Rafanelli v. Dale

• Citation: 278 Mont. 28,53 St.Rep. 746,924 P.2d 242
• Decision Date: 09 August 1996
• Docket Number: No. 95-440,95-440
• Parties: V. Mark RAFANELLI, Plaintiff and Appellant, v. Hal J. DALE, Virginia Lee Gabig, and Paulette Dale-Hutcheon, Defendants and Respondents.
• Court: United States State Supreme Court of Montana

Page 242

924 P.2d 242

278 Mont. 28

V. Mark RAFANELLI, Plaintiff and Appellant, v. Hal J. DALE, Virginia Lee Gabig, and Paulette Dale-Hutcheon Defendants and Respondents.

No. 95-440.

Supreme Court of Montana.

Submitted on Briefs May 2, 1996.

Decided Aug. 9, 1996.

John S. Warren; Davis, Warren & Hritsco Dillon, for Appellant.

Loren Tucker; Tucker Law Firm, Virginia City, for Respondents.

GRAY, Justice.

V. Mark Rafanelli (Rafanelli) appeals from a judgment of the Fifth Judicial District Court, Madison County, that Hal Dale and his daughters, Virginia Lee Gabig and Paulette Dale-Hutcheon, (the Dales) have an easement by prescription across a portion of his property. We affirm.

The following issues are raised on appeal:

1. Did the District Court err in concluding that the Dales had acquired a prescriptive easement?

2. Did the District Court err in not concluding that the Dales' prescriptive easement had been extinguished?

3. Did the District Court abuse its discretion in admitting Exhibit 29 into evidence?

The Dales are the owners of approximately 43 acres of land located in Beall Canyon, Madison County, Montana. The Dales' property is bordered on the north, west, and south by the Whiterock Ranch, currently owned by Rafanelli (see diagram). The east side of the Dales' property abuts Forest Service land. The only means of accessing the Beall Canyon property is across land belonging to the Whiterock Ranch.

Hal Dale purchased the Beall Canyon acreage in partnership with his brother, Claude Dale, in 1971. The previous owners were Julian Strawn and his heirs Pearl Strawn, Alice Pasley and Frances Salveson (the Strawns).

Claude Dale died on October 3, 1990. Pursuant to a provision contained in Hal and Claude Dale's partnership agreement, Hal and his two daughters jointly purchased Claude's one-half interest in the property from Claude's widow in February of 1992.

The Whiterock Ranch was purchased by Knight Carson and his family (the Carsons) in 1972. The Carsons sold the ranch to June and Ronald Thomas (the Thomases) in December of 1986, and the Thomases subsequently sold the ranch to Rafanelli in 1991.

Three routes across the Whiterock Ranch provide access to Beall Canyon. Route A leads south and east to the main buildings of the Whiterock Ranch, then west nearly to Beall Creek and southeast, roughly parallel to the creek, to the Dales' property in Beall Canyon. Route B travels south from the Waterloo town dump along the west side of Section 2, Township 2 South, Range 5 West, MPM; turns east through a gate onto the Whiterock Ranch; crosses Beall Pasture and Beall Creek; and then follows the creek into the canyon. Route C begins at the Waterloo town dump, travels east, then southeast to Beall Creek and along the creek into Beall Canyon. The Dales have used all three access routes across Whiterock Ranch since purchasing the Beall Canyon property in 1971.

In 1992, Rafanelli brought an action to quiet title to the Whiterock Ranch property in which he requested the District Court to declare that the Dales had no right, title, or interest in any easement across Whiterock Ranch. The Dales counterclaimed, asserting that they had acquired prescriptive easements over Routes A and B. After a bench trial, the District Court concluded that the Dales had an easement by prescription over access Route B and entered judgment accordingly. Rafanelli appeals.

STANDARDS OF REVIEW

We review a district court's findings of fact to determine whether they are clearly erroneous, giving "due regard ... to the opportunity of the trial court to judge of the credibility of the witnesses." Rule 52(a), M.R.Civ.P. In determining whether a court's findings of fact are clearly erroneous, we apply a three-part test:

First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that "[A] finding is 'clearly erroneous' when, although there is evidence to support it, a review of the record leaves the [C]ourt with the definite and firm conviction that a mistake has been committed."

Interstate Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287 (citations omitted). We review conclusions of law to determine whether the district court's interpretation of the law is correct. Public Lands Access Ass'n, Inc. v. Boone and Crockett Club Found., Inc. (1993), 259 Mont. 279, 283, 856 P.2d 525, 527.

DISCUSSION

1. Did the District Court err in concluding that the Dales had acquired a prescriptive easement across Whiterock Ranch?

Rafanelli contends that the preponderance of the evidence in the record does not support the District Court's findings that the Dales had established adverse and uninterrupted use of Route B. He also argues that substantial credible evidence before the District Court proved that the use of Route B was permissive, rather than adverse, or was on the basis of neighborly accommodation. We note at the outset that Rafanelli's arguments ignore our standard of review of a district court's findings of fact. It is within the province of the trier of fact to weigh the evidence and assess the credibility of witnesses and we will not second-guess those determinations. Double AA Corp. v. Newland & Co. (1995), 273 Mont. 486, 494, 905 P.2d 138, 142. Moreover, we will uphold a district court's findings when there is substantial evidence to support them even when there is also evidence supporting contrary findings. Wiesner v. BBD Partnership (1993), 256 Mont. 158, 161, 845 P.2d 120, 122.

The District Court found that the Dales' predecessors used various routes across Whiterock Ranch without permission for many years. However, the bulk of its findings related to the Dales' own use of the access routes after they purchased the Beall Canyon property in 1971 and, with regard to this period, the court specifically found that the Dales' use of Route B met the elements necessary to establish a prescriptive easement. Given that Rafanelli challenges findings relating to only two of the elements, we scrutinize the record to determine whether it contains sufficient evidence to support the court's findings that the Dales' use of Route B after their purchase of the Beall Canyon property in 1971 was adverse and uninterrupted.

A prescriptive easement is created by operation of law in Montana. Swandal Ranch Co. v. Hunt (1996), 276 Mont. 229, ----, 915 P.2d 840, 843, 53 St.Rep. 361, 362. The party claiming the easement bears the burden of establishing "open, notorious, exclusive, adverse, continuous and uninterrupted. use of the easement claimed for the ... statutory [five-year] period." Public Lands, 856 P.2d at 527 (quoting Keebler v. Harding (1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356). In order to show that the use of a claimed easement is adverse, a claimant must prove that the use is "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." Rappold v. Durocher (1993), 257 Mont. 329, 332, 849 P.2d 1017, 1019 (citation omitted).

When Knight Carson and his family purchased the Whiterock Ranch in 1972, he noticed the Dales using Route A--the road leading past the main ranch buildings--to reach Beall Canyon. Carson consulted his attorney, who sent a letter to Hal Dale on September 27, 1972. The letter informed Dale that the Whiterock Ranch corporation stockholders had no desire to grant any easements across ranch property and that any future agreements regarding access would require approval by the stockholders. The letter also related that a portion of Route A would be plowed under to create a section of irrigated crop land.

The Dales' attorney responded by letter dated October 16, 1972, stating that

[t]he Dales do not wish to force their way through anyone's property if a road has not been established and even if it has, if another route of access can be used, then they certainly will comply with the wishes of your client.

The letter indicated the Dales' belief they had the right, and were affirmatively asserting that right, to cross the Whiterock Ranch by specifically referencing, and attaching a copy of, a document referred to as the Holbert affidavit.

The Holbert affidavit was executed in 1967 by Howard S. Holbert, A.W. Purvis, and Otto C. Nolte, all of whom were acquaintances of the Strawn family, and was recorded with the Madison County Clerk and Recorder. The affidavit identifies the Beall Canyon property and states that the Strawns had used a certain road to access the property for more than twenty years. The Holbert affidavit neither clearly describes the location of the road it references nor indicates that the Strawns were claiming a right over that access adverse to any landowner. Hal Dale testified that, when he and his brother purchased the Beall Canyon property, they believed that they had a right to access their property across the ranch based on this affidavit and comments made to them by the Strawn family.

After the exchange of letters in 1972, the Dales continued to use both Route A and Route B to access the Beall Canyon property; they did not contact the Whiterock Ranch shareholders to make arrangements or ask permission to use either road. The Carsons eventually plowed up a portion of the Route A road in late 1972 and, thereafter, the Dales primarily used Route B to access Beall Canyon, although a ranch lane still provided access through the area of the ranch buildings.

In July of 1973, the Carsons sent the Dales' attorney another letter regarding the Dales' accessing Beall Canyon via the ranch and complaining of the amount of traffic through the ranch....