Taylor v. Montana Power Co., 02-022.

• Decision Date: 14 November 2002
• Docket Number: No. 02-022.,02-022.
• Parties: Earl D. TAYLOR and Evelyn E. Taylor, Plaintiffs and Appellants, v. MONTANA POWER COMPANY, Defendant and Respondent.
• Court: Montana Supreme Court

58 P.3d 162

2002 MT 247

312 Mont. 134

Earl D. TAYLOR and Evelyn E. Taylor, Plaintiffs and Appellants, v. MONTANA POWER COMPANY, Defendant and Respondent.

No. 02-022.

Supreme Court of Montana.

Submitted on Briefs May 2, 2002.

Decided November 14, 2002.

Thomas E. Towe, Towe, Ball, Enright, Mackey & Sommerfeld, Billings, Montana, for Appellants.

Michael P. Manion, The Montana Power Company, Butte, Montana, for Respondent.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Earl and Evelyn Taylor (Taylors) filed a complaint in the Thirteenth Judicial District Court alleging that the Montana Power Company (MPC) failed to gain permission to install electrical power lines below and above their property. In its answer, MPC asserted, among other defenses, that it had established prescriptive easements for the underground and overhead power lines and accompanying equipment. Following MPC's motion for summary judgment, the District Court concluded MPC had established prescriptive easements on Taylors' property, and granted judgment in MPC's favor. Taylors appeal from the District Court's order of summary judgment. We affirm.

¶ 2 The sole issue presented on appeal is whether the District Court erred when it concluded MPC established prescriptive easements over Taylors' properties for its underground and overhead power lines and accompanying equipment.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Between 1964 and 1973, Taylors purchased several lots in the Sun Valley Subdivision, near Billings, Montana. They purchased Lot 5 of Block 6 in 1964, where they built their house and still reside. Relevant to this matter, Taylors also purchased Lots 5, 6, and 7 of Block 8, and Lot 8 of Block 6 in 1971, and Lots 3 and 4 of Block 8 in 1973. Collectively, Lots 3, 4, 5, 6, and 7, of Block 8 (hereinafter, Parcel 1) are positioned across the street from Taylors' home. Lot 8 of Block 6 (hereinafter, Parcel 2) is positioned behind Taylors' home on Lot 5.

¶ 4 In 1964, MPC installed a lift pole and accompanying overhead power line on Parcel 2, which Taylors later purchased in 1971. In May of 1978, MPC installed an underground power line and two above-ground padmount transformers on Parcel 1. At the time, Parcel 1 was owned by Taylors, but sat vacant. According to Earl Taylor's (Earl) testimony, and as depicted in photographs submitted by both parties, numerous materials were stored on Parcel 1, having been placed there by either Earl or his neighbors. Some of the objects had been on the property for at least ten years.

¶ 5 Taylors allege they first became aware of the underground lines on Parcel 1 in early 1997, when they inquired with MPC about converting their overhead power service to underground service. After inspecting the property in response to the request to convert, an MPC employee informed Taylors that there were two transformers and an accompanying underground line already in place. In April of 1997, MPC sent a letter requesting that Taylors sign an enclosed easement agreement, thus granting MPC and other utility companies a common easement. Taylors refused to execute the easement. At no time has there been a recorded easement in MPC's favor for either the overhead lines or underground lines and transformers.

¶ 6 On April 7, 1998, Taylors sent a letter to MPC protesting the location of the underground lines and transformers, which, they argued, serviced other lots not owned by them. In the letter, Taylors asserted that even if MPC had requested permission to install the lines and transformers, they would not have given MPC an easement to service lots other than those owned by Taylor.

¶ 7 On December 29, 2000, Taylors filed a Complaint against MPC, alleging trespass, wrongful occupation of real property, conversion, inverse condemnation, and unjust enrichment. MPC filed its Answer on February 8, 2001, asserting several defenses, including an assertion that it had established prescriptive easement as to the underground power lines and two transformers on Parcel 1, and also a prescriptive easement for the overhead line and pole located on Parcel 2. Ultimately, MPC filed a Motion for Summary Judgment on its prescriptive easements defense, and in the alternative, on its assertion that the Statutes of Limitation had passed on Taylors' claims.

¶ 8 Following oral arguments, the District Court entered its Order and Memorandum on November 6, 2001. The District Court concluded MPC had established, by clear and convincing evidence, the necessary elements of prescriptive easement for both the overhead and underground power lines. Accordingly, the District Court granted summary judgment to MPC and dismissed Taylors' complaint. It is from this judgment that Taylors appeal.

STANDARD OF REVIEW

¶ 9 We review appeals from summary judgment rulings de novo. Hitshew v. Butte/Silver Bow County, 1999 MT 26, ¶ 14, 293 Mont. 212,

¶ 14, 974 P.2d 650, ¶ 14 (citing Axtell v. M.S. Consulting, 1998 MT 64, ¶ 21, 288 Mont. 150, ¶ 21, 955 P.2d 1362, ¶ 21). We apply the same summary judgment evaluation, based on Rule 56, M.R.Civ.P., as the district court. Hitshew, ¶ 14 (citing Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903). In Bruner, we set forth our inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).

DISCUSSION

¶ 10 Did the District Court err when it concluded MPC established prescriptive easements over Taylors' properties for its underground and overhead power lines and accompanying equipment?

¶ 11 An easement is a nonpossessory interest in land that gives a person the right to use the land of another for a specific purpose. Ray v. Nansel, 2002 MT 191, ¶ 22, 311 Mont. 135, ¶ 22, 53 P.3d 870, ¶ 22 (citations omitted). An easement by prescription is created by operation of law. Hitshew, ¶ 16 (citing Rettig v. Kallevig (1997), 282 Mont. 189, 193, 936 P.2d 807, 810). To establish a prescriptive easement, a claimant must establish open, notorious, continuous, uninterrupted, exclusive and adverse use for five years. See Ray, ¶ 22 (citing Renner v. Nemitz, 2001 MT 202, ¶ 13, 306 Mont. 292, ¶ 13, 33 P.3d 255, ¶ 13); and Hitshew, ¶ 16 (citation omitted). The claimant must prove these elements by clear and convincing evidence. Ray, ¶ 22 (citing Renner, ¶ 13). Finally, a claimant's failure to prove any element for the full prescriptive period is fatal to the entire claim. Ray, ¶ 23 (citation omitted).

¶ 12 Taylors' first contention on appeal is that the District Court erred in concluding MPC's use of Parcel 1 was open and notorious. Therefore, for the purposes of this appeal, we will address only the merits of that element of MPC's prescriptive easement claim with respect to the underground line and transformers on Parcel 1. Taylors' second contention — with respect to both Parcels — is that in addition to establishing those prescriptive easement elements listed above, MPC was required to show either color of title under § 70-19-407, MCA, or an enclosure or cultivation as required under § 70-19-410, MCA. We will address the open and notorious element as to the underground lines and transformers on Parcel 1, first.

¶ 13 When establishing a prescriptive easement, use is "open and notorious" when it gives the landowner actual knowledge of the claimed right, or is of such a character as to raise a presumption of notice. Ray, ¶ 26 (citing Albert v. Hastetter, 2002 MT 123, ¶ 21, 310 Mont. 82, ¶ 21, 48 P.3d 749, ¶ 21; and Hitshew, ¶ 17). See also, Mildenberger v. Galbraith (1991), 249 Mont. 161, 167, 815 P.2d 130, 134-35

("It has long been established that an open and notorious possession is such that it will give the owner of the property right `either actual knowledge of the hostile claim, or be of such a character as to raise a presumption of notice or be so patent that the owner could not be deceived.'") (citing Collins v. Thode (1918), 54 Mont. 405, 411-12, 170 P. 940, 941).

¶ 14 In concluding that the transformers and underground lines were sufficiently "open and notorious" to establish a prescriptive easement, the District Court applied the "prudent man test" from O'Connor v. Brodie (1969), 153 Mont. 129, 139, 454 P.2d 920, 925-26 (concluding that plaintiffs possessed a prescriptive easement for the underground water line on defendants' property). The District Court concluded that the information supplied in the parties' pleadings, particularly the photographs submitted by both parties, clearly showed the visibility of the transformers on Parcel 1. The court also noted that MPC has continuously serviced the transformers since they were installed in 1978. The District Court concluded that a prudent property owner engaging in even a casual inspection of his property would have discovered the transformers.

¶ 15 Taylors argue that the District Court erred in making this conclusion, contending that such a conclusive presumption of knowledge should not be recognized, and assert they did not have actual notice of the underground lines until 1997. Taylors assert the court erroneously relied on O'Connor for the "prudent man test," contending that the test was dictum, and that O'Connor was distinguishable because the prescriptive right in that case was perfected against the defendants' predecessors in interest. See O'Connor, 153 Mont. at 139,

454 P.2d at 926.

¶ 16 Plaintiffs in O'Connor sought to enjoin defendants from interfering with their use of an underground water line that traversed defendants' land. The...