Keebler v. Harding
| Decision Date | 21 March 1991 |
| Docket Number | No. 90-260,90-260 |
| Citation | 48 St.Rep. 282,247 Mont. 518,807 P.2d 1354 |
| Parties | H. Allen KEEBLER and Betty Keebler, Plaintiffs and Respondents, v. Nevins HARDING and Rita Harding, Defendants and Appellants. |
| Court | Montana Supreme Court |
Gary L. Beiswanger, Billings, for defendants and appellants.
Richard F. Cebull, Anderson, Brown, Gerbase, Cebull, Fulton, Harman & Ross, P.C., Billings, for plaintiffs and respondents.
Defendants and appellants, Nevins and Rita Harding, appeal from a judgment of the District Court of the Thirteenth Judicial District, Carbon County, sitting without a jury, denying their claim of the existence of a public or private easement by prescription or otherwise across property owned by plaintiffs and respondents, H. Allen and Betty Keebler. The court permanently enjoined the appellants from using respondents' property without permission and from interfering in any way with their possession, use and enjoyment of their property. We affirm.
The sole issue on appeal as framed by this Court is whether the District Court properly determined that appellants failed to establish the existence of a prescriptive easement across the respondents' property.
Defendants and appellants are owners of a 320-acre tract of land located in Carbon County, Montana. Their land is completely surrounded by respondents' adjoining land. Appellants' land was originally homesteaded by Horace Pierce in 1914 but has not been owner-occupied since the 1920's when Mr. Pierce moved to Laurel, Montana. Appellant Rita Harding initially purchased the property in her own name in July, 1983, from Ethel Pierce, absentee owner and widow of Horace Pierce. She later transferred one-half interest in the property to her husband, Nevins Harding.
Access to the appellants' property is by a road which runs in a northwesterly direction from the Edgar/Pryor Road across land owned by Arden and Gloria Blair, who are not parties to this action, and across land owned by the respondents. From the appellants' property the road continues in a northwesterly direction toward Silesia, Montana, across lands owned by the respondents and other persons not parties to this action to a point where it forks, with one route continuing toward Silesia, and the other route turning south until a point where it joins a county road which ultimately intersects the Edgar/Pryor Road. Improvements have been made to the road at unestablished times over the years. Apparently the road has followed substantially the same course since homestead days. Gates across the road exist in several locations. However, it appears that none of the gates had ever been locked until some time after the respondents purchased their property from Gerald Greeno in 1979.
This dispute arose shortly after the appellants purchased their property in 1983. On August 6 of that year, they met with respondents who told them that no easement existed across their land to appellants' land. In the fall of 1983, the appellants began cutting chains from gates across the road on respondents' property for access to their land. The respondents discontinued locking their gates in 1984.
The respondents filed this action on April 11, 1988, requesting the District Court to declare that appellants have no right, title, or interest whatsoever across the respondents' land and to enjoin them from trespassing across their lands as a means of ingress to and egress from their property. The respondents' position was that access across their lands has always been permissive while appellants claimed a prescriptive easement over the route the road takes across the respondents' property. Both parties agreed that the road over which the appellants claimed the easement is not a county road, and that there is no easement by implication or necessity due to a lack of commonality of ownership. The District Court entered its findings of fact, conclusions of law, and judgment in favor of the respondents on February 9, 1990. This appeal followed.
The party seeking to establish a public or private easement by prescription has the burden of showing several elements. That party must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period. Downing v. Grover (1989), 237 Mont. 172, 175, 772 P.2d 850, 852. The statutory period is five years. Section 70-19-401, MCA.
The appellants were unable to sustain their burden of proof of a private easement by prescription for the period of time after they purchased their property. The record shows appellants' first distinct and positive assertion of a claim of right to use the road occurred in the fall of 1983 when they cut chains from the respondents' gates. The respondents subsequently brought this action in April, 1988, within the five-year statutory period. Therefore, the existence of a prescriptive easement depends on whether the historical use of the road was adverse or permissive. If permissive use is shown, no easement can be acquired since the theory of prescriptive easements is based on adverse use. Wilson v. Chestnut (1974), 164 Mont. 484, 525 P.2d 24.
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 owner of the land; such claim must be known to, and acquiesced in by, the owner of the land. Taylor v. Petranek (1977), 173 Mont. 433, 437, 568 P.2d 120, 122. Once the required elements are established, adverse use is presumed. O'Connor v. Brodie (1969), 153 Mont. 129, 137, 454 P.2d 920, 925. Additionally, adverse use will be presumed and will be sufficient to establish a title by prescription if there has been unexplained use of the alleged easement for the full statutory period. Taylor, 173 Mont. at 437, 568 P.2d at 122. Either presumption may be overcome by evidence that the use was permissive. See, Rathbun v. Robson (1983), 203 Mont. 319, 661 P.2d 850; Thomas v. Barnum (1984), 211 Mont. 137, 684 P.2d 1106.
The District Court determined the use of the road across the respondents' property had historically been permissive until the appellants purchased their property in 1983 and, therefore, any presumption of adverse use was effectively rebutted. The court further concluded that even if a private easement had been established prior to 1983, any such easement was extinguished by inconsistent acts on the part of the appellants and their predecessors in interest.
The appellants challenge the District Court's determination of...
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...also, Restatement (Third) of Property (Servitudes), § 2.10. 24. For examples of “neighborly relations, ” see, e.g., Keebler v. Harding, 247 Mont. 518, 523, 807 P.2d 1354, 1358 (1991) (“evidence of a local custom of neighborly accommodation or courtesy, without more, is sufficient to establi......
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...Restatement (Third) of Property (Servitudes), § 2.10. 24. For examples of “neighborly relations,” see, e.g., Keebler v. Harding, 247 Mont. 518, 523, 807 P.2d 1354, 1358 (1991) (“evidence of a local custom of neighborly accommodation or courtesy, without more, is sufficient to establish perm......
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...pleasure of the owner of the land; such claim must be known to and acquiesced in by, the owner of the land." Keebler v. Harding (1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356-1357. (Citation omitted.) "If the owner shows permissive use, no easement can be acquired since the theory of presc......