Wilson v. Chestnut, 12595

• Decision Date: 23 July 1974
• Docket Number: No. 12595,12595
• Citation: 525 P.2d 24,164 Mont. 484
• Parties: Robert H. WILSON, Plaintiff and Respondent, v. Cloyd W. CHESTNUT, Defendant and Appellant.
• Court: Montana Supreme Court

Page 24

525 P.2d 24

164 Mont. 484

Robert H. WILSON, Plaintiff and Respondent, v. Cloyd W. CHESTNUT, Defendant and Appellant.

No. 12595.

Supreme Court of Montana.

Submitted April 26, 1974.

Decided July 23, 1974.

Gough, Booth, Shanahan & Johnson, Ward A. Shanahan, Helena, argued, for appellant.

Anderson, Symmes, Forbes, Peete & Brown, Weymouth D. Symmes, Billings, argued, for respondent.

PER CURIAM:

This is an appeal from a judgment for plaintiff entered upon findings of fact and conclusions of law by the district court of Stillwater County. The judgment declared plaintiff the owner of an easement by prescription for the use of a roadway across defendant's land and enjoined defendant from interfering with plaintiff's use of the roadway. Defendant appeals.

The road in controversy is located in Stillwater County, southwest of Dean, Montana. The access road leaves the county road and enters property owned by a Mr. Keller, referred to in the transcript of proceedings as 'The Orr Place.' The road then enters onto defendant Cloyd W. Chestnut's land; proceeds approximately one-fourth mile across his property; then enters on plaintiff Robert H. Wilson's land terminating at some ranch buildings. Thereafter at least two trails lead to national forest land beyond plaintiff's property.

No one measured the road, but estimates ran from Chestnut's estimate of the width at the cattle guard to each party's property of seven feet to estimates of fourteen to twenty feet at other portions of the road.

The district court found the road had been in existence for some fifty years; dating back to 1920 when patents were issued to former owners of the lands now owned by the opposing parties. This road is, and has been since the patents were first issued, the only road and the only means of access to and from Wilson's property. The district court also found the road is and has been for at least ten years and for many years prior thereto a well defined and well marked road so as to be clearly identifiable from aerial photographs and clearly marked on a topographical map marked as Exhibit #2.

Chestnut is part owner with Iowa B. Spicer and Alena Chestnut of the lands the road in controversy traverses. They purchased the property in 1959 and have raised cattle on the land since that time.

Wilson is the equitable owner of real property located adjacent to and southwest of Chestnut's land under a contract for deed. The property was purchased on May 16, 1972 from Standwood Williams. The contract was subject to a previous contract between Williams as buyer, and E. D. Morehead, as seller, which was dated 1968.

The district court found that in the late 1920's and early 1930's a lodge capable of entertaining several hundred people was constructed on the premises now owned by Wilson. This property was then known as the '4K' and had been operated as a dude or guest ranch. From time to time throughout the years, entertainment and food were supplied by the owners of the 4K ranch for groups such as the Jaycees, and all used the disputed roadway to gain access to the 4K ranch. Moreover, witnesses testified the roadway was never closed by gates, and was occasionally used by the general public as an access way into the national forest protected only by cattle guards at the boundary line of each owner's property.

Shortly after Wilson purchased the 4K ranch he began an advertising campaign introducing a real estate development on the renamed Island Lake Ranch. Realizing the distinct possibility of an increased burden on the roadway Chestnut constructed a locked gate across the road. Shortly thereafter Wilson obtained a temporary restraining order against Chestnut, preventing interference with Wilson and his invitees from traveling over and across the road. Chestnut was ordered to remove the gate or other device blocking or interfering with the use of the road. The matter was later set for trial before the district court, sitting without a jury, on Wilson's claim of a 'prescriptive right' to use the road across Chestnut's property.

Following trial the district court entered findings of fact, conclusions of law, and judgment followed on July 11, 1973, in favor of Wilson. On July 25, 1973, Chestnut filed his proposed amendments and exceptions to the court's findings and judgment. These were deemed denied because of lapse of time, pursuant to Rule 59, M.R.Civ.P., and on August 10, 1973, Chestnut filed notice of appeal to this Court. The district court then entered an order staying execution and preserving the status quo existing in June 1972, pending disposition of the appeal.

On appeal Chestnut presents several issues for review which require consideration of the judgment in some detail. In pertinent part the judgment reads:

'4. The Plaintiff and his successors in interest and the Plaintiff's guests and invitees, as well as the Plaintiff's successors in interest, have acquired a prescriptive right to use the roadway undisputed which is 20 feet in width, extending from the easterly boundary line of the Defendant's lands to the boundary line of the Plaintiff's lands.

'5. That in the event it should be determined by a higher court that this Court erred in its conclusion of law No 4, then in such event the Court concludes that the Plaintiff and the other individuals described in paragraph 4 have acquired an easement by necessity over and across the Defendant's lands 20 feet in width and extending from the easterly boundary of the Defendant's lands to the lands owned by the Plaintiff.

'6. That in any event, under the deed to the Defendant and to his predecessors in interest their property was acquired subject to the easements of the present roadway which is the subject of dispute in this action for the use of the public generally.

'7. In the event all of the foregoing conclusions of law are reversed by the Supreme Court of the State of Montana, the Court concludes that the Plaintiff and his successors in interest in whole or in part are entitled to a 20 foot roadway across the Defendant's lands by way of condemnation using the existing roadway and subject to whatever compensation to the Defendant that the Court might subsequently find.'

The form of the judgment presents three issues:

First. Did the district court err in concluding that Wilson had established a prescriptive easement across Chestnut's land?

The applicable statute to the issue in controversy is section 67-1203, R.C.M.1947, which provides:

'Occupancy for the period prescribed by Title 93 as sufficient to bar an action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all.'

In Title 93, referred to in section 67-1203, are sections 93-2501 to 93-2516, inclusive, which prescribe five years as the period of limitations required to establish a presumption that the land was used under a claim of right, and adverse; i. e. sufficient to establish a title by prescription and to authorize the presumption of a grant. Te Selle v. Storey, 133 Mont. 1, 319 P.2d 218.

The applicable principles to establish an easement by prescription were set forth in Scott v. Weinheimer, 140 Mont. 554, 560, 374 P.2d 91 and reiterated in Lunceford v. Trenk, Mont., 518 P.2d 266, 267, 31 St.Rep. 86, 88:

'To establish the existence of an easement by prescription, the party so claiming must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period.'

This Court in O'Connor v. Brodie, 153 Mont. 129, 137, 454 P.2d 920, 925, commented:

"Where the claimant...