Rettig v. Kallevig

Decision Date10 April 1997
Docket NumberNo. 96-630,96-630
Citation936 P.2d 807,282 Mont. 189
PartiesWilliam H. RETTIG and Patricia A. Rettig, Plaintiffs and Appellants, v. Steve P. KALLEVIG and Gayle L. Kallevig, Defendants and Respondents.
CourtMontana Supreme Court

Renee L. Coppock, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for Plaintiffs and Appellants.

P. Bruce Harper, Harper Law Firm, Billings, for Defendants and Respondents.

HUNT, Justice.

Appellants William H. Rettig and Patricia A. Rettig (Rettigs) appeal from the findings of fact, conclusions of law, and judgment entered by the Thirteenth Judicial District Court, Carbon County, determining that Rettigs had not established a prescriptive easement over real property owned by Steve P. Kallevig and Gayle L. Kallevig (Kallevigs).

We affirm.

We review whether the District Court erred in concluding that Rettigs did not establish a prescriptive easement over Kallevigs' property because Rettigs' use was permissive.

BACKGROUND

Rettigs and Kallevigs own adjoining parcels of real property in Carbon County, Montana. Rettigs purchased their parcel (the Rettig property) in 1983 from Jim Englert, and became neighbors with Kallevigs in 1994 when Kallevigs purchased their parcel (the Kallevig property) from Mrs. Kallevig's father, Edward DeRudder. Englert and DeRudder were neighbors for nearly fifteen years, and their history is an important part of this case.

The western border of the Kallevig property abuts a paved highway that runs in a north-south direction, passing through the nearby towns of Fromberg and Bridger. The Rettig property is to the east of the Kallevig property and does not abut the highway. Traditionally, the Rettig property was connected to the paved highway by one of two routes: via the Skunk Creek Road, a county road that runs along the northern border of the Rettig property, and via the Temple Road, a track across the Rettig property that eventually connects with the Skunk Creek Road.

In the early 1960s, DeRudder dug a silage pit on his property (later, the Kallevig property) and built a road connecting the silage pit and the paved highway. DeRudder erected a fence and gate at the junction of the silage pit road and the paved highway. With DeRudder's express permission, Englert extended the road from the silage pit in an easterly direction over DeRudder's property to his, Englert's, property (later, the Rettig property). Englert graveled the road and installed a drainage pipe. After the road was constructed, Englert moved his mailbox from the junction of the highway and Skunk Creek Road to the junction of the highway and the silage pit road. DeRudder did not object to these actions.

This silage pit road provided Englert a more convenient access to the paved highway than did the Skunk Creek Road or the Temple Road. DeRudder allowed Englert to use the silage pit road, subject to his clearly expressed authority to revoke the permission should certain circumstances arise which would prompt him to do so. Englert understood that his use of the silage pit road was permissive.

In the early 1980s, Englert informed DeRudder of his intention of selling his property. DeRudder advised Englert that all prospective buyers be instructed that the use of the silage pit road was not a right but a privilege, based on DeRudder's grant of permission.

Englert testified that when Rettigs, as prospective buyers, came to inspect the property, he informed them of the permissive nature of the use of the silage pit road. Rettigs denied that this statement was made. Englert explained during his testimony at trial that Rettigs asserted their belief that they could Rettigs purchased the property in 1983 and immediately began using the silage pit road as the primary access to their property. Rettigs often saw DeRudder as they drove the road, and they usually exchanged smiles and waves in passing. Rettigs were never informed directly by DeRudder that their use of the road was permissive.

establish a right to use the road, and that this statement was made in response to his warning that the use of the road was permissive. A real estate agent, Bill Huyser, testified that he was present during this conversation, that he heard the statements described by Englert, and that he himself informed Rettigs that the use of the silage pit road was permissive. The court found Englert's testimony credible.

While DeRudder maintained the section of the road from the highway to the silage pit, Rettigs maintained the section of the road from the silage pit to their property. Rettigs' graveled the road, replaced the drainage pipe previously installed by Englert with a culvert, and put in a cattle guard. On particularly snowy days when the silage pit road was impassable without four-wheel drive, Rettigs parked their car on the road. Rettigs also placed their mailbox at the junction of the highway and the silage pit road. DeRudder did not object to any of these actions.

In 1985, Rettigs plowed under the Temple Road, placed a sprinkler system on the property, and converted the plowed under road to agricultural use. However, Rettigs did not remove the entry gates, the entry arch, or the road apron where their property joined the Skunk Creek Road. DeRudder testified that he had no knowledge that Rettigs had plowed under the Temple Road.

In 1994, DeRudder sold his property to his daughter and son-in-law, Kallevigs. Kallevigs informed Rettigs that they could no longer use the silage pit road, and in January, 1995, closed and locked a gate across the roadway at the point at which it connects to the paved highway. Rettigs filed suit seeking a judgment declaring that they held a prescriptive easement across Kallevigs' property. After a non-jury trial, the court entered judgment for Kallevigs, concluding that a prescriptive easement had not been established and that use of the silage pit road was merely permissive. Rettigs appeal from this judgment.

STANDARDS OF REVIEW

In the recent case of Rafanelli v. Dale (Mont.1996), 278 Mont. 28, 924 P.2d 242, where we considered whether the district court erred in concluding that a prescriptive easement had been established, we explained the applicable standards of review:

We review a district court's findings of fact to determine whether they are clearly erroneous, giving "due regard ... to the opportunity of the trial court to judge of the credibility of the witnesses." Rule 52(a), M.R.Civ.P. In determining whether a court's findings of fact are clearly erroneous, we apply a three-part test:

First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. Third, if substantial evidence exists and the effect of evidence has not been misapprehended, the Court may still find that "[A] finding is 'clearly erroneous' when, although there is evidence to support it, a review of the record leaves the [C]ourt with the definite and firm conviction that a mistake has been committed."

Interstate Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287 (citations omitted). We review conclusions of law to determine whether the district court's interpretation of the law is correct. Public Lands Access Ass'n, Inc. v. Boone and Crockett Club Found., Inc. (1993), 259 Mont. 279, 283, 856 P.2d 525, 527.

Rafanelli, 924 P.2d at 245. We also explained that

[i]t is within the province of the trier of fact to weigh the evidence and assess the credibility of witnesses and we will not second-guess those determinations. Moreover, we will uphold a district court's findings when there is substantial evidence to support them even when there is also evidence supporting contrary findings.

Rafanelli, 924 P.2d at 245-46 (citations omitted).

DISCUSSION

Did the District Court err in concluding that Rettigs did not establish a prescriptive easement over Kallevigs' property because Rettigs' use was permissive?

A prescriptive easement is created by operation of law in Montana. Swandal Ranch Co. v. Hunt (1996), 276 Mont. 229, 233, 915 P.2d 840, 843. The party claiming the easement must establish "open, notorious, exclusive, adverse, continuous and uninterrupted use" of the claimed easement for the statutory five-year period. Public Lands Access Ass'n, Inc. v. Boone and Crockett Club Found., Inc. (1993), 259 Mont. 279, 283, 856 P.2d 525, 527 (citations omitted). However, because the theory of prescription is based on adverse use, a landowner may rebut a prescriptive easement claim by establishing that the use of the claimed easement was permissive. Rathbun v. Robson (1983), 203 Mont. 319, 322, 661 P.2d 850, 852.

That Rettigs' use of the silage pit road was open, notorious, exclusive, continuous and uninterrupted is not disputed; prior to Kallevigs erecting the locked gate in 1995, Rettigs had used, with DeRudder's knowledge, the silage pit road for some eleven years. However, the District Court concluded that Rettigs' use of the silage pit road was permissive and therefore had not ripened into a prescriptive easement. Rettigs attack this conclusion on several grounds.

First, Rettigs claim that the court's conclusion was erroneous because DeRudder never informed them that their use of the road was permissive. Second, Rettigs claim that the court's conclusion was erroneous because, assuming Englert and Huyser informed them of the permissive use of the road (which Rettigs deny), the only way such information would have the effect of a grant of permission from DeRudder himself would be if DeRudder had issued written authority to Englert and Huyser to grant permission on his behalf. See § 28-2-903(1)(d), MCA (contract involving interest in real property must be in writing). There was no evidence that such a relationship was created. Third, Rettigs claim the court's...

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11 cases
  • Larsen v. Richardson
    • United States
    • United States State Supreme Court of Montana
    • 21 septembre 2011
    ...not required to maintain the permissive character of the use, especially where the use remains essentially the same. Rettig v. Kallevig, 282 Mont. 189, 196, 936 P.2d 807, 811 (1997); Rathbun v. Robson, 203 Mont. 319, 322–24, 661 P.2d 850, 852 (1983). ¶ 60 In the present case, the District C......
  • Lyndes v. Cynthia R. Green, Charlie Green, & Hertzler Ranches, LLC
    • United States
    • United States State Supreme Court of Montana
    • 25 avril 2014
    ...the permissive character of the use, especially where the use remains essentially the same. Larsen, ¶ 59 (citing Rettig v. Kallevig, 282 Mont. 189, 196, 936 P.2d 807, 811 (1997), and Rathbun, 203 Mont. at 322–24, 661 P.2d at 852);see also Heller, ¶ 14 (“In determining whether the use of a r......
  • Larsen v. Richardson, DA 10-0210
    • United States
    • United States State Supreme Court of Montana
    • 16 août 2011
    ...not required to maintain the permissive character of the use, especially where the use remains essentially the same. Rettig v. Kallevig, 282 Mont. 189, 196, 936 P.2d 807, 811 (1997); Rathbun v. Robson, 203 Mont. 319, 322-24, 661 P.2d 850, 852 (1983). ¶60 In the present case, the District Co......
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    • United States State Supreme Court of Montana
    • 14 novembre 2002
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