No. 12021 

IN THE 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, his wife, 

Defendants and Appellants. 

Appeal from: District Court of the Fourth 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 an appeal by defendants, Guy P. Burnett and Martha 

E. Burnett, his wife, from a final judgment of the district court 

of Missoula County following that court's denial of defendants' 

exceptions and motion to amend the findings of fact and conclusions of law. The case was tried by 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 

to the continued use of a certain existing roadway across portions 

of defendants' land and also plaintiff should have a period of one 

year to complete the construction of the roadway on his easement. 

The sequence of events leading up to this action can be 

summarized in this manner: 

In 1966 plaintiff purchased property located in Missoula 

County, Montana, situated directly north and adjoining two pieces 

of property owned by defendants; plaintiff's property abuts the 

Bitterroot River on the south. It was stipulated by counsel for 

both parties that there was no written grant of any interest or 

easement in the 1966 conveyance to plaintiff. After purchasing 

the property, plaintiff in order to gain access to his property 

made several attempts to procure 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 the westerly tract owned by 

defendants. This road will be referred to as the "old road". 
From the outset defendants had advised plaintiff he did 

not have access to his property by way of the "old road" through 

their property. The record is replete with testimony of defendants 

flatly telling plaintiff he could not avail himself 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 

gate where the "old road" entered defendants' westerly tract. 

It was at this point that difficulties began. Plaintiff 

cut the lock and went on defendants' property. The "NO Trespassing" signs were either broken or torn down by plaintiff or 

his son. 

At about this time, defendants entered into negotiations 

with a third. party, one Koessler, to sell their westerly tract 

over which the "old road" runs. Deiendants, in order to gain 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 to use 

the road on the westerly tract being sold. In the meantime the 

dispute between plaintiff and defendants intensified until on 

May 1, 1968, the parties finally entered into a written agreement, 

the full text of which follows: 

"I Guy P. Burnett, agree to let Bob Larson go 

thru my property if high water 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 to pass 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, in adjudicating this matter, was 

unable to find sufficient evidence to warrant 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 in existence. The record also indicates that 

at the time plaintiff purchased his property, no road was in existence along the upper 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 district court err in admitting oral testimony to modify 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 to plaintiff? 

plaintiff's position is simply tha t the evidence submitted 

at the trial clearly 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 to the relocated easement 

and road, and to deny him such relocated easement and road, which 

he bargained for, would permit a gross injustice and wrong at the 

hands of defendants who to begin with created the condition. 
This Court has many times stated its function on appeal 

in a nonjury case is to determine whether there is substantial 

evidence to support the findings of fact of the trial court, 

and we will not reverse such findings of fact unless there is a 

clear preponderance of evidence against such findings . Spencer 

v. Robertson, 151 Mont. 507, 445 P.2d 48, and cases therein cited; 

Smith v. Krutar, 153 Mont. 325, 457 P.2d 459. 

A general picture of the applicable legal precedents to 

this controversy appears desirable. It is well established law 

in Montana that a party claiming to have 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. Jardine Gold Min. & Mill. 

Co., 79 Mont. 485, 257 P. 406; Cope v. Cope, Mon t . 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 like right-of-way in 

another. Scott v. Weinheimer, 140 Mont. 534, 374 P.2d 91. Further, 

any use which is permissive in its inception cannot ripen into a 

prescriptive right, there has been a distinct and positive 

assertion by the claimant owner oi a right hostile to the owner 

of the servient lands. Drew v. Burggraf, 141 Mont. 403, 378 P.2d 

232. Finally, the presence of gates that must be opened by the 

user is generally considered to be strong evidence of a mere 

personal license to pass over the right-of-way. Peasley v. Trosper, 

103 Mont. 401., 64 P.2d 109. 

In Montana, it is equally as clear that any adverse use for 

less than the full statutory period of five years can in no 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 Scott v. Weinheimer, 140 Mont. 534, 560, 374 

P.2d 91, stated: 

"To establish the existence of an easement by 

prescription, the party so claiming must show 

open, notorious, exclusive, adverse, continuous 

and uninterrupted use of the easement for the 

full statutory period. * * * By 'continuous and uninterrupted' use is meant use not interrupted by 

the act of the owner of the land or by voluntary 

abandonment by the party claiming the right. I I 

(Emphasis supplied) 

Applying the foregoing general principles to the relevant 

facts here, there is no evidence in the record to support the 

district court's determination that plaintiff did have such 

interest so as to constitute valid consideration for the alleged 

transfer thereof to the 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 it would 

then follow that plaintiff acquired no right to a transfer of a 

roadway easement when he had nothing to begin with. To hold 

otherwise would confer upon a trespasser rights and interests which 

would place the owner at a serious disadvantage and infringe upon 

the legitimate rights accruing to land ownership. Indeed, the 

reasoning behind plaintift's argument would elevate a trespasser 

on land to the unfair position of being able to demand compensation 

in return 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 five year required period 

prescribed by statute. We are certain the legislature never intended such result, when enacting our adverse possession statute. 

Our examination of the record clearly reveals the permissive nature of plaintiff's right to go across defendants' land. 

At the outset when plaintiff purchased his property, he was in no 
way told by adjoining landowners or by defendants that he had a 

right-of-way over defendants' land; in fact, it was only after 

plaintiff had been unsuccessful in trying to establish a right-ofway across the lands oi other adjoining owners that he began his 

attempts to get an easement upon defendants' land. 

Finally, we hold the district court erred in admitting 

oral testimony modifying the written agreement dated May 1, 1968, 

between the parties. 

At the trial plaintiff was allowed to explain to the court 

that this written agreement was intended to give him access over the 

easterly tract of defendants' property in return for a termination 

of plaintiff's access over the westerly tract, formerly owned by 

defendants. 

It is well established law in Montana 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, 135 Mont. 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, impe rfection, or ambiguity 

which would in any way require parol testimony to explain. The 

intent of the parties is clear within the words of the agreement. 

Defendants were willing to permit plaintiff to use their easterly 

tract Tor two months. After that period of time, plaintiff no 

longer hdd access to the defendants' property. At best, plaintiff 

was granted a temporary permissive easement trom May 1, 1968 until 

July 1, 1968. 
In addition, in conjunction with the question of the 

inadmissibility of par01 testimony to vary the terms ot the parties 

written agreement, we hold the district court erred in finding 

that the terms of the agreement could be interpreted to grant an 

easement to plaintiff. 

The district court in its findings states, in erfect, 

that the written agreement to terminate the use of roads applied 

only to that piece of property which defendants were selling, i.e. 

the westerly tract, and not to the road located on the easterly 

tract, still owned by defendants. 

Our review of the evidence indicates otherwise. The 

words "my propertyf' contained in the agreement can have but one 

reasonable meaning. At the 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 

1 1 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 state the agreement expires on July 1, 1968. For the district court to have found 

that plaintiff had any rights after July 1, 1968, ignores the 

express language of the agreement. 

Accordingly, we find plaintiif's use to be permissive in 

nature and, since no easement was established by prescription, 

he had no right to transfer any easement upon any area of defendanti ' property. 

Judgment is reversed. 

Associate ~ustice 
I 

\ 

\ Mr. Justice Wesley Castles, deeming himself disqualified, 

Uo part in this Opinion.