Heller v. Gremaux

• Decision Date: 05 September 2002
• Docket Number: No. 01-613.,01-613.
• Citation: 53 P.3d 1259,2002 MT 199
• Parties: H. Leroy HELLER and Naylor Family Trust, Plaintiffs and Appellants, v. Emil J. GREMAUX, Rhonda J. Gremaux, and Conrad Family Trust, Defendants and Respondents.
• Court: Montana Supreme Court

53 P.3d 1259

2002 MT 199

H. Leroy HELLER and Naylor Family Trust, Plaintiffs and Appellants, v. Emil J. GREMAUX, Rhonda J. Gremaux, and Conrad Family Trust, Defendants and Respondents.

No. 01-613.

Supreme Court of Montana.

Submitted on Briefs February 28, 2002.

Decided September 5, 2002.

Robert L. Johnson, Attorney at Law, Lewistown, Montana, For Appellants.

James L. Stogsdill, Attorney at Law, Lewistown, Montana, For Respondents.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 H. Leroy Heller and the Naylor Family Trust ("Heller and Naylor") appeal from the June 7, 2001, Order entered by the Montana Tenth Judicial District Court, Fergus County, granting summary judgment in favor of Emil J. Gremaux, Rhonda J. Gremaux, and the Conrad Family Trust ("Gremaux and Conrad"). Heller and Naylor additionally appeal from the August 9, 2001, Order entered by the District Court denying their Rule 60(b), M.R.Civ.P., motion for relief from judgment. We affirm.

¶ 2 The following issue is dispositive of this appeal:

¶ 3 Did the District Court err in granting Gremaux and Conrad summary judgment?

BACKGROUND

¶ 4 The parties own real property located in Fergus County, Montana, which abuts a rural road commonly referred to as the Tony Bench Road. Ingress and egress to Heller and Naylor's real property is by use of the Tony Bench Road. Heller sought an easement of record from Gremaux and Conrad upon the road crossing their property. Gremaux and Conrad refused. Several years thereafter, Heller and Naylor filed a complaint in the District Court seeking a declarative judgment that the Tony Bench Road is a public road established by prescriptive use. On October 31, 2000, Heller and Naylor filed a motion for summary judgment maintaining that the road is a public thoroughfare established by prescription. In response, Gremaux and Conrad filed a cross-motion for summary judgment arguing that use of the road has been permissive since such use was based upon neighborly accommodation. After conducting a hearing, the District Court denied the parties' motions for summary judgment determining that there were genuine issues of material fact.

¶ 5 On March 26, 2001, Gremaux and Conrad filed a second motion for summary judgment and a motion requesting leave to file discovery. In response to Gremaux and Conrad's motion for summary judgment, Heller and Naylor asserted that genuine issues of material fact existed regarding whether the road is a public thoroughfare established by prescription. Additionally, they asserted that the road is a public thoroughfare established by common law dedication as evidenced by a 1916 petition for the opening of a school and a 1948 petition to establish a road. Moreover, Heller and Naylor objected to the filing of discovery. The District Court issued an Order on April 3, 2001, permitting the filing of discovery. On May 2, 2001, the District Court held a summary judgment hearing. Thereafter, the court entered an Order on June 7, 2001, granting Gremaux and Conrad summary judgment concluding that the Tony Bench Road is not a public thoroughfare. Specifically, the court determined that any genuine issues of material fact regarding prescriptive use became moot when Heller and Naylor stated, in response to an interrogatory request, that they were not claiming a private easement by prescription. The court also determined that substantial evidence was presented demonstrating permissive use of the road through neighborly accommodation. The court further determined that the 1916 petition for the opening of a school and the 1948 petition for a new road did not establish an offer by the road's landowners evidencing their intention to dedicate the road to the public.

¶ 6 Final judgment was issued by the District Court in Gremaux and Conrad's favor on June 13, 2001. On June 26, 2001, Heller and Naylor filed post judgment motions, including a Rule 60(b), M.R.Civ.P., motion requesting relief from the court's Judgment. On August 9, 2001, the court entered an Order denying Heller and Naylor's post judgment motions. Heller and Naylor appeal.

STANDARD OF REVIEW

¶ 7 We review a district court's summary judgment ruling de novo and employ the same Rule 56, M.R.Civ.P., evaluation as applied by the district court. See Andrews v. Plum Creek Manufacturing, 2001 MT 94, ¶ 5, 305 Mont. 194,

¶ 5, 27 P.3d 426, ¶ 5. Pursuant to Rule 56, M.R.Civ.P., we apply the following inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903 (citations omitted). We review a district court's ruling denying a motion to alter or amend its judgment pursuant to Rule 60(b), M.R.Civ.P., for an abuse of discretion. See Bragg v. McLaughlin, 1999 MT 320, ¶ 11, 297 Mont. 282,

¶ 11, 993 P.2d 662, ¶ 11 (citation omitted).

DISCUSSION

¶ 8 Did the District Court err in granting Gremaux and Conrad summary judgment?

¶ 9 There are three ways by which a private road may become open and public, including adverse use or prescription, common law dedication by private owners, and statutory dedication by the county. See Carbon County v. Schwend (1984), 212 Mont. 474, 476, 688 P.2d 1251, 1252

. Heller and Naylor concede that the Tony Bench Road did not become public by statutory dedication. Accordingly, we will first review whether the road became public by prescription. Then, we will review whether the road became public by common law dedication.

¶ 10 Heller and Naylor argue that genuine issues of material fact exist in this case regarding whether the Tony Bench Road became a public road by prescriptive use, thus making summary judgment improper. They allege that their affidavits and those of James R. Guslander and Leo Cerovski present genuine issues of material fact concerning whether use of the road was adverse. Most notably, they assert that the affidavits provide evidence that county road crews maintained the road periodically and members of the public used the road since homestead days. They note that gates did exist on the road, but allege that such gates were to control livestock and could be easily opened. Additionally, Heller and Naylor contend that the District Court erred in determining that they waived or abandoned their prescription claim.

¶ 11 In response, Gremaux and Conrad maintain the Tony Bench Road is a private road. They contend that the evidence presented establishes a lengthy history of permissive use based upon community custom and the practice of neighborly accommodation. Conversely, Gremaux and Conrad argue that the affidavits submitted by Heller and Naylor establish only mere allegations of prescriptive use and provide no specific factual matters contradicting their evidence of the permissive nature of the road usage.

¶ 12 An easement by prescription is created by operation of law. See Rettig v. Kallevig (1997), 282 Mont. 189, 193, 936 P.2d 807, 810

. We have held that the public may acquire a prescriptive easement on a private road. See McCauley v. Thompson-Nistler, 2000 MT 215, ¶ 37, 301 Mont. 81, ¶ 37, 10 P.3d 794, ¶ 37 (citations omitted). A prescriptive easement claimant must establish that the use of the roadway was open, notorious, exclusive, adverse, continuous and uninterrupted for the complete statutory period. See Warnack v. Coneen Family Trust (1996), 278 Mont. 80, 83, 923 P.2d 1087, 1089. Since 1953, the statutory period required to establish an adverse possession claim is five years pursuant to § 70-19-404, MCA. Prior to 1953, the statutory period was ten years. See Warnack v. Coneen Family Trust (1994), 266 Mont. 203, 210, 879 P.2d 715, 720. The element of exclusivity is not required in establishing the existence of a public prescriptive easement since such an easement is used by members of the general public. See Hitshew v. Butte/Silver Bow County, 1999 MT 26, ¶ 16, 293 Mont. 212, ¶ 16, 974 P.2d 650, ¶ 16.

¶ 13 To be "open and notorious," the use of a claimed right in a prescriptive easement must give the landowner actual knowledge of the claimed right, or be of such a character as to raise a presumption of notice. See Hitshew, ¶ 17 (citation omitted). To be "continuous and uninterrupted," the use of a claimed right must not be abandoned by the user or interrupted by an act of the landowner. See Hitshew, ¶ 17 (citation omitted). To be "adverse," the use of the alleged easement must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the landowner, and such claim must be known to and acquiesced in by the landowner. See Swandal Ranch Co. v. Hunt (1996), 276 Mont. 229, 233, 915 P.2d 840, 843

.

¶ 14 In determining whether the use of a road was adverse, we have stated that "neighborly accommodation" is a form of permissive use which, "by custom, does not require permission at every passing." See Kessinger v. Matulevich (1996), 278 Mont. 450, 457, 925 P.2d 864, 868

(quoting Lemont Land Corp. v. Rogers (1994), 269 Mont. 180, 186, 887 P.2d 724, 728). Therefore, use of a neighbor's land based upon mere neighborly accommodation or courtesy is not adverse and cannot ripen into a prescriptive easement. See Public Lands Access Assoc., Inc. v. Boone and Crockett Club Foundation, Inc. (1993), 259 Mont. 279, 284, 856 P.2d 525, 528 (citation omitted). The mere use of a way for the required statutory period is generally not sufficient to give rise to the presumption of a grant, and "generally some circumstances or act, in addition to the use, tending to indicate that the...