Stamm v. Kehrer, 85-628
| Decision Date | 19 June 1986 |
| Docket Number | No. 85-628,85-628 |
| Citation | 222 Mont. 167,43 St.Rep. 1143,720 P.2d 1194 |
| Parties | Frances H. STAMM, Plaintiff and Respondent, v. Patricia Ann Kearns KEHRER, the Estate of Iva Lea Orr, a protected person; Evelyn Orr Doran, et al., Defendants and Appellants. |
| Court | Montana Supreme Court |
Schulz, Davis and Warren, John Warren, Dillon, for defendants and appellants.
Max A. Hansen, Dillon, for plaintiff and respondent.
Defendants appeal the judgment of the Fifth Judicial District Court, Beaverhead County, declaring plaintiff to be the owner of a prescriptive easement and granting injunctive relief. We affirm.
Plaintiff Frances Stamm and defendant Patricia Kehrer are neighbors in Dillon Montana. Mrs. Stamm resides at 22 East Orr Street and Mrs. Kehrer resides at 44 East Orr Street. The two lots are separated by an alley which serves as a driveway for Mrs. Stamm and for tenants of a duplex located on the corner of Mrs. Kehrer's property. In 1982, Mrs. Kehrer commenced erecting a picket fence around her entire lot with a gate where the alley entered onto Orr Street and a gate in front of Mrs. Stamm's garage. Although the alley is on Mrs. Kehrer's property and the fence is located on the boundary of her lot, Mrs. Stamm filed suit claiming a prescriptive easement and requesting the portion of the fence interfering with her use of the alley be removed as a nuisance.
Mrs. Stamm moved into her present residence in 1925 with her husband. In about 1929, Mr. Stamm had a garage built on the rear end of their lot, accessible by means of the alley. The adjacent lot was owned by the Orr family until 1981, when it was sold to Mrs. Kehrer. The Orrs and the Stamms were on friendly terms throughout the time they were neighbors.
The Stamms used the alley daily for access to their garage, and regularly drove from the alley onto their lawn to wash their car or unload groceries by the back door. The portion of Stamms' lot behind the garage was used for parking when they had visitors. The alley was also frequently used by the public until the late 1950's when a cottonwood tree fell and blocked the way.
The Stamms never asked permission of the Orrs to use the area in question. Although the property boundary was about 8 feet west of the alley on the Stamms' side, the Stamms maintained the lawn and shrubbery on the subject parcel of land. Additionally, the Stamms filled in potholes, sprinkled during the summer to keep the dust down, and occasionally hauled in gravel for surface material.
In 1975, the Orrs commenced construction of a snow fence around the rear portion of the Orr property with the intention of permanently closing the south end of the alley. When the workmen attempted to string the fence along the property boundary between the alley and the rear portion of Stamms' lot, Mrs. Stamm objected. (Mr. Stamm died in 1974.) After discussing the matter, the snowfence was halted 20 feet south of Mrs. Stamm's garage so she would have continued access to the portion of her lot behind the garage. There was no snow fence erected north of her garage on the parcel of land between the alley and Mrs. Stamm's property line.
In 1981, the Orrs sold their property to Mrs. Kehrer. In 1982, Mrs. Kehrer removed the snow fence and began construction of a 6 foot high picket fence around the entirety of her lot. Over Mrs. Stamm's objection, the fence was built along the boundary of her property with a gate to allow access to her garage and a gate at the alley's entrance onto Orr Street. The fence closed off Mrs. Stamm's access to the portion of her lot behind the garage, and prevented her from driving across her lawn to unload groceries at her back door.
Mrs. Stamm filed suit alleging a prescriptive easement and requesting the fence be removed for obstructing the enjoyment and use of her property. A temporary restraining order was subsequently issued enjoining Mrs. Kehrer from continuing construction of the fence and requiring removal of the portions of the fence which obstructed Mrs. Stamm's access to her lot.
A bench trial was held on April 26, 1985. The District Court found that Mrs. Stamm and her predecessors in interest have openly, notoriously, adversely, exclusively, and continuously used the alley for a period of 60 years; that Mrs. Kehrer failed to rebut the presumption of adverse use by any showing that the use was permissive; that Mrs. Stamm was the owner of a prescriptive easement for ingress and egress to her property and Mrs. Kehrer was barred from obstructing such use. Mrs. Kehrer appeals the judgment...
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...use of the right-of-way.” Id. at 362, 711 P.2d at 1373. ¶ 21 We also dealt with the placement of a gate in Stamm v. Kehrer, 222 Mont. 167, 720 P.2d 1194 (1986). We concluded in Stamm that the construction of a fence and installation of a gate—despite the gate never having been locked, and r......
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...contend that they are entitled to an injunction, relying on Flynn v. Siren (1986), 219 Mont. 359, 711 P.2d 1371, and Stamm v. Kehrer (1986), 222 Mont. 167, 720 P.2d 1194. In Flynn and Stamm, we recognized that the owner of land subject to an easement could not interfere with the use and rig......
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