No. 13110 

IN THE SUPREME COURT OF THE STATE OF' MONTANA 

DONALD TNGELS and RONI'I'A XNGELS , 

Plaintiffs and Appellants, 

CUUDlk ANN MICKALSON and 

TERRANCE LEE MICKALSON, 

Defendants and Respondents. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record : 

For Appellants : 

Small, Cummins and Hatch, Helena, Montana 

Carl Hatch argued, Helena, Montana 

Yor Respondents : 

Keller, Reynolds and Drake, Helena, Montana 

Herbert George argued, Helena, Montana 

Submitted: March 5, 1976 

Filed: -4j~y . 516 
Hon. Robert S. Keller, District Judge, sitting for Chief Justice 

James T. Harrison, delivered the Opinion of the Court: 

Plaintiffs Donald and Bonita Ingels brought suit 

against defendants Claudia Ann and Terrance Lee Mickalson, 

to establish an easement across the rear portion of a lot in 

the City of Helena, which ~ickalsons are purchasing. The claim 

is predicated upon a prescriptive easement, or in the alternative, an easement by implication. 

The properties involved are lots 20 and 21 of Block 

395, of Helena Townsite, located adjacent to each other on 

West Lawrence Street in the City of Helena; the Ingels are the 

owners of lot 20, the lot to the east, and ~ickalsons are 

buying lot 21 on a contract for deed. Prior to April 1968, 

lots 20 and 21 belonged to the same owner, and they were sold 

at the same time, with lot 20 being conveyed to Ingels. By 

mesne conveyances, ~ickalsons acquired, and entered into possession 

of, lot 21 in February 1973, (four years and ten months after 

Ingels acquired their possession). The lots are bordered on the 

north by West Lawrence Street, and on the south by an alley; 

~ngels' lot is 42 feet wide and 100 feet deep, and ~ickalsons' 

lot appears to be of the same dimensions, although not material 

here. 

On the southeast corner of ~ngels' lot is a garage 23 feet 

long, with the back of the garage on the east edge of the 

property line, and the south side of the garage is immediately 

adjacent to the alley. The garage door fronts to the west. On 

the southwest corner of Mickalsons' lot is a shed, and prior 

to April 1974, there was nothing between the garage on Ingels' 

lot and the shed on ~ickalsons' lot. On or about April 5, 1974, 

Mickalsons erected a fence on the property line between the 

garage and the shed, to connect with an existing fence that had 

already been erected on the property line between the two lots. 
Lngels :ontend that they used heir sarage only by 

Jriving across the southeastern portion of ~ickalsons' lot 

where the clear space existed between ~ickalsons' shed and 

their garage; that they have been doing this ever since they 

acquired the property in April 1968, and that they had an 

zasement by prescription. In the alternative, Ingels contend 

ihey had an easement by implicai~ion; that when the property 

was sold to them in 1968 by the owner of both lots, the position 

of the garage makes it obvious that the only way to use the 

garage was to come across the corner of the adjacent lot, and 

that since the owner of both lots sold lot 20 to Ingels, there 

was an implied easement to use lot 21 for access. 

The evidence of use of ~ickalsons' property by the 

LngeLs was in dispute at the trial. Undisputed was the fact 

that for a period of time varying from six weeks to two and 

A half months, near the end of the five-year period necessary 

;u acquire a prescriptive right (April 1968 to April 1973), the 

Lngels did not use ~ickalsons' property for the reason that 

JIie of their vehicles was parked in front of their garage in a 

of) time 

;Late of disrepair, and was not repaired for that lengtd, blocking 

any use of lngelsl property by Ingels. As fate would have it, this 

was during the same period of time that a realtor showed the 

adjoining lot to Mickalsons, and they acquired their property, 

i.e., there was certainly no notice to anyone at that time that the 

lngels were using ~ickalsons ' property. 

It was further undisputed that the use of the property by the 

(ngels was not hostile, nor exclusive. Mickalsons testified that 

chey never saw the Ingels use the property at any time, but taking 

kgels' testimony at its best, they got along exceptionally well 

with the various tenants of lot 21, and the use of the clear space 

kcween the shed and the garage was shared, i.e., the tenants 

7f lot 21 would drive across a portion of lot 20 to get to the 
shed, and the Ingels drove across a portion 3.E lot 21 !:u ger 

to the garage. 

Thus, the use was neither continuous, nor exclusive, 

Scott v. Weinheimer, 140 Mont. 554, 374 P.2d 91. The ~ngels' 

usage of the claimed right-of-way was not adverse and hostile, as 

distinguished from permissive, Ewan v. Stenberg, Mon t . Y 

541 P.2d 60, 32 St.Rep. 864; ~eng v. Bridges, 123 Mont. 95, 

The trial judge so found and there is substantial evidence 

to support his findings. 

There was no evidence offered in support of an easement 

by implication, other than that when the Ingels acquired the 

property, the garage was there. The Ingels cite, in their brief, 

25 Am Jur 2d Easements and Licenses, $28, a portion of which is 

quoted: 

"The basis of the general principle as to the implication of an easement from a pre-existing use is the 

presumed or probable intention of the parties to the 

conveyance, as disclosed by all the circumstances 

surrounding the transaction. A presumption frequently 

invoked is that the parties contracted with a view 

to the condition of the property as it actually was 

at the time of the transaction. Whether an easement 

arises by implication, however, must depend upon such 

matters as the extended character of the user, the 

nature of the property, the relation of the separated 

parts to each, and the existing degree of necessity for 

3iving such construction to the conveyance as will give 

effect to what may be supposed to have been, considering 

the manner of use, the reasonable intendment of the 

parties. I I 

Here, not only was there no such evidence, but the trial 

,judge personally viewed the premises. 

The judgment of the district court is affirmed. 

Tn. Robert S. Keller 

District Judge, sitting for 

Chief Justice James T. Harrison. 
We Concur: 

Justices.