No. 93-135

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

OWEN GABRIEL and CHRIS GABRIEL,

ROBERT McTAGGART, SUZY MEANS,

AMERICAN MINING CO., ALLEN

BLANCHARD and DORA BLANCHARD,

Plaintiffs and Appellants,

-vsDAVID F. WOOD,

Defendant and Respondent.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis & Clark,

The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Carl A. Hatch and John C. Doubek; Small, Hatch,

Doubek & Pyfer, Helena, Montana

For Respondent:

Ann L. Smoyer; Smoyer Law Firm, Helena, Montana

Filed:

For Amicus Black Tower Partnership:

P. Keith Keller; Keller, Reynolds, Drake

Johnson & Gillespie, Helena, Montana

Submitted on Briefs: September 9, 1993

Decided: October 19, 1993
Justice Xarla M. Gray delivered the Opinion of the Court.

Owen and Chris Gabriel and Allen and Dona Blanchard appeal

from the findings of fact, conclusions of law and order entered by

the First Judicial District Court, Lewis and Clark County,

declining to enjoin David Wood from maintaining gates across a road

leading to their properties. We affirm.

The following issues are raised on appeal:

1 . Did the District Court err by declining to enjoin Wood

from maintaining gates across the common road?

2 . Is Wood entitled to reasonable attorney's fees on appeal?

Owen and Chris Gabriel (the Gabriels) own several unpatented

mining claims in Lewis and Clark County. Owen, who has operated

the mining claims for more than forty years, has gained access to

them by using a road referred to herein as the common road.

In 1986, Allen and Dona Blanchard (the Blanchards) purchased

property from Dwight Capp, Glen Drake and Keith Stokes. As part of

the transaction, the Blanchards were also granted access rights for

ingress/egress and utilities over other land owned by the three

men. The access way extended 30 feet on either side of the center

line of the common road.

Later in 1986, David Wood (Wood) purchased property (referred

to as the 1986 property) from Capp, Drake and Stokes to pasture

horses. The 1986 property, located southeast of the Blanchards'

property, is crossed by the common road from northwest to

southeast. Cam I Drake and Stokes reserved a road and utility

right-of-way along the common road crossing the 1986 property which

2
corresponded to the access rights they had granted to the

Blanchards. Wood constructed a gate across the common road at the

1986 property's southern boundary.

Wood purchased additional land from Capp, Drake, and Stokes in

February of 1988. That land bordered a portion of the 1986

property's southern boundary. As part of the 1988 transaction,

Wood also obtained an access and utility easement over the

southeast 1\4 of Section 34 and southwest 1\4 of Section 35,

Township 11 North, Range 5 West, M.P.M. The easement was described

as extending thirty feet on either side of the center line of "the

present road" and provided that the right-of-way was to be kept

free of gates or other obstructions.

In August of 1988, the Gabriels and other named plaintiffs

filed suit against Wood, claiming that they had acquired an

easement by prescription across the 1986 property via the common

road and seeking damages resulting from Wood's construction of the

gate. They requested a temporary restraining order to prevent Wood

from restricting their right of access to the common road and a

show cause hearing to determine whether a preliminary injunction

should be issued to the same effect during the pendency of the

action.

The District Court issued a temporary restraining order and

scheduled a show cause hearing for August 31, 1988. On that date,

however, the parties discussed possible resolutions of their

dispute and stipulated that the temporary restraining order

continue in full force and effect until further order of the court.

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Efforts to resolve the matter apparently failed. In July of

1992, plaintiffs again requested a show cauee hearing to determine

whether a preliminary injunction should be issued. At that time,

the Blanchards were joined as plaintiffs on the basis that their

"easement" rights also had been adversely affected by Wood's

construction of the gate.

The District Court treated the show cause hearing held on July

38, 1992, as a hearing on the merits of the parties' claims. The

Gabriels and Blanchards were the only plaintiffs to appear. The

court issued findings of fact, conclusions of law and judgment,

determining that the construction of the gate violated the easement

restrictions contained in Wood's 1988 deed. It ordered the removal

of all gates that obstructed the common road at the 1986 property's

southern boundary.

The District Court denied Wood's subsequent motion to amend

its findings, conclusions and order but scheduled a second

evidentiary hearing to be held in January of 1993. The court

issued superseding findings of fact, conclusions of law, and

judgment in February of 1993. It determined that the Gabriels and

Blanchards (referred to collectively as appellants) had a right to

use the common road, but that Wood was entitled to maintain gates

across it provided appellants retained reasonable access. The

court dismissed the remaining plaintiffs, who again did not appear,

with prejudice. The Gabriels and Blanchards appeal.

Did the District Court err in declining to enjoin Wood from

maintaining gates across the common road?

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Following the initial evidentiary hearing, the District Court

found that the road referred to in the 1988 deed was the common

road. Because the 1988 deed specifically prohibited Wood from

constructing gates across it, the court determined that Wood was

illegally restricting appellants' access to the common road and

ordered Wood to remove the gate.

No certificate of survey or other evidence was presented at

the initial hearing showing the location of the property and access

rights at issue. After such evidence was submitted at the second

evidentiary hearing, the District Court found that the road

referred to in the 1988 deed was not the common road and,

therefore, that the restriction against constructing gates did not

apply to that road. Although the court determined that appellants

had a right to use the common road, it concluded that Wood was

entitled to maintain gates across it so long as appellants had

reasonable access. The court also required Wood to meet certain

standards to ensure reasonable access and, on that basis, denied

appellants' request to enjoin Wood from maintaining a gate across

the common road.

The grant or denial of an injunction is within the discretion

of the district court: we will not reverse the court's denial of an

injunction unless an abuse of discretion is shown. Curran v.

Department of Highways (Mont. 1993), 852 P.2d 544, 545, 50 St.Rep.

450, 451.

Appellants first contend that they were entitled to an

injunction because the presence of a gate across the common road

5
changed the nature of their easement from "prescriptive* to

"permissive," relying on Finley v. Rutherford (1968), 151 Mont.

488, 444 P.Zd 306; Cope v. Cope (1971), 158 Mont. 388, 493 P.2d

336; and Larson v. Burnett (1972), 158 Mont. 421, 492 P.2d 921.

At issue in Finley, Coue, and Larson was the existence of an

easement by prescription. To establish such an easement, open,

notorious, exclusive, adverse, continuous and uninterrupted use of

the right-of-way for the statutory period must be proven. Public

Lands v. Boone and Crockett (Mont. 1993), 856 P.2d 525, 527, 50

St.Rep. 794, 795. Adverse use is presumed, however, if all other

elements of the claim are established. Parker v. Elder (1988), 233

Mont. 75, 78, 750 P.2d 292, 294. In the context of an alleged

prescriptive easement, the presence of a gate across a road is

evidence of permissive use, rebutting the presumption of adverse

use. Parker, 758 P.2d at 294.

These well-established principles regarding prescriptive

easements do not apply here, however, as neither the Gabriels' nor

the Blanchards' access right was established by prescriptive use.

While the Gabriels' complaint alleged the existence of such an

easement, they presented no evidence to support that claim. The

District Court determined that their right to use the common road

was obtained via an agreement with Wood under g 82-2-203, MCA,

which allows owners of certain mining claims to obtain a right-ofway by agreement with property owners and sets forth a remedy if an

agreement cannot be reached. The Blanchards' right to use the

common road also was not established by prescriptive use, but by

6
express grant in their deed. There is no basis, therefore, for

appellants' argument that the presence of a gate in any way

diminished their right to use the common road.

Appellants also contend that the road mentioned in the 1988

deed was the common road and, therefore, that Wood was required to

keep the road free of gates pursuant to the restrictions in the

deed. Wood contends that the 1988 deed does not refer to the

common road.

Substantial evidence supports the District Court's

determination that the easement restriction prohibiting gates in

the 1988 deed does not apply to the common road. The easement

contained in the 1988 deed crosses "the SE l/4 of Section 34 and

the SW l/4 of Section 35 . . . said easement being 30 feet on each

side of the centerline of the present road." Both Defendant's

Exhibit B, a certificate of survey pertaining to the properties

purchased by Wood, and Exhibit D, a detailed map drawn by Wood,

indicate that the common road does not cross the southeast l/4 of

Section 34. Thus, the easement description contained in the 1988

deed does not match the location of the common road. Furthermore,

Wood testified that the 1988 deed referred to a road he built in

1988 to access the property purchased that year. Be located that

road on Exhibit D; its location corresponds to the legal

description of the easement set forth in the 1988 deed. We

conclude that the District Court did not err in determining that

the restriction contained in the 1988 deed does not apply to the

common road.

7
Finally, appellants assert that their right of access to the

common road was intended to be clear, unqualified and unobstructed.

This characterization apparently is based on the absence of any

provision in the deeds indicating that gates could be placed across

the common road. Absent proof that the easement specifically

allows the placement of gates, appellants contend that they are

entitled to an injunction, relying on Flynn v. Siren (1986), 219

Mont. 359, 711 P.2d 1371, and Stamm v. Kehrer (1986), 222 Mont.

167, 720 P.2d 1194.

In Flvnn and Stamm, we recognized that the owner of land

subject to an easement could not interfere with the use and rights

reserved to the dominant estate:

The owner of the servient tenement may make use of the

land in any lawful manner that he chooses, which use is

not inconsistent with and does not interfere with the use

and right reserved to the dominant tenement or estate.

Flynn, 711 P.2d at 1372, and Stamm, 720 P.2d at 1196. Applying

this principle, w,e affirmed district court determinations that the

construction of a gate across an easement in those cases interfered

with plaintiffs' use of the easement.

Our holdings in those cases, however, were fact-specific. In

Flvnn, we relied on uncontradicted evidence indicating that the

gate created a traffic hazard, obstructed farm machinery, and

prevented potential clients from reaching plaintiffs' businesses to

substantiate the district court's determination that the gate

interfered with the easement. 711 P.2d at 1373. In w,

plaintiff had acguired an easement by prescription to access her

lawn and garage. We agreed with the court that the gate interfered

8
with access to the property based on her testimony that the gate

was difficult to maneuver and that the adjoining fence precluded

access to her yard. 720 P.2d at 1196. Neither Flynn nor Stamm

stand for the proposition that the construction of a gate across an

easement interferes with the use of a right-of-way as a matter of

law.

Furthermore, we disagree with the thrust of appellants'

argument that the absence of an express authorization to gate the

common road prevents Wood from placing a gate across it. The

District Court relied on Strahan v. Bush (1989), 237 Mont. 265, 773

P.2d 718, to determine that Wood was entitled to maintain gates

across the common road so long as appellants continued to have

reasonable access. There, we stated that when an easement is not

specifically defined by the terms of the grant, the easement "need

only be such as is reasonably necessary and convenient for the

purpose for which it was created." Strahan, 773 P.2d at 720,

citing 25 Am. Jur. 2d, Easements and Licenses, § 73, at 479. What

may be considered reasonable is determined in light of the

situation of the property and the surrounding circumstances.

Strahan, 773 P.2d. at 720.

Strahan is in accord with other jurisdictions which have held

that where the placement of a gate is not expressly prohibited by

the grant of an easement or impliedly prohibited by the surrounding

circumstances, a gate may be constructed across the easement if it

is necessary for the reasonable use of the servient estate and does

not interfere with reasonable use of the right-of-way. Tanaka v.

9
Sheehan (D-C. App. 1991), 589 A.2d 391, 395; Gamburg v. COOper

(Ariz. App. 1982), 642 P.2d 890, 891; Ericsson v. Braukman (Or.

APP. 1992), 824 P.2d 1174, 1178; Thomas v. Mitchell (S.C. App.

1985), 336 S.E.2d 154, 155.

Thus, we examine the surrounding circumstances in the case

before us to determine whether the District Court erred in

determining that Wood is entitled to construct a gate across the

common road pursuant to Strahan. We first address whether the

maintenance of a locked gate across the common road was reasonably

necessary for Wood's enjoyment of his property. Wood used his

property primarily to pasture horses. Wood and his wife testified

that the confinement of the horses to only a portion of the 1986

property resulted in injury to the horses and presented

difficulties in watering and feeding them. Furthermore, the horses

could not be confined to the 1986 property by placing cattleguards

across the common road. Wood and Dr. Sidney Erickson, a

veterinarian specializing in large animals, testified that horses

are frequently injured attempting to cross them.

Wood's testimony also reflects the necessity of a locked gate

to prevent vandalism and theft. Initially, the gate Wood placed

across the common road was unlocked. According to his testimony,

the unlocked gate did not prevent people from entering onto the

1986 property frequently to hold keggers or cut down trees. He

also testified that trespassers had caused property damage

amounting to several thousand dollars, including the burning of a

corral. We conclude that a locked gate across the common road is

1 0
reasonably necessary for the enjoyment of Wood's property.

We next focus on whether the maintenance of a locked gate

unreasonably interferes with appellants' use of the common road.

Neither the Blanchards nor the Gabriels use the easement to any

significant extent. The Woods testified that the Blanchards used

the common road once in the spring to transport horses to summer

pasture, two or three times during the summer to check on the

horses, and once in the fall to retrieve the horses for hunting

season. They also testified that the Gabriels used the common road

only once a year in order to perform annual assessment work on

their mining claims. This testimony was unrefuted.

Moreover, we observe that the District Court set forth certain

standards regarding Wood's gates in order to ensure the Blanchards'

and Gabriels' reasonable access. If the gate is equipped with

locks, appellants must be given keys or the combination to the

lock; the lock, as well as the gate, must be reasonably easy to

use. We conclude that a gate conforming to these standards does

not unreasonably interfere with the Blanchards' and Gabriels'

access rights to the common road.

We hold that the District Court did not abuse its discretion

in denying appellants' request to enjoin Wood from maintaining a

locked gate across the common road.

Is David Wood entitled to reasonable attorney's fees on

appeal?

Wood has requested an award of reasonable attorney's fees

incurred in this appeal, asserting that the issues raised by

11
appellants are without merit. He fails to cite any legal authority

whatsoever in support of such an award. We decline to consider

Wood's request in the complete absence of any cited authority for

an award of attorney's fees.

As a final matter, we observe that Wood has asserted a number

of issues not raised by appellants. A respondent must file a

notice of cross-appeal, however, to preserve issues not raised by

appellant; failure to do so is fatal to respondent's claims.

Neumann v. Rogstad (1988), 232 Mont. 24, 29-30, 757 P.2d 761, 765.

Because Wood did not cross-appeal, we do not review these issues.

Affirmed. i n

We concur:

Justlces

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October 19, 1993

CERTIFXCATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the

following named:

Carl A. Hatch, Esq.

Small, Hatch, Doubek & Pyfer

Livery Square, 39 Neil1 Ave.

Helena, MT 59601

Ann L. Smoyer, Esq.

Smoyer & Adams Law Firm

1085 Helena Ave.

Helena, MT 59601

P. Keith Keller

Keller, Reynolds, Drake, Johnson & Gillespie

38 South Last Chance Gulch

Helena, MT 59601

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA