NO. 96-059 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

ROGER A. KESSINGER AND JOANNE 

M. KESSINGER, husband and wife, 

Plaintiffs and Appellants, 

DONALD MATULEVICH AND JOAN 

MATULEVICH, husband and wife, 

Defendants, Respondents, 

and Cross-Appellants. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Ted 0. Lympus, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thomas R. Bostock, Warden, Christiansen, Johnson & 

Berg, Kalispell, Montana 

For Respondent: 

Kenneth E. O'Brien, Hash, O'Brien & Bartlett, 

Kalispell, Montana 

Submitted on Briefs: May 16, 1996 

Decided: October 22, 1996 
Justice James C. Nelson delivered the Opinion of the Court. 

This is an appeal and cross appeal from the Eleventh Judicial 

District Court, Flathead County. Following a nonjury trial and 

view of the disputed road, the District Court awarded private 

prescriptive easement rights to Plaintiffs Roger and Joanne 

Kessinger, Defendants Donald and Joan Matulevich, and two nonparty 

witnesses, John Winnie and Tom Beeson, over the disputed road. 

Plaintiffs appeal and Defendants cross appeal. We affirm in part 

and reverse in part. 

We address the following issues on appeal: 

A.. 

prescript i 

question i 

2 

prescript 

Did the District Court err in declaring that a private 

ve easement had been established over the road in 

n favor of the Defendants Donald and Joan Matulevich? 

Did the District Court err in declaring that a private 

ve easement had been established over the road in 

question by two nonparties and their successors in interest? 

We address the following issues on cross appeal. 

3. Did the District Court err in finding that the general 

public had not used the road.in question sufficiently to ripen into 

a public prescriptive easement? 

4. Did the District Court err in declaring that a private 

prescriptive easement had been established over the road in 

question in favor of the Plaintiffs Roger and Joanne Kessinger? 

FACTUAL AND PROCEDURAL BACKGROUND 

Rogers Lake is located approximately 30 miles west of 

Kalispell, Montana. Rogers Lake Road, a county road, provides 

2 
access to the Rogers Lake area. At a point north of the properties 

of the Plaintiffs Roger and Joanne Kessinger (Kessingers) and 

Defendants Donald and Joan hatulevich (Matuleviches), Rogers Lake 

Road forks. The north fork provides public access to Rogers Lake 

while the south fork provides access to private property. 

Approximately one and one-half miles north of Kessingers' property, 

the Rogers Lake Road ceases to be a county road and turns into a 

dirt and gravel road, commonly known as Rogers Lane. See Appendix 

A. Rogers Lane (the road) runs south and crosses the lakeshore 

properties of Matuleviches (Lots 12 and 13), Frank Bear (Lots 10 

and 11) and Kessingers (Lots 1 through 91, respectively. After the 

road passes Kessingers' property, the road becomes a trail and 

crosses U.S. Forest Service land, land owned by Plum Creek Timber 

Company and ultimately winds around Rogers Lake. This road 

provides the exclusive means of ingress and egress to and from 

Kessingers' property. 

In 1993, Kessingers unified ownership of Lots 1 through 9 

which formerly had been owned in four separate tracts. Richard 

Siegfried (Siegfried) and Lawrence West (West) are two 

predecessors-in-interest to Kessingers' property. Siegfried 

purchased Lots 4 through 9 in 1976 and West purchased Lot 3 in 

1977. When purchased, both Siegfried and West's lots were 

undeveloped. However, both fenced, gated and posted their 

respective properties within two years of purchase. Siegfried did 

so in 1977-1978 and West did SO by 1979. Both used a three-strand 

barbed-wire gate to block access to the road. In addition to his 

3 
gate I Siegfried erected an entry way to his property by placing a 

main cross beam atop two large timber poles on either side of the 

road. West, in addition to his gate, physically blocked the road 

with his pickup. 

Siegfried built a home on his lots in 19'79 and West built a 

home on his lot by 1980. Siegfried used his property mainly as a 

vacation residence, but did reside there permanently from 1989 to 

1993. West lived on his property as a permanent resident from 1980 

to 1985 and from 1987 to 1990. During their periods of occupancy, 

both Siegfried and West maintained their gates. Just as for the 

Kessingers now, the road was the only means for Siegfried and West 

to access their properties. Both Siegfried and West testified that 

they believed the road was private and that they erected and 

maintained the gates to keep the general public out. However, they 

both additionally testified that they did not object to their 

neighbors using the road to access the U.S. Forest Service and Plum 

Creek Timber Company land to the south of their properties. 

Matuleviches first purchased a 10.35 acre parcel by Rogers 

Lake in 1973. Subsequently they purchased two lakeshore lots, one 

in 1974 and the other in 1983. During their vacations at Rogers 

Lake, Matuleviches used the road, as it crosses what is now 

Kessingers' property, to access U.S. Forest Service land and Plum 

Creek Timber Company land for recreational purposes. Matuleviches 

used the road for a variety of recreational purposes such as to 

walk, sightsee, occasionally gather firewood and cross country ski. 

Additionally, prior to 1984, Matuleviches used the road to access 

4 
a spring located on Plum Creek Timber Company property to gather 

drinking water in plastic jugs. However, in 1984, Matuleviches 

developed a deep well on their property and subsequently reduced 

their use of the spring for drinking water. Between 1973 and 1977, 

few other people lived in the same area as Matuleviches; 

consequently, no one objected to their use of the road. 

Matuleviches continued using the road after Siegfried and West 

purchased their lots and placed gates across the road, without 

objection from either owner. 

Additional neighbors, John Winnie (Winnie) and Tom Beeson 

(Beeson), also used the road to access the U.S. Forest Service land 

and Plum Creek Timber Company land. Winnie purchased his property 

in 1973, while Beeson did not purchase his property until 1983. 

Like Matuleviches, Winnie and Beeson used the road for recreational 

purposes only. As seasonal residents, Winnie and Beeson used the 

road to do such things as walk, sightsee, cross country ski and 

collect water from the spring on Plum Creek Timber Company land. 

While they used the road despite Siegfried and West's gates, they 

testified that they honored the gates by leaving them as they found 

them. 

Kessingers initiated this suit in the District Court for the 

Eleventh Judicial District, Flathead County. In a effort to secure 

legal access to their property, Kessingers brought a quiet title 

action alleging a private prescriptive easement over a road 

crossing the property of Matuleviches and Bear. Kessingers further 

sought an injunction to prevent Matuleviches or Bear from 

5 
interfering with Kessingers' right to use the road. Matuleviches 

counterclaimed alleging that they, or alternatively the public, had 

a prescriptive easement over the road as it crosses Kessingers' 

property. Bear similarly answered, but subsequently Bear and 

Kessingers resolved the issues between them by mutual settlement 

and the District Court dismissed the claims between them with 

prejudice. 

Following a bench trial and view of the road in dispute, the 

District Court entered judgment awarding Kessingers a private 

prescriptive easement over the road as it crosses Matuleviches' 

property. Additionally, the District Court awarded Matuleviches 

and two nonparties, John Winnie and Tom Beeson, private 

prescriptive easements over the road as it crossed Kessingers' 

property. From that judgment, Kessingers appeal and Matuleviches 

cross appeal. We affirm in part and reverse in part. 

Our standard of review for a district court's findings of fact 

is provided by Rule 52(a), M.R.Civ.P., which in part provides: 

Findings of fact . . shall not be set aside unless 

clearly erroneous, and due regard shall be given to the 

opportunity of the trial court to judge of the 

credibility of the witpesses 

We have adopted the following three-part test to interpret 

this rule: 

First, the Court will review the record to see if 

the findings are supported by substantial evidence. 

Second, if the findings are supported by substantial 

evidence we will determine if the trial court has 

misapprehended the effect of evidence. Third, if 

substantial evidence exists and the effect of the 

evidence has not been misapprehended, the Court may still 

find that "[Al finding is 'clearly erroneous' when, 

although there is evidence to support it, a review of the 

6 
record leaves the court with the definite and firm 

conviction that a mistake has been committed." 

Public Lands Access Ass'n, Inc. v. Boone and Crockett Club Found., 

Inc. (1993), 259 Mont. 279, 283, 856 P.Zd 525, 527 (quoting 

Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 

820 P.2d 1285, 1287). 

Our standard of review relating to a district court's 

conclusions of law is whether the tribunal's interpretation of the 

law is correct. Public Lands, 856 P.2d at 527. 

A prescriptive easement is created by operation of law. 

Swandal Ranch Co. v. Hunt (Mont. 1996), 915 P.2d 840, 843, 53 

St.Rep. 361, 362. When establishing either a public or private 

easement by prescription, 'the party claiming the prescriptive 

easement must show "open, notorious, exclusive, adverse, continuous 

and uninterrupted use of' the easement claimed for the full 

statutory period." Swandal, 915 P.2d at 843. The statutory period 

is five years. Section 70-19-404, MCA. The burden is on the party 

seeking to establish the prescriptive easement to prove all 

elements of the prescription. Public Lands, 856 P.2d at 527. To 

establish a prescriptive right, the prescriptive claimant must 

show, by clear and convincing evidence, that the use was .adverse 

and not by permission of the landowner. Kostbade v. Metier (1967), 

150 Mont. 139, 143, 432 P.2d 382, 385. 

DISCUSSION 

1. Did the District Court err in declaring that a private 

prescriptive easement had- been established over the road in 

question in favor of the Defendants Donald and Joan Matulevich? 

7 
Public Lands Access Ass'n, Inc. v. Boone and Crockett Club Found., 

Inc. (1993), 259 Mont. 279, 283, 856 P.2d 525, 527 (quoting 

Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 

820 P.Zd 1285, 1287). 

OLK standard of review relating to a district cowrt ' s 

conclusions of law is whether the tribunal's interpretation of the 

law is correct. Public Lands, 856 P.2d at 527. 

A prescriptive easement is created by operation of law. 

Swandal Ranch Co. v. Hunt (Mont. 1996), 915 P.2d 840, 843, 53 

St.Rep. 361, 362. When establishing either a public or private 

easement by prescription, the party claiming the prescriptive 

easement must show "open, notorious, exclusive, adverse, continuous 

and uninterrupted use of the easement claimed for the full 

statutory period." Swandal, 915 P.2d at 843. The statutory period 

is five years. Section 70-19-404, MCA. The burden is on the party 

seeking to establish the prescriptive easement to prove all 

elements of the prescription. Public Lands, 856 P.2d at 527. To 

establish a prescriptive right, the prescriptive claimant must 

show, by clear and convincing evidence, that the use was adverse 

and not by permission of the landowner. Kostbade v. Metier (1967), 

150 Mont. 139, 143, 432 P.2d 382, 385. 

DISCUSSION 

1. Did the District Court err in declaring that a private 

prescriptive easement had been established over the road in 

question in favor of the Defendants Donald and Joan Matulevich? 
Kessingers argue that the District Court's finding that 

Matuleviches had established a private prescriptive easement over 

the road in dispute as it crosses Kessingers' land was not 

supported by substantial evidence. Kessingers contend that 

Matuleviches' use of the road was not adverse, but rather based on 

permissive use. Further, Kessingers assert that the Matuleviches 

used the road only for access to recreational activities which 

could not give rise to a presumption of adverse use. Finally, 

Kessingers maintain that even if Matuleviches had established a 

private prescriptive easement prior to Siegfried and West 

purchasing their properties, Siegfried's and West's acts created 

reverse adverse possession and thereby destroyed any such easement. 

We agree. 

The District Court stated in Finding of Fact No. 7 'I [tlhat at 

no time during such use did [Matulevichesl ever seek permission for 

such use from either [Kessingersl or their predecessors in 

interest." The District Court then went on to state in Finding of 

Fact No. 8 that Matuleviches' use met all the requirements of a 

prescriptive easement, including that of adversity. We disagree. 

As a finding of fact, this is not supported by substantial 

evidence; as a conclusion of law, it is incorrect. 

"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." Public Lands, 856 P. 2d at 527 (citation omitted). "If the 

8 
owner shows permissive use, no easement can be acquired since the 

theory of prescriptive easement is based on adverse use." Public 

Lands, 856 P. 2d at 527 (citation omitted). 

"Neighborly accommodation is a form of permissive use which, 

by custom, does not require permission at every passing." Lemont 

Land Corp. v. Rogers (1994), 269 Mont. 180, 186, 887 P.2d 724, 728 

(citing Public Lands, 856 P.2d at 528). We have stated that: 

A use of a neighbor's land based upon mere 

neighborly accommodation or courtesy is not adverse and 

cannot ripen into a prescriptive easement. Thus where 

the use of a way by a neighbor was by express or implied 

permission of the owner, it was held that the continuous 

use of the way by the neighbor was not adverse and did 

not ripen into a prescriptive right. 

Public Lands, 856 P.2d at 528 (quoting Wilson v. Chestnut (1974), 

164 Mont. 484, 491, 525 P.2d 24, 27). 

A property owner erecting a gate across a road located on his 

property provides strong evidence that use of the road past the 

gate is permissive only. We have stated that: 

The fact that the passage of a road has been for years 

barred by gates or other obstructions to be opened and 

closed by the parties passing over the land, has always 

been considered as strong evidence in support of a mere 

license to the public to pass over the designated way. 

Public Lands, 856 P.2d at 528 (quoting Maynard v. Bara (1934), 96 

Mont. 302, 307, 30 P.2d 93, 95). 

Siegfried and West both testified that they gated, fenced and 

posted their properties during the years 1977 to 1979 and enforced 

their gates throughout their periods of ownership. They both 

testified that the purpose of the gates was to keep the general 

public out. Further, while they actively discouraged the general 

9 
public from using the road, they did not object to their neighbors' 

continued use of the road for access to recreational activities on 

U.S. Forest Service and Plum Creek Timber Company land to the south 

of their properties. Moreover, while Matuleviches testified that 

they continued to use the road after the gates were in place, they 

also testified that their use of the road was a "neighborly thing" 

and that any discussibn concerning Siegfried's or West's explicit 

permission for them to use the road "just never came up." 

Siegfried and West, by actively prohibiting the general public 

from using the road, but not objecting to their neighbors' use, 

gave Matuleviches implied permission to use the road as it crossed 

their properties. This implied permission, based on a general 

attitude of "neighborly accommodation" prevented Matuleviches' use 

of the road from ripening into a prescriptive easement. 

The District Court in its Finding of Fact No. 6 states that 

Matuleviches used the road (I. regularly under claim of right by 

foot, vehicle, recreational vehicle and cross country skis." 

Substantial evidence supports this finding of fact that 

Matuleviches' use of the road was for recreational purposes only 

and therefore could not, as.a matter of law, raise the presumption 

of adverse use. Public Lands, 856 P.2d at 528-29. 

Matuleviches testified that they were seasonal residents and 

used the road for recreational purposes. Prior to 1993, 

Matuleviches primarily walked along the road for a variety of 

recreational uses such. as to hike, sightsee, occasionally gather 

firewood and cross country ski. Additionally, prior to 1984, 

10 
Matuleviches used the road to access a spring located on Plum Creek 

Timber Company property to gather drinking water in plastic jugs. 

However, in 1984, Matuleviches developed a deep well on their 

property and subsequently reduced their use of the spring for 

drinking water. Matuleviches' seasonal use of the road was only 

recreational. Recreational use is insufficient to raise a 

presumption of adverse use. Public Lands, 856 P.Zd at 528-29. 

Therefore, Matuleviches did not establish a private prescriptive 

easement based on their recreational use of the road. 

Finally, Kessingers maintain that even if Matuleviches had 

established a private prescriptive easement prior to Siegfried and 

West purchasing their properties, Siegfried's and West's acts 'of 

putting up gates and allowing Matuleviches to use the road based on 

permissive use destroyed such an easement. We also addressed this 

issue in Public Lands: 

Section 70-17-111(3), MCA, provides that a servitude 

is extinguished II... (3) by the performance of any act 

upon either tenement by the owner of the servitude or 

with his assent which is incompatible with its nature or 

exercise [.I I' We have held, on the basis of that 

statute, that if a prescriptive easement exists, 

subsequent acts inconsistent with the claim by 

prescription, support the conclusion that the 

prescriptive easement has been extinguished. 

Public Lands, 856 P.2d at 531-32 (citations omitted). We further 

explained that the right hostile to the easement holder must be 

brought to the easement holder's attention and the hostile use must 

continue for the full statutory period. Public Lands, 856 P.2d at 

531. Based on the foregoing, we held that the defendants' 

predecessors-in-interest 'had established reverse adverse 

11 
possession. They performed a hostile act by blocking off the 

disputed road, and the purported owner of the easement, the public, 

adhered to a walk-in policy over a I?-year period. Consequently, 

any prescriptive easement the public may have established was lost. 

Public Lands, 856 P.2d at 532. 

Similarly, Siegfried and West demonstrated hostile acts which 

were inconsistent with Matuleviches' purported prescriptive 

easement. During the years 1977 to 1979, Siegfried and West gated, 

posted and fenced their properties. They enforced their gates to 

keep the general public out, but allowed Matuleviches access to the 

road based on neighborly accommodation. Matuleviches testified 

that they recognized the use of the road as a "neighborly thing." 

For a period of over ten years, Siegfried and West allowed 

Matuleviches to use the road. Just as in Public Lands, Siegfried's 

and West's acts created reverse adverse possession. Therefore, any 

prescriptive easement Matuleviches may have established was lost. 

We conclude that Matuleviches failed to establish a private 

prescriptive easement over the road as it crosses Kessingers' 

property. Therefore, we reverse that part of the District Court's 

judgment and order that grants a private prescriptive easement to 

Matuleviches. 

2. Did the District Court err in declaring that a private 

prescriptive easement had been established over the road in 

question by two nonparties and their successors in interest? 

The District Court awarded private prescriptive easements over 

the disputed road to two nonparty witnesses, John Winnie and Tom 

12 
Beeson, and their successors-in-interest. Kessingers assert that 

the District Court erred in granting a private prescriptive 

easement to Winnie and Beeson because they were not parties to this 

lawsuit. Kessingers argue § 25-g-201, MCA, allows a court to 

adjudicate only those rights between plaintiffs and defendants. 

Matuleviches argue that Winnie and Beeson, as members of the 

public, testified to help prove that a public prescriptive easement 

existed over Rogers Lane. Further, Matuleviches argue that based 

on Winnie's and Beeson's testimony the District Court could have 

decided to grant a public prescriptive easement, but simply "chose 

to restrict the 'public easement' to certain specified members of 

the public." 

We recently decided this issue in Warnack v. Coneen Family 

Trust (19941, 266 Mont. 203, 879 P.2d 715. A person who is not a 

party to the action, cannot.be a party to the judgment. Warnack, 

879 P.2d at 718. In Warnack, we explained: 

[Ilt 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. 

Warnack, 879 P.2d at 718 (citation omitted). This rule also 

applies to judgments awarded in favor of a nonparty. Warnack, 879 

P.2d at 718. Furthermore, this fundamental principle underlays the 

language set forth in 5 25-g-201, MCA: 

Whose rights determined in judgment. Subject to the 

provisions of Rule 54(b) M.R.Civ.P., judgment may be 

given for or against one or more of several plaintiffs 

and for or against one or more of several defendants, and 

it may, when the justice of the case requires, determine 

the ultimate rights of the parties on each side as 

between themselves. 

13 
Although Winnie and Beeson lived in the area of the disputed 

road and did testify as to their use of the road, they were not 

parties to this lawsuit. Accordingly, we reverse that part of the 

District Court 1 s judgment and order that grants a private 

prescriptive easement to John Winnie and Tom Beeson. 

3. Did the District Court err in finding that the general 

public had not used the road in question sufficiently to ripen into 

a public prescriptive easement? 

On cross appeal, Matuleviches argue that the public has a 

prescriptive easement right to use the road. Matuleviches contend 

that they, like Winnie and Beeson, are members of the public. 

Therefore, as members of the public, they have collectively used 

the road for twenty years in the same manner and thereby have 

established a public prescriptive easement over the road. We 

disagree. 

In Issue 1, we held that Matuleviches failed to establish a 

private prescriptive easement because they used the road for 

recreational purposes based only on neighborly accommodation. 

Prescriptive easements may be proved by public or private use. 

However, in either case, the claimant must show open, notorious, 

exclusive, adverse, continuous and uninterrupted use of the 

easement for the full statutory period. Granite County v. Komberec 

(1990), 245 Mont. 252, 257, 800 P.2d 166, 169 (overruled on other 

grounds). Therefore, just as the evidence of Matuleviches' use of 

the road was not sufficient to establish a private prescriptive 

easement, this same evidence is not sufficient to establish a 

14 
public prescriptive easement. Matuleviches used the road for 

recreational purposes based on neighborly accommodation. This kind 

of use will not establish a prescriptive easement. 

Moreover, Matulevichesj actions support a conclusion that they 

did not view the road as public, but rather that they also viewed 

the road as private. Matuleviches placed a "Private Road" sign 

along the road and indicated through their conduct that they felt 

the road was private and not open to the public. For example, 

Matuleviches did not sign a petition circulated in 1985-86 

submitted to the Flathead County Commissioners to open the road as 

a county road. Matuleviches' use and conduct concerning the road 

does not support a conclusion that the road is public, but rather 

that it is private. 

In Issue 2, we held that Winnie and Beeson could not be 

granted a private prescriptive easement because they were not 

parties to this action. However, because Winnie and Beeson 

testified under Matuleviches' claim that a public prescriptive 

easement existed, we will consider whether their use of the road 

contributed to the establishment of a public prescriptive easement. 

Our holding and discussion in Public Lands is again directly 

on point. In Public Lands, plaintiffs asserted a public 

prescriptive easement over Dupuyer Canyon Road. However, we found 

that plaintiffs' use of the road was not adverse, but instead due 

to neighborly accommodation. Public Lands, 856 P.2d at 528. We 

based this decision on the fact that defendant had erected gates 

across the disputed road and plaintiffs and other members of the 

15 
public honored them by leaving the gates as they had found them. 

Public Lands, 856 P.2d at 528. Similarly, Winnie and Beeson 

honored the gates erected by Siegfried and West. When Winnie and 

Beeson traveled past the gates, they left them as they found them. 

That is, if the gate was closed when they came upon it, they would 

close it after passing through. 

Furthermore, in Public Lands, we found that plaintiffs used 

the road only to gain access to recreational activities and that 

type of use failed to raise a presumption of adverse use. Public 

Lands, 856 P.2d at 528-29.- Likewise, Winnie and Beeson used the 

road solely for recreational purposes such as walking, sightseeing, 

cross country skiing and collecting water from the spring on Plum 

Creek Timber Company land. This recreational use of the road could 

never establish adverse use. Consequently, the testimony of Winnie 

and Beeson did not demonstrate the establishment of a public 

prescriptive easement. 

Matuleviches, Winnie and Beeson all used the road for 

recreational purposes with the implied permission of both Siegfried 

and West. Therefore, their combined use of the road was not 

adverse and, consequently, they failed to establish a public 

prescriptive easement. Accordingly, we affirm that part of the 

District Court's judgment and order declaring that the general 

public did not establish a public prescriptive easement over the 

disputed road. 

16 
4. Did the District Court err in declaring that a private 

prescriptive easement had been established over the road in 

question in favor of the Plaintiffs Roger and Joanne ICessinger? 

On cross appeal, Matuleviches argue that if Matuleviches, 

Winnie and Beeson do not hake a private prescriptive right to use 

the road, then Kessingers do not have a private prescriptive right 

either. Instead, Matuleviches assert that they had given 

Kessingers permission to use the road to access Kessingers' 

property. We find this argument unpersuasive. 

On appeal, Matuleviches bear the burden of establishing that 

the judgment of the District Court is erroneous. Walsh v. 

Ellingson Agency (19801, 188 Mont. 367, 373, 613 P.Zd 1381, 1384. 

While Matuleviches assert that Kessingers' use of the road was 

permissive, they fail to establish that the District Court's 

findings in this regard are not supported by substantial evidence 

or are otherwise clearly erroneous; nor do they establish error by 

the District Court in interpreting the law. We will not presume 

error on the part of the District Court. Walsh, 613 P.2d at 1384. 

Accordingly, we affirm that part of the District Court's judgment 

and order declaring that Kessingers are entitled to a private 

prescriptive easement over the road as it crosses Matuleviches' 

property for the purposes of ingress and egress. 

We affirm in part and reverse in part. 

Justice 
We concur: 

18 
1 RodE’RS: I’kKF 5illi , . . - ,- ..- 

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P 0 3 _ - - -- -_- -- I” 
October 22, 1996 

CERTIFICATE OF SERVICE 

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

following named: 

Thomas R. Bostock 

Warden, Christiansen, Johnson & Berg 

P.O. Box 3038 

Kalispell, MT 59903-3038 

Kenneth E. O’Brien 

Hash, O’Biien & Bartlett 

P.O. Box 1178 

Kalispell, MT 59903-1178 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA