No. 12021 INTHE SUPREME COURT OF THE STATE OF MONTANA 1971

ROBERT LARSON, a/k/a BOB LARSON, Plaintiff and Respondent,

GUY P. BURNETT and MARTHA E. BURNETT, hiswife, Defendants and Appellants.

Appeal from: District Court of theFourth Judicial District, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record: For Appellants

### : Garlington, Lohn and Robinson, Missoula, Montana. Robert E. Sheridan, 

### Jr. argued, Missoula, Montana. Sherman V. Lohn appeared, Missoula, Montana. For Respondent

### : Tipp, Haven and Brault, Missoula, Montana. Raymond P. Tipp argued, Missoula, Montana.

Submitted

### : December 

### 3, 1971 Decided:

## ~~l12 1972

### Mr. Justice Frank I. Haswell delivered the Opinion of the Court.

This 

### is anappeal by defendants, Guy P. Burnett and Martha E. Burnett, his wife, from a finaljudgment of the districtcourt of Missoula County following that court's denial of defendants' exceptions and motion toamend the findings of fact and conclusions of law. The casewas triedby the court without a jury. Judgment was entered wherein the court found that the plaintiff, Robert Larson, had acquired a nonexclusive easement for road purposes over certain land owned by defendants. Further, the court ordered that plaintiff for a period of one year should be entitled tothe continued use of a certain existing roadway across portions of defendants' land and alsoplaintiff should have a period of one year tocomplete the construction of the roadway on his easement. The sequence of events leading up tothis action can be summarized inthis manner: In 1966 plaintiff purchased property located inMissoula County, Montana, situated directlynorth and adjoining two pieces of property owned by defendants; plaintiff's property abuts the Bitterroot River on the south. It was stipulatedby counsel for both parties that therewas no written grant of any interest or easement inthe 1966 conveyance toplaintiff. After purchasing the property, plaintiff in order togain access tohis property made several attempts toprocure an easement over adjoining properties owned by others. When defendants originally purchased their two adjoining pieces of property in 1962, road access to plaintiff's property was accomplished by use of a road running in a north-south direction through thewesterly tract owned by defendants. This road willbe referred toas the "old road".From the outset defendants had advised plaintiff he did not have access tohis property by way of the "old road" through their property. The record is repletewith testimony of defendants flatly telling plaintiff he could not availhimself of access to his property by way of theirs. In addition, "No 

### res spas sing" signs were placed every few feet and a lock was placed on the gatewhere the "old road" entered defendants' westerly tract. It was atthis point that difficultiesbegan. Plaintiff cut the lock and went on defendants' property. The "NO Trespassing" signs were either broken or torn down by plaintiff or his son.Atabout this time, defendants entered intonegotiations with a third.party, one Koessler, to selltheirwesterly tract

over which the "old road" runs. Deiendants,in order togain access to their remaining easterly tract,then built a road running in a north-south direction across the lower one-third portion of their remaining easterly tract, so that it would not be necessary touse the road on thewesterly tract being sold. In the meantime the dispute between plaintiff and defendants intensified until on 

### May 

### 1, 1968, the parties finally entered intoa written agreement, the full text of which follows: 

### "I Guy P. Burnett, agree to letBob Larson go thrumy property ifhighwater 

### is on his entrance road and he cannot get thru. This agreement expires July 

### 1, 1968. After that permission must be obtained from new owners topass thru property. "/s/ Bob Larson Bob Larson "/s/ Emanuel Rohrbach Witness 

### "/s/ Guy P. Burnett Guy P. Burnett "/s/ Emanuel Rohrbach witness"The district court, inadjudicating this matter, was unable to find sufficient evidence towarrant the establishment of an easement by adverse use. Nevertheless, the district court did grant plaintiff a "non-exclusive" easement upon the "new road"

over and across the lower portion of defendants' easterly tract. The judgment further grants plaintiff a period of one year to complete construction of a road which would run along the upper two-thirds of defendants easterly tract, no road in that location presently being inexistence. The record also indicates that atthe time plaintiff purchased his property,no road was in existence along theupper two-thirds of defendants' easterly tract. On appeal defendants raise the following issues for review: 1. Does adverse use for less than the full statutory period confer any interest upon the plaintiff? 2. Did the districtcourt err inadmitting oral testimony tomodify the written agreement dated May 1, 1968? 

### 3. Did the district court err in finding that the written agreement dated May 1, 1968, granted an easement for roadway purposes toplaintiff? plaintiff's position 

### is simply that the evidence submitted atthe trialclearly supports the district court's findings and judgment. Plaintiff contends defendants bargained with him to relocate the easement and road. He relied on the bargain, changed his position, and gave valuable consideration. Plaintiff further contends that he is therefore entitled tothe relocated easement and road, and todeny him such relocated easement and road, which he bargained for, would permit a gross injusticeand wrong atthe hands of defendants who tobegin with created the condition.This Court has many times stated its function on appeal ina nonjury case is todetermine whether there is substantial evidence tosupport the findings of fact of the trialcourt, and we willnot reverse such findings of fact unless there 

### is a clear preponderance of evidence against such findings

# . Spencer

v. Robertson, 151Mont. 507, 445 P.2d 48, and cases therein cited; Smith v. Krutar, 153Mont. 325, 457 P.2d 459. A general picture of the applicable legal precedents to this controversy appears desirable. It iswell established law in Montana that a party claiming tohave acquired any easement or
-. interest by prescription must show open, notorious, exclusive, adverse, continuous, and uninterrupted use of the easement claimed for the full statutory period. Scott v. JardineGold Min. & Mill. Co., 79 Mont. 485, 257 P. 406; Cope 

### v. Cope, Mont

# . 2- P.2d 

## , 28 St.Rep. 1120. An "exclusive'' use means that the claimant's right to

use the right-of-way 

### is independent of a likeright-of-way in another. Scottv. Weinheimer, 140Mont. 534, 374 P.2d 91. Further, any use which is permissive in 

### its inception cannot ripen intoa prescriptive right, therehas been 

### a distinct and positive assertion by the claimant owner oia right hostile tothe owner of the servient lands. Drew v. Burggraf, 141Mont. 403, 378 P.2d 232. Finally, the presence of gates that must be opened by the

user is generally considered tobe strong evidence of a mere personal license to pass over the right-of-way. Peasley v. Trosper, 103Mont. 401., 

### 64 P.2d 109. In Montana, it 

### is equally as clear that any adverse use for less than the fullstatutory period of fiveyears can inno way confer any rights or interest whatsoever upon the person attempting to establish such adverse use. Section 93-2507, R.C.M. 1947.This Court in Scottv. Weinheimer, 140Mont. 

### 534, 560, 

### 374 P.2d 91, stated: "To establish the existence of an easement by prescription, the party soclaiming must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement for the full statutory period. 

# **

# * By 'continuous and uninterrupted' use 

### ismeant use not interruptedby the act of the owner of the land orby voluntary abandonment by the party claiming the right.II (Emphasis supplied) Applying the foregoing generalprinciples tothe relevant facts here, there 

### is no evidence in the record tosupport the district court's determination that plaintiff didhave such interest soas toconstitutevalid consideration for the alleged transfer thereof tothe upper two-thirds of defendants' easterly tract. The district court was unable to find that plaintiff had in fact obtained an easement by adverse use. Logically itwould then follow that plaintiff acquired no right toa transfer of a roadway easement when he had nothing tobegin with. To hold otherwisewould confer upon a trespasser rights and interestswhich would place the owner ata serious disadvantage and infringeupon the legitimaterights accruing to land ownership. Indeed, the reasoning behind plaintift's argument would elevate a trespasser

on land to the unfair position of being able todemand compensation inreturn for a relinquishment of "interest" the trespasser had obtained by "partial adverse use1',when the use had been for a period considerably shorter than the fiveyear required period prescribed by statute. We arecertain the legislaturenever intended such result, when enacting our adverse possession statute. Our examination of the record clearly reveals the permissive nature of plaintiff's right togo across defendants' land. Atthe outset when plaintiff purchased his property, he was innoway told by adjoining landowners orby defendants that he had a right-of-way over defendants' land; in fact, itwas only after plaintiff had been unsuccessful in trying to establisha right-ofway across the lands oiother adjoining owners that he began his attempts toget an easement upon defendants' land. Finally, we hold the district court erred inadmitting oral testimony modifying the written agreement dated May 

### 1, 1968, between the parties. Atthe trialplaintiff was allowed toexplain to the court that this written agreement was intended togivehim access over the easterly tract of defendants' property inreturn for a termination of plaintiff's access over the westerly tract, formerly owned by defendants. It 

### is well established law inMontana that, subject to certain exceptions not pertinent here, written contracts cannot be varied, contradicted, nor altered by parol or extrinsic evidence. Pritchett 

### v. Jenkins, 52 Mont. 81, 155 P. 974; Leigland

v. McGaffick, 135Mont. 188, 338 P.2d 1037; Section 13-907, 

### R.C.M. 1947. Our reading of the written agreement between the parties clearly indicates there was no mistake, imperfection, or ambiguity which would inany way require parol testimony toexplain. The intent of the parties is clearwithin thewords of the agreement. Defendants were willing topermit plaintiff touse their easterly tract Tor two months. After that period of time, plaintiff no longer hdd access tothe defendants' property. Atbest, plaintiff

was granted a temporary permissive easement trom May 1, 1968 until July 1, 1968.In addition, inconjunction with the question of the inadmissibility of par01 testimony tovary the terms otthe parties written agreement, we hold the district court erred in finding that the terms of the agreement could be interpreted togrant an easement toplaintiff. The district court in its findings states, in erfect, that the written agreement to terminate the use of roads applied only tothat piece of property which defendants were selling, i.e. thewesterly tract, and not tothe road located on the easterly tract, stillowned by defendants. Our review of the evidence indicates otherwise. The words "my propertyf' contained in the agreement can have but one reasonable meaning. Atthe time of the execution or the agreement, defendants had already sold their westerly tract on contract, and they remained only the owners of the easterly tract. The

11 phrase my property" plainly and simply means that property remaining in the defendants

## ' hands, specifically their easterly tract. Further, the terms of the agreement unequivocally statethe agreement expires on July 1, 1968. For the district court tohave found that plaintiff had any rights after July 

### 1, 1968, ignores the express language of the agreement. Accordingly, we find plaintiif's use tobe permissive in nature and, sinceno easement was established by prescription, he had no right totransfer any easement upon any area of defendanti

## ' property. Judgment 

### is reversed.

Associate ~usticeI \ 

### \ Mr. JusticeWesley Castles, deeming himself disqualified,

Uo 

### part in this Opinion.