Lemont Land Corp. v. Rogers

• Citation: 269 Mont. 180,887 P.2d 724
• Decision Date: 20 December 1994
• Docket Number: No. 94-263,94-263
• Parties: LEMONT LAND CORPORATION, a Montana corporation, Plaintiff and Respondent, v. David "Buzz" ROGERS, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 724

887 P.2d 724

269 Mont. 180

LEMONT LAND CORPORATION, a Montana corporation, Plaintiff and Respondent, v. David "Buzz" ROGERS, Defendant and Appellant.

No. 94-263.

Supreme Court of Montana.

Submitted on Briefs Oct. 13, 1994.

Decided Dec. 20, 1994.

Kent R. Douglass, Swandal, Douglass, Frazier & Cole, Livingston, for appellant.

Karl Knuchel, Livingston, for respondent.

GRAY, Justice.

David "Buzz" Rogers (Rogers) appeals from a judgment entered by the Sixth Judicial District Court, Park County, quieting title to certain property in Lemont Land Corporation (Lemont), and from the court's underlying order granting Lemont's, and denying his, motion for summary judgment. We conclude that no genuine issues of material fact exist and that Rogers is entitled to judgment as a matter of law on his claim to a prescriptive easement across Lemont's property. Therefore, we reverse and remand for entry of summary judgment in Rogers' favor.

Lemont brought this action to quiet title to property across which Rogers claims a prescriptive easement. The facts relating to the property involved and the parties' ownership of that property are not in dispute.

Lemont and Rogers own adjoining properties bordering Mill Creek in Park County. Rogers first took possession of his thirty-eight acres of land in 1967 as a lessee, obtaining the deed thereto in 1972. Lemont obtained its property from the Blackacre Land Company (Blackacre) in 1991. Blackacre had purchased the land from Sharon and Phillip Malcolm (Malcolms) in 1990. The Malcolms purchased the land in 1975 from Mile High Ranch, Incorporated, a corporation owned by Phillip Malcolm and his father, mother, and brother. Phillip Malcolm lived on the property from 1938 through 1990.

Both Rogers' and Lemont's parcels lie immediately east of Mill Creek; the creek forms the western border of each parcel. Lemont's property fronts Rogers' on the north, east and south sides. To the west of each parcel across Mill Creek is a county road which runs generally north and south.

Prior to the mid-1970s, primary access to Rogers' property was via a deeded easement from the county road heading due east, across a bridge over Mill Creek, and onto the northwest corner of his parcel. We refer to this access as access # 1. Access to Lemont's property is via an easement from the county road heading east, across a bridge over Mill Creek, and entering the southwest portion of Lemont's parcel. We refer to this access as access # 2. Access # 2 passes the residence and livestock area on Lemont's parcel, then heads north onto Rogers' property where it links up with access # 1.

In the mid-1970s, the bridge over which access # 1 passed washed out and has never been replaced. From that point forward, Rogers used access # 2 exclusively.

At some point, a gate was placed across access # 2 to control livestock. During the Malcolms' ownership and occupation of the property now owned by Lemont, this gate was closed--but not locked or chained--when the Malcolms would bring their livestock down to the calving area. During such periods, Rogers would open and shut the gate as he drove through to his property.

Since the mid-1970s, access # 2 has been used by Rogers and his invitees on a daily basis as the sole means of ingress to, and egress from, his property. Rogers has never sought permission to use the road. Rogers and Phillip Malcolm--predecessor in interest to both Rogers and Lemont--agree that Rogers' use of the road was never discussed during the many years they were neighbors. Rogers made no effort to hide his use of the access, treating the road as if it were his own. During Rogers' occupation of his land, the only objection or comment regarding his use was made by the present owner, Lemont. Access # 2 provides access only to Lemont's and Rogers' properties. Rogers and Lemont, together with their invitees, are the only frequent users of the road.

After Lemont obtained the property in 1991, it attempted to limit Rogers' use of access # 2 by locking a gate between the parcels, thereby denying Rogers access to his land. Rogers cut the lock, precipitating Lemont's quiet title action.

Both parties moved for summary judgment. Rogers asserted entitlement to judgment on the basis that a prescriptive easement had been created as a matter of law, while Lemont contended that it was entitled to have title quieted to its property with no easement in Rogers' favor. The District Court granted Lemont's motion, denied Rogers' motion and entered judgment quieting title to Lemont's property. Rogers appeals.

Did the District Court err in granting Lemont's motion for summary judgment and denying Rogers' motion for summary judgment on the basis that Rogers had not established a prescriptive easement across Lemont's land?

Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. We review an order granting summary judgment by applying the same criteria as the district court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

To establish an easement by prescription, the party claiming the easement must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the claimed easement for the full statutory period of five years. Public Lands v. Boone and Crockett (1993), 259 Mont. 279, 283, 856 P.2d 525, 527 (citation omitted). The consecutive five-year period may have occurred at any time; prescriptive title, once established, is not divested by the subsequent transfer of the servient estate. O'Connor v. Brodie (1969), 153 Mont. 129, 139, 454 P.2d 920, 926. Thus, our inquiry into whether Rogers' use of access # 2 matured into a prescriptive right focuses on the record before us regarding his use of access # 2 between the mid-1970s, when the access # 1 bridge washed out, and 1990, when the Malcolms sold the property reached by access # 2 to Blackacre.

The first requirement in establishing a prescriptive right is that the use be open and notorious. We have defined "open and notorious" as a distinct and positive assertion of a right hostile to the rights of the owner and brought to the attention of the owner. Downing v. Grover (1989), 237 Mont. 172, 176, 772 P.2d 850, 852 (citations omitted).

No genuine issue of material fact exists with regard to the open and notorious nature of Rogers' use of access # 2. Rogers and his invitees did not attempt to conceal their use of the road, traveling over it on a daily basis and at their own discretion. In addition, access # 2 passes just 100 feet from the Malcolms' full-time residence during the years in question, close enough for the traffic, dust and noise to constitute a noticed use that was hostile to the Malcolms' ownership. We conclude that Rogers' use of access # 2 was open and notorious as a matter of law.

The second requirement for establishing a prescriptive right is that the use be exclusive. In the case of a claimed prescriptive easement for a right of way, exclusive use means no more than that the right of the claimant must rest upon its own foundations and not depend upon a like right in any other person. Scott v. Weinheimer (1962), 140 Mont. 554, 561-562, 374 P.2d 91, 95, overruled in part on other grounds, Warnack v. Coneen Family Trust (Mont.1994), --- Mont. ----, 879 P.2d 715, 51 St.Rep. 739. It is not necessary that the person asserting a right by prescription be the only one who used the roadway, so long as the right was exercised under a claim of right independently of others. See Scott, 374 P.2d at 95-96.

No genuine issue of material fact exists with regard to whether Rogers' use of the road was dependent upon another's claim or right. Rogers and the Malcolms, together with their invitees, appear to have been the only regular users of access # 2. Indeed, as noted above, access # 2 provides access to no other property. We conclude that Rogers' use of the road was exclusive as a matter of law.

The third requirement for a prescriptive easement is that the use be continuous and uninterrupted. We have defined "uninterrupted use" as a "use not interrupted by the act of the owner of the land or by voluntary abandonment by the party claiming the right." Downing, 772 P.2d at 852 (citations omitted). "Continuous" use is that which is made often enough to constitute notice of the claim to the potential servient owner. Downing, 772 P.2d at 852 (citations omitted).

No genuine issue of material fact exists with regard to the continuous and uninterrupted nature of Rogers' use of access # 2. It is undisputed that Rogers and his invitees used the road on a daily basis after the...