Brimstone Min., Inc. v. Glaus

• Decision Date: 09 September 2003
• Docket Number: No. 01-302.,01-302.
• Citation: 2003 MT 236,77 P.3d 175,317 Mont. 236
• Parties: BRIMSTONE MINING, INC., a Montana Corporation, et al., Plaintiffs and Respondents, v. John GLAUS and Marietta Glaus, Defendants and Appellants, John Glaus and Marietta Glaus, Counter-Claimants, v. Brimstone Mining, Inc., et al., Counter-Defendants.
• Court: Montana Supreme Court

77 P.3d 175

2003 MT 236

317 Mont. 236

BRIMSTONE MINING, INC., a Montana Corporation, et al., Plaintiffs and Respondents, v. John GLAUS and Marietta Glaus, Defendants and Appellants, John Glaus and Marietta Glaus, Counter-Claimants, v. Brimstone Mining, Inc., et al., Counter-Defendants.

No. 01-302.

Supreme Court of Montana.

Submitted on Briefs January 31, 2002.

Decided September 9, 2003.

Rehearing Denied October 9, 2003.

For Appellant: Max A. Hansen, Max A. Hansen & Associates, P.C., Dillon, Montana.

For Respondent: John S. Warren, Davis, Warren & Hritsco, Dillon, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Appellants John Glaus (Glaus) and Marietta Glaus (Marietta) appeal a judgment of the Fifth Judicial District Court, Madison County, finding a prescriptive easement over their property in favor of Brimstone Mining (Brimstone) and awarding damages to Brimstone for interference with the easement. Brimstone cross appeals, asserting the easement is a public right of way and that it is entitled to a larger award of damages. We affirm in part and reverse in part and remand for proceedings consistent with this Opinion.

¶ 2 We address the following issues on appeal and cross appeal:

¶ 3 1. Did the District Court err in concluding there is not an easement in favor of the public over the Glaus property?

¶ 4 2. Did the District Court err in concluding Brimstone established a prescriptive easement over the Glaus property?

¶ 5 3. Did the District Court err in concluding Brimstone's easement was not extinguished by reverse adverse possession?

¶ 6 4. Did the District Court err in concluding Brimstone made no enforceable oral agreement to dismiss this case?

¶ 7 5. Did the District Court err in awarding damages to Brimstone?

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 8 This case concerns Brimstone's access to a gold and silver mine it owns near Whitehall, Montana known as the Mayflower Mine (Mine).¹ According to a news story in the Butte Daily Inter Mountain published on December 21, 1900, and reprinted in the Whitehall Ledger in January, 1994, the Mine was established in 1896 when Charles Pruett and his partners discovered gold ore. Soon after, William A. Clark, a noted Butte mining figure, purchased the Mine. Due to the richness of the ore deposit, a mining camp developed with two hotels, a store, a bar, a school, and homes. In order to transport the ore to the nearest railroad siding at Renova south of Whitehall, the ore was hauled from the Mine across a road which this Opinion will refer to as the Old Mayflower Road. From the Mine, this road heads generally north, northwest, over sections 32, 30, and 19 of T1N R3W, Madison County, until it meets the Parrot Bench Road which goes to Renova.² By 1902, however, the ore deposit accessible at that time was exhausted and the Mine was shut down.

¶ 9 From 1902 until the 1920's, minor leasing activity occurred at the Mine. In 1916, a farmer apparently attempted to plow across the Old Mayflower Road in section 19. As a result, the West Mayflower Mining Company petitioned the Madison County Board of Commissioners (Board) to stop obstruction of the road. The Board responded by declaring the Old Mayflower Road a public highway on June 5, 1916.

¶ 10 In October 1924, the Board minutes indicate the Board was going to consider whether to abandon and close the Old Mayflower Road because an alternate route had been constructed. This alternate route ran along the section line following the west side of section 19 for its full length, then ran along the south side of section 19 for about 3/4 mile until it connected to the Old Mayflower Road. This alternate access is indicated on the attached map as the Alternate Route. However, the subsequent minutes do not indicate that any official action was ever taken; rather the minutes indicate the subject was postponed for later consideration. Then on May 1, 1944, the Alternate Route constructed along the section lines of section 19 was officially declared closed by the Board. In closing this road, the Board's closure language also includes that portion of the Old Mayflower Road that crosses the northeast corner of section 30, but none of the rest of the Old Mayflower Road. As a result, both the northern and southern portions of the Old Mayflower Road remain county roads, but the approximate ½ mile in the middle is not. ¶ 11 In 1928, the Anaconda Copper Mining Company (ACM) acquired the Mine property from the William A. Clark estate. In 1935, ACM reopened the Mine. Former employees of the Mine at that time who testified through deposition indicated that when the Mine was initially reopened, access to the Mine was over the Old Mayflower Road. Regarding the northern portion of the access, their testimony indicates they used the Old Mayflower Road rather than the Alternative Route along the section lines of section 19. However, after reopening, a new bridge was built across the Jefferson River known as the Mayflower Bridge. After the new bridge was built, the employee testimony indicates that access to the Mine was over the "new" road down Mayflower Gulch, which is now commonly known as Mayflower Road. This change apparently occurred so the ore could be taken to a different railroad siding just north of the new bridge. The record indicates that in order to connect the bridge to Mayflower Road where it exits Mayflower Gulch at Parrot Bench Road, landowners in the area deeded land to the county so that a new county road could be built along the west section lines of sections 8 and 17. When the bridge, the road down Mayflower Gulch and the new county road were connected, all activity accessing the Mine occurred over this road.³ There is testimony and evidence in the record that this change occurred anytime from 1936 to 1939.

¶ 12 At that time, the Mine employed between 100 and 200 people. Employees lived at the Mine site and also lived in Whitehall and the surrounding area and commuted to the Mine. Despite the extensive development at the Mine, in 1942 the Mine was ordered closed by the federal government because it was an activity that was not essential to the war effort. Thereafter, ACM hired a watchman and his wife to live at the Mine site. This watchman worked there until 1958 when ACM leased the mine to Frank Antonioli (Antonioli).

¶ 13 Antonioli worked the Mine full time and employed 20 to 25 people at the site. Again, some of the employees lived at the Mine site, while some commuted from the surrounding area. In 1961, the Mine again closed. However, Antonioli purchased the surface assets from ACM and periodically sold those assets until 1964. After 1964, ACM continued limited exploration activity until 1985. It was during this period of limited activity in 1979 that Glaus bought the land encompassing both Mayflower Gulch and a majority of the length of Mayflower Road.

¶ 14 In 1985, ACM sold the Mine to Howard Keck (Keck). Keck then hired John Hunt (Hunt) to continue exploration activities. Hunt in turn hired Antonioli to conduct some contract work. In 1989, Madison County required removal of certain cattle guards. In conjunction with removing the cattle guards, in 1990 Glaus built a fence along the northern boundary of his property along Parrot Bench Road. In addition to the fence, Glaus installed a gate over the entrance to his property at Mayflower Road and placed a lock on the gate with no trespassing signs. When Hunt encountered the locked gate, he walked up to the Glaus house to inquire. Glaus gave him a key and told Hunt he could use the road with permission. Hunt told Antonioli about this development and Antonioli also walked up to the Glaus house to get a key. Glaus testified he also gave Antonioli a key to the lock to use the road with his permission. Thereafter, Hunt, Antonioli, and any other employees of the Mine used the Glaus key to use the Mayflower Road access to the Mine.

¶ 15 Then in 1996, Brimstone and Antonioli bought the Mine and continued exploration activities. Because Brimstone discovered potential ore deposits that it believes are commercially feasible to extract, Brimstone began to rehabilitate the Mine shafts in 1996. While it is not clear from the record, apparently the increased activity associated with Brimstone's purchase gave rise to the dispute at hand.

¶ 16 In February 1996, Glaus wrote to Antonioli reiterating that use of Mayflower Road over his property was with permission. Glaus also expressed concerns regarding the safety of his children and his livestock, and regarding noise and dust caused by increased traffic. Due to this letter, Brimstone and Glaus began discussions and attempted to negotiate an arrangement acceptable to both parties.

¶ 17 When continued discussions made the lack of agreement between the parties apparent, Glaus changed the lock and notified Brimstone of the change. Brimstone then brought this action to affirmatively establish an easement over Mayflower Road. Then, based upon indications of settlement from the parties to the court, proceedings in the trial court were postponed. As part of continued negotiations with Allan Kirk (Kirk), the general manager for Brimstone, Glaus allowed Brimstone temporary access to the Mine with the conditions that Brimstone maintain the road and spray for noxious weeds. Glaus also believed the temporary access was in exchange for dismissal of the lawsuit based on Kirk's representations. The agreement to temporarily use the road was written in two letters drafted by Kirk and signed by Glaus, but, according to Glaus, the agreement to dismiss the case was oral. Brimstone also negotiated, constructed, and paid for an alternative access to the Mine over the neighboring Temple Ranch. The northern portion of this current access is near the Old Mayflower Road. The southern portion of this current access is the Old Mayflower Road. Brimstone also notified and asked for approval from Madison County for Brimstone to maintain the...