No. 13110 IN

### THE SUPREME COURT OF THE STATE OF' MONTANA

DONALD TNGELS and RONI'I'A XNGELS

## , Plaintiffs and Appellants,

CUUDlkANN MICKALSON and TERRANCE LEE MICKALSON, Defendants and Respondents.
Appeal from: District Court 

### of theFirstJudicial District, Honorable Gordon 

### R. Bennett, Judge presiding. Counsel of Record

### : For Appellants

### : Small, Cummins and Hatch, Helena, Montana CarlHatch 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 Ingelsbrought suit against defendants Claudia Ann and Terrance Lee Mickalson, toestablishan easement across the rearportion of a lot in the City of Helena, which ~ickalsons arepurchasing. The claim ispredicated 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 toeach other on West Lawrence Street in the City of Helena; the Ingels arethe
owners of lot 20, the lot tothe east, and ~ickalsons are buying lot 21 on a contract for deed. Prior toApril 1968, lots 20 and 21belonged to the same owner, and theywere sold atthe same time, with lot 20 being conveyed toIngels. By mesne conveyances, ~ickalsons acquired, and entered intopossession of, lot 21 inFebruary 1973, (four years and tenmonths after Ingels acquired theirpossession). The lotsarebordered on the northby West Lawrence Street, and on the southby an alley; ~ngels' lot 

### is42 feetwide and 100 feet deep, and ~ickalsons' lotappears tobe of the same dimensions, although not material here. On the southeast corner of ~ngels' lot

### isa garage 23 feet long, with theback 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 thewest. On the southwest corner of Mickalsons' lot is a shed, and prior toApril 1974, therewas 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 linebetween the garage and the shed, toconnect with an existing fence that had alreadybeen erected on the property linebetween 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 inApril 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 1968by the owner of both lots, the position of the garage makes it obvious that the onlyway touse the garage was tocome 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 touse lot 21 for access. The evidence of use of ~ickalsons' property by the LngeLs was in dispute atthe trial. Undisputed was the fact that for a period of time varying from sixweeks totwo and
A half months, near the end of the five-year period necessary ;u acquire a prescriptive right (April 1968 toApril 1973), the Lngels did not use ~ickalsons' property for the reason that
JIie 

### of their vehicles was parked in front of their garage ina of)time ;Late of disrepair, and was not repaired for that lengtd, blocking 

### any use of lngelsl property by Ingels. As fatewould have it, this
was during the same period of time that a realtor showed the adjoining lot toMickalsons, and they acquired their property, i.e., there was certainlyno notice to anyone atthat 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 atany time, but taking kgels' testimony at itsbest, they got along exceptionally well with the various tenants of lot 21, and theuse of the clear space kcween the shed and the garage was shared, i.e., the tenants 7f lot 21would drive across a portion of lot 20 toget totheshed, and the Ingels drove across a portion 3.E lot 21 !:u 

### ger to the garage. Thus, the usewas 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, Mont

# . Y 541 P.2d 

### 60, 32 St.Rep. 

### 864; ~eng v. Bridges, 123Mont. 95,

The trialjudge 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 garagewas there. The Ingels cite, intheirbrief, 

### 25 Am Jur 2d Easements and Licenses, $28, a portion of which is quoted:"The basis of the general principle as tothe implication of an easement from 

### a pre-existing use 

### is the presumed or probable intention of the parties to the conveyance, as disclosed by allthe circumstances surrounding the transaction. A presumption frequently invoked 

### is that the parties contracted with a view to the condition of the property as it actuallywas atthe time of the transaction. Whether an easement arisesby 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 toeach, and the existing degree of necessity for 3iving such construction tothe conveyance as

### willgive effect towhat may be supposed tohave been, considering the manner of use, the reasonable intendment of the parties. I I Here, not only was thereno such evidence, but the trial ,judgepersonally viewed the premises. The judgment of the district court 

### is affirmed.

Tn. Robert S. Keller District Judge, sittingfor Chief Justice James T. Harrison.

### We 

### Concur:

Justices.