November 20 2007
DA 06-0126
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 302
KENNETH M. WOLF and MICHEL B. WOLF,
NELL McLOUTH, ALAN D. WISE and
PATRICIA WOLF, GARY PEIFFER and
NANCY PEIFFER, DONALD J. TOPP
and DONNA J. TOPP,
Plaintiffs and Appellees,
v.
JERRY L. OWENS,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV-2003-660C
Honorable Stewart E. Stadler, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Lane K. Bennett, Attorney at Law, Kalispell, Montana
For Appellees:
Darrell S. Worm, Ogle & Worm, PLLP, Kalispell, Montana
Submitted on Briefs: April 11, 2007
Decided: November 20, 2007
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Appellant Jerry L. Owens (Owens) appeals an order of the Eleventh Judicial
District Court determining that Kenneth M. Wolf, Michel B. Wolf, Nell McLouth, Alan
D. Wise, Patricia Wolf, Gary Peiffer, Nancy Peiffer, Donald J. Topp and Donna Topp
(Appellees) have established a prescriptive easement across a parcel of real property
owned by Owens, and further denying Owens a prescriptive easement over real property
owned by Appellees. We affirm the District Court.
FACTUAL AND PROCEEDURAL BACKGROUND
¶2 Appellees are owners of lots within the Hawkes Nest subdivision (Hawkes Nest),
located near the Middle Fork of the Flathead River in Essex, Montana. Hawkes Nest is
subdivided into 24 lots. Lot 24 is located at the northeast corner of Hawkes Nest, from
which point the lots run west-southwest, with lot 1 at the southwest corner of the
subdivision. Owens has three parcels which surround Hawkes Nest, the largest of which
(South Parcel) measures roughly 5 acres and lies just south of Hawkes Nest, between it
and the Middle Fork of the Flathead River. Owens’s two other parcels border Hawkes
Nest along its northerly and northwesterly borders. Only access to and across the South
Parcel is at issue in the current appeal.
¶3 The property comprising Hawkes Nest and the South Parcel originally existed as
one contiguous piece of property owned by a single individual. In 1957 that individual
platted Hawkes Nest, and left what is now the South Parcel as a remainder. The original
owner then sold lots within Hawkes Nest to various parties, and abandoned the South
Parcel, ultimately forfeiting it for failure to pay taxes. Appellees all acquired their
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respective Hawkes Nest lots between 1969 and 1994. Owens obtained the South Parcel
via assignment of a tax sale certificate in 1970. Owens finally acquired a tax deed to this
parcel in 1988.
¶4 Beginning in the summer of 1971, Owens began visiting the South Parcel a couple
of times a year. Owens claims he reached the South Parcel over a road which cut across
Hawkes Nest, beginning in the northeast area of this subdivision around lot 16 and
running southwest to lot 3. Owens claims that on more than one occasion he was able to
drive a vehicle down this road, across lots 4 and 5, directly onto the South Parcel. At
other times, he would drive to lot 5, park his vehicle there, and then walk to the South
Parcel.
¶5 At some point, a chain and a “no vehicle” sign were placed across the road at lot 8,
which was owned by Donald J. Topp. Owens contacted Topp by telephone and inquired
if he could buy a part of lot 8 to gain access to the South Parcel, but Topp refused this
request. After this time, Owens ceased driving down to lots 3, 4, and 5, and parked at
other lots, or outside of Hawkes Nest altogether, and simply walked down to the South
Parcel.
¶6 Because Owens’s visits to the South Parcel were infrequent, contact between
Owens and the various Appellees was sporadic at best. Topp claimed that his first
contact with Owens was in the late 1980’s or early 1990’s after receiving the telephone
call from Owens. Gary and Nancy Peiffer claim their first contact with Owens occurred
in July of 1993. Nell McLouth claims she became aware of Owens sometime in late
1988-89, and also met him in July of 1993. Ken Wolf also first met Owens in July of
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1993. Al Wise and Patricia Wolf claim their first meeting with Owens occurred in 1995.
Prior to either meeting Owens in person or receiving a phone call from him, none of the
Appellees knew that Owens owned the South Parcel, or that it was owned by anyone at
all.
¶7 Owens claims that during these interactions he gave permission to Appellees to
access the Middle Fork via the South Parcel. Appellees, however, deny they ever sought
or received such permission. Appellees also claim that during interactions with Owens,
he indicated that he might obstruct access to the Middle Fork by constructing a fence
along the South Parcel. Owens never constructed any fence. Additionally, Appellees
claim that Owens could not have driven past lot 8, in a southwesterly direction onto lots
3, 4, or 5, because, they say, no such road existed. They also dispute that it was even
possible for Owens to drive a vehicle directly onto the South Parcel, as there existed a
steep bank between their lots and the South Parcel which would have prevented any
vehicular access.
¶8 For their part, Appellees claim that they accessed the Middle Fork for recreational
purposes by crossing the South Parcel from their lots beginning in 1969. Owens claims
that he never saw indications of such use until the late 1980’s. Nevertheless, it is
undisputed that, for years, Appellees crossed Owens’s property to gain access to the
Middle Fork, and that they denied him the right to cross their lots in order to reach the
South Parcel.
¶9 On December 18, 2003, Appellees filed a suit for declaratory relief and an
injunction against Owens. Appellees sought a declaration from the District Court that
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they had a prescriptive easement across the South Parcel, and further asked the District
Court to enjoin Owens from interfering with their rights of access across the South
Parcel. Owens responded and counterclaimed, seeking a declaration that he had acquired
an implied easement across Appellees’ lots in order to gain access to the South Parcel.
Owens also sought injunctive relief preventing Appellees from interfering with his rights
of access.1
¶10 On January 21, 2005, the District Court held a bench trial on this matter, issuing
its final order on August 10, 2005. The District Court found that Appellees’ use of the
South Parcel was open, notorious, exclusive, adverse, continuous, and uninterrupted for
more than five years, and thus satisfied all the required elements for a prescriptive
easement. Additionally, the District Court rejected Owens’s claims that he had
established an implied easement by use or necessity across Appellees’ lots. The District
Court determined that the South Parcel did not appear on the original plat, was not
transferred or sold by the sub-divider, and was allowed to be forfeited for back taxes.
The District Court further held that no access to the South Parcel from the northerly
Owens’s parcels and across the lots of Hawkes Nest was contemplated by the original
owner. Owens has timely appealed this decision.
ISSUES
¶11 We consider the following issues on appeal:
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Other issues relating to Appellees’ use of the South Parcel and Owens’s northerly parcels were
also raised and argued before the District Court, none of which have been appealed.
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¶12 Issue One: Did the District Court err in concluding that Owens does not have an
implied easement across Appellees’ real property?
¶13 Issue Two: Did the District Court err in concluding that Appellees have a
prescriptive easement across the South Parcel?
STANDARD OF REVIEW
¶14 “We review a district court's findings of fact to ascertain whether they are clearly
erroneous. A finding is clearly erroneous if it is not supported by substantial evidence, if
the trial court misapprehended the effect of the evidence, or if our review of the record
convinces us that a mistake has been committed. 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 (citations
omitted).
DISCUSSION
¶15 Issue One: Did the District Court err in concluding that Owens does not have an
implied easement across Appellees’ real property?
¶16 Implied easements are created “by operation of law at the time of severance, rather
than by written instrument. There are only two types of implied easements: (1) an
intended easement based on a use that existed when the dominant and servient estates
were severed, and (2) an easement by necessity.” Albert G. Hoyem Trust v. Galt, 1998
MT 300, ¶ 17, 292 Mont. 56, ¶ 17, 968 P.2d 1135, ¶ 17 (citation omitted). The implied
easement by necessity has two basic elements: (1) unity of ownership, and (2) strict
necessity at the time that the unified tracts are severed. Hoyem Trust, ¶ 18. “A way of
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necessity depends solely upon strict necessity at the time of conveyance and is, in that
sense, more truly an implied use. The way of necessity arises when the strong public
policy against shutting off a tract of land and thus rendering it unusable gives rise to a
fictional intent defeating any such restraint.” Hoyem Trust, ¶ 19 (citations and quotations
omitted). In other words, an easement by necessity is found when an owner conveys a
“landlocked” parcel of real property which can only be accessed across the real property
of the grantor herself, or the surrounding land of third parties. Hoyem Trust, ¶ 18.
¶17 The second type of implied easement, one from a pre-existing use, “arises only if,
prior to the time the title or tract is divided, a use exists on the ‘servient part’ that is
reasonably necessary for the enjoyment of the ‘dominant part,’ and a court determines
that the parties intended the use to continue after division of the property.” Hoyem Trust,
¶ 22. Moreover, “[f]or a use to give rise to an implied easement from existing use, it
must be apparent and continuous at the time the tract is divided.” Hoyem Trust, ¶ 23.
¶18 Owens argues that he established an implied easement by necessity and that the
District Court erred in rejecting his claim. Owens points out that the South Parcel can
only be accessed by crossing Hawkes Nest; thus, an easement over Hawkes Nest is
necessary for Owens to use and enjoy his property. Additionally, he maintains that
because one individual initially owned the land now comprising Hawkes Nest and the
South Parcel, both elements for an implied easement by strict necessity are satisfied in
this case.
¶19 The District Court did not err in rejecting this claim. Simply put, Owens has
failed to demonstrate there was strict necessity at the time when Hawkes Nest and the
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South Parcel were severed. In fact, because the original owner abandoned the South
Parcel entirely, it is abundantly clear there was no intention to grant it to anyone at all.
The fact that Owens claims strict necessity now does not mean that strict necessity
existed at the time the unified tracts were severed. See ¶ 16. Owens has failed to
establish an implied easement by necessity in this case.
¶20 Owens also argues he established the existence of an implied easement by pre-
existing use. Owens asserts that pre-existing use of the South Parcel is established by
virtue of the existence on his parcel of a structural foundation, which was apparently
washed away during a 1964 flood. Owens claims that the existence of this structure
shows that there had been access to the South Parcel across Hawkes Nest at a previous
time. As further support of this view, Owens claims there is evidence of a road leading to
this structure which crosses Hawkes Nest across lot 8.
¶21 The District Court correctly rejected this claim as well. To establish an implied
easement by pre-existing use in this case, it is not enough to show that someone accessed
the South Parcel at some previous time. Instead, Owens must show that the use existed at
the time of severance and that there was an intent that the use continue. Hoyem Trust,
¶ 22. Owens’s claims and the evidence he presents are not sufficient to meet this burden.
Prior to a survey conducted in 2002, many residents of Hawkes Nest mistakenly thought
their lots extended all the way to the Middle Fork. A plausible explanation for the
structure is that a former owner of lot 8 constructed a cabin on what is now the South
Parcel in the mistaken belief that he owned the land. At any rate, Owens cannot prove
that the structure existed at the time of the severance of the South Parcel and Hawkes
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Nest in 1957, and that there was an intent to provide access across Hawkes Nest to reach
that structure, so his argument fails.
¶22 Accordingly, the District Court did not err in finding Owens failed to establish an
implied easement by necessity or existing use to the South Parcel.
¶23 Issue Two: Did the District Court err in concluding that Appellees have a
prescriptive easement across the South Parcel?
¶24 “In order to establish an 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.” Leffingwell Ranch, Inc. v. Cieri, 276
Mont. 421, 426, 916 P.2d 751, 754 (Mont. 1996) (quotation omitted). The statutory
period is five years. Section 70-19-404, MCA.
¶25 Owens claims that Appellees failed to satisfy all these elements before the District
Court. On the one hand, Owens argues the use was not hostile or adverse because
Appellees generally thought that no one owned the South Parcel, and because Owens
granted Appellees permission to cross the South Parcel. Owens also contends that the
use of the South Parcel was sporadic, infrequent, and therefore did not meet the
continuous use requirement. Additionally, Owens asserts that use of the South Parcel
was not open and notorious insofar as there was no obvious evidence that Appellees were
crossing the South Parcel.
¶26 Appellees assert the District Court did not err in rejecting Owens’s arguments.
Appellees argue that the evidence in the record supports the conclusion that the use was
open, notorious and sufficiently adverse and hostile, based on the fact that Owens
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threatened to fence off the South Parcel in various conversations he had with Appellees
throughout the 1990’s. Appellees note that Owens’s threats would make sense only if he
had actually seen their use and felt it threatened his property rights. With respect to
whether Owens gave Appellees permission to cross the South Parcel, Appellees note that
the District Court heard conflicting testimony on this issue, and ultimately found
Appellees’ testimony more credible. Appellees argue we should not second-guess the
District Court in this regard. Further, Appellees note that use does not have to be
constant for the continuous use requirement to be satisfied, and that so long as the use is
made often enough to put the property owner on notice that the use is occurring, this
element is satisfied.
¶27 We agree with Appellees that the District Court did not err in determining they
had acquired a prescriptive easement across the South Parcel. It is undisputed that at
various times during the 1990’s, Owens threatened to fence off the South Parcel and
prevent Appellees from accessing the Middle Fork across his property. This shows that
he was aware of this usage, and that it was hostile to his property interest. As for whether
he granted Appellees permission to cross the South Parcel, we defer to the District
Court’s determination on this issue. The record shows that Owens and Appellees had a
different view of some of these interactions and what was said. The District Court heard
and considered the testimony, and concluded that Appellees’ versions of events were
more credible. “It is for the trier of fact, and not this Court, to assess the credibility of
witnesses and weigh the evidence; we will not second-guess a district court's
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determinations regarding the strength and weight of conflicting testimony.” Point Serv.
Corp. v. Myers, 2005 MT 322, ¶ 28, 329 Mont. 502, ¶ 28, 125 P.3d 1107, ¶ 28.
¶28 Additionally, Appellees correctly note that “[c]ontinuous use . . . does not mean
constant use. Rather, if the claimant used the right-of-way whenever he desired, without
interference by the owner of the servient estate, the use was continuous and
uninterrupted.” Cook v. Hartman, 2003 MT 251, ¶ 29, 317 Mont. 343, ¶ 29, 77 P.3d 231,
¶ 29 (quotation omitted). In other words, Appellees’ use does not need to be constant to
in order to satisfy the continuous use requirement. Here, it is undisputed that the
Appellees’ use of the South Parcel, although not constant, more than meets the statutory
requirement of 5 years. In some cases, the use of the South Parcel began in 1969 or the
early 1970’s. Therefore, the continuous use element is satisfied.
¶29 The District Court correctly concluded that Appellees have established a
prescriptive easement across the South Parcel.
CONCLUSION
¶1 We affirm the District Court’s decision granting declaratory and injunctive relief
to Appellees and denying Owens’ claim for a declaration that he has established an
implied easement by necessity or pre-existing use across Appellees’ real property.
/S/ PATRICIA COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ JIM RICE
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