Brumit v. Lewis

• Decision Date: 30 December 2002
• Docket Number: No. 01-721.,01-721.
• Citation: 313 Mont. 332,2002 MT 346,61 P.3d 138
• Parties: Lawrence E. BRUMIT, III and Leila P. Brumit, husband and wife; Raymond W. Karr and Jane W. Karr, husband and wife; Todd L. Saur and Raylene K. Saur, husband and wife; Walter J. Fillmore and Dorothy J. Fillmore, husband and wife, Plaintiffs and Appellants, and Bryan Bolin, Lisa Bolin, Raymond Bolin, Loretta Bolin, and Bolin Ranches, a Montana corporation, Appellants, v. Robert LEWIS and Rose Lewis (deceased), Defendants and Respondents.
• Court: Montana Supreme Court

61 P.3d 138

2002 MT 346

313 Mont. 332

Lawrence E. BRUMIT, III and Leila P. Brumit, husband and wife; Raymond W. Karr and Jane W. Karr, husband and wife; Todd L. Saur and Raylene K. Saur, husband and wife; Walter J. Fillmore and Dorothy J. Fillmore, husband and wife, Plaintiffs and Appellants, and Bryan Bolin, Lisa Bolin, Raymond Bolin, Loretta Bolin, and Bolin Ranches, a Montana corporation, Appellants, v. Robert LEWIS and Rose Lewis (deceased), Defendants and Respondents.

No. 01-721.

Supreme Court of Montana.

Submitted on Briefs March 7, 2002.

Decided December 30, 2002.

Zane K. Sullivan & Z. Kent Sullivan, Sullivan, Tabaracci & Rhoades, Missoula, Montana, For Appellants.

John D. Greef, Hamilton, Montana; Robert B. Brown, Stevensville, Montana, For Respondents.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Appellants Lawrence E. Brumit and Leila P. Brumit (Brumits), Raymond W. Karr and Jane W. Karr (Karrs), Todd L. Saur and Raylene K. Saur (Saurs), and Walter J. Fillmore and Dorothy J. Fillmore (Fillmores) filed a complaint to quiet title in the Twenty-First Judicial District Court, Ravalli County. They requested a determination that no other person had a right of access by way of an easement over their respective properties, and sought an injunction to permanently prevent any person from trespassing on such properties. Two of the named Defendants in the complaint, Respondents Rose Lewis and her son Robert Lewis (Lewises), filed a counterclaim, alleging that they had established an easement by prescription over the properties in dispute. The parties Bode, et al, intervened in the case, and asserted that they had also established an easement over the properties in dispute, as well as over the properties of Appellants Bryan Bolin, Lisa Bolin, Raymond Bolin, Loretta Bolin, and Bolin Ranches (Bolins).

¶ 2 Following a bench trial, the District Court entered an interlocutory judgment on the complaint to quiet title, granting the Lewises an easement by prescription over the properties in dispute, as well as over the Bolin properties. The judgment was then certified for purposes of appeal. The Brumits, Karrs, Saurs, Fillmores, and Bolins (the Appellants) appeal the judgment of the District Court, with regard to the prescriptive easement granted to the Lewises. We affirm the judgment of the District Court.

¶ 3 We restate the sole issue on appeal as follows:

¶ 4 Did the District Court err when it granted the Lewises a prescriptive easement over the properties of the Appellants?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 The parcels of property in dispute here are located in the Ambrose Creek drainage in Ravalli County, Montana. The portion of the road in dispute runs across the Appellants' properties, coming to an end on the property of the Lewises. A brief history of the ownership of the Lewis property, as pertinent to the evidence supporting the easement, is set forth below.

¶ 6 In 1937 and 1938, Theodore Brechbill (Theodore) acquired the property currently owned by the Lewises from Dr. Louis Fales and Ida Fales. Theodore used the Lewis property for various agricultural and recreational purposes, and lived on a portion of the land for a number of years. In 1992, Theodore leased the Lewis property to his nephew Robert Lewis (Robert). Upon Theodore's death in 1995, Theodore's sister, Rose Lewis (Rose), acquired the Lewis property by deed. In December of 1995, Rose leased the Lewis property to her son Robert, via a lease-option agreement. Rose is currently deceased, and Robert is the personal representative of her estate, as well as her successor in interest with regard to the Lewis property. Between 1900 and 1985, members of the Brechbill family, including Theodore's mother, Octavo Brechbill (Octavo), were also in possession of the property adjacent to the Lewis property. This adjacent property is currently owned by the Brumits.

¶ 7 This is not the first time that the use of the road in dispute has been the subject of litigation. The right of the Brechbills to use the road to reach their properties was litigated in Pentz v. Brechbill, Cause No. 7503, Fourth Judicial District Court, Ravalli County, 1946. Percy Pentz was the previous owner of the property on which the disputed portion of the road begins. In 1944, a dispute arose between Pentz and the Brechbills over the Brechbills' use of the road on Pentz's property. Pentz sought to enjoin the Brechbills from crossing his land, while the Brechbills claimed that their predecessors had purchased a right-of-way over Pentz's land in the 1920s. The Pentz Court granted Octavo and Theodore an easement appurtenant to Octavo's property, in which they had the legal right to pass over the property owned by Pentz. In the instant case, the District Court took judicial notice of the Pentz decision, as the road at issue in Pentz is the same road at issue in the case before us.

¶ 8 With the exception of the Pentz litigation, there was never any hostility from Theodore's neighbors regarding Theodore's use of the disputed road. However, when Robert Lewis acquired an interest in the Lewis property in 1992, the relationship between the neighbors shifted. Although there had always been a series of unlocked gates across the disputed road, at least one of these gates was locked by Lawrence Brumit sometime during Robert's occupation of the Lewis property. Robert reacted to Brumit's action by taking a gate off its hinges, sparking controversy between the long-time neighbors.

¶ 9 On August 30, 1996, the Brumits, Karrs, Saurs and Fillmores filed a complaint to quiet title with the District Court, in which they listed both named and unnamed defendants. The complaint to quiet title requested a determination that no other person had a right of access by way of an easement over the complainants' respective properties. The complaint further requested an injunction to permanently prevent any person from trespassing over the properties. Finally, under breach of contract and trespass theories, the complaint sought to recover damages for reduction in property value, as well as the costs and attorney's fees resulting from the action.

¶ 10 Rose and Robert Lewis were two of the named Defendants in the complaint to quiet title. On December 4, 1996, the Lewises counterclaimed, asserting that they possessed a valid easement over the properties in dispute, which was established by prescription. The case became further complicated when the parties Bode, et al., intervened and joined the Bolins. However, the claims of Bode, et al, are not at issue here. Following disposition of these claims, the only issue remaining in the case at the time of trial was whether the Lewises had established a prescriptive easement over the properties of the Appellants.

¶ 11 Pursuant to Rule 56, M.R.Civ.P., the Lewises brought a motion for summary judgment on February 2, 1999, alleging that they had obtained an easement by prescription over the Appellants' properties. The Appellants filed a cross-motion for summary judgment against the Lewises on February 22, 1999. The District Court denied both summary judgment motions on November 1, 1999, and the case proceeded to a non-jury trial on May 4, 2000. On July 6, 2001, the District Court issued its findings of fact, conclusions of law and interlocutory judgment, granting the Lewises an easement by prescription over the north fork of the disputed road on the properties of the Appellants. Pursuant to Rule 54(b), M.R.Civ.P., the District Court certified its interlocutory judgment as final on August 9, 2001. On August 15, 2001, the Appellants appealed the judgment of the District Court.

STANDARD OF REVIEW

¶ 12 We review a district court's findings of fact to ascertain whether they are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. 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. Kovarik v. Kovarik, 1998 MT 33, ¶ 20, 287 Mont. 350, ¶ 20, 954 P.2d 1147, ¶ 20. The standard of review of a district court's conclusions of law is whether the court's interpretation of the law is correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

DISCUSSION

¶ 13 Did the District Court err when it granted the Lewises a prescriptive easement over the properties of the Appellants?

¶ 14 The District Court found that if a prescriptive easement was in fact established over the Appellants' properties, it was established by the Lewises or their predecessors between 1927 and 1995. Louis and Ida Fales owned the Lewis property until 1937, however, they left the property sometime in the late 1920s. Theodore Brechbill managed the property in their absence, finally acquiring it from the Fales in 1937 and 1938. Rose Lewis claimed no interest in the property until she inherited it in 1995, and as such, her use of the road is inconsequential to this case. Similarly, because Robert Lewis did not lease the Lewis property until 1992, he had no interest in the property until the last three years of the period at issue. Therefore, it is Theodore Brechbill's use of the disputed road which is crucial to the instant case, as Theodore owned the Lewis property from 1937 until his death in 1995. Accordingly, we conclude it is proper for the Lewises to rely on the actions of Theodore Brechbill, their predecessor in title, to prove their prescriptive easement claim.

¶ 15 To establish an easement by prescription, the party claiming the easement must show open and notorious, exclusive, continuous, uninterrupted, and adverse use of the claimed easement for a full five-year period. Lemont Land Corp. v. Rogers (1994), 269 Mont. 180, 183, 887 P.2d 724, 726. The term "open and notorious use" is defined as "a distinct and positive assertion of a right hostile...