch Road.

¶23. The County does not dispute that the scope of its prescriptive easement includes
only travel over and maintenance of German Gulch Road. However, the County

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disputes the allegation that it exceeded the scope of its easement by constructing the
service road to TIFID No. 2. The County argues that the uncontradicted evidence
shows that the property over which the service road was being constructed was
owned not by the Hitshews, but by Ueland, from whom the County had acquired a
separate temporary easement. Thus, the County argues, no genuine issue of material
fact exists with regard to whether the County exceeded the scope of its easement. We
agree.

¶24. At the summary judgment hearing, the County presented a survey map
prepared by Robert Everly, a licenced surveyor, showing that the southern property
boundary of Tract A was the southern edge of German Gulch Road, not the fence
located 30 feet from the southern edge of the road. The Hitshews failed to present
any evidence contradicting the survey map other than Mr. Hitshew's conclusory
statement that the southern fence was the southern property boundary of Tract A.
Again, mere conclusory statements are insufficient to raise a genuine issue of
material fact. Sprunk, 252 Mont. at 466-67, 830 P.2d at 105. We conclude that the
Court did not err in finding that no genuine issue of material fact existed with regard
to whether the County exceeded the scope of its easement.

¶25. Next, the Hitshews argue that a question of fact exists regarding whether
construction of the service road unduly changed the amount and character of use of
German Gulch Road in such a manner as to overburden the servient estate beyond
what was contemplated by the public prescriptive easement. See Leffingwell, 276
Mont. at 431, 916 P.2d at 757. The Hitshews note that this issue was presented in its
brief opposing summary judgment, but that the District Court failed to discuss the
issue in its order and memorandum granting summary judgment to the Respondents.
This failure, the Hitshews argue, is another reason why summary judgment was
improper in this case.

¶26. We need not address the matter of the court's failure to discuss the issue of
increased burden on the servient estate because the Hitshews failed to present to the
District Court any evidence of increased burden on the servient estate. The only
evidence in the record pertaining to this matter is Don Ueland's testimony that he
"would imagine" construction of the service road changed the amount and character
of use of German Gulch Road, but only up to the point where German Gulch Road
intersects the extreme northeast corner of Tract A. We note that the service road
connects to German Gulch Road at the extreme northeast corner of Tract A. Mr.

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Ueland testified that he did not observe any change in the amount and character of
use of German Gulch Road as that road continues in a southwesterly direction
through the length of Tract A. Based on the absence of evidence establishing
increased use of German Gulch Road as it passes over Tract A, we conclude that no
question of material fact exists regarding whether construction of the service road
unduly changed the amount and character of use of German Gulch Road to the
detriment of the servient estate.

¶27. Lastly, the Hitshews again cite Leffingwell, 276 Mont. at 431, 916 P.2d at 757,
and argue that a question of fact exists regarding whether Ueland exceeded the scope
of its reserved easement over German Gulch Road by granting the County use of the
reserved easement. The District Court did not address this issue in its order and
memorandum granting summary judgment to Respondents. We need not address the
court's failure to discuss this issue because the issue is moot. We have already
determined that a public prescriptive easement exists over German Gulch Road.
Thus, by virtue of this easement, the County had a right to travel over German
Gulch Road independent of the easement it obtained from Ueland. In light of these
facts, we decline to discuss the merits of whether Ueland exceeded the scope of its
reserved easement over German Gulch Road by granting the County use of its
reserved easement.

Issue Two

¶28. Did the District Court err in denying the County's request for the costs of survey
maps and an aerial photograph?

¶29. We review a district court's denial or award of costs for abuse of discretion.
Springer v. Becker (1997), 284 Mont. 267, 275, 949 P.2d 641, 646.

¶30. In its Bill of Costs submitted to the District Court, the County requested costs in
the amount of $216 for certain survey maps and an aerial photograph pursuant to §
25-10-201(8), MCA. That statute provides in pertinent part:

Costs generally allowable. A party to whom costs are awarded in an action is entitled to
include in his bill of costs his necessary disbursements, as follows: . . . (8) the reasonable
expenses for making a map or maps if required and necessary to be used on trial or

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hearing; . . .

The Hitshews objected to these costs on the ground that the expenses incurred in the
making of the survey maps and in the taking of the aerial photograph predated the filing of
the complaint in this action. On this basis, the Hitshews argued that these expenses were
not incurred in preparation for a trial or hearing as required by § 25-10-201(8), MCA. The
court agreed and denied the County recovery of the costs.

¶31. On appeal, the County argues that the District Court erred in denying recovery
of these costs because the record demonstrates that the survey maps and aerial
photograph, collectively referred to as Exhibit 1, were prepared at the request of the
County for specific use in this action. In response to the question whether he
prepared Exhibit 1 at the request of counsel for the County, Mr. Everly replied,
"That's correct."

¶32. The Hitshews counter that despite Mr. Everly's comment, the record
demonstrates that the survey maps and aerial photograph at issue predated this
litigation. The Hitshews point to Mr. Everly's testimony that one survey, Certificate
of Survey 191-A, is dated December 18, 1980, and that the fly date of the aerial
photograph is listed as April 15, 1996. We note that the other survey, Certificate of
Survey 87, is dated March 28, 1977. The creation of all three documents occurred
before commencement of this action.

¶33. It appears there is confusion among the parties as to whether the costs incurred
in the preparation of Exhibit 1 related to the expenses of creating the survey maps
and aerial photograph, or to the expenses of copying the survey maps and aerial
photograph. The County's Bill of Costs, Mr. Everly's testimony, and the briefs on
appeal fail to shed light on whether the claimed $216 related to the creation or
copying of these documents. However, we have examined the survey maps
comprising Exhibit 1 and have found that a signature, stamp, and seal of the county
clerk and recorder appears on each survey map, indicating that it "is a true,
complete, and correct copy of the original." The survey maps are dated November 20
and 25, 1996, indicating that they were copied approximately seven months after
commencement of this action. Thus, it appears that the costs claimed for the survey
maps related to the copying of the maps and did not predate this litigation. We

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conclude that the County is entitled to recover the cost of copying the survey maps as
it was a necessary disbursement incurred in the preparation for the summary
judgment hearing.

¶34. The aerial photograph was not delivered to this Court as part of the record on
appeal. We have not found any evidence in the transcripts on appeal indicating
whether the aerial photograph used in Exhibit 1 was the original, created on April
15, 1996, or a copy of the original, made sometime after commencement of this
action. Without this knowledge we are unable to determine whether the County is
entitled to recover the cost of the aerial photograph. We remand this issue to the
District Court for a determination as to whether the aerial photograph used in
Exhibit 1 was the original or a copy of the original. If the photograph was a copy of
the original, and if that copy was made after commencement of the action, then the
County is entitled to recover the cost of the aerial photograph.

¶35. With respect to issue one of this opinion, the judgment of the District Court is
affirmed. With respect to issue two of this opinion, the judgment of the District Court
is reversed and this cause is remanded to the District Court for further proceedings
consistent with this opinion.

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ TERRY N. TRIEWEILER

/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART

/S/ KARLA M. GRAY

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