No. 90-085 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

EDWARD A. CUMMINGS and CAROLE J. CUMMINGS, 

Plaintiffs and Respondents, 

-vsJOSEPH CANTON, a/k/a JOE CANTON; JIM CANTON; WILLIAM G. SCHILLER, 

SR. ; CLARA SCHILLER, SR. ; CLARA SCHILLER; RUFFATTO LAND & CATTLE 

CO., a Montana corp.; LORETTA C. RUFFATTO; TIMOTHY WATSON; WAYNE 

A. HERMAN; METROPOLITAN LIFE INSURANCE COMPANY, a corporation; 

RAVALLI COUNTY; JOHN FOLEY ; and all other persons ; unknown, 

claiming or who might claim any right, title, estate or interest 

in or lien or encumbrance upon the property described in the 

complaint adverse to plaintiffs' ownership or any cloud upon 

plaintiffst title thereto, whether such claim or possible claim be 

present or contingent, 

Defendants and Appellant. FT* ?,D i 

1 t' i990 

CLERK OF SUiRErrlE COURT 

STATE OF M'Ji?lTAIAA 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard R. Buley, Tipp, Frizzell & Buley, Missoula, 

Montana 

For Respondent: 

John T. Spangler, Cummings Law Firm, Missoula, 

Montana 

Submitted: June 15, 1990 

Filed: 

Decided: August 17, 1990 
Justice John C. Sheehy delivered the Opinion of the Court. 

The plaintiffs, Edward and Carole Cummings (Cummings), filed 

a quiet title action in Fourth Judicial District Court, Ravalli 

County. The defendants answered the quiet title complaint by 

claiming a prescriptive easement over Cummingsl land. The District 

Court granted Cummingsl quiet title claim, and denied defendants1 

prescriptive easement claim. Now the defendants appeal the 

District Court's denial of their prescriptive easement claim. We 

affirm. 

Did the District Court err in denying defendants1 prescriptive 

easement claim? 

Cummings own in fee simple the following described property 

in Ravalli County, Montana: 

The South half of the Northeast quarter (SaNEt) of Section 9, 

the South half (Si) of Section 9, the North half of the Northwest 

quarter (NaNWJ) of Section 9, and the Southeast quarter of the 

Northwest quarter (SEjNWt) of Section 9, all in Township 9 North, 

Range 20 West, P.M.M., Ravalli County Montana. 

Defendants, Joseph Canton and Jim Canton have an ownership 

interest in land in two parcels. One parcel is north of Cummingsl 

property and the other is south. The defendants have access to 

both of their parcels of land through county roads, however, it 

would be more convenient for the defendants to travel between their 

two parcels of land by using abandoned County Road No. 22, which 

crosses Cummingsl property. 

The Cantons own a ranch known as the llHome Place,11 which is 

located in Sections 10 and 15, Township 9 North, Range 20 West, 
P.M.M., Ravalli County, Montana. The Cummingsl property lies 

adjacent to the Home Place on the west. The Cantons also own 80 

acres in Section 4, Township 9 North, Range 20 West, P.M.M. Ravalli 

County, Montana. This parcel is known as the I1Upper Eightyf1 or the 

"Eighty Acres." It is not contiguous to the Home Place. The 

Eighty Acres lies approximately one and one-half miles northwest 

of the Home Place. 

The Cantons have sold portions of the Eighty Acres to fellow 

defendants, William G. Schiller, Sr., Clara Schiller and Timothy 

Watson. The sale included a transfer to them of all easements 

appurtenant to the property. 

County Roadway No. 22, commonly called Bass Creek Loop Road 

is the shortest route between the Home Place and the Eighty Acres. 

County Road No. 22 travels generally north-south for approximately 

one-half mile through the eastern edge of Cummingsl property, then 

runs east-west one-half mile along the north border of Cummingsl 

property to the location of the old Bass School. From the school, 

the road then turns to run north-south along the western edge of 

the Eighty Acres. One mile north of the school, the road turns to 

run east-west and connects with Highway 93 on the east. 

In November, 1987, the Ravalli County Commissioners held 

public hearings on a petition to abandon County Road No. 22. 

Later, on January 15, 1988, the Ravalli County Commissioners 

abandoned a portion of County Road No. 22 by adopting Resolution 

No. 440. The portion of County Road No. 22, which was abandoned 

by Resolution No. 440, includes all of that portion of road which 
in the past crossed the Cummingsl property. 

Shortly after Ravalli County abandoned County Road No. 22, 

conflict arose between the Cummings and the Cantons over use of the 

abandoned portion of County Road No. 22, where it crossed Cummings 

property. The abandoned road provided a short cut for the Cantons 

traveling between the Home Place and the Eighty Acres. The Cantons 

in the past used the road to transport cattle and equipment between 

their properties. 

Since January 15, 1988, Cantons1 use of the road has been 

without the permission of the Cummings who have attempted to 

prevent anyone from using the portion of the abandoned road which 

crosses the Cummingsl property. The Cummings have requested the 

Cantons to ask permission before using the road through the 

Cummingsl property. The Cantons have refused. 

The Cummings filed their quiet title action on September 14, 

1988. Defendants claim their previous use of the road created a 

prescriptive easement. The District Court disagreed with the 

defendants, and granted Cummingsl quiet title claim. 

Whether the District Court erred in denying defendants! 

prescriptive easement claim? 

To establish a prescriptive easement, the owner of the 

purported dominant tenement must establish open, notorious, 

exclusive, adverse, continuous and unmolested use of the servient 

tenement for the full statutory period of five years required to 

acquire title by adverse possession. Riddock v. City of Helena 

(1984), 212 Mont. 390, 396, 687 P.2d 1386, 1389; Garret v. Jackson 
(1979), 183 Mont. 505, 508, 600 P.2d 1177, 1179. In order to 

determine if the defendants meet the above elements, we must first 

determine if the abandoned section of County Road No. 22 was 

previously a public road. As shown below, the defendants cannot 

establish a prescriptive easement by traveling on a public road. 

The public nature of the road prevents its use from being either 

adverse or exclusive. 

The principal contention of appellants is that the road 

abandoned by the county and the road over Cummings' property for 

which a prescriptive easement is claimed are not the same roads. 

The evidence at trial overwhelmingly supports the District 

Court's finding that the abandoned portion of County Road No. 22 

crossing Cummings' property was previously a public road. 

Defendant Joe Canton testified at trial that the road was a public 

road and that the County maintained the road. When asked about his 

recollection of the road use during his 69 years of living near the 

south end of County Road No. 22, Canton stated the following: 

Q. (By Mr. Cummings) Okay. So when you were in the 

first grade you lived here. A. Yes. 

Q. Okay. The way you got from--and when you were in the 

first grade, did you attend the first grade at this 

location? A. Correct. 

Q. Okay. Is it true that the way you got from your home 

to get to school in the first grade was you went up Shear 

Brook Lane and up Bass Creek Loop to the Bass Creek 

School? A. Correct. 

Q. Okay. Is is true that there was also a county mail 

route along this route? A. Correct. 
Q. Okay. Is it also true that from the time you can 

remember when you were just starting the first grade that 

this Bass Creek Loop Road was a very, very old road? A. 

Yes. 

Q. Is it also true that as long as you can remember the 

county has maintained that road? A. Yes. 

Q. Is it also correct that all the people, the members 

of the public, used this section, this three-eighths mile 

of Bass Creek Loop to get up to the Bass Creek School and 

back? A. Correct. 

Q. Okay. That's from as long as you can remember. A. 

Yes. 

Q. As a matter of fact your understanding was at all 

times from when you were little that this was a county 

(road) where it crossed my ground. A. Correct. 

Joe Canton's testimony reveals that historically County Road 

No. 22 was used as a public road, and maintained by Ravalli County. 

'I. . . If the road had been used and traveled by the public 

generally as a highway, and is treated and kept in repair as such 

by the local authorities whose duty it is to open and keep in 

repair public roads, proof of those facts 'furnishes a legal 

presumption that such road is a public highway. State v. Auchard 

(1898), 22 Mont. 14, 17, 55 P. 361, 362, overruled on other 

grounds, Reid v. Park County (Mont. 1991) 627 P. 2d 1210, 1213. The 

defendants have failed to show the road over which they claim an 

easement was not a public road. The evidence at trial revealed 

that the public freely traveled on the road. Furthermore, the road 

was shown on county maps as County Road No. 22, Bass Creek Loop 
Road. The defendants in their answer to Cummings' complaint 

admitted the abandoned portion of County Road No. 22 was previously 

a public road. 

Again, in order for a prescriptive easement to be acquired 

there must be open, notorious, exclusive, adverse, continuous, and 

unmolested use. Riddock, 687 P.2d at 1389; Garnet, 600 P.2d at 

1179. A public road is one which all people have a right to use. 

A defendant cannot establish a prescriptive easement by traveling 

on a public road. The open and public nature of the road 

forestalls its use from being adverse or exclusive. Thus, the 

defendants have failed to meet the elements of a prescriptive 

easement. Accordingly, we affirm the District Court. 

~4.w Justice