NO. 96-059 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1996
ROGERA. KESSINGER ANDJOANNE M.KESSINGER, husband andwife,

Plaintiffs andAppellants,

DONALDMATULEVICH ANDJOAN MATULEVICH, husband andwife,

Defendants, Respondents, and Cross-Appellants.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead, TheHonorable Ted0. Lympus, Judge presiding.

COUNSELOFRECORD:

For Appellant: Thomas R. Bostock, Warden, Christiansen, Johnson & Berg, Kalispell, Montana For Respondent: Kenneth E. O'Brien, Hash, O'Brien & Bartlett, Kalispell, Montana

Submitted onBriefs: May 16, 1996

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

This is anappeal andcross appeal from the Eleventh Judicial District Court, Flathead County. Following anonjury trial and view of the disputed road, the District Court awarded private prescriptive easement rights to Plaintiffs Roger and Joanne Kessinger, Defendants Donald andJoan Matulevich, andtwo nonparty witnesses, John Winnie and Tom Beeson, over the disputed road. Plaintiffs appeal andDefendants cross appeal. Weaffirm in part andreverse in part. Weaddress the following issues onappeal:

A.. prescript i question i 2 prescript Did the District Court err in declaring that aprivate

ve easement had been established over the road in
nfavor of the Defendants Donald andJoan Matulevich? Did the District Court err in declaring that aprivate
ve easement had been established over the road in question by two nonparties andtheir successors in interest? Weaddress the following issues oncross appeal. 3. Did the District Court err in finding that the general public hadnot used the road.in question sufficiently to ripen into
apublic prescriptive easement? 4. Did the District Court err in declaring that aprivate prescriptive easement had been established over the road in question in favor of the Plaintiffs Roger and Joanne Kessinger?

FACTUALANDPROCEDURALBACKGROUND Rogers Lake is located approximately 30 miles west of Kalispell, Montana. Rogers Lake Road, a county road, provides 2access to the Rogers Lake area. At apoint north of the properties

of the Plaintiffs Roger and Joanne Kessinger (Kessingers) and Defendants Donald andJoan 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 oneandone-half miles north of Kessingers' property, the Rogers Lake Road ceases to beacounty road and turns into a dirt andgravel road, commonly known asRogers Lane. SeeAppendix A. Rogers Lane (the road) runs south and crosses the lakeshore properties of Matuleviches (Lots 12and 13), Frank Bear (Lots 10 and 11) andKessingers (Lots 1through 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 1through 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 4through 9in 1976 and West purchased Lot 3in 1977. When purchased, both Siegfried and West's lots were undeveloped. However, both fenced, gated and posted their respective properties within twoyears of purchase. Siegfried did
soin 1977-1978 andWest did SOby 1979. Both used athree-strand barbed-wire gate to block access to the road. In addition to his
3

### gateISiegfried erected anentry wayto his property by placing a

main cross beamatop two large timber poles oneither side of the road. West, in addition to his gate, physically blocked the road with his pickup. Siegfried built ahomeonhis lots in 19'79andWest built a homeonhis lot by 1980. Siegfried used his property mainly asa vacation residence, but did reside there permanently from 1989 to 1993. West lived onhis property asapermanent resident from 1980 to 1985 andfrom 1987 to 1990. During their periods of occupancy, both Siegfried andWest maintained their gates. Just as for the Kessingers now, the road wasthe only means for Siegfried andWest to access their properties. Both Siegfried andWest 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 andPlum 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 andPlum Creek Timber Company land for recreational purposes. Matuleviches used the road for avariety of recreational purposes such as to walk, sightsee, occasionally gather firewood andcross country ski. Additionally, prior to 1984, Matuleviches used the road to access
4aspring located onPlum Creek Timber Company property to gather

drinking water in plastic jugs. However, in 1984, Matuleviches developed adeep well on their property and subsequently reduced their useof the spring for drinking water. Between 1973and 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 andBeeson used the road for recreational purposes only. Asseasonal residents, Winnie and Beeson used the road to do such things aswalk, sightsee, cross country ski and collect water from the spring on Plum Creek Timber Company land. While they used the road despite Siegfried andWest's gates, they testified that they honored the gates byleaving them asthey found them.Kessingers initiated this suit in the District Court for the Eleventh Judicial District, Flathead County. Inaeffort to secure legal access to their property, Kessingers brought aquiet title action alleging a private prescriptive easement over a road crossing the property ofMatuleviches andBear. Kessingers further sought an injunction to prevent Matuleviches or Bear from

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

counterclaimed alleging that they, oralternatively the public, had
aprescriptive 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 abench trial andview 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 andMatuleviches
cross appeal. Weaffirm in part and reverse in part. Ourstandard of review for adistrict court's findings of fact is provided by Rule 52(a), M.R.Civ.P., which in part provides:

Findings of fact

.. shall not beset aside unless clearly erroneous, anddueregard shall begiven to the opportunity of the trial court to judge of the credibility of the witpesses Wehave 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 hasnot beenmisapprehended, the Court maystill find that "[Al finding is 'clearly erroneous' when, although there is evidence to support it, areview of the 6record leaves the court with the definite and firm

conviction that amistake has been committed." Public Lands Access Ass'n, Inc. v. Boone andCrockett Club Found.,

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

Interstate Production Credit v. DeSaye (1991), 250Mont. 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. Whenestablishing either apublic 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, 915P.2d at 843. Thestatutory period is five years. Section 70-19-404, MCA. Theburden is onthe 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 andnot bypermission of the landowner. Kostbade v. Metier (1967), 150Mont. 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? 7Public Lands Access Ass'n, Inc. v. Boone andCrockett Club Found.,

Inc. (1993), 259 Mont. 279, 283, 856 P.2d 525, 527 (quoting Interstate Production Credit v. DeSaye (1991), 250Mont. 320, 323, 820P.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, 856P.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. Whenestablishing either apublic 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, 915P.2d at 843. Thestatutory period is five years. Section 70-19-404, MCA. Theburden is onthe party seeking to establish the prescriptive easement to prove all elements of the prescription. Public Lands, 856P.2d at 527. To establish a prescriptive right, the prescriptive claimant must show, by clear and convincing evidence, that the use was adverse andnot bypermission of the landowner. Kostbade v. Metier (1967), 150Mont. 139, 143, 432 P.2d 382, 385. DISCUSSION 1. Did the District Court err in declaring that aprivate 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 hadestablished aprivate 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 wasnot 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 apresumption 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 andthereby destroyed anysuch easement. Weagree. TheDistrict Court stated in Finding of Fact No. 7'I[tlhat at
notime during such usedid [Matulevichesl ever seek permission for such use from either [Kessingersl or their predecessors in interest." TheDistrict Court then went onto state in Finding of Fact No. 8that Matuleviches' use met all the requirements of a prescriptive easement, including that of adversity. Wedisagree. As a finding of fact, this is not supported by substantial evidence; asaconclusion of law, it is incorrect. "To be adverse, the use of the alleged easement must be exercised under aclaim of right and not as amere 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, 856P.2dat 527 (citation omitted). "If the
8owner shows permissive use, noeasement can beacquired since the

theory of prescriptive easement is based onadverse use." Public Lands, 856P. 2dat 527 (citation omitted). "Neighborly accommodation is aform of permissive use which, bycustom, does not require permission at every passing." Lemont Land Corp. v. Rogers (1994), 269Mont. 180, 186, 887P.2d 724, 728 (citing Public Lands, 856 P.2d at 528). Wehave stated that:

A use of a neighbor's land based upon mere neighborly accommodation or courtesy is not adverse and cannot ripen into aprescriptive easement. Thus where the use of awaybyaneighbor wasbyexpress or implied permission of the owner, it washeld that the continuous use of the wayby the neighbor wasnot adverse and did not ripen into aprescriptive right. Public Lands, 856P.2d at 528 (quoting Wilson v. Chestnut (1974), 164Mont. 484, 491, 525P.2d 24, 27). Aproperty owner erecting agate across aroad located onhis property provides strong evidence that use of the road past the gate is permissive only. Wehave stated that: The fact that the passage of aroad 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 asstrong evidence in support of amere license to the public to pass over the designated way. Public Lands, 856P.2d at 528 (quoting Maynard v. Bara (1934), 96 Mont. 302, 307, 30P.2d 93, 95). Siegfried andWest both testified that they gated, fenced and posted their properties during the years 1977 to 1979 andenforced 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
9public 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 andPlum 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 wasa"neighborly thing" andthat any discussibn concerning Siegfried's or West's explicit permission for them to use the road "just never cameup." Siegfried andWest, byactively prohibiting the general public from using the road, but not objecting to their neighbors' use, gave Matuleviches implied permission to use the road asit crossed their properties. This implied permission, based on ageneral attitude of "neighborly accommodation" prevented Matuleviches' use of the road from ripening into aprescriptive easement. The District Court in its Finding of Fact No. 6states 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 andtherefore could not, as.a matter of law, raise the presumption of adverse use. Public Lands, 856P.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. asto hike, sightsee, occasionally gather firewood and cross country ski. Additionally, prior to 1984,

10Matuleviches used the road to access aspring located onPlum 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 useof the road wasonly 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 aprivate prescriptive easement based ontheir recreational use of the road. Finally, Kessingers maintain that even if Matuleviches had established aprivate prescriptive easement prior to Siegfried and West purchasing their properties, Siegfried's and West's acts 'of putting upgates andallowing Matuleviches to usethe road based on permissive use destroyed such aneasement. Wealso addressed this issue in Public Lands:

Section 70-17-111(3), MCA,provides that aservitude 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' Wehave 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). Wefurther explained that the right hostile to the easement holder must be brought to the easement holder's attention andthe hostile usemust continue for the full statutory period. Public Lands, 856P.2d at 531. Based on the foregoing, we held that the defendants' predecessors-in-interest 'had established reverse adverse

11possession. They performed ahostile act by blocking off the

disputed road, andthe purported owner of the easement, the public, adhered to awalk-in policy over aI?-year period. Consequently, anyprescriptive easement the public mayhave established waslost. Public Lands, 856P.2d at 532. Similarly, Siegfried andWest demonstrated hostile acts which
were inconsistent with Matuleviches' purported prescriptive easement. During the years 1977to 1979, Siegfried andWest 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 asa"neighborly thing." For a period of over ten years, Siegfried and West allowed Matuleviches touse the road. Just asin Public Lands, Siegfried's andWest's acts created reverse adverse possession. Therefore, any prescriptive easement Matuleviches mayhave established was lost. Weconclude that Matuleviches failed to establish aprivate prescriptive easement over the road as it crosses Kessingers' property. Therefore, wereverse that part of the District Court's judgment andorder that grants aprivate prescriptive easement to Matuleviches. 2. Did the District Court err in declaring that aprivate prescriptive easement had been established over the road in question by two nonparties and their successors in interest? TheDistrict Court awarded private prescriptive easements over the disputed road to two nonparty witnesses, John Winnie and Tom

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

the District Court erred in granting a private prescriptive easement toWinnie andBeeson 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 tohelp prove that apublic prescriptive easement existed over Rogers Lane. Further, Matuleviches argue that based
onWinnie's and Beeson's testimony the District Court could have decided to grant apublic prescriptive easement, but simply "chose to restrict the 'public easement' to certain specified members of the public." Werecently decided this issue in Warnack v. Coneen Family Trust (19941, 266 Mont. 203, 879P.2d 715. Aperson whois not a party to the action, cannot.be aparty to the judgment. Warnack, 879 P.2d at 718. In Warnack, weexplained:

[Ilt is afundamental principle of our jurisprudence that it is only against aparty to the action that a judgment can be taken and that the judgment is not binding against astranger to the action. Warnack, 879 P.2d at 718 (citation omitted). This rule also applies to judgments awarded in favor of anonparty. Warnack, 879 P.2d at 718. Furthermore, this fundamental principle underlays the language set forth in 525-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 andfor or against oneormore of several defendants, and it may, whenthe justice of the case requires, determine the ultimate rights of the parties on each side as between themselves. 13Although Winnie andBeeson 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, wereverse that part of the District Court 1

s judgment and order that grants a private prescriptive easement to John Winnie andTomBeeson. 3. Did the District Court err in finding that the general public hadnot used the road in question sufficiently to ripen into
apublic prescriptive easement? Oncross 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, weheld 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), 245Mont. 252, 257, 800P.2d 166, 169 (overruled onother grounds). Therefore, just asthe evidence of Matuleviches' use of the road was not sufficient to establish aprivate prescriptive easement, this same evidence is not sufficient to establish a
14public prescriptive easement. Matuleviches used the road for

recreational purposes based onneighborly accommodation. This kind of use will not establish aprescriptive easement. Moreover, Matulevichesj actions support aconclusion that they did not view the road aspublic, but rather that they also viewed the road as private. Matuleviches placed a "Private Road" sign along the road andindicated 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
acounty road. Matuleviches' use andconduct concerning the road does not support aconclusion 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, wewill consider whether their use of the road contributed to the establishment of apublic prescriptive easement. Our holding anddiscussion in Public Lands is again directly
on point. In Public Lands, plaintiffs asserted a public prescriptive easement over Dupuyer Canyon Road. However, wefound that plaintiffs' use of the road wasnot adverse, but instead due to neighborly accommodation. Public Lands, 856 P.2d at 528. We based this decision onthe fact that defendant had erected gates
across the disputed road andplaintiffs and other members of the
15public 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 bySiegfried andWest. WhenWinnie and Beeson traveled past the gates, they left them asthey found them. That is, if the gate wasclosed whenthey cameupon it, they would close it after passing through. Furthermore, in Public Lands, wefound that plaintiffs used the road only to gain access to recreational activities and that type of use failed to raise apresumption of adverse use. Public Lands, 856 P.2d at 528-29.- Likewise, Winnie and Beeson used the road solely for recreational purposes such aswalking, sightseeing,
cross country skiing andcollecting water from the spring onPlum Creek Timber Company land. This recreational useof the road could
never establish adverse use. Consequently, the testimony ofWinnie 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 ofboth Siegfried and West. Therefore, their combined use of the road was not adverse and, consequently, they failed to establish a public prescriptive easement. Accordingly, weaffirm that part of the District Court's judgment and order declaring that the general public did not establish apublic prescriptive easement over the disputed road.

164. Did the District Court err in declaring that aprivate

prescriptive easement had been established over the road in question in favor of the Plaintiffs Roger andJoanne ICessinger? On cross appeal, Matuleviches argue that if Matuleviches, Winnie andBeeson donot hake aprivate prescriptive right to use the road, then Kessingers donot have aprivate prescriptive right either. Instead, Matuleviches assert that they had given Kessingers permission to use the road to access Kessingers' property. Wefind this argument unpersuasive. Onappeal, Matuleviches bear the burden of establishing that the judgment of the District Court is erroneous. Walsh v. Ellingson Agency (19801, 188Mont. 367, 373, 613P.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 dothey establish error by the District Court in interpreting the law. Wewill not presume
error onthe part of the District Court. Walsh, 613P.2d at 1384. Accordingly, weaffirm 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 andegress. Weaffirm in part andreverse in part.

JusticeWe concur:

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### October 22,1996
CERTIFICATEOFSERVICE IherebycertifythatthefollowingcertifiedorderwassentbyUnitedStates mail,prepaid,tothe followingnamed: Thomas R.Bostock Warden,Christiansen,

Johnson &Berg P.O.Box3038 Kalispell,MT59903-3038 Kenneth E.O’Brien Hash,O’Biien&Bartlett P.O.Box1178 Kalispell,MT59903-1178

EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA