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NO. 88-350
IN THE SUPREME COURT OF THE STATE OF MONTANA

1988
ACE M. WOODS,

Plaintiff and Appellant,
-vs-
PAMELA A. HOULE, SEAN DUKE,
Defendants and Respondent.

APPEAL FROM: District Court of the Twentieth Judicial District, In and for the County of Lake, The Honorable C.R. McNeil, 7udge presiding.
COUNSEL OF RECORD:
For Appellant:
Ace M. Woods, pro se, Wisconsin Rapids, Wisconsin
For Respondent:
James A. Manley, Polson, Montana

Submitted on Briefs: Oct. 27, 1988 Decided: December 14, 1988
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
In this case, the District Court, Twentieth Judicial
District, Lake County, entered summary judgment in favor of
Pamela A. Houle, granting her an easement for a roadway over
lands owned by Ace M. Woods, trustee. The District Court
judgment held that Pamela A. Houle held an easement by
prescription, an easement by implication and an implied
easement by way of necessity. We affirm the District Court
on its finding of an easement by prescription, and reverse
its holding that Pamela A. Houle established an easement by
implication or an implied easement by way of necessity.

The District Court determined that defendant, Sean Duke,
had not appeared in the action, made no claim to any easement
over Woods' land, and judgment of dismissal was entered as to
him. No issue involving Sean Duke is presented on this
appeal.

Pamela Houle owns Lot 12, Block 6, Safety Ray Villa
Sites, near Flathead Lake in Lake County, Montana. Her home
is located on the lot, built on a cliff. Ace M. Woods,
trustee, is the owner of Lot 11, which abuts and is
immediately south of Lot 12. Because of the cliff, the
driveway to the Houle home on Lot 12 curves to the south,
crossing a part of Lot 11. This is the only road into the
Houle household.

Prior to 1969, both Lots 11 and 12 were owned by Ace E.
Woods and Margaret N. Woods. Subsequent deeds, affecting the
road, may be listed as follows:

1969 Ace E. Woods and Margaret N. Woods deeded Lot
12 to Charles Rarthrop. Six months following
the deed, Charles Barthrop married Pamela
Houle.

Charles Barthrop and Pamela built the home on
the cliff on Lot 12, and the roadway access,
part of which crossed Lot 11.

Ace M. Woods and Margaret N. Woods deeded Lot.
11 to Ace M. Woods, as trustee for relatives.
At the time of this transfer, the road
crossing Lot 11 to Lot 12 was in apparent and
regular use. During the period October, 1971,
through January, 1976, title to Lot 12 was
held by D. J. Rarthrop and others, but our
record does not show a deed.

Charles K. Barthrop and Pamela Houle were
divorced. At that time, they held the
property in joint ownership. Eventually, out
of the marital dissolution, Pamela Houle, by
quit claim deed in 1.976 became the sole owner
of Lot 11.

Ace M. Woods, trustee, erected blocking access to Lot 12. removed the barricade from the question.  a barricade, Pamela Houle roadway in  
1983 -1984  Counsel for Ace M. Woods and made cross-claims as to the righuse the roadway.  Pamela Houl~ t of Houle to  
1987  Quiet title action commenced.  

Ace M. Woods filed an action to quiet the title to Lot
11, in 1987, naming as defendants Pamela A. Houle and Sean
Duke. The quiet title action placed in issue the easement
claimed by Houle to use the roadway over Lot 11. Pamela
Houle claimed the right to use the road under three theories:
prescriptive easement, easement implied by reservation and
easement by necessity.
PRESCRIPTIVE EASEMENT

The person who holds legal title to the real property is
presumed to have been possessed thereof within the time
required by law, and the occupation of that property by any
other person is deemed to have been under and in

subordination of the legal title unless it appears that the
property has been held in possession adversely to such legal^
title for five years before the commencement of the action.
Section 70-19-404, MCA.

To establish a prescriptive easement, the party claiming
the right must "show open, notorious, exclusive, adverse,
continuous and uninterrupted use of the easement claimed for
the full statutory period." Graham v. Mack (Mont. 1984), 699
P.2d 590, 595, 41 St.Rep. 2521, 2525, citing Thomas v. Rarnum

(1984), 211 Mont. 137, 684 P.2d 1106.

In support of a Rule 56, M.R.Civ.P. motion for summary
judgment, Pamela Houle filed affidavits which recited facts
that would fulfill the requirements for a prescriptive
easement. It thereupon became the duty of Ace M. Woods,
trustee, not to rest upon mere allegations or denials, but to
respond by affidavit or otherwise, setting forth specific
facts showing there was a genuine issue of material fact for
trial. Rule 56, supra.

None of the deeds among the various parties listed above
made any mention of the easement for the roadway utilized by
Pamela Houle. The responses of Ace M. Woods to the
affidavits filed by Houle are to the effect that the roadway
was used by permission or indulgence of the owners of Lot 11,
and not by possession adverse to them.

When Ace M. Woods took over the ownership of Lot 11 in
1972, the roadway over Lot 11 had been in existence for about.
two years. The use of the roadway, if adverse, had not yet
ripened into a prescriptive easement because the statutory
time period had not passed. Nothing in the record indicates
that Ace M. Woods, orally or by other action, either granted
permission, or prevented the use of the roadway until the
erection of the barricade in 1983. It was the burden of Ace

M. Woods to show that the use was permissive:

In our view, the logical inference is that Stringham began his use under a claim of right. In the absence of any evidence on the subject, the presumption under the circumstances shown here would be that Stringham held under a claim of right and not by license of Gardner, and the same is true as to the successors in interest of each. In order to overcome that presumption, thereby saving its title from the encumbrance of an easement, the burden is on the defendant to show that the use was permissive . . .
Groshean, et al. v. Dillmont Realty Company (1932), 92 Mont.
227, 239-240, 12 P.2d 273, 275.

See also Rathbun v. Robson (1983), 203 Mont. 319, 661

P.2d 850; Stamm v. Kehrer (Mont. 1986), 720 P.2d 1194, 43

Under the facts of this case, Pamela Houle was under no
duty to communicate by word of mouth to Ace M. Woods or his
predecessors in interest, that she was using the roadway
under a claim of right and adversely to them. Groshean,
supra, 92 Mont. at 241, 12 P.2d at 276.

Woods' contention in this case is that Charles Rarthrop,

D. K. Barthrop, and others were all relatives, and that their
use of the roadway must have been permissive. Aside from
conclusory allegations to that effect, we are left in the
dark by Woods as to when and by whom permission, as
distinguished from adverse user, was granted for the roadway.
Woods failed to establish a genuine issue of material fact,
and accordingly, we affirm the decision of the District
Court, granting summary judgment to Pamela Houle on her claim
of easement by prescription.
IMPLIED EASEMENT BY RESERVATION

The District Court further granted summary judgment to
Pamela Houle on her claim of an easement by implication. On
the facts here, we must reverse that holding.

Courts are reluctant to find easements by implication

for the reason that such an action results in depriving a
person of the use of his property by imposing a servitude by
mere implication. Goeres v. Lindey's, Inc. (~ont. 1980), 619
P.2d 1194, 1197, 37 St.Rep. 1846.

Implied easements must rest upon an implied intent of the parties gathered from the circumstances surrounding the conveyance. Pioneer Mining Company v. Bannack Gold ~ining Company (1921), 60 Mont. 254, 264, 198 P.2d 748; Graham v. Mack, supra. The claimed easement must be so apparent that it is discoverable upon reasonable inspection. Pioneer Mining Company, supra. Pamela Houle may have met those requirements, but she failed in other essentials. To create an easement by implication from a pre-existing use imposed on one part of the property for the benefit of another party, unity of title at the time of the severance thereof is required. 25 Am.Jur.2d 443 Easements, S 29. When A. E. Woods and Margaret N. Woods deeded the property to C. K. Barthrop, the road was not in existence. When A. E. Woods and Margaret M. Woods in 1972 deeded Lot 11 to Ace M. Woods, the road was in existence, but there was no longer unity of title of the two lots in the grantors. Thus, in Graham v. Mack, supra, 699 P.2d at 596, we held that an easement by implication could not be established because "the first element, unity of ownership, would not be met."
Accordingly, we reverse the summary judgment granting
Pamela A. Houle an easement by i.mplication. On this issue,
Ace M. Woods is entitled to a summary judgment based on his
cross-motion under Rule 56.
EASEMENT BY WAY OF NECESSITY

In like manner, the District Court granted. summary
judgment in favor of Pamela A. Houle for an easement by way
of necessity. Again, we reverse.

In Graham v. Mack, supra, this Court, speaking of

easements by way of necessity, said:

There are two basic elements (1) unity of
ownership; and, (2) strict necessity. The
necessity must exist at the time the unified tracts
are severed. (Citing authority.) The way granted
must be over the grantor's land and never over the
land of a third party or stranger to the title

(citing authority) and finally there must be strict
unity of ownership.

699 P.2d at 596.

None of the requirements for a way of necessity are met
here. The evidence in this case is that the way of necessity
does not give access to Pamela A. Houle from her land to a
public road. Rather, the encroachment on Lot 11 goes from
one part of Lot 12 to another part of Lot 12, passing over
Lot 11. In that situation, no way of necessity can be
created. Boumhoff v. Lochhaas (Mo. 1923), 253 S.W. 762.
Indeed in this case, it appears that the road, after leaving
the property of the parties must traverse another mile and a
half to get to a public road, over the properties of third
parties. Under Graham v. Mack, supra, a way of necessity may
not exist in that situation. 699 P.2d at 597.

Finally, a way of necessity is incompatible with a
prescriptive right for the same easement. A prescriptive
right never accrues in a way of necessity as long as the
necessity continues. Hanna v. Means (Fla.App. 1975), 319
So.2d 61, 64.

Again, summary judgment on this issue in favor of Pamela

A. Houle is reversed and Ace M. Woods is entitled to summary
judgment on his cross-motion under Rule 56.
SUMMATION

We affirm the summary judgment granted by the District
Court, finding a prescriptive easement over the lands of Ace

M. Woods to serve the dominant ownership of Pamela Houle. We

reverse the District Court's judgments of easements by
implication and by way of necessity, and direct the entry of
summary judgments in favor of Ace M. Woods on those issues.
No costs to either party.

We concur:

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