NO. 92-233 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

EARL RAPPOLD and JOHN RAPPOLD, 

Plaintiffs and Appellants, 

-vROBERT E. DUROCHER, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Teton, 

The Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John P. Poston, Gregory W. Duncan, 

Loendorf & Poston, Helena, Montana 

Harrison, 

For Respondent: 

Walter S. Murfitt, Michael S. Becker, Luxan & 

Murfitt, Helena, Montana; Robert L. Woodahl, 

iw? 2 3 I$$3 Submitted on Briefs: November 12, 1992 

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Decided: March 23, 1993 

STATE OF M"NTA,"A 
Justice R. C. McDonough delivered the opinion of the Court. 

This is an appeal from the Ninth Judicial District, County of 

Teton, from a judgment for the Respondent (Durocher) as a result of 

a bench trial. We affirm. 

The essential issue on appeal is whether all elements 

necessary to establish a prescriptive easement across Appellants' 

(Rappolds) property were proved. 

This action concerns Durocher's right to access his property 

through Rappolds' property. Previously, Durocher's property was 

acquired by one, R.N. Lear, in 1940 and 1941, from the original 

homesteaders. The east half of the property was patented in 1923. 

The west half of the property was patented in 1935. The property 

was accessed from the Swift Dam road, traveling across tracts owned 

by Art Lindseth, Fay Lear, and John Rappold. R.N. Lear never lived 

on the property. 

In 1965, Mahlon (Jack) Lear and Deloris Lear acquired the 

property from R.N. Lear and used the property primarily for 

livestock grazing. Jack Lear also crossed the property of Art 

Lindseth, Fay Lear (Jack Lear's brother) and John Rappold. 

In 1969, Jack and Deloris Lear obtained an affidavit from 

their neighbors relative to borrowing money from the Federal Land 

Sank, which was recorded in 1978. The affidavit was signed by John 

Rappold (appellants' father), A. D. Lindseth and Fay Lear and read 

in pertinent part: 

FAY F. LEAR, A. D. LINDSETH and JOHN RAPPOLD, being 

first duly sworn, upon their oaths depose and say that 

they own real estate in the vicinity of land owned by 

2 
MARLON JOHN LEAR, said land being located in Sections 3, 

4, 5 and 9 of Township 27 North, Range 9 West, Teton 

County, Montana. 

That affiants have personal knowledge of the fact 

that the said MARLON JOHN LKAR and his predecessors in 

title and business visitors and guests of same have 

regularly, openly, and continuously used a trail from the 

Swift Dam road to gain access to this land, and that said 

access road has been used without objection, contest or 

obstruction by anyone for a period of over fifteen years 

from this date: that the said access road runs 

southeasterly through Sections 24, 25, 26, 34 and 35 of 

Township 28 North, Range 9 West in Pondera County, and 

through Section 3, Township 27 North, Range 9 West in 

Teton County, entering land owned by MAHMN JOHN LEAR on 

the east side of the NW1/2SW1/2 of Section 3, Township 27 

North, Range 9 West. . . . 

In 1979, Jack and Deloris Lear sold the property to Glen and 

Lola Thoreson, who used the same access trail that R.N. Lear and 

Jack Lear had used to reach the property. The Thoresons grazed 

cattle on the land until 1982, when they leased the land to Jerry 

Lear, Fay Lear's son, to graze Jerry's livestock. The property was 

leased by Jerry until April of 1988, when the Thoresons sold the 

property to Durocher. 

The Rappolds' father and grandfather bought the property 

crossed by the contested trail in two purchases. First, John and 

Karl (appellants' father and grandfather) purchased the Lenor place 

in 1938. They subsequently purchased the "Gordon place" in 1949. 

The Rappolds acquired their property through various deeds in 1980 

from their father, John Rappold. 

The Rappolds filed this action on November 28, 1988 to quiet 

title to the traversed land against any interest of Durocher. 

Additional facts will be provided as necessary in the body of the 

opinion. 

3 
l'Our standard of review of a district court's findings of fact 

is clear." Rule 52(a), M.R.Civ.P., provides in pertinent part: 

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 witnesses. . . . 

Keebler v. Harding (1991), 247 Mont. 518, 522, 807 P.2d 1354, 1357. 

In interpreting this rule, we have adopted the following three-part 

test: 

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 "[A] finding is 'clearly erroneous' when, 

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

record leaves the court with the definite and firm 

conviction that a mistake has been committed.n 

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

820 P.2d 1285, 1287. (Citations omitted.) 

To establish an easement by prescription, the party claiming 

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

continuous and uninterrupted use of the easement claimed for the 

full statutory period. The statutory period is five years." 

Keebler, 807 P.2d at 1356. (Citation omitted.) See also; Downing 

v. Grover (1989), 237 Mont. 172, 175, 772 P.2d 850, 852. 

"Open and notorious" is defined as 'Ia distinct and 

positive assertion of a right hostile to the rights of 

the owner and must be brought to the attention of the 

owner. I1 N'ContinuousqB means "it is necessary to have use 

made often enough to constitute notice of the claim to 

the potential servient owner.V' YJninterrupted@* means 

"use not interrupted by the act of the owner of the land 

or by voluntary abandonment by the party claiming the 

right." 

4 
Downinq, 772 P.2d at 852 (citations omitted). 'IAn Exclusive use 

means that the claimants' right to use the right of way is 

independent of a like right of way in another." Cope v. Cope 

(1971) I 158 Mont. 388, 392, 493 P.2d 336, 339. Finally, "[t]o 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." Keebler, 807 P.2d at 

1356-1357. (Citation omitted.) 

Given the elements of an easement by prescription and the 

definition of such elements, the trial court concluded that the 

Durocher had established an easement to his property through the 

Rappolds' property. We agree. 

The Thoreson's owned Durocher's property for approximately ten 

years, from 1979 to 1988, when they sold the property to Durocher. 

The Thoresons used their property in various ways during different 

seasons. They grazed livestock on it, they would go to the 

property to repair fences and they moved a trailer to the property 

for overnight stays. They consistently used the trail through 

Rappolds' to get to their property. They used the disputed trail 

to access their property for snowmobiling, hunting, Christmas tree 

gathering, picnics and general enjoyment of the property. They 

continued to use the property after they leased it to Jerry Dear to 

graze his cattle. 

Mr. Thoreson testified that the Rappolds knew they travelled 

the disputed trail because he had met both Karl and John at 

5 
different times on the trail. The Rappolds never prevented him 

from using the trail. Thoreson claimed he had a right to access 

his property. 

The 1969 affidavit signed by Fay Lear, Art Lindseth and John 

Rappold provides evidence that Jack Lear's use of the trail was 

also open, notorious, continuous, uninterrupted and exclusive. The 

affidavit states that VAHLON JOHN LEAR and his oredecessors in 

title and business visitors and guests of same have regularly, 

openly, and continuously used a trail from the Swift Dam road to 

gain access to this land, and that said access road has been used 

without objection, contest or obstruction by anyone for a period of 

over fifteen years from this date. . . .I' (Emphasis added.) The 

affidavit is dated October 18, 1969. The affidavit reflects this 

use occurred over at least a fifteen year period prior to that 

date. 

The trial court concluded that the language of the affidavit 

was not consistent with permissive use and that the "affidavit . . 

. appears to confirm the existence of a prescriptive easement.*' 

All elements of prescription have been shown through the testimony 

of the Thoresons and the 1969 affidavit. The element of adversity 

is the element of contention here. However, II. . . adverse use is 

established by presumption if all other elements of the claim are 

demonstrated.1t Parker v. Elder (1988), 233 Mont. 75, 78, 758 P.2d 

292, 294 (citation omitted). When the other elements have been 

established, the burden falls upon the other party to show that the 

use was permissive. Garrettv. Jackson (1979), 183 Mont. 505, 508, 

6 
600 P.2d 1177, 1179. 

In our present case, the use has been shown to be open, 

notorious, exclusive, continuous and uninterrupted at least through 

the ownership of Jack Dear and Glen Thoreson, Durocher's 

predecessors in interest. This establishes the presumption of 

adversity that the Rappolds must overcome. 

We conclude that the Rappolds have not met their burden of 

demonstrating that Durocher and his predecessors' use was 

permissive. Although Karl Rappold testified that he had given Glen 

Thoreson and his son, Gary permission to cross his property, Glen 

and Gary Thoreson testified that they never sought permission, nor 

were they given permission, to use the trail. The trial court 

concluded that he found "the testimony of Glen Thoreson, a 

disinterested third party, more credible than that of plaintiffs 

and members of their family. Glen Thoreson never asked for or 

received permission from plaintiffs to use the road." 

The Rappolds provided nothing more than their own statements 

to show that the use of the road was permissive. We observe that 

"[d]ue regard is given the opportunity of the district court to 

judge the credibility of witnesses. . . and resolve conflicts or 

inconsistencies in testimony." Thomas v. Barnum (1984), 211 Mont. 

137, 143-144, 684 P.2d 1106, 1110. (Citations omitted.) 

The element of adversity also is present in Glen Thoreson's 

testimony that he did not understand that there were any 

limitations on using the road at any time during the year nor any 

limitations for any use he wanted to make of the road. Also, he 

7 
testified that when he sold the property to Durocher he told 

Durocher that he had a right to use the trail based upon the 

"written easement" (1969 affidavit). Thoreson believed he had a 

legal right to go to his property based on the affidavit and the 

word of the real estate man who worked with Jack bear when Jack 

sold the property to Glen Thoreson. Finally, Glen Thoreson 

testified that he did not feel that he had to ask for permission to 

access his property. The trial court concluded that "Glen Thoreson 

was told when he purchased the property from Lear that there was an 

easement that went with it. The 1969 affidavit was the basis for 

this representation. This information was passed along to 

Defendant Durocher." Thoreson exercised his use of the trail as an 

adverse claim of right, not as a license revocable at the Rappolds' 

pleasure. 

We conclude that the trial court's judgment that Durocher has 

a prescriptive easement through Rappolds' property is supported by 

substantial credible evidence, that the trial court did not 

misapprehend the effect of the evidence, and that the court was not 

clearly erroneous. AFFIRMED. / 

8 

March 23, 1993 

CERTIFICATE OF SERVICE 

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

named: 

Gregory W. Duncan &John P. Poston 

Harrison, Loendorf & Poston 

2225 Eleventh Ave., Ste. 21 

Helena, MT 59601 

Michael S. Becker & Walter S. Murtitt 

Luxan & Murlitt 

P.O. Box 1144 

Helena, MT 59624-1144 

Robert L. Woodahl 

Attorney at Law 

P.O. Box 162 

Choteau, MT 59422-0162 

ED SMITH 

CLERK OF THE SUPREME COURT