### 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, 1979Mr. Justice Gene B. Daly delivered the Opinion of the Court. his appeal isbrought by Leslie and Betty Jackson from

a decree of the DistrictCourt, Fifth Judicial District, declaringJoseph Garrett the owner of a prescriptive easement of way over their land inMadison County, Montana. The sole issueon appeal iswhether the evidence presented to the DistrictCourt supports 

### its finding thatGarrett's use

was adverse tothe titles of Jacksons and theirpredecessors ininterest and was notmerely permissive. In 1895Joseph and Sam Heggenberger builta slaughterhouse on a tractof land immediately north of MillCreek. They sold the tract in 1917 toWalter 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 stripof land known asthe "frontage tract." When Garrettpurchased the slaughterhouse 

### tract in 1946, the frontage tractwas owned by William Daniels. ~aniels' successors ininterest are Glen Marsh, who owned the tractuntil 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 tractfrom the county road. A wooden bridge spanned MillCreek permitting vehicular trafficonto the slaughterhouse tractuntil about 1968 when itwasweakened by flooding. Until 1958 the frontage tract was unenclosed, but in thatyear Marsh began raising sheep and constructed a wire fence around the tract tohold them on his land. when hebuilt the fence, Marsh did not leave a gateway along the county road. Consequently, when Garrett attempted toget onto his tracthe was confronted by a solid fence. Garrett selected a point on the fence about 100 feeteastof the route which he had previously followed, cut thewiresof the fence, and proceeded through. He twisted thewires together behind him tokeep the sheep from escaping, and laternotifiedMarsh of what he had done. Marsh was upset over Gar

### rett's action, but later agreed toplace a "drop wire" gate inthe fence atthe point where Garretthad clipped the 

### wires. Marsh offered toplace a gate atthe point where Garretthad previously entered the frontage tract, but never constructed such an entryway. Garrettcontinued touse the

new route across for the next 12 years until 1971, even though the regular slaughterhouse business ceased inthe early 1960's. There 

### was evidence thatwhen the Jacksons purchased the frontage tract in 1971Garrettrequested a written easement, which they refused. However, Garrett continued touse the gate builtby Marsh, driving as far asMillCreek, and crossing the creek on footonto his land. He alsocleared brush along the roadway with a chainsaw tokeep it open. In 1971Jacksons constructed a "jack fence" across the road about midway across their tract. Garrettdid not cut through this fence, but parked his vehicle by it and proceeded on footonto his land. In 1976 the Jacksons wired shut the gatewhich Garretthad 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,Garrettbrought this action. During the last two years before the gatewas chained and locked, Garretthad used the route across Jacksons' land some twenty to thirty 

### timesper year.It isclear from the evidence presented to the District Court thatplaintiff Garrett and hispredecessors in interest have used defendant Jacksons' land formany 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 tohave 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 titleby adverse possession. The claimant, however, isentitled torely 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 ViewCemetery 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 statutoryperiod, the burden fallsupon the owner of the servient tenement to show that the use was not adverse, butmerely permissive. Luoma, 588 P.2d at525, 35 St.Rep. at 1974; Mountain View Cemetery, 574 P.2d at254, 35 St.Rep. at 79; OtConnor v. Brodie (1969)r 153Mont. 129, 137, 454P.2d 920, 925. The Jacksons argue that Garrett's actof 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 isreadily explained by the presence of livestock on the frontage tract atthe time. Hisconcern forMarsh's sheep is inno way inconsistent with his claim of right-of-way. The DistrictCourt found specifically that afterMarsh installed the drop 

### wiregate Garrett would close the gate behind him if livestock werepresent, and leave it open if there were none. In atleast one other instance, thisCourt 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 DistrictCourt was 

### welljustified inconcluding that Garrett's use was adverse and hostile toMarsh's title. The Jacksons' second attempt toovercome 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. Aswas said inKostbade v. Metier (1967), 150Mont. 139, 145, 432 P.2d 382, 386, "[tlheevidence of thisone gate, admittedly built not to stoppeople but cattle, isnot enough standing alone torebut the presumption [thatthe 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 convenientmethod of holding his sheep in after Garrett passed through. Thus, the DistrictCourt'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: "Butwhether 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 theDistrictCourt's judgment thatGarrett has prescriptively acquired an easement across the land is supported by sufficient, substantial credible evidence. The judgment of the District Court is affirmed.

Justice 

# f

We concur:

Justices