No. 85-546 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

JESSIE H. CLEMANS, 

Defendant and Respondent, 

-vsWAYNE MARTIN and JOYCE MARTIN, 

Plaintiffs and Appellants. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable Robert Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

M. Richard Gebhardt, Ronan, Montana 

For Respondent: 

French, Mercer, Grainey & Duckworth; John Mercer, 

Polson, Montana 

Submitted on Briefs: April 4, 1986 

Decided: June 5, 1986 

*, 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Wayne and Joyce Martin (appellants) appeal the August 

26, 1985, order of the Twentieth Judicial District Court, 

County of Lake, denying them a prescriptive easement for a 

roadway across Jessie Clemans' (respondent) property. We 

affirm. 

Appellants own a forty acre parcel of land on the west 

slope of the Mission Mountains. Their land is bordered on 

three sides by land belonging to the Confederated Salish and 

Kootenai Tribes. Respondent owns the property bordering 

appellants' land on the west. 

There is no road access to appellants' property. This 

situation was acknowledged in appellants' contract for deed: 

16. Access. The parties acknowledge that the 

property being sold hereunder is being sold without 

access. 

Appellants purchased their land from Art Zimmerman in 

1983. Zimmerman and his wife had owned the land from 1967 

until 1983. Bob Croft had owned the land since sometime 

prior to 1954 and had sold to Zimmermans. Upon purchasing 

the property in 1983, appellants filed suit seeking to 

establish their ownership of a prescriptive easement through 

respondent's property for access to their property. A bench 

trial was had. Numerous witnesses testified for both 

parties. 

Art Zimmerman testified that he first entered the 

subject land in 1937 to haul a load of wood. Zimmerman 

testified that he believed he gained access to the property 

via the road in dispute; that the road had no cuts or fills, 

but was not overgrown with timber or brush; and that it was 

in better shape than it is now. Zimmerman further stated 

that he did not seek permission to use the road; however, he 

had permission to obtain the firewood. While on the 

property, Zimmerman observed a small cabin, a garden plot and 
several vehicles and farm implements. Zirnmerman did not 

return to the property until 1967, when he purchased a car 

from Bob Croft's estate. Thereafter, Zimmerman decided to 

purchase the real property. 

Next, Zimmerman testified that between 1967 and 1983, he 

used the roadway approximately three times a year to obtain 

firewood and Christmas trees. He further stated that the 

road was inaccessible in the winter. Although there were 

three gates across the road, they were never locked. 

Zimmerman merely opened and closed them as necessary for 

access. Finally, Zimmerman stated on direct examination that 

he had never sought permission from the Clemans to use the 

road. However, on cross-examination, he indicated that at 

Ralph Clemans' request, he had always phoned to say he would 

be going to the property. 

Wendall Putnam testified that he obtained firewood from 

respondent's property from 1976 to 1982; that he never used 

the road in question; and that his access to the land was 

always with respondent's permission. Merle Amerson testified 

that he leased pasture from respondent and used the road for 

access to his cattle in 1976, 1977, and from 1980 until 1983. 

Again, the road was used only with respondent's permission. 

Amerson never found the gates locked until 1983. At that 

time, respondent provided him with a key for continued 

access. Neither witness ever saw anyone else using the 

disputed road. 

Respondent testified that the road in question was built 

in 1955 by a logging contractor hired to harvest timber on 

her land. Once the logging was completed, the road was 

allowed to return to its natural condition. She further 

testified that neither she nor her husband (now deceased) 

ever allowed the road to be used without their permission. 

Even Bob Croft obtained permission to gain access via the 

road, when he chose to drive to his land. 
After presentation of all the evidence, the presiding 

judge visited the site and examined the road in question. 

Thereafter, he issued an order denying Martins' claim to a 

prescriptive easement. Following a timely notice of appeal, 

appellants raise the following issues: 

1. Did the District Court err in failing to consider 

the priority of patents and consequently 43 U.S.C. S 932 

(repealed 1976) in the establishment of a right-of-way 

appurtenant to the homestead on the Martin parcel? 

2. Did the Court abuse its discretion in failing to 

consider and rule upon relevant evidence of a prescriptive 

easement prior to 1955? 

Issue number one is raised for the first time on appeal, 

apparently in an untimely effort to bolster appellants' 

position. We have repeatedly refused to consider an issue 

raised for the first time on appeal. In re the Marriage of 

Glass (Mont. 1985), 697 P.2d 96, 101, 42 St.Rep. 328, 333. 

Furthermore, we have held that a party may not advance on 

appeal a theory of the case different than that relied on 

below. Donnes v. State ex rel. Superintendent of Public 

Instruction (Mont. 1983), 672 P.2d 617, 621, 40 St.Rep. 1834, 

1838. For these reasons, we refuse to consider appellants' 

first issue. 

In their second issue, appellants contend the trial 

judge failed to consider evidence that a prescriptive 

easement existed prior to 1955. We disagree. The only 

evidence the road existed prior to 1955 was that presented by 

Art Zimmerman. The trial judge noted his testimony in his 

order: 

Mr. Zimmerman was on the land belonging to 

Plaintiffs in 1937. He purchased wood from the 

then owners of the Plaintiffs' land. His entry was 

with the consent of the then owners of the 

Defendant ' s land. 

This statement is an accurate reflection of Art 

Zimmerman's testimony. Appellants apparently contend that 

4 
the existence of a cabin and garden plot, as well as the 

presence of vehicles on the land in 1937, is irrefutable 

proof that the road was used for access to the property and 

that this use created a prescriptive easement. The trial 

judge did not agree. Substantial credible evidence supports 

his conclusion. 

Respondent presented evidence at trial that the road at 

issue was not created until 1955. Other roads or paths 

existed in the same area prior to 1955, including an old 

homestead road. The trial judge found that the subject road 

did not exist in 1955; that other paths were used for access 

to the property prior to 1955; and that any access to the 

property through respondent s land has a.lways been 

permissive. Unless they are found to be clearly erroneous, 

we will not set aside the findings of fact of the trial 

court. Rule 52 (a), M.R.Civ.P. In the Matter of the 

Guardianship and Conservatorship of Tennant (Mont. 1986), 714 

P.2d 122, 129, 43 St.Rep. 189, 198. The findings here are 

clearly supported by the evidence and will not be overturned. 

The burden was on appellants to "show open, notorious, 

exclusive, adverse, continuous and uninterrupted use of the 

easement claimed for the full statutory period." Taylor v. 

Petranek (1977), 173 Mont. 433, 437, 568 P.2d 120, 122. See 

also Rathbun v. Robson (Mont. 1983), 661 P.2d 850, 851-52, 40 

St.Rep. 475, 477. The statutory period is five years. 

Section 70-19-401, MCA. Because appellants were unable to 

prove adverse or continuous use for the five year period 

immediately prior to the filing of this suit, they are now 

relying on an historical adverse use which is refuted by the 

facts adopted by the trial court. 

Lastly, appellants object to the form of the trial 

judge's order because it does not list specific findings of 

fact separate and distinct from the conclusions of law and 

judgment. Rule 52 (a) , M. R.Civ. P. requires that "the court 
shall find the facts specially and state separately its 

conclusions of law thereon, and judgment shall be 

entered. . . . " In In Re the Marriage of Barron (1978) , 177 

Mont. 161, 164, 580 P.2d 936, 938, we held that if a trial 

judge's findings and conclusions are clear to this Court, 

failure to state them in the recommended form is not 

substantial error. Here, the trial judge's facts are clear, 

as are his conclusions. Although Rule 52 (a) , M.R.Civ.P. 

specifies the preferred format, we find no error. 

The judgment of the trial court is affirmed. 

We concur: