Harland v. Anderson

Citation33 St.Rep. 363,548 P.2d 613,169 Mont. 447
Decision Date09 April 1976
Docket NumberNo. 13119,13119
PartiesGerald R. HARLAND, Plaintiff and Appellant, v. Roy ANDERSON et al., Defendants and Respondents.
CourtUnited States State Supreme Court of Montana

Cure, Borer & Lynch, Edward W. Borer (argued), Great Falls, for plaintiff and appellant.

Graybill, Ostrem, Warner & Crotty, Donald L. Ostrem (argued), Great Falls, for defendants and respondents.


Plaintiff Gerald R. Harland appeals from a summary judgment granted on two of three counts in a complaint filed in the district court, Cascade County, seeking to establish an easement across property owned by defendants Roy Anderson and Lottie Anderson, husband and wife, and Anderson Ranch Co. (hereinafter referred to as Andersons). The complaint set forth three counts: Count I, seeking to establish an easement by prescription. Count II, alleging damages for wrongful interference. Count III, requesting a road or right of way be condemned over defendants' land for plaintiff's use. On motion of Andersons proceedings on Count III were stayed, pending the determination of Counts I and II.

The action was commenced January 25, 1972. Andersons answered and took depositions from Harland and one Clifford Obrecht, Harland's predecessor in interest. On the basis of these two depositions and Andersons' answers to interrogatories, Andersons moved for summary judgment which was denied. Thereafter, Andersons secured the depositions of three other individuals whose testimony could allegedly demonstrate the long and continued use of a road leading to Harland's property. The property was viewed by the presiding judge and counsel for both parties. Andersons renewed their motion for summary judgment. The district court on April 21, 1975, entered its order granting that motion. Harland appeals that order.

The record before this Court consists of the pleadings, interrogatories to Andersons, the aforementioned depositions and memoranda of counsel concerning the motion for summary judgment. From this it appears that since early 1971, Harland has been the owner of about 3580 acres of land located in Township 16 North, Range 1 West, Cascade County, Montana. In addition he leases about 2360 acres owned by the United States and administered by the Bureau of Land Management. These lands are located in and are contiguous with the mountain areas southeast of Cascade, Montana. They are surrounded by other ranch properties owned by various parties, including the Andersons, who control lands to the west and northwest. For over 50 years a two track dirt road has run across Andersons' land to the real estate which is the subject of this appeal. The road is crossed at several points by fences and closed gates owned and controlled by the Andersons.

Harland's predecessor in interest, Clifford Obrecht, acquired the property in 1945. In June 1948, an agreement was executed between Obrecht and Andersons which granted a right to use the contested road by permission. This agreement was terminated in 1959 and never renewed. Harland affirms that any claims he may have toward the use of this road exist only by virtue of those rights which Obrecht may have had. Yet, Obrecht admitted in his deposition that he had not used the road continuously for the five years precedent to the filing of this action. It is clear that no positive representations regarding the existence of an easement were ever made to Harland during the negotiations which led to the sale of the property.

Rule 56(c), M.R.Civ.P., provides that summary judgment is proper if:

'* * * the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *'

This Court has on many occasions commented upon the nature of the burden of proof imposed on the moving party under Rule 56. The Court has consistently held that the party moving for summary judgment has the burden of showing the complete absence of any genuine issue as to all facts which are deemed material in light of those substantive principles which entitled him to a judgment as a matter of law. We have also held the rule operates to hold the movant to a 'strict standard' and that:

"* * * To satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. * * *" Kober & Kyriss v. Stewart & Billings Deaconess Hospital, 148 Mont. 117, 122, 417 P.2d 476, 478.

The district court does not function to adjudicate genuine issues of fact on a motion for summary judgnent cause-it merely determines whether such issues exist. Thus the party opposing the motion will be indulged to the extent of all inferences which may be reasonably drawn from the offered proof. Mally v. Asanovich, 149 Mont. 99, 105, 423 P.2d 294; Johnson v. St. Patrick's Hospital, 148 Mont. 125, 417 P.2d 469.

The primary policy and general purpose underlying Rule 56, M.R.Civ.P., is to encourage judicial economy through the prompt elimination of questions not deserving of resolution by trial. Silloway v. Jorgenson, 146 Mont. 307, 310, 406 P.2d 167. Thus while the initial burden of proof must attach to the movant, that burden shifts where the record discloses no genuine issue of material fact. Under these circumstances, the party opposing the motion must come forward with substantial evidence raising the issue. Rickard v. Paradis, Mont., 539 P.2d 718, 32 St.Rep. 834; Roope v. The Anaconda Company, 159 Mont. 28, 494 P.2d 922; Flansberg v. Montana...

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  • Small v. McRae
    • United States
    • Montana Supreme Court
    • October 4, 1982
    ...and that the moving party is entitled to a judgment as a matter of law." Rule 56(c) M.R.Civ.P. In the case of Harland v. Anderson (1976), 169 Mont. 447, 450, 548 P.2d 613, 615, this Court "This Court has on many occasions commented upon the nature of the burden of proof imposed on the movin......
  • Warnack v. Coneen Family Trust
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    • Montana Supreme Court
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    ...claimed easements in question under the general rule. See, Lunceford v. Trenk (1974), 163 Mont. 504, 518 P.2d 266; Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613; Taylor v. Petranek (1977), 173 Mont. 433, 568 P.2d 120; Yecny v. Day (1977), 174 Mont. 442, 571 P.2d 386; Hayden v. Sno......
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    • Montana Supreme Court
    • May 23, 1985
    ...insufficient to raise a presumption of adverse use. See also Taylor v. Petranek (1977), 173 Mont. 433, 568 P.2d 120; Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613; and Ewan v. Stenberg (1975), 168 Mont. 63, 541 P.2d 60. ("Occasional use by hunters, by sightseeing friends and by ne......
  • Larry C. Iverson, Inc. v. Bouma
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    • Montana Supreme Court
    • January 11, 1982
    ...the burden shifts to the party opposing the motion to present material and substantial facts to oppose the motion. Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613; Taylor v. Anaconda Federal Credit Union (1976), 170 Mont. 51, 540 P.2d 151; Rumph v. Dale Edwards, Inc. (1979), Mont., ......
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