Warnack v. Coneen Family Trust

• Decision Date: 16 August 1994
• Docket Number: No. 93-659,93-659
• Citation: 879 P.2d 715,266 Mont. 203,51 St.Rep. 739
• Parties: A.C. WARNACK, Trustee of the A.C. Warnack Trust, and Kenneth R. McDonald, Plaintiffs and Respondents, v. The CONEEN FAMILY TRUST; Elk Canyon Associates Limited Partnership, a Montana Limited Partnership, and J. Bowman Williams, Defendants and Appellants.
• Court: Montana Supreme Court

Page 715

879 P.2d 715

266 Mont. 203

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

No. 93-659.

Supreme Court of Montana.

Submitted on Briefs June 24, 1994.

Decided Aug. 16, 1994.

[266 Mont. 205] Perry J. Moore & Cindy E. Younkin, Moore, O'Connell & Refling, Bozeman, for Elk Canyon Ranch Assoc. & J. Bowman Williams.

Patrick F. Hooks, Townsend, for the Coneen Family Trust.

John V. Potter, Jr., White Sulphur Springs, for respondents.

NELSON, Justice.

This is an appeal from the findings of fact, conclusions of law, judgment and injunction order of the Fourteenth Judicial District Court, Meagher County, which, following a bench trial, awarded Respondents Warnack and McDonald, as well as nonparty Melvin E. (Bud) Dawson, an easement for various purposes over, across and through the lands owned by the Appellants. We reverse and remand for further proceedings consistent with this opinion.

The following issues are raised on appeal:

1. Did the District Court err in granting a prescriptive easement to a nonparty?

2. Did the District Court err in granting a prescriptive easement to the Plaintiffs/Respondents?

3. Was the prescriptive easement granted overbroad?

Respondents Warnack and McDonald (Respondents) brought this action, claiming a prescriptive easement over a road which runs through the lands of Appellants Coneen, Elk Canyon and Williams (Appellants). The District Court, following a bench trial on March 22 and 23, 1993, concluded that the Respondents did, indeed, have a prescriptive easement over the road which runs "from the end of a county road westerly across state school section 36, then northwesterly over defendants Elk Canyon, Williams and Coneen to the south edge of plaintiffs' premises, then continues northwesterly across Warnack and another area of Coneen to Bud Dawson's land in the Tenderfoot." The District Court also described an alternate route over which the Respondents also claimed a prescriptive easement. The dispute over this latter route was resolved over the course of this litigation and is no longer in contention.

The District Court found that there was a prescriptive easement because the origin of the use of the road remained "unexplained." The court stated:

The primary easement claimed by plaintiffs is a clearly defined and visible roadway which several witnesses stated they had no trouble following, was improved over the years for vehicles by Doggetts with heavy equipment long before Coneen came, was in use well before the memory of any living witness, and the origins of that use (whether permissive or adverse) remains unexplained.

The court further concluded that unexplained use for longer than the statutory period gave rise to a presumption that the use of the road was under a claim of right and adverse to the ... use without obstruction [of] the primary access road by all ordinary modern means for purposes of access to their lands, construction of residences and outbuildings, all agricultural purposes, including timber management and logging, and hunting, fishing, camping and recreation.

                owners of the land upon which the route was located.   Moreover, the court found that the Appellants acquiesced in the use of the primary easement by the Respondents.   Finally, the court found that the appropriate uses of the primary easement included
                

From the above findings, conclusions, judgment and order, Appellants appeal.

STANDARD OF REVIEW

Our standard of review for conclusions of law by a district court is whether the tribunal's interpretation of the law is correct. Public Lands Access v. Boone and Crockett (1993), 259 Mont. 279, 283, 856 P.2d 525, 527. Having concluded that the District Court erred in its application of the law to this prescriptive easement case, we decline to address the factual record established at trial and, instead, remand to the District Court for reconsideration of its decision in light of the legal principles set forth in this opinion.

1. NONPARTY EASEMENT

Appellants contend that the District Court erred in granting an easement to Melvin E. (Bud) Dawson because Dawson was not a party to the instant litigation. The Respondents merely state that the finding of a prescriptive easement for the nonparty Dawson was supported by uncontradicted evidence and that the road in question provides the only access to the Dawson place.

Dawson was not a party to this action, although he did testify at the trial and does live within the general area served by the roadway at issue. Further, Dawson stated that he generally uses a different road, a logging road, to access his property. Thus, in the present case, Dawson, a nonparty, was awarded an easement that he will likely not even use.

Because he is not a party to the action, Dawson cannot be a party to the judgment. In Moore v. Capitol Gas Corporation (1945), 117 Mont. 148, 156, 158 P.2d 302, 306, we stated:

[I]t is a fundamental principle of our jurisprudence that it is only against a party to the action that a judgment can be taken and that the judgment is not binding against a stranger to the action.

The same rule pertains where judgment is awarded in favor of a nonparty. See, 46 Am.Jur.2d Judgments, § 86 at page 373. Accordingly, we reverse that part of the District Court's judgment and order which grants a prescriptive easement to Melvin (Bud) Dawson.

2. EASEMENT TO THE RESPONDENTS

Appellants also contend that the District Court erred in granting a prescriptive easement to the Respondents based on the "unexplained" use of the roadway for more than the statutory period. Appellants argue that if a party can be deemed to have acquired a prescriptive easement merely because the use of the roadway is "unexplained," then the party "wins" without proof of any of the elements necessary to establish prescriptive use. The Respondents counter that Montana law makes it clear that when "through the passage of time and beyond the recollection of living witnesses it becomes impossible to determine whether the initial use of a roadway was permissive or adverse under claim of right, the law will presume that initial use was adverse." We agree with Appellants.

In Montana the general rule as to the establishment of a prescriptive easement is well settled:

To establish an easement by prescription, the party claiming an easement "must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period ..." The burden is on the party seeking to establish the prescriptive easement. "All elements must be proved in a case such as this because 'one who has legal title should not be forced to give up what is rightfully his without the opportunity to know that his title is in jeopardy and that he can fight for it.' "

Boone and Crockett, 856 P.2d at 527. (Citations omitted.) "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; such claim must be known to and acquiesced in by, the owner of the land." Keebler v. Harding (1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356-1357. (Citation omitted.) "If the owner shows permissive use, no easement can be acquired since the theory of prescriptive easement is based on adverse use." Rathbun v. Robson (1983), 203 Mont. 319, 322, 661 P.2d 850, 852. (Citation omitted.)

It is axiomatic that it is the function of the district court, and not of this Court to hear the testimony, to resolve conflicts in the evidence, to judge the credibility of the witnesses and to determine the facts. According to the District Court, this case involved "... a grab bag of testimony, [mostly imprecise and relating to events and conversations of 10-50 years ago] so there was something for every attorney ..." Our concern here, however, is not so much with what testimony or with which witnesses the court believed, as with the legal principles the court applied to the evidentiary record in reaching its decision.

While the District Court concluded, as an aside, that Respondents had proven the elements of adverse possession as described above, it is equally clear that bearing heavily, if not primarily, in the court's rationale that Respondents were entitled to a prescriptive easement over Appellants' lands, was the proposition that a presumption of claim of right and adverse use arises by a long, continued "unexplained" use of the claimed easement for more than the statutory period and that such presumption relieves the easement claimant of proving the elements of prescription. As the court put it:

By reason of ... long continued unexplained use of the primary easement for much longer than the ... statutory period ... there arises a legal presumption that the road use was under a claim of right and adverse to the respective people whose lands it crossed. This is sufficient to establish title to the easement by presumption of a grant if not overcome by a preponderance of evidence that the use was permissive ... Finding of Fact No. 17.

* * * * * *

Where plaintiffs have established a presumption of adverse use of the primary easement by long unexplained use as aforementioned, it is not necessary that they prove all of the elements of adverse possession that would otherwise be necessary. However, plaintiffs have done so anyway.... Finding of Fact No. 42.

* * * * * *

Plaintiffs ... have proven they are entitled to a prescriptive road easement along the primary route ... because of long continued unexplained use for over 70 years ... Conclusion of Law B.

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After plaintiffs established the presumption of adverse use by long continuous unexplained use for more than the ... statutory period ... it was not necessary for plainti...