NO. 92-233 IN THE SUPREME COURTOFTHE STATE OFMONTANA 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.

COUNSELOF 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? 23I$$3 Submitted on Briefs: November 12, 1992 FilPft~:-:;.~~~,,~~~~;~~~,Ui,~, Decided: March 23, 1993 STATE OFM"NTA,"AJustice R. C. McDonoughdelivered the opinion of the Court.

This is anappeal from the Ninth Judicial District, County of Teton, from ajudgment for the Respondent (Durocher) as aresult of
abench trial. Weaffirm. The essential issue on appeal is whether all elements necessary to establish aprescriptive 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. Theeast half of the property was patented in 1923. Thewest half of the property waspatented in 1935. The property
wasaccessed from the Swift Damroad, traveling across tracts owned byArt Lindseth, FayLear, andJohn Rappold. R.N. Lear never lived
onthe 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) andJohn Rappold. In 1969, Jack and Deloris Lear obtained an affidavit from their neighbors relative to borrowing moneyfrom the Federal Land Sank, which wasrecorded in 1978. Theaffidavit wassigned byJohn Rappold (appellants' father), A. D. Lindseth and Fay Lear andread in pertinent part:

FAYF. LEAR,A. D. LINDSETHandJOHNRAPPOLD,being first duly sworn, upon their oaths depose and say that they own real estate in the vicinity of land owned by
2MARLONJOHNLEAR,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 MARLONJOHNLKARand his predecessors in title and business visitors and guests of same have regularly, openly, andcontinuously used atrail from the Swift Damroad to gain access to this land, andthat said access road has been used without objection, contest or obstruction by anyone for aperiod of over fifteen years from this date: that the said access road runs southeasterly through Sections 24, 25, 26, 34 and 35of Township 28 North, Range 9West in Pondera County, and through Section 3, Township 27 North, Range 9West in Teton County, entering land ownedbyMAHMNJOHNLEARon the east side of the NW1/2SW1/2of Section 3, Township 27 North, Range 9West.

. . . In 1979, Jack and Deloris Lear sold the property to Glen and Lola Thoreson, who used the sameaccess trail that R.N. Lear and Jack Lear had used to reach the property. The Thoresons grazed cattle onthe land until 1982, whenthey leased the land to Jerry Lear, FayLear's son, to graze Jerry's livestock. Theproperty 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 andgrandfather) purchased the Lenor place in 1938. They subsequently purchased the "Gordon place" in 1949. TheRappolds acquired their property through various deeds in 1980 from their father, John Rappold. TheRappolds filed this action onNovember 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. 3l'Our standard of review of adistrict 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), 247Mont. 518, 522, 807P.2d 1354, 1357. In interpreting this rule, wehave 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 beenmisapprehended the Court maystill find that "[A] finding is 'clearly erroneous' when, although there is evidence to support it, areview of the record leaves the court with the definite and firm conviction that amistake has been committed.n Interstate Production Credit v. DeSaye (1991), 250Mont. 320, 323, 820 P.2d 1285, 1287. (Citations omitted.) Toestablish 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, 807P.2d at 1356. (Citation omitted.) Seealso; Downing
v. Grover (1989), 237Mont. 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'ContinuousqBmeans"it is necessary to have use madeoften enough to constitute notice of the claim to the potential servient owner.V' YJninterrupted@* means "use not interrupted bythe act of the owner of the land or by voluntary abandonment by the party claiming the right." 4Downinq, 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 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." 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. Weagree. 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
5different 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 andJohn Rappold provides evidence that Jack Lear's use of the trail was also open, notorious, continuous, uninterrupted andexclusive. The affidavit states that VAHLON JOHNLEARand his oredecessors in title and business visitors and guests of same have regularly, openly, and continuously used atrail from the Swift Damroad to gain access to this land, andthat said access road has been used without objection, contest or obstruction byanyone for aperiod of
over fifteen years from this date.

. . .I' (Emphasis added.) The affidavit is dated October 18, 1969. Theaffidavit reflects this
use occurred over at least a fifteen year period prior to that date. Thetrial court concluded that the language of the affidavit
wasnot consistent with permissive use andthat the "affidavit

. .

. appears to confirm the existence of a prescriptive easement.*' All elements of prescription have beenshownthrough the testimony of the Thoresons andthe 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), 233Mont. 75, 78, 758 P.2d 292, 294 (citation omitted). Whenthe other elements have been established, the burden falls uponthe other party to showthat the
usewaspermissive. Garrettv. Jackson (1979), 183Mont. 505, 508,
6600 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 hehad 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. Weobserve 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

7testified 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 onthe affidavit and the word of the real estate manwhoworked with Jack bear when Jack sold the property to Glen Thoreson. Finally, Glen Thoreson testified that hedid not feel that hehadto ask for permission to
access his property. Thetrial court concluded that "Glen Thoreson
wastold whenhepurchased the property from Lear that there wasan 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 useof the trail as an adverse claim of right, not asalicense revocable at the Rappolds' pleasure. Weconclude that the trial court's judgment that Durocher has
aprescriptive easement through Rappolds' property is supported by substantial credible evidence, that the trial court did not misapprehend the effect of the evidence, andthat the court wasnot clearly erroneous. AFFIRMED. /

8March23,1993 CERTIFICATE OFSERVICE IherebycertifythatthefollowingorderwassentbyUnitedStatesmail,prepaid,tothefollowing named: GregoryW.Duncan&John P.Poston Harrison,Loendorf&Poston 2225EleventhAve.,Ste.21 Helena,MT 59601 MichaelS.Becker&WalterS.Murtitt Luxan&Murlitt P.O.Box1144 Helena,MT 59624-1144 RobertL.Woodahl AttorneyatLaw P.O.Box162 Choteau,MT 59422-0162 EDSMITH CLERKOFTHESUPREME COURT