December 18 2007
DA 06-0435
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 347
NAOMI R. LEISZ,
Plaintiff and Appellant,
v.
AVISTA CORPORATION, and BEVERLY J. REVIER,
PATSY K. MEREDITH, BETTY R. TAYLOR, GARY N.
REVIER, LARRY D. REVIER, and JOHN D. REVIER,
Defendants and Appellees.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Sanders, Cause No. DV 2003-002
Honorable Deborah Kim Christopher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Naomi R. Leisz, (Pro Se), Leisz Law Office, P.C., Thompson Falls,
Montana
For Appellee AVISTA Corporation:
Christian T. Nygren, Milodragovich, Dale, Steinbrenner & Binney, PC.,
Missoula, Montana
For Appellees Reviers, Meredith and Taylor:
Robert G. Olson, Frisbee, Moore & Olson, Cut Bank, Montana
Submitted on Briefs: March 28, 2007
Decided: December 18, 2007
Filed:
__________________________________________
Clerk
2
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Appellant Naomi R. Leisz (Leisz) appeals an order of the Twentieth Judicial
District Court, Sanders County, denying her an easement across tracts of real property
owned by Appllees Avista Corporation (Avista), and Beverly J. Revier, Patsy K.
Meredith, Betty R. Taylor, Gary N. Revier, Larry D. Revier, and John D. Revier
(collectively Reviers). We affirm in part, reverse in part, and remand for further
proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In October 2000 Leisz purchased a forty acre tract of property (Leisz Property) in
Trout Creek, Montana. Leisz acquired this property in fee simple from a man named
Dennis Raymond who had inherited it 2000 upon the death of his uncle. The Leisz
Property was originally homesteaded by a man named George Gros. Gros obtained a
Patent to this property from the U.S. Government in 1921. According to the record, Gros
and other individuals were known to have lived on that property into the late 1930’s or
early 1940’s.
¶3 From this early period of occupancy until 1982, no one established a permanent
residence on the Leisz Property for any significant period of time. Beginning in 1982, an
individual named Doy Morket lived on the Leisz Property with the permission of the
then-owner of the property, Thomas Pope. Morket lived on the property in a school bus,
and then a trailer, with his wife, nephew, and son. They did not have running water or
electricity. Morket and his family lived on the property as caretakers. Although it is
difficult to fix the length of their occupancy with precision because Morket had a
3
drinking problem at the time which made the recollection of his dates of tenure hazy, the
record indicates it began sometime in 1982 or 1983, and ended in either 1988 or 1989.
¶4 In addition to the occupancies of Gros and Morket, the Leisz Property was also
used for logging, cattle grazing, and hay harvesting. Additionally, members of the public
accessed the property for hunting, mushroom picking, the staging of search and rescue
operations, outfitting operations, and to reach Forest Service land.
¶5 North of the Leisz Property is Marten Creek Road. Between that road and the
Leisz Property are parcels of land owned by Avista (Avista Property) and the Reviers
(Reviers Property). The Avista Property surrounds Marten Creek Road, extending
southward approximately 150 feet. Just south of the Avista Property sits the Reviers
Property, comprising roughly 241 acres. The Northern Pacific Railroad originally
acquired these two properties by patent from the U.S. Government in 1906. In 1927,
Northern Pacific conveyed to Alburn S. Ainsworth the property now owned by the
Reviers. The Reviers purchased their property from another individual in 1971. The
Avista Property passed through different hands and was ultimately conveyed to
Washington Water Power Company. When Avista bought out Washington Power in
1985, i t acquired the Avista Property. Both of these properties are comprised of
unenclosed and unimproved lands, and there have never been any structures or homes
built on them.
¶6 As one heads west on Marten Creek Road along the Avista Property, one
encounters two dirt roads branching off Marten Creek Road in a southward direction.
These two roads are separated by a distance of 165 feet. They cross the Avista Property
4
and converge at a point approximately 255 feet within the Reviers Property. From that
point they merge, and form another dirt road (Access Road) which heads south through
the Reviers Property, continuing for approximately three-quarters of a mile until it
reaches the Leisz Property. From the homestead days until sometime in the 1980’s, the
eastern most access from Marten Creek Road (East Access) was the only route which led
from Marten Creek Road down to the Leisz Property. Sometime in the early or mid-
1980’s, the westernmost access from Marten Creek Road (West Access) was created.
The West Access then became the primary access to the Leisz Property, because it was
on higher and more solid ground than the East Access, and would not become
excessively muddy under wet conditions. From that time onward, access to the Leisz
Property began at the West Access, and continued down through the Access Road. The
East Access, which represented the original route used to reach the Leisz Property,
ceased to be used and eventually was overgrown with vegetation.
¶7 In October of 2002, Leisz contacted the Reviers and asked them if she could use
the Access Road to reach her property. They denied her request. Shortly thereafter,
Leisz obtained a bulldozer and other heavy equipment and cut a swath through the
Reviers Property from the East Access to the Access Road. Then, in January of 2003,
she filed suit against the Reviers in the Twentieth Judicial District, Sanders County
claiming an easement for access to her property under the following four legal theories:
(1) a private easement by prescription, (2) public easement by prescription, (3) granted or
reserved easement, and (4) an implied easement by necessity. Avista was subsequently
5
joined by Leisz as a party defendant. According to the complaint and the exhibit attached
thereto, the easement claimed by Leisz coincided with the original route used to reach her
property; i.e., a route beginning at the East Access down through the Access Road. Both
Avista and the Reviers opposed Leisz, arguing she did not have an easement to reach the
Access Road, from either the West or East Access.
¶8 The matter was litigated before the District Court in Sanders County. A bench
trial was held on November 4, 2005. During trial, the District Court heard testimony
concerning the historical use of the road, and also examined the deeds to each of the
properties. The District Court issued findings of fact and conclusions of law, ultimately
denying Leisz’s claims under all four legal theories. We will refer to those findings and
conclusions in more detail below. The gist of the District Court’s decision, however, was
that Leisz failed to prove the existence of a public or private prescriptive easement over
the Access Road by clear and convincing evidence, that no easement had been granted or
reserved under the terms of the deed to the Leisz Property, and that there was no implied
easement by necessity because Leisz failed to demonstrate unity of ownership among all
three properties. Leisz now appeals this decision.
ISSUES
¶9 We restate the issues on appeal as follows:
¶10 Issue One: Did the District Court err in concluding that Leisz failed to prove the
existence of a private prescriptive easement burdening the Avista and Reviers Properties?
¶11 Issue Two: Did the District Court err in concluding that Leisz failed to prove the
existence of a public prescriptive easement burdening the Avista and Reviers Properties?
6
¶12 Issue Three: Did the District Court err in concluding that Leisz failed to prove the
existence of an easement by grant or reservation burdening the Avista and Reviers
Properties?
¶13 Issue Four: Did the District Court err in concluding that Leisz failed to prove the
existence of an implied easement by necessity burdening the Avista and Reviers
Properties?
STANDARD OF REVIEW
¶14 We review a district court’s findings of fact to determine if they are clearly
erroneous. Waering v. Schreckendgust, 280 Mont. 196, 202-03, 930 P.2d 37, 41 (1996).
A factual finding is clearly erroneous when it is not supported by substantial evidence,
the trial court has misapprehended the effect of the evidence, or a review of the record
leaves this Court with the definite and firm conviction that a mistake has been committed.
Public Lands Access Assn., Inc. v. Boone and Crockett Club Found., Inc., 259 Mont. 279,
283, 856 P.2d 525, 527 (1993). “The standard of review of a district court's conclusions
of law is whether the court's interpretation of the law is correct.” Gelderloos v. Duke,
2004 MT 94, ¶ 22, 321 Mont. 1, ¶ 22, 88 P.3d 814, ¶ 22.
DISCUSSION
¶15 Issue One: Did the District Court err in concluding that Leisz failed to prove the
existence of a private prescriptive easement burdening the Avista and Reviers Properties?
¶16 We begin our discussion by reference to the law of prescriptive easements. “To
establish an easement by prescription, the party claiming the easement must show open,
notorious, exclusive, adverse, continuous and uninterrupted use of the claimed easement
7
for the full statutory period of five years.” Lemont Land Corp. v. Rogers, 269 Mont. 180,
183, 887 P.2d 724, 726 (1994). The burden is on the person claiming the easement to
prove these elements by clear and convincing evidence. Waering, 280 Mont. at 206, 930
P.2d at 43. While use by the claimant’s predecessor in title may be used by the claimant
to prove the existence of a prescriptive easement, Rude v. Marshall, 54 Mont. 27, 29-30,
166 P. 298, 299 (1917), unexplained use of an easement cannot form a basis for a claim
of prescriptive right. Warnack v. Coneen Family Trust, 266 Mont. 203, 212-13, 879 P.2d
715, 721-22 (1994). Moreover, prescriptive easements cannot be relocated by verbal or
tacit consent. Glenn v. Grosfield, 274 Mont. 192, 196, 906 P.2d 201, 204 (1995).
¶17 Because the theory of prescriptive easement is based on adverse use, if the owner
of the servient estate shows that use was permissive, no such easement can be acquired.
Boone and Crockett Club, 259 Mont. at 283-84, 856 P.2d at 527. However, if the
claimant satisfies his or her burden, “a presumption of adverse use arises and the burden
shifts to the landowner affected by the prescriptive claim to establish that the claimant's
use was permissive.” Waering, 280 Mont. at 209, 930 P.2d at 45.
¶18 The District Court found that Leisz failed to establish by clear and convincing
evidence the existence of a private prescriptive easement over the Access Road. Because
Leisz’s claim for a private prescriptive easement did not rest upon her use, but rather
depended upon the uses made of the Access Road by her predecessors in title, it was on
those prior uses that the District Court properly focused its analysis. In doing so, the
Court separated for purposes of analysis the uses made in the homesteading days, and
those uses occurring from the 1980’s forward.
8
¶19 With respect to use from the homesteading period prior to the 1980’s, the District
Court found that there was only “periodic, unexplained use of the access road in question
. . . ,” and that such use was insufficient to establish a prescriptive claim of right.
Warnack, 266 Mont. at 212-13, 879 P.2d at 721-22. With respect to Morket’s tenure on
the Leisz Property beginning around 1982, the District Court did find that he used the
Access Road on a regular basis to reach the property. However, the District Court
ultimately found that his use of the Access Road was not open and notorious because it
was never brought to the attention of the Reviers that he and his family were actually
using the Access Road on a daily basis. The District Court concluded that the Reviers
only visited their property periodically, and although they saw a bus on the Leisz
Property, they never saw evidence that someone was living there. As a result, the District
Court concluded Morket’s use of the Access Road “was not of such a character so as to
give Reviers actual notice of a hostile claim, nor was his use of such a character so as to
raise a presumption of notice.”
¶20 Additionally, the District Court concluded that Morket’s use of the Access Road
was essentially permissive in nature and therefore not hostile to Avista’s or the Reviers’
rights. The District Court, citing to Richard R. Powell, Powell on Real Property vol. 4,
§ 34.10[2][c], 34-95 (Michael Allan Wolf, ed., Lexis 2000),1 adopted the principle that
“[w]hen the land is not actively used by its owner, use is better regarded as permissive
1
The District Court cited to Powell’s for the proposition that when a claimant claims a
prescriptive right over lands that are unimproved and not actively used by their owners, a
presumption arises that such use is permissive until shown to be otherwise. Powell vol. 4, at
§ 34.10[2][c], 34-96 (collecting authorities).
9
until affirmatively shown to be adverse.” Because the Reviers Property was only visited
and used sporadically by the Reviers, and was open and unimproved, use made of it by
Leisz’s predecessors in title was presumed permissive. The District Court thereby
concluded Leisz had failed to overcome a presumption of permissive use. The District
Court further found that Leisz acknowledged the permissive nature of her predecessors’
use of the Access Road based on the fact that she asked permission from the Reviers to
use it to reach her property in October 2002.
¶21 More importantly, the District Court found that the Access Road itself was
relocated during the mid-1980’s. The original route of the Access Road had been via the
East Access, continuing to the Access Road at its present location down to the Leisz
Property. The West Access, according to the District Court’s findings, was a new
location made by individuals at the behest of the Reviers in order to reach the Reviers
Property to conduct logging operations there, and was not a part of the original route to
the Leisz Property. The District Court found that “[t]he old access road is grown over
and has not been used regularly since the mid-1980’s . . . ,” as demonstrated by Forest
Service aerial photographs taken during the 1990’s. In fact, the District Court found that
the original course of the Access Road was visible only because Leisz bulldozed it in
2002.
¶22 This factual finding was significant because it led the District Court to conclude
that any claim Leisz had for a prescriptive easement after 1982 was in any event
interrupted by the relocation of the Access Road in the mid-1980’s. As the District Court
correctly noted, the location of a prescriptive easement cannot be changed by verbal or
10
tacit consent of the parties. Glenn, 274 Mont. at 196, 906 P.2d at 204. Because Leisz’s
claim of a prescriptive right was based on use of the original route of the Access Road
from the East Access, when that route was relocated to the West Access, any claim of
right based on use by Morket was interrupted. Thus, her prescriptive claim of right could
only be based on use of the West Access to reach the Access Road after 1985, the date of
the relocation. Since Leisz failed to provide clear and convincing evidence that private
use of that route ripened into a claim for a prescriptive right after that date, her claim for
an easement failed.
¶23 Lastly, the District Court concluded that even if Leisz did demonstrate the
existence of prescriptive easement, she failed to prove, by clear and convincing evidence,
the scope of that easement. The District Court noted that testimony at trial was somewhat
conflicting concerning the width of the road, and, further, that Leisz presented no
evidence indicating that utility services had ever been established on the Leisz Property.
¶24 Leisz appeals both the factual findings and conclusions of law of the District
Court. First, Leisz argues that the District Court’s factual finding that there was periodic,
unexplained use of the original route of the Access Road via the East Access prior to the
1980’s, is clearly erroneous. Leisz points out that Ron Haviland, a lifetime resident of
Trout Creek whose deposition was admitted into evidence, testified to the existence of the
original route of the Access Road beginning in the 1920’s and continuing into the late
1930’s. Mr. Haviland testified that families living on the Leisz Property used the original
route to reach their property, and that considerable effort went into creating and
maintaining the Access Road, including the use of horse-drawn grading equipment and
11
snowplows. Another individual, Edward Reeser, testified at trial that a family was living
on the Leisz Property at the homestead site as late as 1940. Leisz argues it was clearly
erroneous to conclude, in the face of this evidence, that homestead-era use of the road
was “periodic and unexplained.” As a result, Leisz argues she presented sufficient
evidence to show that such use was adverse, and that the District Court erred in failing to
conclude that she raised a presumption of adverse use which the Reviers and Avista must
now rebut.
¶25 Second, Leisz argues the District Court overlooked evidence in the record which
demonstrated the establishment of a prescriptive easement from 1982 until the present.
Leisz maintains Morket’s use of the Access Road was open and notorious, insofar as
Beverly Revier, one of the Appellees, was aware that someone was living on the Leisz
Property and using the Access Road to reach it. Leisz argues that Morket was not
obligated to give separate notice to the Reviers or Avista that he was using their
properties to reach his dwelling on the Leisz Property, because his use, by itself,
constituted such notice. Leisz argues the District Court erred in its application of the law
to suggest that Morket was under some such duty to notify the Reviers and Avista that he
intended his use to be adverse. Leisz argues this issue should be remanded to the District
Court.
¶26 Leisz further asserts the District Court’s finding that the road was relocated in the
mid-1980’s was clearly erroneous. Instead, Leisz maintains both the West and East
Accesses were already established prior to the time Morket began living on the Leisz
Property, and that his use established a private prescriptive easement to which she may
12
lay claim. Leisz argues that both the East and West Accesses were used by Morket and
others to reach the Access Road, and that a prescriptive easement was established over
both.
¶27 Finally, Leisz asserts that the District Court erred in concluding the use of the
Access Road by her predecessors in title was presumed to be permissive because the
Reviers and Avista Properties were not actively used. Leisz argues that this approach
misstates the law regarding prescriptive easements in Montana. Instead, Leisz argues she
met her burden in establishing that historical uses of the road were not permissive and
thus the District Court should have shifted the burden to the Reviers and Avista to show
that such use was permissive. Leisz asserts that failure to make this finding was
reversible error, and that this Court should remand this issue back to the District Court
with instructions which set forth the applicable law.
¶28 Avista and the Reviers urge us to affirm the District Court. Avista asserts that the
District Court correctly concluded that any prescriptive right established to use the
Access Road was interrupted when that road was relocated in the mid-1980’s, and that
this issue presented a question of fact properly left to the District Court. They claim that
four individuals testified the West Access did not exist when Morket began using the
property in 1982, and was instead created in the mid-1980’s. The District Court, they
argue, determined that these witnesses were more credible than Morket, and we should
not disturb the District Court’s findings on this point. Further, Avista maintains that
whether use of the Access Road was open and notorious, recreational, or permissive, are
questions properly decided by the District Court and that they should not be disturbed on
13
appeal. The Reviers largely adopt these arguments, adding further that Leisz’s act of
asking permission to use the Access Road demonstrates that she understood her right to
use that road was subordinate to the rights of the Reviers.
¶29 The first question we address is whether the District Court’s finding that the
Access Road was relocated in 1985 is clearly erroneous. We conclude that it was not.
Leisz claims that the East and West Accesses were both used by Morket during the entire
span of his tenure on her property, and that both the West and East Accesses were in use
throughout the entire time Morket lived there. Morket’s testimony confirms this view.
Leisz also claims that the testimony of George Schopp affirms the truth of this statement
because he testified at the November 2005 hearing that the West Access had been there
for “right close to 20 years.” But as Avista and the Reviers note, other individuals
testified that the West Access was created in 1985, at the behest of the Reviers so their
property could be logged. And, in fact, Schopp’s testimony fixes the date of the creation
of the West Access closer to 1985 than 1982, the date when Morket began living on the
Leisz Property.
¶30 After hearing testimony on both sides of the issue, the District Court discounted
Morket’s testimony that the West and East Accesses were in existence when he started
living on the Leisz Property in 1982, and found credible the testimony indicating that the
West Access was created in 1985. Determinations concerning the credibility of witness
testimony are left primarily to the district court, and we will not second-guess the district
court when presented with conflicting testimony. Point Serv. Corp. v. Myers, 2005 MT
322, ¶ 28, 329 Mont. 502, ¶ 28, 125 P.3d 1107, ¶ 28. Given the fact that Morket admitted
14
his recollection of dates was hazy due to a drinking problem he had at the time, we can
hardly say that the District Court’s decision to find other testimony more credible was
clearly erroneous.
¶31 The next question concerns the legal significance of the finding that the Access
Road was relocated. The District Court concluded that the relocation of the road
interrupted any claim of prescriptive right Leisz may have had to use the Access Road
after 1982. We agree that this is true with respect to Morket’s use, because even
assuming that Morket lived on the Leisz Property into 1989, which is the latest possible
date of his tenure, see ¶ 3, he could have used the West Access at best for four years.
Thus, Morket’s use of the West Access was for less than the statutory period of five
years, even assuming it satisfied the other elements for a claim of prescriptive right.
¶32 Similarly, the evidence before the District Court suggested that once the West
Access came into use, the East Access was no longer used. Under these circumstances, it
falls on Leisz to prove by clear and convincing evidence that Morket continued to use the
East Access in a manner that establishes a claim of prescriptive right. We agree with the
District Court that Leisz has failed to meet this burden by clear and convincing evidence.
If anything, Morket’s testimony indicates that the East Access was used infrequently, if at
all, after the West Access came into use. Thus, Morket’s use of the East Access failed to
satisfy the requirements for the establishment of a prescriptive easement.
¶33 However, whether the relocation of the Access Road in 1985 affects a claim of
prescriptive right based upon prior use—i.e., use in the homestead days—presents a
different question and compels a different result. Clearly, such relocation in 1985 can
15
have no legal significance upon uses occurring earlier in time. Accordingly, we must
return to the District Court’s findings as to whether use of Access Road prior to 1982
gave rise to a claim of a private prescriptive easement. Specifically, the District Court
found that such use was both “periodic and unexplained,” and the District Court therefore
declined to analyze that use any further. Leisz argues this finding was clearly erroneous
and we agree.
¶34 The District Court heard evidence from two long-time residents of the Trout Creek
area to the effect that persons lived at the site of the Gros homestead beginning in the
1920’s, and continued to do so into the late 1930’s and possibly 1940’s. These
individuals testified that the Access Road via the East Access was used during this time
by the individuals who lived there. Additionally, in his deposition Mr. Haviland stated
that early occupants of the Gros homestead used horse-drawn graders and snow plowers
to maintain the Access Road. This testimony was uncontradicted at trial, and the District
Court made no findings indicating that this testimony was not credible. Accordingly, we
are left with the firm conviction that a mistake has been made here. Private use of the
Access Road prior to 1982 was not “unexplained” but was, in fact, explained. The road
was used by the former inhabitants of what is now the Leisz Property to reach their
homes. This being so, the unanswered question is whether that use satisfies the elements
of a prescriptive easement.
¶35 Accordingly, we reverse the District Court on this issue and remand for further
proceedings. Because the use of the Access Road prior to 1982 was not unexplained, the
District Court must issue findings of fact and conclusions of law on whether private use
16
of the Access Road via the East Access (i.e., via the original route) prior to 1982 satisfied
the elements for a prescriptive easement. If so, such use would raise a presumption of
adversity which Appellees would then be required to rebut by a showing that such use
was permissive. Waering, 280 Mont. at 209, 930 P.2d at 45.
¶36 Issue Two: Did the District Court err in concluding that Leisz failed to prove the
existence of a public prescriptive easement burdening the Avista and Reviers Properties?
¶37 In Montana, the public may acquire a prescriptive easement which burdens private
land. Powell Co. v. 5 Rockin’ MS Angus Ranch, Inc., 2004 MT 337, ¶ 46, 324 Mont.
204, ¶ 46, 102 P.3d 1210, ¶ 46. “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 . . . .” Powell Co., ¶ 46 (quotation omitted). The elements for the
public easement must also be proven by clear and convincing evidence and are identical
to those for a private prescriptive easement, except that in the case of a public easement
the claim of right is based upon public use. McCauley v. Thompson-Nistler, 2000 MT
215 ¶ 37, 301 Mont. 81, ¶ 37, 10 P.3d 794, ¶ 37. “Generally, seasonal use by hunters,
fishermen, hikers, campers, use by neighbors visiting neighbors, and persons cutting
Christmas trees and gathering firewood are not sufficient to establish [prescriptive] use.”
McCauley, ¶ 38 (quotation omitted).
¶38 The District Court concluded that public use of the Access Road was insufficient
to give rise to a prescriptive claim of right because it was only periodic, recreational use
for hunting, mushroom picking, and access to Forest Service land. The District Court did
17
find the Reviers knew that such was occurring during the late 1970’s and 1980’s because
they posted “No Hunting” and “No Trespassing” signs, which were removed by unknown
individuals. However, the District Court ultimately concluded that Leisz failed to
demonstrate by clear and convincing evidence that this use gave rise to a prescriptive
claim of right.
¶39 Leisz asserts that the District Court erred in concluding that the only uses of the
Access Road after the mid-1980’s were recreational in nature. Leisz argues that in
addition to recreational use there was logging, cattle grazing, professional outfitting, and
search and rescue operations conducted by members of the public. Leisz asserts that the
instant case is similar to Granite Co. v. Komberec, 245 Mont. 252, 800 P.2d 166 (1990),
overruled on other grounds by Warnack, 266 Mont. 203, 879 P.2d 715, where we held
that public uses such as mining, logging, timber management, fire protection, and
snowmobiling access were sufficient to establish a public prescriptive easement. Granite
Co., 245 Mont. at 258, 800 P.2d at 170. Leisz argues that while she put forth evidence of
qualifying uses, namely the logging, grazing, outfitter and search and rescue operations,
the District Court failed to properly address this claim in its findings of fact and
conclusions of law. Leisz asks us to remand this issue to the District Court.
¶40 We decline Leisz’s invitation to reverse the District Court’s conclusion that she
was not entitled to a public prescriptive easement. Other than desiring more specific
findings of fact, Leisz points to no evidence demonstrating that she established a public
prescriptive easement, that the District Court’s findings of fact were clearly erroneous, or
that its conclusions of law were incorrect. In fact, a review of the record shows that,
18
while some individuals did testify about logging operations, cattle grazing, hay
harvesting, and outfitting and search and rescue operations on the Leisz Property, none of
this evidence was sufficient to meet Leisz’s burden here. The logging, for instance,
occurred on two or three occasions, in separate years, for time periods of six months at
the maximum. Cattle were grazed on the Leisz Property during a fifteen year period, but
only in spring time and usage patterns of the Access Road were never demonstrated by
clear and convincing evidence. Similarly, the property was used for hay harvesting over
a six year period in the summertime, but only for a period of three weeks at a time.
Moreover, the outfitter and search and rescue operations were of a sporadic or infrequent
nature. Thus, the facts in this case are not similar to Granite Co. insofar as Leisz has not
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 . . . .” Granite Co., 245 Mont. at 257, 800 P.2d at 169 (quotation omitted).
¶41 Accordingly, the District Court did not err in rejecting Leisz’s claim for a public
prescriptive easement.
¶42 Issue Three: Did the District Court err in concluding that Leisz failed to prove
the existence of an easement by grant or reservation burdening the Avista and Reviers
Properties?
¶43 Leisz argues the District Court erred in concluding that she does not have an
easement by grant or reservation burdening the Avista and Reviers Properties. Leisz
notes that the deeds conveying title to Reviers and Avista contain the following language:
“being subject, however, to an easement in the public for any public roads heretofore laid
19
out or established, and now existing over and across any part of the premises.” Leisz
correctly notes that easements can be created by grant or reservation, see State v. Cronin,
179 Mont. 481, 587 P.2d 395 (1978), and argues that she has shown continuing public
use of the Access Road that is not permissive, thus entitling her to an easement by grant
or reservation under the deed.
¶44 Again we affirm the District Court. The District Court correctly concluded that
Leisz does not have an easement to use the Access Road by grant or reservation in the
deeds. In the first instance, the Access Road is not a county road and has never been
maintained by the public. Nor is this road specifically identified in or contemplated by
the deed. Cf. Cronin, 179 Mont. at 487, 587 P.2d at 399. Thus, Leisz’s claim here is
simply a rehashing of her argument that she has a public prescriptive easement to use the
Access Road. Because she does not, the District Court did not err in rejecting her claim
for an easement by grant or reservation.
¶45 Issue Four: Did the District Court err in concluding that Leisz failed to prove the
existence of an implied easement by necessity burdening the Avista and Reviers
Properties?
¶46 The District Court found there was no implied easement by necessity in this case
because Leisz failed to prove unity of ownership among all three properties. Leisz argues
this was error because all properties were owned by the U.S. Government in 1906. Leisz
argues that Leo Sheep Co. v. United States, 440 U.S. 668, 99 S. Ct. 1403 (1979), stands
for the proposition that when Congress granted lands to the railroad companies, it
reserved an implied easement for itself to pass over odd-numbered sections of land in
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order to reach the even-numbered ones. Leo Sheep, 440 U.S. at 678, 99 S. Ct. at 1409.
Leisz claims that her property is an even-numbered tract, the Avista and Reviers
Properties were formerly odd-numbered, and thus she may claim an implied easement
under Leo Sheep.
¶47 We disagree and affirm the District Court. An implied easement by necessity is
established when the claimant demonstrates: (1) unity of ownership, and (2) strict
necessity at the time that the unified tracts are severed. Albert G. Hoyem Trust v. Galt,
1998 MT 300, ¶ 18, 292 Mont. 56, ¶ 18, 968 P.2d 1135, ¶ 18. In the first instance, Leisz
citation to Leo Sheep is puzzling because she relies on a holding from the Tenth Circuit
which was overruled by that decision. Leo Sheep, 440 U.S. at 688, 99 S. Ct. at 1414. In
fact, the U.S. Supreme Court explicitly held that the doctrine of implied easements by
necessity was inapplicable in that case, and that the Government could not claim an
implied easement by necessity. Leo Sheep, 440 U.S. at 679-82, 99 S. Ct. at 1410-11.
¶48 However, even assuming that unity of ownership among the three properties is
demonstrated by the fact the U.S. Government once owned all these lands at one time,
Leisz has failed to demonstrate strict necessity at the time the tracts were severed, and
thus has not proven the existence of an implied easement by necessity. The record
indicates the Avista and Reviers Properties were acquired by Northern Pacific from the
U.S. Government in 1906, while the Leisz Property was acquired by Gros from the U.S
Government in 1921, See ¶¶ 2, 4. When the tracts were severed no one was living on the
Leisz Property; therefore there was no necessity to reach it. Because Leisz has not shown
that strict necessity to access her property existed in 1906, she fails to prove an implied
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easement by necessity. Therefore, the District Court’s conclusion that Leisz failed to
establish an implied easement by necessity was correct.
CONCLUSION
¶49 For these reasons, we affirm the District Court as to Issues 2, 3, and 4. However,
we reverse and remand as to Issue 1 for further proceedings as herein set forth.
/S/ PATRICIA COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE
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