Renner v. Nemitz
| Decision Date | 04 October 2001 |
| Docket Number | No. 00-619.,00-619. |
| Citation | 2001 MT 202,306 Mont. 292,33 P.3d 255 |
| Parties | James G. RENNER, Plaintiff and Respondent, v. David NEMITZ, BN Leasing Corporation, a Delaware corporation, City of Ismay, Montana, a political subdivision of the State of Montana, Montana Bank of Baker, N.A., Small Business Administration, an agency of the Government of the United States of America, and all other persons unknown, claiming or who might have any right, title, estate or interest in, or lien or encumbrance upon, the real property described in the Complaint, or any thereof adverse to Plaintiff's ownership, or any cloud upon Plaintiff's title thereto, whether such claim or possible claim be present or contingent, including any claim or possible claim of dower, inchoate or accrued, and the unknown heirs, grantees and devisee of any of such Defendants as may be deceased, and the wife of any heir or devisee, if married, and the unknown owners of said real property, Defendants and Appellants. |
| Court | Montana Supreme Court |
Page C. Dringman, Patrick N. Dringman, Josephson & Dringman, Big Timber, MT; James Carr, Miles City, MT, For Appellant (David Nemitz).
George W. Huss, Brown & Huss, Miles City, MT, For Respondent.
¶ 1 The appellant, David Nemitz (Nemitz), appeals from an order of the District Court of the Sixteenth Judicial District, Custer County, finding a prescriptive easement over his property in favor of the respondent, James G. Renner (Renner). We affirm in part and reverse in part.
¶ 2 We address the following issues on appeal:
¶ 3 1. Did the District Court err in finding a prescriptive easement over Nemitz's property in favor of Renner?
¶ 4 2. Did the District Court err in finding the prescriptive easement was not abandoned?
¶ 5 3. Did the District Court err in finding that the prescriptive easement was not extinguished by Nemitz's adverse conduct?
We decline to address the threshold issue of whether a prescriptive easement can run against property of a railroad in Montana, because, as discussed below, this issue was not properly preserved for appeal.
¶ 6 This case involves the use of an area of land in Ismay, Montana over a 52-year period from 1948 to 2000. The following facts are undisputed. Nemitz and Renner own adjoining property located in Ismay, Montana. Nemitz's property lies generally to the north of Renner's property. Nemitz leased his property in 1976 and then purchased the property in 1982. Prior to his purchase, the property was owned by the Chicago, Milwaukee, St. Paul and Pacific Railroad. Nemitz operates the Ismay Grain Company on the property. There is a public easement (City of Ismay easement) that crosses Nemitz's property roughly from east to west. Renner purchased his property in 1995. Prior to his purchase the property was owned by Wayne Rieger (Rieger) from 1975 to 1995, by Robert and Carol Herbst from 1974 to 1975, and by Jacob and Luella Schell (Jacob and Luella) from 1948 to 1974.
¶ 7 Renner accesses his property by crossing Nemitz's property from the City of Ismay easement on the north to his property on the south. Renner crosses Nemitz's property in two different places, in order to form a loop driveway at Renner's house. An easement to the west side of the loop was stipulated at trial and is not at issue here. Both the existence and the location of an approximately 100' easement over the east side loop is at issue in this case. To assist the reader, a diagram of the involved area is attached as an appendix to this opinion.
¶ 8 A series of interactions between the two parties eventually led to Nemitz building a fence across the east side of the loop which prevented its use. Renner then filed a claim to establish an easement over the east side of the loop. Renner identified a number of defendants besides Nemitz on his complaint and also included unknown defendants. Three of the identified defendants, BN Leasing, the Montana Bank of Baker, and the Small Business Administration, were either dismissed or allowed default judgment against them by failing to respond. The other identified defendant, the City of Ismay, indicated at trial it did not wish to contest Renner's claim and it stipulated to exhibits establishing the City of Ismay easement. No defendants unknown at the time of filing the complaint were discovered.
¶ 9 At trial, both parties presented testimony regarding use of the east side of the loop. Further, both parties presented testimony regarding two possible exits of the east side loop onto the City of Ismay easement. One exit essentially makes a straight line from the Renner household to the City of Ismay easement. This exit goes to the right of the now-existing utility pole and the left of the now-existing Quonset building on the Nemitz property. The other exit turns west and rejoins with the west side of the loop at the point where it meets the City of Ismay easement. This exit travels to the left (south) of the now existing utility pole. Further details of the testimony will be discussed below under each issue.
¶ 10 After trial on the matter, the District Court found a prescriptive easement over the Nemitz property for the east side of the loop during the time that the Schell's owned the property, 1948 to 1974. This finding was based on testimony from Clarence and Lloyd Schell (Clarence and Lloyd), two sons of Jacob and Luella Schell. The District Court then found this easement was not later abandoned by Rieger during the time he owned the property, 1975 to 1995, based on his deposition testimony.1 Finally, the District Court found that Nemitz's activities, from 1995 when Renner purchased his property to 1998 when the fence was built over the east loop, failed to extinguish the prescriptive easement. In making each of these findings, the District Court did not make specific distinctions between the two possible exits of the east side of the loop.
¶ 11 Based on these findings, the District Court concluded there is an easement over the east side of the loop in Renner's favor. The District Court then granted easements to Renner for both possible exits of the east side of the loop. Based on these findings and conclusions, the District Court ordered all obstructions of both easements removed. Nemitz appeals from that order and is presumably appealing the award of both possible exits, because both were granted by the District Court and both interfere with his use of the Quonset hut. The exit to the right of the pole prevents him from parking vehicles in front of the Quonset for long periods of time and using it as a storefront for customers and repairs. The exit to the left of the utility pole prevents him from parking semi-trucks next to the Quonset in a position so that he can unload grain with an auger into the semi-trucks.
¶ 12 The standard of review of a District Court's findings of fact is whether the findings are clearly erroneous. Wareing v. Schreckendgust (1996), 280 Mont. 196, 202-03, 930 P.2d 37, 41. In this case, all the alleged errors are based on findings of fact. This Court has adopted a three-part test to determine whether a finding is clearly erroneous:
Daines v. Knight (1995), 269 Mont. 320, 325, 888 P.2d 904, 906 (citing Interstate Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287). The district court is in the best position to observe and judge the credibility of witnesses, therefore, "[w]e will not second guess the district court's determination regarding the strength and weight of conflicting testimony." Double AA Corp. v. Newland & Co. (1995), 273 Mont. 486, 494, 905 P.2d 138, 142. We review a district court's findings to determine whether substantial evidence supports those findings, not contrary findings. Rafanelli v. Dale (1996), 278 Mont. 28, 37, 924 P.2d 242, 248.
¶ 13 The elements necessary to establish a prescriptive easement must be proved at the district court level by clear and convincing evidence. Wareing, 280 Mont. at 206, 930 P.2d at 43. If a claimant establishes open, notorious, continuous, uninterrupted and exclusive use of an easement by clear and convincing evidence, a presumption arises that the use is adverse to the servient estate and the burden shifts to the owner to show the use was permissive. Wareing, 280 Mont. at 209, 930 P.2d at 45; Glantz v. Gabel (1923), 66 Mont. 134, 141, 212 P. 858, 860. The level of proof for abandonment is also basically clear and convincing in order to effect the same underlying policy to preserve established property rights. In Rieman v. Anderson (1997), 282 Mont. 139, 145-46, 935 P.2d 1122, 1126, we held that a party claiming that a property right has been abandoned must prove the acts claimed to constitute abandonment are of a character so decisive and conclusive as to indicate clear intent to abandon the easement. The level of proof for extinguishment of an easement by reverse adverse possession is the same as the burden for establishing a prescriptive easement. Halverson v. Turner (1994), 268 Mont. 168, 174, 885 P.2d 1285, 1290.
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