No. 14325 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

JOSEPH LeROY GARRETT, et al., 

Plaintiff and Respondent, 

-vsLESLIE F. JACKSON et al., 

Defendants and Appellants. 

Appeal from: District Court of the Fifth Judicial District, 

Honorable James Freebourn, Judge presiding. 

Counsel of Record: 

For Appellants: 

Schulz, Davis and Warren, Dillon, Montana 

John Warren argued, Dillon, Montana 

For Respondent : 

R. Thomas Garrison argued, Virginia City, Montana 

Submitted: September 24, 1979 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

 his appeal is brought by Leslie and Betty Jackson from 

a decree of the District Court, Fifth Judicial District, 

declaring Joseph Garrett the owner of a prescriptive easement of way over their land in Madison County, Montana. The 

sole issue on appeal is whether the evidence presented to 

the District Court supports its finding that Garrett's use 

was adverse to the titles of Jacksons and their predecessors 

in interest and was not merely permissive. 

In 1895 Joseph and Sam Heggenberger built a slaughterhouse on a tract of land immediately north of Mill Creek. 

They sold the tract in 1917 to Walter Ellinghouse, who 

operated the slaughterhouse until 1946 when Garrett and his 

wife purchased the land. Garrett continued the slaughterhouse operations until 1962 and remains the owner of the 

tract. Garrett's land, referred to as the "slaughterhouse 

tract," is separated from the county road by a strip of land 

known as the "frontage tract." When Garrett purchased the 

slaughterhouse tract in 1946, the frontage tract was owned 

by William Daniels. ~aniels' successors in interest are 

Glen Marsh, who owned the tract until 1971, and the present 

owners, the Jacksons. 

Since the slaughterhouse operations began in 1895, the 

owners of the slaughterhouse tract have gained access to 

their land by crossing the frontage tract from the county 

road. A wooden bridge spanned Mill Creek permitting vehicular traffic onto the slaughterhouse tract until about 1968 

when it was weakened by flooding. 

Until 1958 the frontage tract was unenclosed, but in 

that year Marsh began raising sheep and constructed a wire 

fence around the tract to hold them on his land. when he 
built the fence, Marsh did not leave a gateway along the 

county road. Consequently, when Garrett attempted to get 

onto his tract he was confronted by a solid fence. Garrett 

selected a point on the fence about 100 feet east of the 

route which he had previously followed, cut the wires of the 

fence, and proceeded through. He twisted the wires together 

behind him to keep the sheep from escaping, and later notified Marsh of what he had done. Marsh was upset over Garrett's action, but later agreed to place a "drop wire" gate 

in the fence at the point where Garrett had clipped the 

wires. Marsh offered to place a gate at the point where 

Garrett had previously entered the frontage tract, but never 

constructed such an entryway. Garrett continued to use the 

new route across for the next 12 years until 1971, even 

though the regular slaughterhouse business ceased in the 

early 1960's. 

There was evidence that when the Jacksons purchased the 

frontage tract in 1971 Garrett requested a written easement, 

which they refused. However, Garrett continued to use the 

gate built by Marsh, driving as far as Mill Creek, and 

crossing the creek on foot onto his land. He also cleared 

brush along the roadway with a chainsaw to keep it open. 

In 1971 Jacksons constructed a "jack fence" across the 

road about midway across their tract. Garrett did not cut 

through this fence, but parked his vehicle by it and proceeded on foot onto his land. In 1976 the Jacksons wired 

shut the gate which Garrett had used since 1958. Garrett 

clipped the wires and removed poles which Jacksons had 

placed over it. The Jacksons then chained and padlocked the 

gate, preventing Garrett from entering, and sent a letter to 

Garrett accusing him of being a trespasser. j hereafter, 
Garrett brought this action. During the last two years 

before the gate was chained and locked, Garrett had used the 

route across Jacksons' land some twenty to thirty times per 

year. 

It is clear from the evidence presented to the District 

Court that plaintiff Garrett and his predecessors in interest 

have used defendant Jacksons' land for many years as a means 

of access to the slaughterhouse tract. However, because 

Garrett changed the route in 1958, whatever claim he now has 

to a prescriptive easement must be shown to have accrued 

since that date and with respect to the new route. 

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. The 

claimant, however, is entitled to rely upon a presumption 

that his use was adverse to the servient owner's t i t l e i f he 

demonstrates by his evidence the other elements of his 

claim. Luoma v. Donohoe (1978), - Mont . I 588 P.2d 

523, 525, 35 St-Rep. 1971, 1973-74; Staudinger v. DeVries 

(1978) Mont. , 581 P.2d 1, 2, 35 St.Rep. 861, 863; 

Mountain View Cemetery v. Granger (1978), - Mont. I 

574 P.2d 254, 257, 35 St-Rep. 76, 79. 

Thus, when the dominant owner makes this preliminary 

showing of open, notorious, continuous, and unmolested use 

for the statutory period, the burden falls upon the owner of 

the servient tenement to show that the use was not adverse, 

but merely permissive. Luoma, 588 P.2d at 525, 35 St.Rep. 

at 1974; Mountain View Cemetery, 574 P.2d at 254, 35 St.Rep. 

at 79; OtConnor v. Brodie (1969)r 153 Mont. 129, 137, 454 
P.2d 920, 925. The Jacksons argue that Garrett's act of 

cutting the fence wires in 1958 was not hostile or adverse 

because Garrett rewired the fence after he had gone through 

it. However, Garrett's action is readily explained by the 

presence of livestock on the frontage tract at the time. 

His concern for Marsh's sheep is in no way inconsistent with 

his claim of right-of-way. The District Court found specifically that after Marsh installed the drop wire gate Garrett 

would close the gate behind him if livestock were present, 

and leave it open if there were none. In at least one other 

instance, this Court has described gate-cutting as a "distinct and positive assertion of a hostile right to the 

rights of the owner . . ." Taylor v. Petranek (1977), - 

Mont. , 568 P.2d 120, 123, 34 St.Rep. 905, 910. In this 

case, where Garrett cut the fence without seeking permission, and only later informed the servient owner of his act, 

the District Court was well justified in concluding that 

Garrett's use was adverse and hostile to Marsh's title. 

The Jacksons' second attempt to overcome the presumption that Garrett's use was adverse is their assertion that 

the presence of a gate through which Garrett could later 

pass is strong evidence of permissive use. However, this 

Court has ruled that the presence of a gate alone "will not 

defeat a prescriptive easement." Hayden v. Snowden (1978), 

Mont. , 576 P.2d 1115, 1118, 35 St.Rep. 367, 371. 

As was said in Kostbade v. Metier (1967), 150 Mont. 139, 

145, 432 P.2d 382, 386, "[tlhe evidence of this one gate, 

admittedly built not to stop people but cattle, is not 

enough standing alone to rebut the presumption [that the use 

was adverse] ." 
In the present matter, Marsh constructed a very simple 

gate at the point where Garrett cut through the fence, for 

the apparent purpose of providing a convenient method of 

holding his sheep in after Garrett passed through. Thus, 

the District Court's judgment that Garrett's use of the 

roadway from 1958 to 1971 was adverse to Marsh's title is 

supported by substantial credible evidence and by the presumption of adversity. There is no clear preponderance of 

the evidence against the District Court's conclusion. 

The Jacksons testified at trial that they were unaware 

of any claim to an easement across their property until some 

time after they purchased the land, and that even then, 

Garrett's use was not adverse. However, assuming that the 

District Court correctly concluded that Garrett's claim 

fully ripened from 1958 to 1971, it is not necessary for 

Garrett to again establish his claim after the transfer of 

the servient tenement. In O'Connor v. Brodie, supra, 153 

Mont. at 139, 454 P.2d at 926, this Court held that once the 

owners of a water line easement had acquired their prescriptive title, the servient owner's knowledge or lack of knowledge 

of the claim was immaterial: 

"But whether the defendants had actual knowledge 

of the underground water line is immaterial for 

the reason that plaintiffs had acquired prescriptive title prior to the time defendants acquired 

their property. Prescriptive title once establised is not divested by the subsequent transfer 

of the servient estate. Ferguson v. Standley, 

89 Mont. 489, 498, 300 P. 2d 245, [249]." 

See also Mountain View Cemetery v. Granger, supra, 574 P.2d 

at 258, 35 St-Rep. at 81. 

Garrett's use of the existing roadway from 1958 is 

sufficient to create a presumption of adverse use. The 

Jacksons failed to overcome that presumption, and the 
District Court's judgment that Garrett has prescriptively 

acquired an easement across the land is supported by sufficient, substantial credible evidence. 

The judgment of the District Court is affirmed. 

f Justice 

We concur: 

Justices