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NO.

94-164

IN THE SUPREME COURT OF THE STATE OF MONTANA 1994

GREENWALT FAMILY TRUST, GARY GREENWALT and LINDA GREENWALT, TRUSTEES, Plaintiffs and Appellants, v. RICHARD L. KEHLER, JR., Defendant and Respondent.

APPEAL FROM:

District Court of the Thirteenth Judicial District, In and for the County of Big Horn, The Honorable Russell K. Fillner, Judge presiding.

COUNSEL OF RECORD: For Appellants: James E. Torske, Attorney at Law, Hardin, Montana For Respondents: Martin J. Elison, Attorney at Law, Hardin, Montana

Submitted on Briefs: Decided: Filed:

October 5, 1994 November 21, 1994

Justice Terry N. Trieweiler delivered the opinion of the Court. Plaintiffs Greenwalt Greenwalt, trustees Family Trust, Gary Greenwalt and Linda and defendant Richard L. The Greenwalts filed

(the Greenwalts),

Xehler, Jr., own adjacent tracts of land.

suit in the Thirteenth Judicial District Court, Big Horn County, claiming they had acquired a prescriptive easement across the northerly 30 feet of Kehler's property. permanently enjoin Kehler easement. The Greenwalts sought to

from interfering with their alleged

The District Court decided that the Greenwalts failed to The Greenwalts appeal from that

establish a prescriptive easement. decision. We affirm

The issue we find dispositive on appeal is: Did the District Court err when it concluded that the

Greenwalts failed to prove the elements necessary to establish a prescriptive easement? FACTUAL BACKGROUND

The Greenwalts and Kehler own adjacent 40 acre tracts of land south of St. Xavier in Big Horn County, Montana. The Greenwalk'

property consists of the NW+NE+, Section 16, Township 5 South, Range 32 East, M.P.M. Kehler's property consists of the NE+NE+, There is a

Section 16, Township 5 South, Range 32 East, M.P.M.

large irrigation ditch running along the northern edge of both the Greenwalks' and Kehler's properties. Montana State Highway 313 is

located long the west side of Section 16, and a gravel county road runs along the east side of Section 16.

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The

Greenwalts'

predecessor in interest is Gary's father,

Robert Greenwalt.

The Greenwalts obtained the land from Robert by Robert owned and farmed the

a warranty deed on March 29, 1985.

property from 1966 through 1985, and claimed he continuously used the north 30 feet of Kehler's property to remove crops to the gravel county road from 1966 to 1985. Kehler acquired his property

by a quit claim deed from Aetna Insurance Company on March 27, 1990. Henry Schneider, Jr., owns property bordering the Greenwalts to the north. To the north of both parties' properties is a The

permanent elevated road which runs the length of Section 16.

ditch runs through a culvert, allowing access to the Greenwalts' property across the ditch from the elevated road. The alleged

easement at issue crosses the north end of both the Greenwalts' and Kehler's properties, just south of the ditch. The Greenwalts, as

well as other people, have used the purported easement across the north end of Kehler's property as access for irrigation and for farming. Clyde Hawks, one of Kehler's predecessors, installed culverts at the northeast corners of both the Greenwalts' and Kehler's

properties sometime after Robert Greenwalt purchased the property in 1966. The District Court found that the culverts were intended

to channel waste water and to provide a bridge to access the Greenwalts' property. The court found that this installation

indicated reciprocal permission to drive over the alleged road for farming purposes. 3

Schneider and his family owned and leased properties in the vicinity of the claimed easement for over 50 years. He stated that

he and his family sometimes used the alleged easement to irrigate and farm their property across the ditch to the north. Schneider

testified that he had always observed numerous people using the route across Kehler's property. He saw Bob and Gary Greenwalt,

Kenneth Schneider, Floyd Boeckel, Doug Greenwalt, and ditch riders using the road for convenience to irrigate and farm nearby crops. Schneider has given the Greenwalts permission to cross the property to the north side of the ditch to access their property. Schneider testified that over many years he acquired a good understanding that every of the prevailing since community the arrangement, Greenwalts' which is

landowner,

before

predecessor

purchased the property, could access their property across their neighbors' land, so long as they did not injure the owners' crops or property. Schneider testified that he occasionally drove on the

low road, but never during the winter or when Kehler was farming or irrigating. The Greenwalts as a offered witness. Warren Hill, one of Kehler's

predecessors,

During the 197Os, Hill farmed the

property for at least three crop years and he stated that he farmed the property right up to the ditch. Hill testified that the

claimed road was not actually a road, but people drove and impacted a track on it every year. He said it was common practice to use

the packed portion and he left it there for himself, but nobody drove it when he irrigated because it was too muddy. 4 Hill allowed

people to use the alleged roadway, so long as they did not damage his crops. He testified that there was an implicit good neighbor The District Court also found that

policy to allow others access.

the Greenwalts and their predecessor honored a prevailing access policy by not driving across the road or interfering with Hill's use when he was plowing, seeding, or installing ditches. Gary Greenwalt testified that he used the road in the spring and in the fall, and sometimes for hay in the winter, and that he knew other people used the road. During the time period from 1987

until Kehler purchased the property in 1990, Aetna had title to the property and leased it to the LV Partnership which farmed the land. Kehler was a partner in LV at that time. The District Court asked

Gary Greenwalt whether Aetna had notice that the Greenwalts were traveling the road, but Gary Greenwalt stated he was not certain whether Aetna knew. Robert Greenwalt testified he used the road year round from 1966 until 1985 because he could not use any other road to get his crops out. However, he acknowledged that he did not use the road Neither Robert nor Gary Greenwalt ever placed

when it was muddy.

or replaced culverts, or repaired or maintained the alleged road. Finally, Kehler testified that there was a permissive use

policy in the area, including the time period he was a partner in the LV Partnership. Kehler honored the prevailing access policy Kehler added that he

allowing neighbors to cross his land.

observed no tracks on the purported roadway during the winter and it was neighborly not to drive across others' property when it was 5

muddy.

He stated that on January 10, 1993, he revoked the good

neighbor policy because of a confrontation with the Greenwalts. After the confrontation, the Greenwalts sought a permanent

injunction to prevent Kehler from interfering with the access to their property. restraining Kehler. The District Court originally issued a temporary and order to show cause, without notice to

order,

After a hearing on the order to show cause, the court The trial was held December 6,

issued a preliminary injunction. 1993.

Based on its findings and conclusions, which were issued on January 31, 1994, the District Court denied a permanent injunction and dissolved the preliminary injunction. DISCUSSION Did the District Court err when it concluded that the Greenwalts failed to prove the elements necessary to establish a prescriptive easement?

The Greenwalts challenge the District Court's findings and conclusions pursuant to which their claim for a prescriptive easement was denied. This Court will not set aside a district

court's findings of fact unless they are clearly erroneous. Columbia Grain Intll v. Cereck (1993) , 258 Mont. 414, 417-18, 852 P.2d 676, 678. judge (19931, district We also recognize that due regard is given to the trial court to determine the witnesses' credibility. Rappold v. Durocher We review a

257 Mont. 329, 331, 849 P.2d 1017, 1019. court's conclusions of law to see

if the court's

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interpretation of the law was correct. 264 Mont. 103, 106, 870 P.2d 91,

In re Marriage of Barnard ( 1994) ,

93 (citing In re Marriage of Burris

(1993) I 258 Mont. 265, 269, 852 P.2d 616, 619).

In order to establish a prescriptive easement, the Greenwalts must prove that their use of the claimed roadway was open, notorious, exclusive, adverse, continuous, and uninterrupted for

the full statutory period. 175, 772 P.2d 850, 852. years.

Downing v. Grover (1989), 237 Mont. 172,

In Montana, the statutory period is five

Section 70-19-401, MCA.

Open and notorious is 'Ira distinct and positive assertion of a right hostile to the rights of the owner and must be brought to the attention of the owner."' POeppiiZg v. Neil (1972),
Downing,

772 P.2d at 852 (quoting P.2d 319, 321).

159 Mont. 488, 492, 499

Continuous means "'it is necessary to have use made often enough to constitute notice of the claim to the potential servient owner."'
Downing, 772 P.2d at 852 (quoting Powell & Rohan, PowellonRealPropeq,

vol. 3,

5 413, pp.

34/124-34/126

(1987)).

Uninterrupted

means

"'use not interrupted by the act of the owner of the land or by voluntary abandonment of the party claiming the right."' 772 P.2d at 852 (quoting Scottv. Weinheimer (1962), P.2d 91).
Downing,

140 Mont. 554, 374

"An '[elxclusive' use means that the claimants' right to

use the right of way is independent of a like right of way in another." Finally, 7
COpeV.COpe

(1971), 158 Mont. 388, 392, 493 P.2d 336, 339.

[t]o 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. Keeblerv.Harding (1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356-57.

"All elements must be proved in a case such as this because 'one who has legal title should not be forced to give up what is rightfully his without the opportunity to know that his title is in jeopardy and that he can fight for it. I" Downing, 772 P.2d at 852 (quoting Grimslqv.EstateofSpencer 92'93). However, (1983), 206 Mont. 184, 670 P.2d 85,

we recently clarified our rule regarding a

presumption of adversity. While a presumption of adverse use or adversity arises once the claimant establishes open, notorious, exclusive, continuous, and unintenupted (unmolested) use for the full statutory period, it remains the burden of the easement claimant to prove each of those remaining elements of prescription, and unless and until the claimant proves those elements under the general rule, the burden does not shift to the land owner to prove permissive use or license. Warnackv. ConeenFami& Trust (Mont. 1994), 879 P.2d 715, 723, 51 St. Rep. 739, 744 (citations omitted). If the presumption of adverse

use is established, the other party may overcome that presumption by showing that the use was permissive. Therefore, to succeed, the

Greenwalts had to prove all the elements, except adversity, in order to shift the burden to Kehler to show permissive use. As required by Downing, the Greenwalts had to prove that their use of the alleged route across Kehler's field was open and

notorious and a establish positive assertion of a right hostile to 8

the owner which was brought to the owner's attention. Downing,
P.2d

772

at 852.

Gary Greenwalt testified that he established an

easement between 1985-1992 by using the roadway as a matter of right for at least the five-year period. However, assuming there was sufficient evidence to entitle the Greenwalts to the presumption of adversity, there was substantial evidence to support the District Court's finding that the local custom was to allow neighbors to cross the edges of neighboring fields. Where there is a community understanding, it is considered there is no prescription if the use is allowed by Wilson v. In
C%esCnut

permission:

express or implied permission.
484,

(1974), 164 Mont.

490-91,

525

P.2d 24, 27.

Wilson, we also recognized that

there must be some.circumstances or act to indicate the use was not permissive, and prescription does not arise if the use is

originally from amity and continued in recognition of the owner's title. "If the owner shows permissive use, no easement can be

acquired since the theory of prescriptive easement is based on adverse use." Rathbunv.Robson (1983), 203 Mont. 319, 322, 661 P.2d 850, 852 (citation omitted). More (1993), recently, 259 Mont. in Public Lands Access Ass'n, Inc. v. Boone and Crockett 279,
856

P.2d

525,

we

recognized that a

prescriptive easement does not arise from neighborly accommodation. In Boone&Crockett, testimony indicated that use of the road occurred because of neighborly accommodation which was insufficient to establish an easement by prescription. 9 Boone& Crockett,
856

P.2d at

528.

As we noted in Wilson, use by express or implied permission, Wilson , 525 P.2d at 27. In

even if continuous, is not sufficient. Boone & Crockett,

we also reiterated important testimony cited in

Rathbun , 661 P.2d at 852: [sleveral witnesses testified concerning local customs that began in the homesteading days concerning access There existed an understanding across another's land. among landowners that permission was not required every time a person needed to cross his neighbor's land. Permission was automatic if the individual closed the gates and respected his neighbor's property. Boone & Crockett, 856 P.2d at 528 (alteration in original). The Greenwalts contend there was insufficient evidence to support the District Court's finding that there was a permissive community regarding practice. this issue. However, there was conflicting testimony

We have previously recognized that the

district court is in the best position to resolve conflicts and judge the credibility of the witnesses pursuant to Rule 52(a), M.R.Civ.P. 1106,, 1110. Numerous witnesses testified that there was a neighborhood policy of allowing others to travel across the edges of the fields to gain easier access to their own property. found, and Kehler's testimony indicates, The District Court SeeThomasv.Barnum (1984), 211 Mont. 137, 143, 684 P.2d

that nobody drove on the end of Although

field during plowing, planting, or irrigating.

nobody asked permission, users of the alleged roadway were aware that they were not to interfere with Kehler's property. Even the

Greenwalts testified they would not interfere with Kehler's 10

property. holder's

This indicates use subordinate to the true legal title interest.

In conclusion, there was substantial evidence to support the District Court's finding that the Greenwalts' use of Kehler's

property was permissive, rather than adverse, and we conclude that this critical finding was not clearly erroneous. Without adverse

use, the elements of a prescriptive easement were not established. Therefore, the judgment of the District Court is affirmed.

We concur:

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