Warnack v. Coneen Family Trust

• Decision Date: 19 September 1996
• Docket Number: No. 95-519,95-519
• Citation: 278 Mont. 80,923 P.2d 1087
• Parties: A.C. WARNACK, Trustee of the A.C. Warnack Trust; and Kenneth R. McDonald, Plaintiffs, Appellants and Cross-Respondents, v. The CONEEN FAMILY TRUST; Elk Canyon Associates Limited Partnership, a Montana Limited Partnership; and J. Bowman Williams, Defendants, Respondents and Cross-Appellants.
• Court: Montana Supreme Court

Page 1087

923 P.2d 1087

278 Mont. 80

A.C. WARNACK, Trustee of the A.C. Warnack Trust; and Kenneth R. McDonald, Plaintiffs, Appellants and Cross-Respondents, v. The CONEEN FAMILY TRUST; Elk Canyon Associates Limited Partnership, a Montana Limited Partnership; and J. Bowman Williams, Defendants Respondents and Cross-Appellants.

No. 95-519.

Supreme Court of Montana.

Submitted on Briefs June 27, 1996.

Decided Aug. 27, 1996.

Rehearing Denied Sept. 19, 1996.

John V. Potter, Jr., White Sulphur Springs, Jean Faure; Church, Harris, Johnson & Williams, Great Falls, for Appellants.

Patrick F. Hooks; Luxan & Murfitt, Townsend, Perry J. Moore, Cindy E. Younkin; Moore, O'Connell & Refling, Bozeman, for Respondents.

LEAPHART, Justice.

A.C. Warnack and Kenneth R. McDonald (collectively Warnack) appeal and Coneen Family Trust, Elk Canyon Associates, and J. Bowman Williams (collectively Coneen) cross-appeal from the amended judgment and injunction order of the Fourteenth Judicial District Court, Meagher County. Warnack appeals from the District Court's determination that the easement at issue here was limited in scope to its use during the prescriptive period, and Coneen appeals from the determination that a prescriptive easement has been established. We affirm.

We address the cross-appeal first and restate the issues raised on appeal and cross-appeal as follows:

1. Did the District Court err in granting Warnack a private prescriptive easement over and across Coneen's lands?

2. Did the District Court err in restricting use of the prescriptive road easement to its use during the prescriptive period?

3. Should this Court adopt sections 478 and 479 of the Restatement of Property in determining the extent of a prescriptive easement?

This is the second appeal arising out of a dispute between landowners regarding a prescriptive easement. This Court reversed and remanded the District Court's grant of a prescriptive easement in an earlier opinion, Warnack v. Coneen Family Trust (1994), 266 Mont. 203, 879 P.2d 715 (Warnack I ), for reconsideration of whether Warnack had proven the elements of prescription for the full statutory period and for a determination of the scope of the claimed prescriptive easement.

On remand, the District Court granted the easement finding that Warnack had satisfied the elements of prescriptive use of the roadway for the full statutory period and that the easement was limited in scope to its use during the prescriptive period. Warnack appeals and Coneen cross-appeals from this determination.

1. Did the District Court err in granting Warnack a private prescriptive easement over and across Coneen's lands?

Our standard of review for conclusions of law by a district court is whether the court's interpretation of the law is correct. Warnack I, 879 P.2d at 718 (citing Public Lands Access v. Boone & Crockett (1993), 259 Mont. 279, 283, 856 P.2d 525, 527).

Coneen filed a cross-appeal asserting that the District Court erred in finding that Warnack had established a prescriptive easement. In order to establish an easement by prescription, the party claiming the easement "must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period." Leffingwell Ranch, Inc. v. Cieri (1996), 276 Mont. 421, ----, 916 P.2d 751, 754, 53 St.Rep. 453, 455 (citing Public Lands Access, 856 P.2d at 527).

The burden is on the party seeking to establish the prescriptive easement to prove all the elements of prescription. Leffingwell Ranch, 916 P.2d at 754. To be adverse, the use of the alleged easement must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land. Tanner v. Dream Island, Inc. (1996), 275 Mont. 414, 424-26, 913 P.2d 641, 648. Such claim must be known to and acquiesced in by the owner of the land. Tanner, 913 P.2d at 648. Once the claimant establishes open, notorious, exclusive, continuous and uninterrupted (unmolested) use for the full statutory period, a presumption of adverse use or adversity arises and the burden shifts to the landowner to prove permissive use or license. Warnack I, 879 P.2d at 723. If the owner shows permissive use of the alleged easement, no easement can be acquired because the theory of prescriptive easement is based on adverse use. Tanner, 913 P.2d at 648. This Court has recognized that " 'where the use of a way by a neighbor was by express or implied permission of the owner ... continuous use of the way by the neighbor [is] not adverse and [does] not ripen into a prescriptive right.' " Tanner, 913 P.2d at 648 (quoting Public Lands Access, 856 P.2d at 528).

In Tanner, we recognized that the plaintiffs were under no duty to communicate to the landowner that they were using the road under a claim of right and adversely to the landowner. Tanner, 913 P.2d at 648. Accordingly, although the plaintiffs bear the burden of establishing that their claim is known to and acquiesced in by the owner, they need not specifically notify the servient landowners that they are using the easement under a claim of right. In this case, Coneen asserts that Warnack did not notify the servient landowners that he was using the primary easement under a claim of right. Coneen further asserts that the use of the easement was a "neighborly accommodation." Under our holding in Tanner, Coneen's first argument must fail--Warnack was not required to communicate notice. In essence, Coneen's second argument is that Warnack's use of the primary easement was not open, notorious, or adverse--that it was a "neighborly accommodation."

This Court has held that "[i]n order to overcome the [claim of right] presumption, thereby saving its title from the encumbrance of an easement, the burden is on the defendant to show that the use was permissive." Tanner, 913 P.2d at 648 (citations omitted). In addressing this argument, the District Court found that:

By reason of the foregoing findings, there arises a disputable presumption that the primary easement road was traveled under a claim of right not only by Plaintiffs, [Warnack] but by their predecessors which presumption must be overcome by Defendants [Coneen]. The use of the primary route was in fact exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owners of the land and that claim was known to and acquiesced in by the Defendants and their predecessors and such use was adverse to the Defendants.

....

The Court specifically finds that though there was evidence of a local custom of neighborly accommodation or courtesy relating to many facets of the agricultural endeavors in the area, the use of the primary easement was based more on an assertion of the users' respective rights to use the road than it was based upon neighborly accommodation.

The court found that Coneen failed to prove that use of the primary easement by Warnack and his predecessors was in any way merely permissive or by revocable license. The court further noted that Coneen's assertion that the use had been permissive did not overcome the presumption of adverse use and acquiescence that Warnack established. Accordingly, the court concluded that the primary easement "[h]as been used by Plaintiffs [Warnack] and their predecessors in an open and notorious manner, under claim of right, and such use has been adverse for a period of time exceeding the statutory period consisting of the early 1950's through October 1, 1988[.]"

The District Court's determination that Warnack had established an easement by prescription is well supported by the record. For example, Coneen's predecessor in interest, Jeff Doggett, testified that he never objected to Warnack's, or that of Warnack's predecessors in interest, use of the road and never required permission to use the road. In addition, Ben Hurwitz, defendant J. Bowman Williams' predecessor in interest who owned the servient estate from 1950-1991, testified that "[t]he idea of neighborly accommodation assumes that if you are not neighborly anymore that you could somehow stop a person from crossing you, and we never dreamed that we could have stopped anybody that had business on the end of that road." Although Coneen has pointed to additional or contradictory evidence in the record, we will not substitute our judgment for that of the trial court where the issue relates to the weight given to certain evidence or the credibility of the witnesses. Taylor v. State Compensation Ins. Fund (1996), 275 Mont. 432,...