NO. 92-262 IN THESUPREMECOURTOFTHE STATE OFMONTANA 1993 PUBLIC LANDSACCESSASSOCIATION, INC., LEWIS EUGENEHAWKES, WALTERJ. SILLS, ALBERT C. GEIGER, AND'HERMAN J. EARLES,

Plaintiffs and Respondents,-vBOONEANDCROCKETT CLUBFOUNDATION, INC., ANDTHE STATE OFMONTANA, DEPARTMENTOFFISH, WILDLIFE AND PARKS

Defendants and Appellants. BOONEAND CROCKETT CLUBFOUNDATION, INC.,

Third-Party Plaintiff and Appellant,-vTETON COUNTY, MONTANA,

Third-Party 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. COUNSELOFRECORD:

For Appellant: Gregory W. Duncan, John P. Poston and Phillip W. Strope, Harrison, Loendorf &Poston, Helena, Montana For Respondent: F. Woodside Wright, Reynolds, Motl, Sherwood & Wright, Helena, Montana: Russell R. Andrews, Teton County Attorney, Choteau Montana For Amicus:

an B. Newman, University of Montana, Missoula, ntana

Submitted on Briefs: May 20, 1993 Decided: July 8, 1993

### Justice JamesC. Nelson delivered the Opinion of the Court.

This is anappeal from aNinth Judicial District Court, Teton County, order filed after abench trial, which declared that a public prescriptive easement hadbeenestablished over the road in dispute. Wereverse andremand. Werestate the issues onappeal asfollows: I. Did the District Court err in declaring that apublic prescriptive easement had been established over the road in question? II. If there was a public prescriptive easement, was it extinguished bythe actions of Clarence Evilsizer? III. Did the District Court err in concluding that the road in question was a county road due to the application of the "curative statute"? Respondent Public LandsAccess Association, Inc. (PLAA) is a non-profit Montana corporation dedicated to maintaining access to public lands for multiple purposes. Theindividual respondents are members of the general public; are residents of the State of Montana: are past users of the road in dispute: andare desirous of using the road in the future. Appellant, BooneandCrockett Club Foundation (BCC), is also

anon-profit corporation. BCCpurchased the land upon which the disputed road is located asaranch for scientific andeducational purposes and is working in coordination with Amicus Curiae University of Montana conducting research at the ranch. Theland is located approximately ten miles west of Dupuyer, Montana. 2

### The controversy surrounds a road which is described as

starting "in Section 18of Township 27North, Range8West at the intersection with county road: then proceeding in anorthwesterly fashion across Section 18; then in a southwesterly direction through Section 13, Township 27 North, Range 9 West: entering Section 14in the northernmost portion of Lot 1; continuing in a westerly fashion through Lot 1andLot 2into the northwest quarter of Lot 3; then turning in a southerly direction across Lot 3of Section 14to enter Lot 3of Section 23; andthen in asoutherly direction across Section 23to U.S. Forest Service lands andthen into the mouth of Dupuyer Canyon.t' Theroad is referred to asthe Dupuyer-Dupuyer Canyon Road, and it crosses an area known as Johnson's Crossing. Johnson's Crossing serves as the dividing point between the eastern portion of the road, agreed by all parties to beacounty road andthe disputed portion of the road (disputed road) which lies west of Johnson's Crossing. The disputed portion of the road consists of anunimproved track which leads to the mouth of the North Fork of Dupuyer Creek Canyon. BCCcloses the disputed road tovehicular traffic "right prior to hunting season through the spring

. . .I' PIAAdisputed BCC's power to close this route to vehicle traffic for part of the year because it claimed there existed apublic prescriptive easement

over the road. However, BCCasserted that there was no public prescriptive easement, but if there ever was, it wasextinguished bythe actions of the landowners in the 1970s and 1980s. PLA?+ brought an action against BCC to force itsdiscontinuation of the walk-in policy andto open the disputed road

to vehicular traffic on ayear-round basis in order to access the National Forest Service land beyond BCC's ranch. Abench trial was held in the Ninth Judicial District Court in September of 1991. In March of 1992, the court filed its memorandum and order barring and enjoining BCCfrom interfering with the general public's use of the disputed road, ruling that there wasapublic prescriptive easement

over the disputed road which had been converted to acounty road by the curative statute. This appeal by BCCfollowed. The standard of review for adistrict court's findings of fact is provided by Rule 52(a), M.R.Civ.P. 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

. . . 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 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." Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. (Citations omitted.) "[O]ur standard of review relating to conclusions of law

. .

. is whether the tribunal's interpretation of the law is correct." 4Steer Inc. v. Department of Revenue (1990), 245Mont. 470, 474-475,

803 P.2d 601, 603. 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 v. Harding (1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356. (Citation omitted.) See also; Downing v. Grover (1989), 237 Mont. 172, 175, 772 P.2d 850, 852. The burden is onthe party seeking to establish the prescriptive easement. Downinq, 772 P.2d at 852. "All elements must be proved in a case such as this because 'one who has legal title should not be forced to give up what is rightfully his without the opportunity to know that his title is in jeopardy and that he can fight for it'" Downinq, 772 P.2d at 852. "TO 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. "If the owner shows permissive use, no easement can be acquired since the theory of prescriptive easement is based onadverse use." Rathbun v. Robson (19831, 203Mont. 319, 322, 661 P.2d 850, 852. (Citation omitted.)

I. PUBLIC PRESCRIPTIVE EASEMENT BCCargues that there was not substantial evidence to conclude that apublic prescriptive easement was established over the road in dispute. It contends that the use of the road was not adverse

5but rather due to neighborly accommodation and courtesy before Fred

Troop bought the ranch upon which the road is located. In addition, BCCasserts that the road has been used for access to recreational activities and that these types of activities do not rise to the level necessary to establish a public prescriptive easement. Weagree. Paul Bruner, whohas been residing in the area since 1913, and Ken Duncan, whohas resided in the area for the past 35years, both testified that neighborly accommodation was the rule for travel in that area, including the road in question in earlier days. Bruner testified, "like I stated before, in those days that if you had to

cross someone else's land to get to your land, there was a--well, I guess you might say a law that if you had to cross somebody else's land to get to your land, why it was legal to cross it, if you maintained it by closing the gates and so on and so forth." Duncan said that when the Conners owned the ranch, the whole area

was llopen.'* When asked if it was a kind of neighborly accommodation, Duncan replied, "Yes, certainly." "A use of a neighbor's land based upon mere neighborly accommodation or courtesy is not adverse and cannot ripen into a prescriptive easement. Thus where the use of away by aneighbor

was by express or implied permission of the owner, it was held that the continuous use of the way by the neighbor was not adverse and did not ripen into a prescriptive right." Wilson v. Chestnut (1974) I 164 Mont. 484, 491, 525 P.2d 24, 27. This case is similar to the Rathbun case, cited above, where

6

### the Court concluded that the use of the way had been permissive

since 1934. Rathbun, 661P.2d at 852. Rathbun stated that: [sleveral witnesses testified concerning local customs that began in the homesteading days concerning access across another's land. There existed anunderstanding amonglandowners that permission wasnot required every time a person needed to cross his neighbor's land. Permission was automatic if the individual closed the gates andrespected his neighbor's property. Rathbun, 661P.2d at 852. "Themereuseof awayfor the required time is generally not sufficient to give rise to the presumption of

agrant, andgenerally somecircumstances or act, in addition to the use, tending to indicate that the use was not merely permissive, is required." Wilson, 525 P.2d at 27. EvenPLAA'switnesses describe permissive, not adverse useof the road. Twoof the witnesses, the Bredings, resided onthe ranch for only a few years on a year round basis. Their testimony regarding their stay at the ranch however, indicates neighborly accommodation asthe local custom whenthe Conner family ownedthe ranch. Delbert Breding testified that there was a general understanding that the roadwasalways opento the public. Arcelia Conner Breding, Delbert's wife and daughter of the Conner ranch owner, whenasked about the use of the road andwhere the users camefrom, replied, "Well, from Great Falls andfrom Conrad. The BoyScouts andthe Girl Scouts from different areas, it wasopento them all the time, because my folks figured it was a good recreational place for young people." Delbert Breding also testified to a specific request for permission to usethe road. Mr. Breding testified that the road 7was not graded until an oil drilling company improved it in order

to reach the drilling sites. Hetestified that the oil company was given permission by the Conners to improve the road. Perry Nelson, Walter Sills, Herman Earles and Albert Geiger, all PLAAwitnesses, testified that when they traversed the road and encountered gates, they went through the gates, but left them as they were found. "The fact that the passage of aroad has been for years barred by gates or other obstructions to beopened and closed bythe parties passing over the land, has always been considered as strong evidence in support of amere license to the public to pass

over the designated way." Maynard v. Bara (1934), 96 Mont. 302, 307, 30 P.2d 93, 95. BCC argues that a public prescriptive easement was not established because the use of the road has been primarily for recreational uses and these uses do not rise to the level of adverse possession. For example, the Bredings testified that the road was accessed for the purposes of fishing, camping and sightseeing. Nelson, Sills, Earles and Geiger stated that their reasons for using the road were to gain access to hunting, fishing and picnicking grounds. "[T]his type of occasional use has been held to be insufficient to raise apresumption of adverse use." Keebler 807 P.2d at 1358. Donald Hauge, adrilling contractor, testified for the PLAA but he was an infrequent visitor. He hunted there twice in 1961 and hunted in 1962 and 1963. Hemade infrequent visits after the 1964 flood to see howthe flood had affected the land. Hewas on

8the road in 1976 but the parking lot for awalk-in access program

had already been established. When he reached the parking lot area, heturned around and left. Mr. Hauge also testified that if he was going to work at adrill site, the company would take care of asking for permission to work onthe land from the owner so he would not have to bother alandowner for permission before entering their property. In the trial court's memorandum and order, finding of fact 31 states that the road was used for a multitude of purposes. The court mentions use of the road by stockmen, law enforcement officials, wood gatherers aswell assome commercial use. However, the only testimony that stockmen used the road related to BCC's use of the road for its livestock or use by previous owners and/or their lessees. Clarence Evilsizer used the road for his cattle because hehad apermit to graze his cattle on Forest Service land. Use bythe landowner for his ownpurposes cannot become acomponent of anon-owner's claim of adverse possession. In addition, law enforcement personnel were onthe road at the consent or by permission of the landowners. Mr. Evilsizer had an agreement with the federal and local government for access for law enforcement to keep unwanted trespassers off his property. Also, Fish, Wildlife and Parks' personnel were onthe premises to enforce the walk-in program's regulations but they were working in cooperation with the landowners. The commercial use of the road was limited to oil and gas drilling, trapping and outdoor guiding. Robert Sills trapped in

9

### the area in 1975 and 1976, but such period is insufficient to

establish apublic prescriptive easement. Allen Mathews, aformer State Fish andGamewarden, related that in 1975, heissued anew outfitter's license to anindividual whoasked about driving to the Forest Service andthen hunting downbelow. Mathews stated that he would haveto get specific written permission from the landowners. Theoutfitting license is ayearly license soMathews could only testify about an outfitter using the area for the year 1975. Moreover, whenthe outfitter did hunt inthe area, heparked in the walk-in program's parking lot area which was permissible. Finally, the only testimony regarding oil andgas companies'

use of the road wasthat the companies asked permission of the landowners to use and improve the road before they entered the property. These useswere either permissive or did not last long enoughto establish adverse possession. Weconclude that the trial court's findings of fact are not supported by substantial evidence and that PLAAfailed in its burden to establish the existence of apublic prescriptive easement

over the Dupuyer-Dupuyer Canyon Roadwest of Johnson's Crossing. DeSave, 820 P.2d at 1287. II. EXTINGUISHMENTOFAPUBLICPRESCRIPTIVEEASEMENT Although BCCasserts that there is nopublic prescriptive easement, it contends that evenif there wasapublic prescriptive easement, it wasextinguished by the conduct of owners after the Conners, particularly Clarence Evilsizer. Weagree. KenDuncan, whenasked byMr. Poston, attorney for BCC,how

10

### other owners, Troop, (who purchased the ranch from Conners),

Evilsizer andStates treated the property, responded asfollows:

Q. 

### A. Q. 

### A. Q. 

### A.

Q

### A. Q. 

### A. Okay, howdid Troop treat the property, the use of the road? Helet hunters in with permission. But herequired permission? Yes, hedid. Whatabout Evilsizer andhis lessee? Well, his lessee wasthere to start with, before Evilsizer moved there, and he was really strict with it. Youusually didn't get onhis place, and I think hetestified the other day that a lot of them left. I think they all left. Doyou knowwhether or not the gates were locked, whenhewasthere? In certain areas, they were. NOW,howdid Mr. States treat the property, whenhe got there, about letting people onthe road? Well, I hadto cross someof States' land to get to this area I leased, this Ahmonplace I'm talking about, and I have, since 1973, andif I didn't ask permission form States to cross that land, I would probably, within ahalf day, I would get aphone call andhewould ask if I crossed that land, andI assume he knew every tire tread track that ever crossed his place. Everett F. Hedrick testified that he lived on the subject property from 1967through 1972. At this time, 

### the property was ownedby Clarence Evilsizer and leased by Mr. Hedrick. Hedrick testified that heallowed people to traverse the road andhunt on the land byoermission. Mr. Hedrick also testified that the gates

were erected and locked to control the cattle and "to keep the people out of there." Hedrick also stated that somepeople used the road evenif hetold themthey could not, but if hecaught them there, hewould try "to run them off." In his affidavit, Clarence Evilsizer, whobought the ranch from Troop, stated that:

11"[f]rom approximately 1966 to 1978 I owned what is

now known as the Boone and Crockett Club TRMRanch.

. . During my ownership of the ranch, the road in question was always treated as a private road with appropriate signs being placed at beyond Johnson's crossing andwith all persons not given specific permission to use the road, which occurred on rare occasions, being asked to and required to get off the property. Most problems of trespass occurred during the hunting season. Mr. Dean States, who owned the land upon which the road is situated subsequent to Clarence Evilsizer, stated in his affidavit, that: From approximately 1978 to 1987, my family and I owned and operated what is now known as the Boone and Crockett Club TRM Ranch located at Dupuyer Montana. During our ownership and operation of the ranch, we believed that the road in question in this lawsuit, which has been dubbed the Dupuyer Creek Road, from Johnson Crossing west, was aprivate road, and wetreated it as such with appropriate signs being placed at and beyond Johnson Crossing. Anyone using the ranch for hunting, recreation, or any other purpose was requested to get permission. Anyone caught on the ranch without permission was promptly ejected from the ranch. It was understood by all that permission was necessary if they wanted to use the ranch; and if they were caught on the ranch without permission, they would be ejected. Therefore, I rarely had to eject anyone from the ranch. In approximately 1972, Mr. Evilsizer closed the road to through traffic. Robert Richmond, a National Forest Service supervisor, and Bud Olsen, then Chairperson of the Teton County Commissioners, went to discuss the blockage with Evilsizer. Evilsizer was persuaded by the two mento remove the blockage and the men assured him that Forest Service staff or the Teton County Commissioners would contact the Sheriff to deal with further problems with trespassers on Evilsizer's land. At about this time FWPapproached Evilsizer to work out an agreement to provide access to the road for people who wanted to 12

### hunt onthe Forest Service land. This waspart of a FWPprogram

begun in the 1970s with landowners around the State. The Department would assist in controlling vehicle traffic through private land by 

### issuing vehicle permits for landowners whowould allow people to make recreational use of their land but had

concerns over uncontrolled vehicle use. In Evilsizer's case, aspecial parking area wasinstalled and visitors would park in the lot andcould then traverse the road on foot or horseback to access the National Forest land. The Department provided landowners involved in programs like this "walk-in" program with signs which said "Parking Area, Donot drive beyondthis point" and"Written Permission Required." FWP provided anyother materials which would facilitate alandowner's permission to allow access to their land for recreational users. FWP personnel in the area were also responsible for enforcing the agreement. 

### Mr. Evilsizer explained the walk-in program in his affidavit: In approximately 1973, I entered into anagreement with the Fish andGame 

### Department of the State of Montana to set upawalk-in hunting area. This agreement 

### allowed hunters to park and campat alocation near the fence line running north and south in the SWl/4 SEl/4 of Section 14. Thefence is not onthe property line. The hunters werethen allowed to proceed strictly onfoot or onhorseback from there to the west and south onto and access, if they sodesired, the rest of myproperty which lay between that fence and the forest boundary. The parking area wassigned with signs provided bythe Fish and Game 

### Department. This permissive arrangement seemedto beaccepted by everybody andto myknowledge there were very few if any violations of the agreement. I have no knowledge of anyone driving beyond the parking area 

### without permission.

13

### Thewalk-in agreement continued whenDeanStates purchased the

ranch. In his affidavit, hestated:

[W]hile I ownedandoperated the ranch, Imaintained the walk-in area which had been previously been [sic] established by Clarence Evilsizer andthe Montana Fish and GameDepartment while Clarence Evilsizer ownedthe property. - Through anagreement with the Department of Fish, Wildlife andParks, they also helped mepolice the area. It is mybelief they issued citations to anyoneusing the area without permission and ejected them from- the property. During the time weownedthe ranch, nolawsuits were initiated against us demanding the road in question, which wasblocked, be opento the public or any other individuals. Atthe time I ownedthe ranch, there were five gates going fromJohnson Crossing into the forest service land. Generally, anyone using the property followed the custom in the area and left the gates open if they found them open and closed if they found them closed. Anyone not doing sowasasked to leave the ranch if I caught them. If I did not catch themandknewwhodid it, Iwould deny them access thereafter. This agreement hascontinued through the ownership of the area byBCC. In 1986, BCCentered into awritten agreement with FWP. If a public prescriptive easement had been established, Evilsizer's blocking of the road andthe creation andmaintenance ofthe walk-in program evidenced a"distinct andpositive assertion of ahostile right...." Taylor v. Petranek (1977), 173Mont. 433, 438, 568P.2d 120, 123. Theassertion of this right hostile to the

owner [the public] must bebrought to the attention of the owner andthe usemust continue for the full prescriptive period. Medhus

v. Dutter (1979), 184Mont. 437, 442-443, 603P.2d 669, 672. Section 70-17-ill(3) MCA, provides that a servitude is extinguished 'I.. .(3) by the performance of any act upon either tenement bythe owner of the servitude orwith his assent which is 14incompatible with its nature or exercise [.I" Wehave held, onthe

basis of that statute, that if a prescriptive easement exists, subsequent acts inconsistent with the claim by prescription, support the conclusion that the prescriptive easement has been extinguished. Morrison v. Higbee (1983), 204 Mont. 515, 668 P.2d 1025; Downing v. Grover (1989), 237 Mont. 172, 772 P.2d 850. In those two cases wefound that such inconsistent acts, among others, included the establishment of or acquiescence in a permissive use after an act hostile to the claimed prescriptive right. Morrison, 668 P.2d at 1027-1028; Downina. 772 P.2d at 852- 853. Clarence Evilsizer's blocking of the road was a hostile act which established reverse adverse possession because the state and local government, as well as the public cooperated and adhered to the walk-in policy which had been in existence for approximately 17 years. Clarence Evilsizer cooperated in the establishment of the walk-in program in the early 1970s and the program continued until 1988 when PLAA brought an action against BCC. The users and general public acquiesced in Evilsizer's reverse adverse prescription by adhering to the walk-in program. Compliance with the walk-in program was inconsistent with the claim of a public prescriptive easement. Accordingly, any prescriptive easement the public may have acquired in the road was lost. In addition, in 1988, the county commissioners had the opportunity to establish Dupuyer-Dupuyer Canyon Road west of Johnson's Crossing asacounty road. At the February 1988 meeting

15of the Board of Commissioners, the three Teton County Commissioners

denied apetition to open and establish for public use and access the road in dispute. The county commissioners stated that:

[A]t this time recreational activities would seemto be the greater use. So it is the recommendation of the inspection team to deny the road petition at this time. Also, due to litigation involved in aguiring [sic] right of way aguistion [sic] thru [sic] the Boone &Crockett Club to the National Forest Service Boundary. The decision to deny the petition to establish the disputed road as

a county road confirms acquiescence by the county and the public that the disputed road is aprivate road. In conclusion, substantial evidence supports the proposition that prior to Fred Troop's ownership of the BCCranch area, there

was apolicy that travellers used the road because of neighborly accommodation. Further, users accessed the road for the purposes of hunting, fishing, picnicking and other forms of recreation. WhenFred Troop bought the land from the Conners, heallowed access to the road with permission. Clarence Evilsizer, his lessee and Dean States continued the practice of access by permission. Finally, in the early 197Os, an attempt by Clarence Evilsizer to block the road met with state and local government cooperation to establish a program that would allow public access to the road which would beagreeable to the landowner. The public, thereafter, acquiesced in the established walk-in policy. We conclude that even if there was a public prescriptive easement, it wasclearly extinguished by reverse adverse possession and by the inconsistent acts of road users in acquiescing in the walk-in program for more than the full statutory period.

16

### III. THECURATIVESTATUTE

BCCargues that the trial court erred in declaring that the curative statute converted the public prescriptive easement into a county road. The"curative" statute at issue reads:

All highways, roads, lanes, streets, alleys, courts, places andbridges laid out or erected bythe public or nowtraveled or used by the public, or if laid out or erected byothers, dedicated or abandoned to the public, or made such by the partition of real property, are public highways. Section 32-103, RCM1947. (repealed in 1959). The trial court concluded that:

Therecord taken asawhole fails to showthat the disputed road was laid out or erected by the public, dedicated or abandoned to the public or madesuch bythe partition of real property.... Since the trial court concluded that the road could not become

acounty road by 

### virtue of its being laid out or erected by 

### the public or dedicated or abandoned to the public, or madesuch bya partition, then the only choice available to establish that the disputed road is apublic road would bethat it was "traveled or used by 

### the public," as in a public prescriptive easement. Because wehave concluded that there was no public prescriptive easement, then the curative statute could not beapplied to create

apublic road out of the road in dispute. Wehold that the disputed road is not encumbered by apublic prescriptive easement nor does it qualify as acounty road under the "curative" statute. REVERSED

ANDREMANDED

for entry of anorder consistent with this opinion.We Concur:

18

### July8,1993 CERTIFICATEOFSERVICE Iherebycertifythatthefollowingorderwassent byUnitedStates

mall,prepaid,

tothefollowing named: GregoryW.Duncan

andPhillipW.Strope Harrison,Loendorf

&Poston,P.C. 2225Eleventh

Avenue, Suite 21 Helena,MT59601 F.Woodside

Wright Reynolds, Motl,Sherwood

&Wright 405NorthLastChance

Gulch Helena, MT59601 Russell R.Andrews TetonCountyAttorney P.0.Box899 Choteau, MT59422

Joan B.Newman AttorneyatLaw TheUniversityofMontana Missoula,MT59812 EDSMITH CLERKOFTHESUPREME COURT