No. 96-034 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

AMERIMONT, INC., A MONTANA CORPORATION, 

CALVIN SMITH and ALICE K. SMITH, 

Plaintiffs and Appellants, 

v. 

DAVID E. GANNETT and MONTANA LAND RELIANCE, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Karl Knuchel, Attorney 

Livingston, Montana 

For Respondents: 

James J. Masar, Knight 

Missoula, Montana 

at Law, 

& Masar, 

Submitted on Briefs: July 18, 1996 

Decided: September 30, 1996 
Justice Charles E. Erdmann delivered the opinion of the Court. 

Amerimont, Inc., a Montana corporation, and Calvin Smith and 

Alice K. Smith appeal from the judgment entered by the Eighteenth 

Judicial District Court, Gallatin County, decreeing that Amerimont 

does not have a prescriptive easement over the property of David E. 

Gannett and the Montana Land Reliance, a non-profit corporation, 

which holds a conservation easement on Gannett's property. We 

affirm. 

The issue on appeal is whether the District Court erred in 

concluding that Amerimont does not possess a prescriptive easement 

over Gannett's property. 

FACTS 

Amerimont purchased property located in Gallatin County from 

the Smiths in 1993. The property lies near the town of Manhattan 

and the legal description of the land is the S'XSEX of Section 26 

and the NE% of Section 35 and all of Section 25, all situated in 

Township 2 North, Range 3 East. 

Amerimont's chain of title dates back to 1887 when George 

Oyler obtained title to the property by homesteading a portion of 

the ground and purchasing different sections from private 

individuals. In 1924 George Oyler conveyed title to Robert Oyler, 

and in 1949 Robert Oyler sold the property to Hugh Smith, Calvin 

Smith's father. In 1975 Hugh Smith deeded one-half interest in the 

property to Calvin Smith, and when Hugh Smith died in 1990, Calvin 

Smith inherited the remaining one-half of the property. In July 

1993, the Smiths transferred their interest to Amerimont by 

2 
conveying fee title to Section 25 and executing a contract for deed 

on the respective portions of Sections 26 and 35. 

In 1992 Gannett acquired title to the SE% of Section 36 in 

Township 2 North, Range 3 East, Gallatin County. Gannett's chain 

of title dates back to Annie and Enoch Sales who homesteaded the 

property in 1922. The Saleses conveyed the property to C. W. Zelie 

in 1928, and in 1930 Gallatin County foreclosed on the property 

after Zelie failed to pay taxes. Enoch Sales repurchased the 

property from Gallatin County in 1939 and then sold the land to 

Elwyn Freeman in 1964. Freeman sold the property to Philip 

Ver Wolf in 1979, and Ver Wolf conveyed his interest by warranty 

deed to Keith Fairbank in 1987. Fairbank executed a warranty deed 

to Gannett in 1992, who later that year conveyed a conservation 

easement on the entire property to the Montana Land Reliance. 

The properties are separated by a tract of land in Section 36, 

which is owned by the State of Montana. Amerimont and its 

predecessors in interest accessed the south one-half of Section 25 

by crossing Gannett's property on a two-track dirt road. The road 

is approximately the width of a pickup truck and traverses a 

heavily grassed area. The roadway was not the only access to the 

Smiths' property and they and their predecessors periodically used 

the road to access the homestead on their land and to gain access 

to the property for agricultural and recreational purposes. A map 

of the properties and the disputed roadway is shown below. 

3 
In 1994, Amerimont and the Smiths filed suit against Gannett 

seeking to establish that they had a prescriptive easement across 

Gannett's property. The case was tried before the District Court 

without a jury on January 19 and 20, 1995. On December 14, 1995, 

the District Court entered its findings of fact, conclusions of 

law, and order, concluding that Amerimont and the Smiths do not 

have a prescriptive easement over Gannett's property. On 

January 2, 1996, the District Court entered judgment in favor of 

Gannett and the Montana Land Reliance, incorporating its earlier 

findings of fact and conclusions of law. This appeal followed. 

4 
STANDARD OF REVIEW 

This Court reviews a district court's findings of fact to 

determine whether they are clearly erroneous. Dairies v. Knight 

(1995), 269 Mont. 320, 324, 888 P.2d 904, 906. We have adopted a 

three-part test to determine whether the findings are clearly 

erroneous. 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 the 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 Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 

820 P.2d 1285, 1287. 

We review a district court's conclusions of law to determine 

whether the court's interpretation of the law is correct. Carbon 

County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 

P.2d 680, 686. 

DISCUSSION 

Did the District Court err in concluding that Amerimont does 

not possess a prescriptive easement over Gannett's property? 

To establish an easement by prescription, the party claiming 

the easement must show open, notorious, exclusive, adverse, 

continuous, and uninterrupted use of the easement claimed for the 

5 
full statutory period of five years. Tanner v. Dream Island, Inc. 

(1996), 275 Mont. 414, 424, 913 P.2d 641, 647-48 (citing Public 

Lands Access v. Boone & Crockett (1993), 259 Mont. 279, 283, 856 

P.2d 525, 527; Keebler v. Harding (1991), 247 Mont. 518, 521, 807 

P.2d 1354, 1356). The burden is on the party seeking to establish 

the prescriptive easement and all elements must be proved. Tanner, 

913 P.2d at 648 (citing Public Lands Access, 856 P.2d at 527; 

Downing v. Grover (1989), 237 Mont. 172, 175, 772 P.2d 850, 852). 

If the owner shows permissive use, no easement can be acquired 

since the theory of prescriptive easement is based on adverse use. 

Tanner, 913 P.2d at 648 (citing Public Lands Access, 856 P.2d at 

527; Rathbun v. Robson (1983), 203 Mont. 319, 322, 661 P.2d 850, 

852). Where the use of a way by a neighbor is by express or 

implied permission of the owner, continuous use of the way by the 

neighbor is not adverse and does not ripen into a prescriptive 

right. Public Lands Access, 856 P.2d at 528 (citing Wilson v. 

Chestnut (1974), 164 Mont. 484, 491, 525 P.2d 24, 27). 

Amerimont argues that use of the roadway by the Oylers was 

sufficient to establish a prescriptive easement and that use by the 

Smiths was open and notorious to a degree that Gannett should have 

been placed on notice that the Smiths and their predecessors were 

making a hostile claim against his ownership. Amerimont claims 

that its and its predecessors' use was continuous and uninterrupted 

for the full statutory time period. Amerimont maintains that the 

historic use of the roadway by the Smiths and the Oylers was under 

a claim of right and not by privilege or license. 

6 
Amerimont claims that it established the preliminary 

requirements of a prescriptive easement, thus creating a 

presumption of adverse use. According to Amerimont, the burden 

then shifted to Gannett to establish that the use was permissive or 

a neighborly accommodation and that Gannett did not bring forth any 

evidence to rebut the presumption of adverse use. Amerimont argues 

that the gates across the road were installed to control livestock 

and restrict public access and that the gates were never meant to 

keep Amerimont or its predecessors in interest from accessing their 

property. 

Gannett argues that Amerimont and the Smiths failed to prove 

that their use of the road was open and notorious. Gannett relies 

on Greenwalt Family Trust v. Kehler (19941, 267 Mont. 508, 885 P.Zd 

421, to argue that Amerimont must have made a distinct and positive 

assertion of a right hostile to the owner. Gannett argues that 

without bringing such an assertion to the owner's attention, 

neither he nor his predecessors in interest were placed on notice 

that use of the roadway was hostile. Gannett claims that he cannot 

now be forced to give up what is rightfully his without ever having 

had the opportunity to know that his title was in jeopardy. 

Gannett also argues that Amerimont failed to prove 

uninterrupted use because Gannett and his predecessor, Fairbank, 

required Smith to ask for a key to open the gate when he needed to 

use the road. According to Gannett, such an arrangement indicates 

Smith's assent to Gannett's ownership and control of the roadway 

and that such a position is inconsistent with a claim for a 
prescriptive easement. Gannett maintains that Amerimont and its 

predecessors' use of the road began as permissive and that the 

character of that use never changed. Gannett argues that the 

ranchers and farmers in the area had always been good friends with 

strong social ties and a commitment to helping one another. 

According to Gannett, the close working and social relationships 

among the landowners engendered a practice of neighborly 

accommodation with respect to the use of roads across one another's 

property 

The District Court found as follows: 

The court finds that the close working and social 

relationships among neighbors engendered a custom and 

practice of 'Ineighborly accommodation" with respect to 

use of the road across the Gannett property. . 

The court finds that plaintiffs and their 

predecessors have 'crdssed the Gannett property with 

express or implied permission at all times material to 

this action. 

Cal Smith testified Gannett and his predecessors 

generally locked a gate at the beginning of the road at 

all times pertinent to this action. [Tlhe court 

finds that this widespread practice of giving out keys to 

friends and neighbors reflects the custom and practice of 

neighborly accommodation in the area . . 

Defendant Gannett and Keith Fairbank did not give keys to 

the gate to the Smiths. They required Smiths to obtain 

permission to cross the Gannett property every time he 

wanted to visit his property. The practice of locking 

gates and restricting access to the Gannett property is 

evidence that plaintiffs' use of the road across the 

Gannett property has always been and continues to be 

permissive. 

8 
Even if Mr. Smith and his father, Hugh Smith, intended to 

establish a right to cross the Gannett property by 

prescription, the evidence before the court does not show 

that they placed Gannett or his predecessors on notice of 

such hostile or adverse claim. 

George Oyler's grandson, Enos Oyler, testified that he was 

acquainted with Gannett's predecessors and that "everybody got 

permission" to use the property. Oyler stated that after the 

Saleses moved away, the new owners locked the gate and "you had to 

ask permission." 

Marguerite Fulker, a neighboring landowner, testified she had 

occasions when she had to go into the southeast quarter of 

Section 36 to hunt mushrooms with Elwyn Freeman and take sheep 

across the property. Fulker stated that neighbors in the area got 

along beautifully. She indicated that II [tl hey'd 1oa.n you anything 

they had . and we did everything together." 

Cal Smith testified that he worked with the Saleses, the 

Freemans, and Philip Ver Wolf during haying season. The Smiths 

used the Freemans' corrals when moving cattle. Smith and Ver Wolf 

checked on and worked each others cattle, and on at least one 

occasion, Ver Wolf helped move the Smiths' cattle to another ranch 

in Harrison. 

Cal Smith also testified in review of his earlier deposition 

concerning conversations he had with Sales, Freeman, and Ver Wolf: 

Q: And then I apparently asked a question that starts 

with, "Yes," and then I would like you to -- having read 

your answer that begins at line 16, I would like to have 

you explain what you said in response to that question 

with respect to your conversations with Sales. What is 

Mr. Sales telling you there? Would you read that? 

9 
A: we asked a long time ago, we asked Sales about [it]. 

He said, 'Ah, hell, there's no problem. You people have 

been doing it for years.' Like I said, that's the way we 

get along. 

Q: And I asked, "Okay. That['sl back to [the] 

neighborly accommodation?" And your answer is -- 

A: I said, "Yes." 

Q: And do you recall we talked during that deposition 

about neighborly accommodation, do you not? 

A: I recall. 

. 

Q: And again, we 1 re talking about the three 

predecessors in interest, Sales, Freeman, Ver Wolf, all 

said the same things to you? 

A: Yeah, that's the way to the property. 

Q: "You don't need to ask. Just go right on in there." 

A: That's right, that's the way you get there. 

. 

Q: To avoid you having to go through the whole answer, 

1'm going to have you begin reading at line 6. And the 

sentence that starts with, "We went when we -- when you 

had to go or when you wanted to go --.'I Would you read 

that and then complete the sentence? 

A: "We went when you had to go or when you wanted to 

go, whether it be summer, winter or whatever. Nobody 

said boo, you can't go. It was a gentlemen's agreement, 

I'll put it that way." 

Q: And then I said, "Well, more than gentlemen, could 

it be described as being a neighborly accommodation? 

It's what one good neighbor would do to another?" And 

your answer is -- 

A: "I would hope so, or however you want to say it. 

It's just that there was never any problem getting 

there." 

10 
~a1 Smith testified that he first remembered needing a key to 

open the gate when he was in high school. He stated that when 

Fairbank bought the place, "he did not give me a key." Smith 

indicated that the first time he learned there was a problem was 

when Gannett locked the gate and told Smith "I'll leave the key for 

you. It Smith said " [fline" and when Gannett failed to give him a 

key, Smith indicated "I went anyway." 

Fairbank testified that when he purchased the property M [wle 

put our own lock on the gate . . fairly early on." He indicated 

that, for the most part, he maintained a locked gate after that. 

Fairbank testified that no one told him that Calvin Smith had an 

absolute right to cross the property and indicated there were times 

when Smith would borrow a key. 

Gannett testified as follows concerning his knowledge of the 

Smiths' right to access the road across his property: 

Q: And up to this point in time, as you've just 

testified, all the information that was made available to 

YOU indicated that the Smiths' use of that quarter 

section was permissive? 

A: Yes 

Q: Now, what inquiry did you make of Mr. Smith with 

respect to whether or not that was the case? 

A: He mentioned -- he, Cal, told me that . "If we 

do sell in two different pieces of property --'I, he had 

always had permission to go across the Sales' road 

quarter section and that's the way he referred to the 

ground as the "Sales Road quarter section" -- 

Q: Now, I'd like to stop you there. You've used the 

word "permission" -- 

A: Yes 

11 
Q: Is that -- 

A: That's the exact word he used. "I have always had 

permission to go across that property." 

Q: Okay. Yesterday Mr. Smith testified that he told 

you that is was an "absolute right" that he had to go 

across that property. Do you recall him using the words 

"absolute right"? 

A: No, he did not. 

Q: Do you recall him using any words that would 

indicate a use that was other than permissive? 

A: No. 

Calvin Smith himself stated that: 

It's always been my understanding that the easement was 

there when we bought the property. That we didn't have 

to tell anybody 

Our review of the record indicates that the District Court's 

findings are supported by substantial evidence. The court did not 

misapprehend the effect of the evidence, nor is this Court left 

with the definite and firm conviction ~that a mistake has been 

committed 

In ordering that Amerimont and the Smiths do not have a 

prescriptive easement over Gannett's property, the District Court 

concluded that: 

Plaintiffs have failed to carry their burden of showing 

that their use of the road across the Gannett property 

was open and notorious. 

Plaintiffs have also failed to show that their use of the 

road was "uninterrupted" by the owners of the Gannett 

property. 

Plaintiffs have also failed to establish that their use 

of the road was adverse. 

12 
The first element in establishing a prescriptive right is that 

the use be open and notorious. We have defined "open and 

notorious" as a distinct and positive assertion of a right hostile 

to the rights of the owner and brought to the attention of the 

owner. Lemont, 887 P.2d at 726-27 (citing Downinq, 772 P.2d at 

852). In the present case, neither the Smiths nor their 

predecessors in interest made a distinct and positive assertion to 

Gannett or his predecessors that a right hostile to the rights of 

the owner was being made. Amerimont's assertion that the extensive 

use of the road by the Oylers and the Smiths should have put the 

owners of the servient ground on notice that the road was being 

used as a primary access to get to their property is simply 

insufficient to prove that their use was open and notorious. 

The claimant must also prove that the use is continuous and 

uninterrupted. We have defined "continuous" use as that which is 

made often enough to constitute notice of the claim to the 

potential servient owner, and "uninterrupted use" as a use not 

interrupted by the act of the owner of the land or by voluntary 

abandonment by the party claiming the right. Lemont, 887 P.2d at 

727 (citing Downinq, 772 P.2d at 8521. While in the present case 

use of the road may have been continuous, it was not uninterrupted. 

Gannett's predecessors locked the gate at the beginning of the road 

and supplied keys to their neighbors, including the Smiths, as a 

matter of accommodation. However, when Fairbank bought Gannett's 

property in 1987, Fairbank changed the locks on the gate and did 

not provide the Smiths with a key. Rather, the Smiths had to ask 

13 
for the key to open the gate when they needed to use the road. 

Calvin Smith admitted that he asked both Fairbank and Gannett for 

keys to the gate as necessary. Such an arrangement clearly 

interrupted any claim of right which the Smiths allege they had to 

use the road. 

The final requirement in establishing a prescriptive easement 

is that the use be adverse. To be "adverse" the use 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 owners of the land. 

Lemont, 887 P.2d at 727. In most instances, adverse use will be 

proven (or not proven) from the same evidence by which the claimant 

establishes open, notorious, continuous, and uninterrupted use for 

the statutory period. Lemont, 887 P.2d at 727. 

A use of a neighbor's land based upon mere neighborly 

accommodation or courtesy is not adverse and cannot ripen into a 

prescriptive easement. Public Lands Access, 856 P.Zd at 528. This 

Court has consistently reaffirmed this doctrine. See Greenwalt, 

885 P.2d at 425; Lemont, 887 P.2d at 728. Furthermore, we have 

repeatedly held that a landowner should not be forced to give up 

title to property without notice of the alleged adverse claim and 

the opportunity to know that his title is in jeopardy. See Unruh 

v. Tash (1995), 271 Mont. 246, 250, 896 P.2d 433, 436; Greenwalt, 

885 P.2d at 424; Downinq, 772 P.2d at 852. 

Here, Amerimont and its predecessors had the privileged use of 

the roadway pursuant to the permission and neighborly accommodation 

14 
extended by Gannett and his predecessors. Residents of the area 

routinely helped each other with farm and ranch work and the 

parties and their predecessors understood that this custom and 

practice included the ability to cross one another's property 

without having to ask for permission each time, as long as the 

neighbors had business to attend to, did not abuse recreational 

privileges, and closed all gates after each passage. The roadway 

was used by the express or implied permission of the landowner and 

as a neighborly accommodation to surrounding landowners. 

Amerimont's and its predecessors' use of the road across the 

Gannett property was not adverse. 

We therefore hold that the District Court correctly 

interpreted the law when it concluded that Amerimont and the Smiths 

do not possess a prescriptive easement over Gannett's property. 

Affirmed. 

Justice 

We concur: 

Y---d ,L 

Chief Justice /l/i