Lyndes v. Cynthia R. Green, Charlie Green, & Hertzler Ranches, LLC

• Decision Date: 25 April 2014
• Docket Number: No. DA 13–0401.,DA 13–0401.
• Citation: 325 P.3d 1225,374 Mont. 510
• Parties: Jay C. LYNDES, Plaintiff and Appellant, v. Cynthia R. GREEN, Charlie Green, and Hertzler Ranches, LLC, Defendants and Appellees.
• Court: Montana Supreme Court

374 Mont. 510

325 P.3d 1225

Jay C. LYNDES, Plaintiff and Appellant,

v.Cynthia R. GREEN, Charlie Green, and Hertzler Ranches, LLC, Defendants and Appellees.

No. DA 13–0401.

Supreme Court of Montana.

Submitted on Briefs Jan. 22, 2014.

Decided April 25, 2014.

For Appellant: Kelly J. Varnes, Hendrickson Law Firm, P.C., Billings, Montana.

For Appellees: Michael McGuinness, Patten, Peterman, Bekkedahl & Green, Billings, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 Jay Lyndes appeals from the District Court's Findings of Fact and Conclusions of Law filed April 10, 2013. We affirm in part, and reverse and remand in part.

¶ 2 Lyndes presents the following issues for review:

¶ 3 Issue One: Whether the District Court erred in determining that the defendants (collectively referred to as the Hertzlers) established a prescriptive easement across Lyndes' property, and the scope of the easement.

¶ 4 Issue Two: Whether the District Court erred in determining the costs awarded to Hertzlers.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 5 In October 2011 Lyndes brought the present action seeking to exclude the Hertzlers from crossing property that he owns, referred to as Section 27, and claiming damages for trespass. Hertzlers counterclaimed for a declaration that the road across Section 27 was a public road or alternatively for a declaration that they had a prescriptive easement to use the road. The District Court conducted a bench trial on January 15–16, 2013, and subsequently issued its Findings of Fact and Conclusions of Law. The following are pertinent facts as found by the District Court.

¶ 6 Plaintiff Jay Lyndes owns property in rural Sweet Grass County, including Section 27, which he leased in 1995 and purchased in 1998. The Hertzlers also have land in the same area, abutting Section 27, which they have owned and used as a cattle ranch since 1973. The present case involves a dispute with Lyndes over whether the Hertzlers have the right to cross Section 27 to move cattle and to conduct other ranching operations on their adjacent property. Shortly after Lyndes purchased the land he learned from the seller Dave Jolly that the Hertzlers had “always crossed Section 27 with their cattle” and to conduct other ranching and recreational activities on their own land.

¶ 7 Lyndes had a confrontation with Ray Hertzler on or near Section 27, accused him of hunting on Lyndes's property, and told him to stay out. After Lyndes chained and locked the gate on the ranch road leading through Section 27 Ray Hertzler called Lyndes to protest the closure, and “asserted his right to access Section 27.” In response, Lyndes placed a key to the gate under a rock so that Hertzler could open the gate and cross Section 27. This situation lasted until 2009–2010, when Ray Hertzler became incapacitated and his daughter Cynthia Green and her husband began active involvement in the Hertzler ranching operation. The Greens had numerous confrontations with Lyndes's ranch employees over their asserted right to access Section 27. When a Lyndes employee confronted the Greens as they rode on horses through Section 27, they asserted that they “have the right to be on this road.” The Greens began cutting Lyndes's chains on the gate into Section 27 whenever they encountered them. At one point they installed their own lock on the Section 27 gate but later found it smashed and inoperable. The Greens asserted to Lyndes or his hired men that they had a right to cross Section 27 and acknowledged cutting the chains. The District Court found that the evidence at trial “did not establish that Mr. Lyndes, during his period of ownership of Section 27 ever precluded [Hertzlers'] use of the access road for a continuous five year period, or at all.”

¶ 8 The ranch road at issue was part of the historic Bozeman Road that connected Ft. Laramie and the Platte River to the new gold fields and settlements in Montana in the early 1860s. The road had limited use by migrants at that time, and the District Court found that it was never established as a public road under state or federal law. That determination is not an issue on appeal. The portion of the road that traverses Lyndes's Section 27 leads only to Hertzlers' property and provides the only reasonable access for moving cattle and other ranching operations. The Hertzlers used the road through Section 27 ten to twelve times a year to move cattle to and from their land in the spring and fall, and to access their land for fencing, tending cattle, cutting wood, hunting on their own land and other activities. The Hertzlers did so on a continuous basis since buying their ranch in 1973 and continued doing so after Lyndes bought Section 27.

¶ 9 The relevant landowners, including Lyndes's predecessors in ownership of Section 27, and other landowners whose property the Hertzlers traversed to get to and from Section 27, were well aware of Hertzlers' long-standing use of the trail to access their property. Hertzlers never asked for or received permission from any landowner, including Lyndes's predecessors in interest, to access Section 27 and to cross it for ranching and other purposes.

¶ 10 Prior to Lyndes's purchase of Section 27, none of the other landowners protested or tried to stop Hertzlers from exercising this right of access. Neighboring landowners testified that they believed that Hertzlers had a right to cross the land, including Section 27, because doing so was essential to their ranching operation. Sonny Todd owned the land now owned by Lyndes prior to 1976. Todd testified that Hertzlers used the road through Section 27 and did so without asking permission. Since the 1970s Hertzlers moved their cattle through Greg Keller's property on the way to Section 27 both before and after Lyndes bought his land. He testified that Hertzlers never asked permission and that he felt that “they have a right to get to their land.” Jo Ann Jolly, daughter of the owner who sold Lyndes his land, testified that her father never gave Hertzlers permission to cross the property nor did they seek it. She believed that “the Hertzlers had a right of way.”

¶ 11 The District Court concluded from the evidence admitted at trial that Hertzlers established the elements of a prescriptive easement before Lyndes ever owned Section 27. The District Court found that “the testimony was un-refuted that the [Hertzlers] used the access road openly and notoriously over a period of forty years.” (Emphasis added.) The District Court found from the evidence admitted at trial that Hertzlers had “used the access road at issue for far longer than the statutory period of five years, before [Lyndes] purchased Section 27.”

¶ 12 The District Court found that Hertzlers had established all the necessary elements by clear and convincing evidence. The un-refuted testimony was that Hertzlers used the Section 27 road openly and notoriously for over forty years. While other landowners, including Lyndes's predecessors in ownership, acquiesced in Hertzler's right to use the road, they never granted any permission nor did Hertzlers ever seek permission to cross Section 27 to access their property. Hertzlers' use of the road did not depend upon any use by others and was under their express claim of right to do so and acknowledgment of that claim by the other landowners. After Lyndes appeared, Hertzlers continued to use the access under a claim of right, despite Lyndes' efforts to lock them out and despite his verbal warning that he has more money and does not mind suing people.

¶ 13 The District Court found that Lyndes never extinguished Hertzlers' prescriptive right by precluding them from using the access “for a continuous five year period, or at all.” After Lyndes bought Section 27, Hertzlers “continued to openly use the access as they had always done and left cut chains and locks and tracks evidencing their use.” The District Court concluded that Hertzlers had established a prescriptive right to cross Section 27 for their ranching and other uses of their adjacent land.

STANDARD OF REVIEW

¶ 14 We review a district court's conclusions of law to determine whether they are correct. Olson v. Jude, 2003 MT 186, ¶ 34, 316 Mont. 438, 73 P.3d 809. We review a district court's findings of fact to determine whether they are clearly erroneous. Brimstone Mining, Inc. v. Glaus, 2003 MT 236, ¶ 20, 317 Mont. 236, 77 P.3d 175. A finding of fact may be clearly erroneous if it is not supported by substantial evidence in the record; if the district court misapprehended the evidence; or when our review of the record leaves this Court with the definite and firm conviction that a mistake has been made. Brimstone, ¶ 20.

¶ 15 The district court is in the best position to observe and determine the credibility of witnesses and we will not second guess its determination regarding the strength and weight of conflicting testimony. Tomlin Enterprises, Inc. v. Althoff, 2004 MT 383, ¶ 22, 325 Mont. 99, 103 P.3d 1069;Shors v. Branch, 221 Mont. 390, 399, 720 P.2d 239, 245 (1986). On appeal, when determining whether the trial court's findings are supported by substantial credible evidence, we will view the district court's findings of fact in the light most favorable to the prevailing party, Tomlin, ¶ 22. The district court's findings will be upheld even if the evidence could have supported different findings. Brimstone, ¶ 20.

DISCUSSION

¶ 16 Issue One: Whether the District Court erred in determining that Hertzlers established a prescriptive easement across Lyndes' property, and the scope of the easement.

¶ 17 A party seeking to establish a prescriptive easement must prove, by clear and convincing evidence, that there was open, notorious, exclusive, adverse, continuous and uninterrupted use for five years. Schmid v. Pastor, 2009 MT 280, ¶ 11, 352 Mont. 178, 216 P.3d 192. A prescriptive easement claim may be defeated by proof that the use was permissive. Brown & Brown v. Raty, 2012 MT...