No. 96-034 INTHESUPREMECOURTOFTHESTATE OFMONTANA 1996

AMERIMONT, INC., AMONTANACORPORATION, CALVIN SMITH andALICE K. SMITH,

Plaintiffs andAppellants,
v. DAVID E. GANNETTand MONTANALANDRELIANCE,

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.

COUNSELOFRECORD:

For Appellants: Karl Knuchel, Attorney Livingston, Montana For Respondents: James J. Masar, Knight Missoula, Montana at Law,

&Masar,

Submitted onBriefs: July 18, 1996

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

Amerimont, Inc., aMontana corporation, and Calvin Smith and Alice K. Smith appeal from the judgment entered bythe Eighteenth Judicial District Court, Gallatin County, decreeing that Amerimont does not have aprescriptive easement over the property of David E. Gannett and the Montana Land Reliance, anon-profit corporation, which holds aconservation easement on Gannett's property. We affirm.The issue on appeal is whether the District Court erred in concluding that Amerimont does not possess aprescriptive easement
over Gannett's property. FACTS Amerimont purchased property located in Gallatin County from the Smiths in 1993. Theproperty lies near the town of Manhattan and the legal description of the land is the S'XSEXof Section 26 and the NE%of Section 35and all of Section 25, all situated in Township 2North, Range 3East. Amerimont's chain of title dates back to 1887 when George Oyler obtained title to the property byhomesteading aportion of the ground and purchasing different sections from private individuals. In 1924George Oyler conveyed title to Robert Oyler, and in 1949 Robert Oyler sold the property to Hugh Smith, Calvin Smith's father. In 1975HughSmith deeded one-half interest in the property to Calvin Smith, andwhenHughSmith died in 1990, Calvin Smith inherited the remaining one-half of the property. In July 1993, the Smiths transferred their interest to Amerimont by 2conveying fee title to Section 25andexecuting acontract for deed

onthe respective portions of Sections 26and 35. In 1992 Gannett acquired title to the SE%of Section 36 in Township 2North, Range 3East, Gallatin County. Gannett's chain of title dates back to Annie and Enoch Sales who homesteaded the property in 1922. TheSaleses 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 awarranty deed to Gannett in 1992, who later that year conveyed aconservation
easement onthe entire property to the Montana Land Reliance. Theproperties are separated byatract 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 bycrossing Gannett's property onatwo-track dirt road. The road is approximately the width of a pickup truck and traverses a heavily grassed area. The roadway wasnot the only access to the Smiths' property andthey andtheir predecessors periodically used the road to access the homestead ontheir land and to gain access to the property for agricultural and recreational purposes. Amap of the properties andthe disputed roadway is shown below.

3In 1994, Amerimont andthe Smiths filed suit against Gannett

seeking to establish that they hadaprescriptive easement across Gannett's property. The case wastried before the District Court without ajury onJanuary 19and 20, 1995. OnDecember 14, 1995, the District Court entered its findings of fact, conclusions of law, and order, concluding that Amerimont and the Smiths donot 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 andconclusions of law. This appeal followed. 4STANDARDOFREVIEW

This Court reviews adistrict court's findings of fact to determine whether they are clearly erroneous. Dairies v. Knight (1995), 269Mont. 320, 324, 888 P.2d 904, 906. Wehave 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 bysubstantial evidence, wewill determine if the trial court has misapprehended the effect of the evidence. Third, if substantial evidence exists and the effect of the evidence hasnot beenmisapprehended, the Court maystill find that
afinding 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 amistake has been committed. Interstate Prod. Credit Ass'n v. DeSaye (1991), 250Mont. 320, 323, 820 P.2d 1285, 1287. Wereview adistrict 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 aprescriptive easement over Gannett's property? Toestablish aneasement byprescription, the party claiming the easement must show open, notorious, exclusive, adverse, continuous, and uninterrupted use of the easement claimed for the 5full 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), 247Mont. 518, 521, 807 P.2d 1354, 1356). Theburden is onthe party seeking to establish the prescriptive easement andall elements must beproved. 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, noeasement canbeacquired since the theory of prescriptive easement is based onadverse 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 away by aneighbor is by express or implied permission of the owner, continuous use of the wayby the neighbor is not adverse and does not ripen into aprescriptive right. Public Lands Access, 856 P.2d at 528 (citing Wilson v. Chestnut (1974), 164Mont. 484, 491, 525 P.2d 24, 27). Amerimont argues that use of the roadway by the Oylers was sufficient to establish aprescriptive easement andthat usebythe Smiths wasopen andnotorious to adegree that Gannett should have been placed onnotice that the Smiths andtheir predecessors were making ahostile claim against his ownership. Amerimont claims that its andits predecessors' usewascontinuous anduninterrupted for the full statutory time period. Amerimont maintains that the historic use of the roadway bythe Smiths andthe Oylers was under

a claim of right and not byprivilege or license. 6Amerimont 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 toGannett to establish that the usewaspermissive or aneighborly accommodation andthat Gannett did not bring forth any evidence to rebut the presumption ofadverse 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 andthe Smiths failed to prove that their use of the road wasopen andnotorious. Gannett relies
onGreenwalt Family Trust v. Kehler (19941, 267Mont. 508, 885P.Zd 421, to argue that Amerimont must havemadeadistinct andpositive assertion of aright hostile to the owner. Gannett argues that without bringing such an assertion to the owner's attention, neither henor his predecessors in interest were placed onnotice that use of the roadway washostile. Gannett claims that hecannot
nowbeforced to give upwhat 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 akey to open the gate when heneeded to
use the road. According to Gannett, such anarrangement indicates Smith's assent to Gannett's ownership and control of the roadway and that such a position is inconsistent with a claim for aprescriptive 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 hadalways 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 useof roads across oneanother'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 agate 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 andneighbors reflects the custom andpractice of neighborly accommodation in the area
. . Defendant Gannett andKeith 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.

8Even if Mr. Smith andhis father, HughSmith, intended to

establish a right to cross the Gannett property by prescription, the evidence before the court doesnot show that they placed Gannett orhis predecessors onnotice 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 newowners locked the gate and "you hadto ask permission." Marguerite Fulker, aneighboring landowner, testified shehad 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. Sheindicated that II[tlhey'd 1oa.nyou anything they had

. andwedid 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 whenmoving cattle. Smith andVer Wolf checked on and worked each others cattle, and on at least one occasion, Ver Wolf helped movethe Smiths' cattle to another ranch in Harrison. Cal Smith also testified in review of his earlier deposition concerning conversations hehadwith Sales, Freeman, andVer Wolf: Q: And then Iapparently asked aquestion that starts with, "Yes," andthen Iwould like youto -- having read your answer that begins at line 16, Iwould 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?

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

Hesaid, 'Ah, hell, there's noproblem. Youpeople have been doing it for years.' Like Isaid, that's the waywe get along. Q: And I asked, "Okay. That['sl back to [the] neighborly accommodation?" Andyour answer is -- A: I said, "Yes." Q: And doyou recall wetalked during that deposition about neighborly accommodation, doyou not? A: I recall.

. Q: And again, we1re talking about the three predecessors in interest, Sales, Freeman, Ver Wolf, all said the same things to you? A: Yeah, that's the wayto the property. Q: "Youdon't need to ask. Just goright onin there." A: That's right, that's the wayyou get there.

. Q: Toavoid you having to gothrough the whole answer, 1'm going to have you begin reading at line 6. Andthe sentence that starts with, "Wewent whenwe-- whenyou had to goor whenyou wanted to go--.'I Would you read that and then complete the sentence? A: "Wewent when you had to goor when you wanted to go, whether it be summer, winter or whatever. Nobody said boo, you can't go. It wasagentlemen's agreement, I'll put it that way." Q: And then Isaid, "Well, more than gentlemen, could it be described as being a neighborly accommodation? It's what one good neighbor would doto 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~a1Smith testified that hefirst remembered needing akey to

open the gate when he was in high school. Hestated that when Fairbank bought the place, "he did not give mea key." Smith indicated that the first time he learned there was aproblem was whenGannett locked the gate andtold Smith "I'll leave the key for you. It Smith said "[fline" andwhen Gannett failed to give him a key, Smith indicated "I went anyway." Fairbank testified that when hepurchased the property M[wle put our ownlock onthe gate

. . fairly early on." Heindicated that, for the most part, hemaintained alocked gate after that. Fairbank testified that noone told him that Calvin Smith had an absolute right to cross the property andindicated there were times when Smith would borrow akey. Gannett testified asfollows 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 wasmadeavailable to YOU indicated that the Smiths' use of that quarter section waspermissive? A: Yes Q: Now, what inquiry did you make of Mr. Smith with respect to whether or not that wasthe case? A: Hementioned -- he, Cal, told methat

. "If we dosell in two different pieces of property --'I, hehad always had permission to go across the Sales' road quarter section and that's the way he referred to the ground asthe "Sales Roadquarter section" -- Q: Now, I'd like to stop you there. You've used the word "permission" -- A: Yes

11Q: Is that --

A: That's the exact word heused. "I have always had permission to goacross that property." Q: Okay. Yesterday Mr. Smith testified that he told you that is was an "absolute right" that hehad to go across that property. Doyou recall him using the words "absolute right"? A: No, hedid not. Q: Do you recall him using any words that would indicate ause that wasother than permissive? A: No. Calvin Smith himself stated that: It's always been myunderstanding that the easement was there whenwebought the property. That wedidn't have to tell anybody Our review of the record indicates that the District Court's findings are supported bysubstantial evidence. Thecourt 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 wasopen and notorious. Plaintiffs have also failed to showthat their useof the road was "uninterrupted" by the owners of the Gannett property. Plaintiffs have also failed to establish that their use of the road wasadverse. 12Thefirst element in establishing aprescriptive right is that

the use be open and notorious. We have defined "open and notorious" asadistinct andpositive assertion of aright 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 madeadistinct andpositive assertion to Gannett or his predecessors that aright hostile to the rights of the owner wasbeing 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 wasopen and notorious. The claimant must also prove that the use is continuous and uninterrupted. Wehave defined "continuous" use asthat 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 useof the road mayhave been continuous, it wasnot uninterrupted. Gannett's predecessors locked the gate atthe 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 onthe gate and did not provide the Smiths with akey. Rather, the Smiths had to ask 13for the key to open the gate when they needed to use the road.

Calvin Smith admitted that heasked both Fairbank and Gannett for keys to the gate as necessary. Such an arrangement clearly interrupted anyclaim of right which the Smiths allege they had to
use the road. The final requirement in establishing aprescriptive easement is that the use be adverse. To be "adverse" the use must be exercised under a claim of right and not as amere privilege or license revocable at the pleasure of the owner of the land; such
claim must beknown to andacquiesced inbythe owners of the land. Lemont, 887 P.2d at 727. In most instances, adverse use will be proven (or not proven) from the sameevidence bywhich the claimant establishes open, notorious, continuous, anduninterrupted 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, 856P.Zd at 528. This Court has consistently reaffirmed this doctrine. See Greenwalt, 885 P.2d at 425; Lemont, 887 P.2d at 728. Furthermore, wehave repeatedly held that alandowner 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), 271Mont. 246, 250, 896 P.2d 433, 436; Greenwalt, 885 P.2d at 424; Downinq, 772 P.2d at 852. Here, Amerimont andits predecessors hadthe privileged useof the roadway pursuant tothe permission andneighborly accommodation 14extended 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
wasused bythe 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 wasnot adverse. We therefore hold that the District Court correctly interpreted the lawwhen it concluded that Amerimont andthe Smiths donot possess aprescriptive easement over Gannett's property. Affirmed.

Justice Weconcur:

Y---d ,L Chief Justice /l/i