NO. 92-262 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

PUBLIC LANDS ACCESS ASSOCIATION, INC., 

LEWIS EUGENE HAWKES, WALTER J. SILLS, 

ALBERT C. GEIGER, AND'HERMAN J. EARLES, 

Plaintiffs and Respondents, 

-vBOONE AND CROCKETT CLUB FOUNDATION, INC., 

AND THE STATE OF MONTANA, DEPARTMENT OF FISH, 

WILDLIFE AND PARKS 

Defendants and Appellants. 

BOONE AND CROCKETT CLUB FOUNDATION, 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. 

COUNSEL OF RECORD: 

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 James C. Nelson delivered the Opinion of the Court. 

This is an appeal from a Ninth Judicial District Court, Teton 

County, order filed after a bench trial, which declared that a 

public prescriptive easement had been established over the road in 

dispute. We reverse and remand. 

We restate the issues on appeal as follows: 

I. Did the District Court err in declaring that a public 

prescriptive easement had been established over the road in 

question? 

II. If there was a public prescriptive easement, was it 

extinguished by the 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 Lands Access Association, Inc. (PLAA) is a 

non-profit Montana corporation dedicated to maintaining access to 

public lands for multiple purposes. The individual respondents are 

members of the general public; are residents of the State of 

Montana: are past users of the road in dispute: and are desirous of 

using the road in the future. 

Appellant, Boone and Crockett Club Foundation (BCC), is also 

a non-profit corporation. BCC purchased the land upon which the 

disputed road is located as a ranch for scientific and educational 

purposes and is working in coordination with Amicus Curiae 

University of Montana conducting research at the ranch. The land 

is located approximately ten miles west of Dupuyer, Montana. 

2 
The controversy surrounds a road which is described as 

starting "in Section 18 of Township 27 North, Range 8 West at the 

intersection with county road: then proceeding in a northwesterly 

fashion across Section 18; then in a southwesterly direction 

through Section 13, Township 27 North, Range 9 West: entering 

Section 14 in the northernmost portion of Lot 1; continuing in a 

westerly fashion through Lot 1 and Lot 2 into the northwest quarter 

of Lot 3; then turning in a southerly direction across Lot 3 of 

Section 14 to enter Lot 3 of Section 23; and then in a southerly 

direction across Section 23 to U.S. Forest Service lands and then 

into the mouth of Dupuyer Canyon.t' The road is referred to as the 

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 be a county road and the disputed portion of the road 

(disputed road) which lies west of Johnson's Crossing. The 

disputed portion of the road consists of an unimproved track which 

leads to the mouth of the North Fork of Dupuyer Creek Canyon. 

BCC closes the disputed road to vehicular traffic "right prior 

to hunting season through the spring . . .I' PIAA disputed BCC's 

power to close this route to vehicle traffic for part of the year 

because it claimed there existed a public prescriptive easement 

over the road. However, BCC asserted that there was no public 

prescriptive easement, but if there ever was, it was extinguished 

by the actions of the landowners in the 1970s and 1980s. 

PLA?+ brought an action against BCC to force its 
discontinuation of the walk-in policy and to open the disputed road 

to vehicular traffic on a year-round basis in order to access the 

National Forest Service land beyond BCC's ranch. A bench 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 BCC from interfering with the general public's use of the 

disputed road, ruling that there was a public prescriptive easement 

over the disputed road which had been converted to a county road by 

the curative statute. This appeal by BCC followed. 

The standard of review for a district 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 may still 

find that "[A] finding is 'clearly erroneous' when, 

although there is evidence to support it, a review of the 

record leaves the court with the definite and firm 

conviction that a mistake 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." 

4 
Steer Inc. v. Department of Revenue (1990), 245 Mont. 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 on the 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 on adverse use." Rathbun v. Robson 

(19831, 203 Mont. 319, 322, 661 P.2d 850, 852. (Citation omitted.) 

I. PUBLIC PRESCRIPTIVE EASEMENT 

BCC argues that there was not substantial evidence to conclude 

that a public prescriptive easement was established over the road 

in dispute. It contends that the use of the road was not adverse 

5 
but rather due to neighborly accommodation and courtesy before Fred 

Troop bought the ranch upon which the road is located. In 

addition, BCC asserts 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. We agree. 

Paul Bruner, who has been residing in the area since 1913, and 

Ken Duncan, who has resided in the area for the past 35 years, 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 a way by a neighbor 

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, 661 P.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 an understanding 

among landowners that permission was not required every 

time a person needed to cross his neighbor's land. 

Permission was automatic if the individual closed the 

gates and respected his neighbor's property. 

Rathbun, 661 P.2d at 852. "The mere use of a way for the required 

time is generally not sufficient to give rise to the presumption of 

a grant, and generally some circumstances 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. 

Even PLAA's witnesses describe permissive, not adverse use of 

the road. Two of the witnesses, the Bredings, resided on the ranch 

for only a few years on a year round basis. Their testimony 

regarding their stay at the ranch however, indicates neighborly 

accommodation as the local custom when the Conner family owned the 

ranch. Delbert Breding testified that there was a general 

understanding that the road was always open to the public. Arcelia 

Conner Breding, Delbert's wife and daughter of the Conner ranch 

owner, when asked about the use of the road and where the users 

came from, replied, "Well, from Great Falls and from Conrad. The 

Boy Scouts and the Girl Scouts from different areas, it was open to 

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 use the road. Mr. Breding testified that the road 

7 
was not graded until an oil drilling company improved it in order 

to reach the drilling sites. He testified that the oil company was 

given permission by the Conners to improve the road. 

Perry Nelson, Walter Sills, Herman Earles and Albert Geiger, 

all PLAA witnesses, 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 a road has been for 

years barred by gates or other obstructions to be opened and closed 

by the parties passing over the land, has always been considered as 

strong evidence in support of a mere 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 a presumption of adverse use." Keebler 

807 P.2d at 1358. 

Donald Hauge, a drilling contractor, testified for the PLAA 

but he was an infrequent visitor. He hunted there twice in 1961 

and hunted in 1962 and 1963. He made infrequent visits after the 

1964 flood to see how the flood had affected the land. He was on 

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

had already been established. When he reached the parking lot 

area, he turned around and left. Mr. Hauge also testified that if 

he was going to work at a drill site, the company would take care 

of asking for permission to work on the land from the owner so he 

would not have to bother a landowner 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 as well as some 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 he had a permit to graze his cattle on Forest Service land. 

Use by the landowner for his own purposes cannot become a component 

of a non-owner's claim of adverse possession. 

In addition, law enforcement personnel were on the 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 on the 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 a public prescriptive easement. Allen Mathews, a former 

State Fish and Game warden, related that in 1975, he issued a new 

outfitter's license to an individual who asked about driving to the 

Forest Service and then hunting down below. Mathews stated that he 

would have to get specific written permission from the landowners. 

The outfitting license is a yearly license so Mathews could only 

testify about an outfitter using the area for the year 1975. 

Moreover, when the outfitter did hunt in the area, he parked in the 

walk-in program's parking lot area which was permissible. 

Finally, the only testimony regarding oil and gas companies' 

use of the road was that the companies asked permission of the 

landowners to use and improve the road before they entered the 

property. These uses were either permissive or did not last long 

enough to establish adverse possession. 

We conclude that the trial court's findings of fact are not 

supported by substantial evidence and that PLAA failed in its 

burden to establish the existence of a public prescriptive easement 

over the Dupuyer-Dupuyer Canyon Road west of Johnson's Crossing. 

DeSave, 820 P.2d at 1287. 

II. EXTINGUISHMENT OF A PUBLIC PRESCRIPTIVE EASEMENT 

Although BCC asserts that there is no public prescriptive 

easement, it contends that even if there was a public prescriptive 

easement, it was extinguished by the conduct of owners after the 

Conners, particularly Clarence Evilsizer. We agree. 

Ken Duncan, when asked by Mr. Poston, attorney for BCC, how 

10 
other owners, Troop, (who purchased the ranch from Conners), 

Evilsizer and States treated the property, responded as follows: 

Q. 

A. 

Q. 

A. 

Q. 

A. 

QA. 

Q. 

A. 

Okay, how did Troop treat the property, the use of 

the road? 

He let hunters in with permission. 

But he required permission? 

Yes, he did. 

What about Evilsizer and his lessee? 

Well, his lessee was there to start with, before 

Evilsizer moved there, and he was really strict 

with it. You usually didn't get on his place, and 

I think he testified the other day that a lot of 

them left. I think they all left. 

Do you know whether or not the gates were locked, 

when he was there? 

In certain areas, they were. 

NOW, how did Mr. States treat the property, when he 

got there, about letting people on the road? 

Well, I had to cross some of States' land to get to 

this area I leased, this Ahmon place I'm talking 

about, and I have, since 1973, and if I didn't ask 

permission form States to cross that land, I would 

probably, within a half day, I would get a phone 

call and he would ask if I crossed that land, and I 

assume he knew every tire tread track that ever 

crossed his place. 

Everett F. Hedrick testified that he lived on the subject 

property from 1967 through 1972. At this time, the property was 

owned by Clarence Evilsizer and leased by Mr. Hedrick. Hedrick 

testified that he allowed people to traverse the road and hunt on 

the land by oermission. 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 some people used 

the road even if he told them they could not, but if he caught them 

there, he would try "to run them off." 

In his affidavit, Clarence Evilsizer, who bought 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 TRM Ranch. . . 

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 and with 

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 a private road, and we treated 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 men to 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 FWP approached Evilsizer to work out an 

agreement to provide access to the road for people who wanted to 

12 
hunt on the Forest Service land. This was part of a FWP program 

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 who would 

allow people to make recreational use of their land but had 

concerns over uncontrolled vehicle use. 

In Evilsizer's case, a special parking area was installed and 

visitors would park in the lot and could 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, Do not drive 

beyond this point" and "Written Permission Required." FWP provided 

any other materials which would facilitate a landowner'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 an agreement 

with the Fish and Game Department of the State of Montana 

to set up a walk-in hunting area. This agreement allowed 

hunters to park and camp at a location near the fence 

line running north and south in the SW l/4 SE l/4 of 

Section 14. The fence is not on the property line. The 

hunters were then allowed to proceed strictly on foot or 

on horseback from there to the west and south onto and 

access, if they so desired, the rest of my property which 

lay between that fence and the forest boundary. The 

parking area was signed with signs provided by the Fish 

and Game Department. 

This permissive arrangement seemed to be accepted by 

everybody and to my knowledge there were very few if any 

violations of the agreement. I have no knowledge of 

anyone driving beyond the parking area without 

permission. 

13 
The walk-in agreement continued when Dean States purchased the 

ranch. In his affidavit, he stated: 

[W]hile I owned and operated the ranch, I maintained 

the walk-in area which had been previously been [sic] 

established by Clarence Evilsizer and the Montana Fish 

and Game Department while Clarence Evilsizer owned the 

property. - 

Through an agreement with the Department of Fish, 

Wildlife and Parks, they also helped me police the area. 

It is my belief they issued citations to anyone using the 

area without permission and ejected them from- the 

property. 

During the time we owned the ranch, no lawsuits were 

initiated against us demanding the road in question, 

which was blocked, be open to the public or any other 

individuals. 

At the time I owned the ranch, there were five gates 

going from Johnson 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 so was asked to leave the ranch if I caught them. 

If I did not catch them and knew who did it, I would deny 

them access thereafter. 

This agreement has continued through the ownership of the area 

by BCC. In 1986, BCC entered into a written agreement with FWP. 

If a public prescriptive easement had been established, 

Evilsizer's blocking of the road and the creation and maintenance 

of the walk-in program evidenced a "distinct and positive assertion 

of a hostile right...." Taylor v. Petranek (1977), 173 Mont. 433, 

438, 568 P.2d 120, 123. The assertion of this right hostile to the 

owner [the public] must be brought to the attention of the owner 

and the use must continue for the full prescriptive period. Medhus 

v. Dutter (1979), 184 Mont. 437, 442-443, 603 P.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 by the owner of the servitude or with his assent which is 

14 
incompatible with its nature or exercise [.I" We have held, on the 

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 we found 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 as a county road. At the February 1988 meeting 

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

denied a petition 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 seem to 

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 a private road. 

In conclusion, substantial evidence supports the proposition 

that prior to Fred Troop's ownership of the BCC ranch area, there 

was a policy 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. 

When Fred Troop bought the land from the Conners, he allowed 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 be agreeable 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 was clearly 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. THE CURATIVE STATUTE 

BCC argues 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 and bridges laid out or erected by the public or 

now traveled or used by the public, or if laid out or 

erected by others, dedicated or abandoned to the public, 

or made such by the partition of real property, are 

public highways. 

Section 32-103, RCM 1947. (repealed in 1959). The trial court 

concluded that: 

The record taken as a whole fails to show that the 

disputed road was laid out or erected by the public, 

dedicated or abandoned to the public or made such by the 

partition of real property.... 

Since the trial court concluded that the road could not become 

a county road by virtue of its being laid out or erected by the 

public or dedicated or abandoned to the public, or made such by a 

partition, then the only choice available to establish that the 

disputed road is a public road would be that it was "traveled or 

used by the public," as in a public prescriptive easement. 

Because we have concluded that there was no public prescriptive 

easement, then the curative statute could not be applied to create 

a public road out of the road in dispute. 

We hold that the disputed road is not encumbered by a public 

prescriptive easement nor does it qualify as a county road under 

the "curative" statute. 

REVERSED AND REMANDED for entry of an order consistent with 

this opinion. 
We Concur: 

18 
July 8, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mall, prepaid, to the following 

named: 

Gregory W. Duncan and Phillip W. Strope 

Harrison, Loendorf & Poston, P.C. 

2225 Eleventh Avenue, Suite 21 

Helena, MT 59601 

F. Woodside Wright 

Reynolds, Motl, Sherwood & Wright 

405 North Last Chance Gulch 

Helena, MT 59601 

Russell R. Andrews 

Teton County Attorney 

P. 0. Box 899 

Choteau, MT 59422 

Joan B. Newman 

Attorney at Law 

The University of Montana 

Missoula, MT 59812 

ED SMITH 

CLERK OF THE SUPREME COURT