No 

No. 97-670

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 26

KENNETH E. HITSHEW

and DOROTHY J. HITSHEW,

Petitioners, Appellants, and 

Cross-Respondents, 

v.

BUTTE/SILVER BOW COUNTY; 

a political subdivision of the State of

Montana, JOHN DOE CORPORATION; and

UELAND RANCHES, INC., a Montana

business corporation,

Respondents, Respondents, and

Cross-Appellants.

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APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Silver Bow,

The Honorable John W. Whelan, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

John Leslie Hamner, Butte, Montana

For Respondent:

William M. O'Leary, Corette, Pohlman & Kebe, Butte, Montana (Butte-Silver Bow County); William M. Kebe, 

Jr., Corette, Pohlman & Kebe, Butte, Montana (Ueland Ranches, Inc.)

Submitted on Briefs: August 6, 1998

Decided: February 18, 1999

Filed:

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__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

¶1. Kenneth E. Hitshew and Dorothy J. Hitshew (the Hitshews) appeal from the 

March 3, 1997 order of the Second Judicial District Court, Silver Bow County, 

entering summary judgment in favor of Butte-Silver Bow County (the County), John 

Doe Corporation, and Ueland Ranches, Inc. (Ueland). The County cross-appeals 

from the April 16, 1997 order of the District Court denying its request for certain 

costs. We affirm in part, reverse in part, and remand this cause for further 

proceedings consistent with this opinion.

¶2. We restate the issues as follows:

¶3. 1. Did the District Court err in granting the County's and Ueland's motions for 

summary judgment and denying the Hitshews' petition for declaratory judgment?

¶4. 2. Did the District Court err in denying the County's request for the costs of 

survey maps and an aerial photograph?

BACKGROUND

¶5. In July 1993, the Hitshews entered into a contract with Ueland for the purchase 

of a triangle-shaped tract of real property located in Silver Bow County (hereinafter 

"Tract A"). German Gulch Road is an undedicated, county-maintained road which 

travels through the entire length of Tract A in a south-easterly direction. According 

to the certificate of survey for Tract A, the south edge of German Gulch Road forms 

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the southern property boundary of Tract A. Ueland owns the land to the south of 

German Gulch Road. When Ueland sold Tract A to the Hitshews, it reserved an 

easement over German Gulch Road to access its property. Before the sale of Tract A, 

Ueland had erected a fence thirty feet from and parallel to the southern edge of the 

road. After purchasing Tract A, the Hitshews erected a fence along the northern 

edge of the road. A cattle guard is located inside Tract A at the extreme northeast 

corner of the triangle where German Gulch Road intersects Tract A.

¶6. German Gulch Road has been utilized by the public and referenced on various 

maps since the turn of the century. Since 1959, the road has been referenced on maps 

prepared by the State Highway Commission as a road maintained by Silver Bow 

County. The County's maintenance of German Gulch Road includes spreading and 

blading gravel to maintain the road's surface, ditch digging, and snow removal. The 

road has never been gated or fenced to prevent travel over Tract A, and no 

landowner has denied the County access to the road.

¶7. Sometime after the sale of Tract A, the County approached Ueland about 

establishing a service road over property owned by Ueland from German Gulch 

Road to the site of the County's Tax Increment Financing Industrial District Number 

2 (TIFID No. 2) where a silicon manufacturing plant was to be built. The County 

needed this service road for ingress and egress to construct water and sewer facilities 

in TIFID No. 2. Ueland granted the County use of its existing easement over German 

Gulch Road, as well as a temporary easement for the period beginning April 25, 

1996, and ending August 1, 1996, to construct a service road over its property from 

German Gulch Road to TIFID No. 2. Ueland and the County agreed that 

construction of the service road would begin at the extreme northeast corner of Tract 

A, where German Gulch Road intersects Tract A, and continue in a southeasterly 

direction approximately one mile to TIFID No. 2.

¶8. On April 26, 1996, the County began construction of the service road. The 

County removed the cattle guard located at the intersection of German Gulch Road 

and Tract A, and Ueland assisted in removing a portion of the fence south of German 

Gulch Road. Thereafter, the Hitshews came upon the construction site and were 

distressed to find that the cattle guard and a portion of the southern fence had been 

removed. The Hitshews commenced an action against the County, Ueland, and the 

unknown corporation slated to build the silicon manufacturing plant for damages 

arising from the alleged trespass on their property. In the same complaint, the 

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Hitshews sought a declaratory judgment, asking the court to determine the County's 

rights in and to the use of German Gulch Road.

¶9. The County and Ueland (collectively the Respondents) responded by filing 

motions to dismiss for failure to state a claim upon which relief may be granted 

pursuant to Rule 12(b)(6), M.R.Civ.P. Upon submission of the parties' briefs on the 

motions, the District Court ordered a hearing to take place November 25, 1996. At 

the hearing, in addition to the pleadings, Respondents presented testimony from 

Robert Everly, a licensed surveyor in Montana, Don Ueland, co-owner of Ueland 

Ranches, Inc., and Jim Johnston, the Director of Public Works for the County. 

Respondents also presented various exhibits including an aerial photograph, a map 

prepared by the State Highway Commission, and survey maps prepared by Mr. 

Everly. In accordance with Rule 12(b), M.R.Civ.P., the court converted the pending 

motions to dismiss to motions for summary judgment and allowed the parties time to 

brief the matter.

¶10. On March 3, 1997, after a second hearing, submission of the parties' briefs, and 

oral argument, the court issued an order and memorandum granting the County's 

motion for summary judgment, granting in part and denying in part Ueland's 

motion for summary judgment, and denying the Hitshews' petition for declaratory 

judgment. The court held: no question of fact existed regarding the County's 

prescriptive easement over German Gulch Road; no question of fact existed 

regarding Ueland's reserved easement over German Gulch Road; and no question of 

fact existed regarding Ueland's ownership of the southern fence and strip of land 

lying in between the fence and the southern edge of German Gulch Road. However, 

the court held that a question of fact existed regarding the ownership of the cattle 

guard which had been removed. The dispute over ownership of the cattle guard was 

the subject of a later summary judgment motion. On this motion, the court granted 

summary judgment in favor of the Hitshews and awarded them $500 in damages 

resulting from the unlawful removal of their cattle guard.

¶11. On March 10, 1997, the County filed with the court a bill of costs including costs 

incurred for the preparation of survey maps and an aerial photograph used at the 

hearing. The Hitshews objected to these costs on the ground that they were not 

incurred in preparation for the hearing. The Hitshews filed a notice of motion to 

settle bill of costs. On April 16, 1997, the court issued an order and memorandum 

settling the dispute over costs in favor of the Hitshews.

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¶12. The Hitshews appeal the court's March 4, 1997 order granting the Respondents' 

motions for summary judgment. The County cross-appeals the court's April 16, 1997 

order denying its request for costs related to the preparation of survey maps and the 

aerial photograph.

DISCUSSION

Issue One

¶13. Did the District Court err in granting the County's and Ueland's motions for summary 

judgment and denying the Hitshews' petition for declaratory judgment?

¶14. We review appeals from summary judgment rulings de novo. Axtell v. M.S. Consulting, 1998 MT 64, 

¶ 21, 288 Mont. 150, ¶ 21, 955 P.2d 1362, ¶ 21. We apply the same summary judgment evaluation, based 

on Rule 56, M.R.Civ.P., as the district court. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 

900 P.2d 901, 903. In Bruner, we set forth our inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the 

burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine 

issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine 

whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by 

a district court as to whether the court erred.

Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).

¶15. The Hitshews argue that genuine issues of material fact exist in this case, 

making summary judgment improper. First, the Hitshews argue that a question of 

fact exists as to whether the County's use of German Gulch Road is permissive or 

prescriptive. The Hitshews cite Warnack v. Coneen Family Trust (1994), 266 Mont. 

203, 216, 879 P.2d 715, 723, for the rule that the party claiming a prescriptive 

easement has the burden of proving each and every element of prescription. Without 

further analysis or citation to the record, the Hitshews assert that the County failed 

to meet its burden of proving each and every element of prescription. We disagree.

¶16. An easement by prescription is created by operation of law. Rettig v. Kallevig 

(1997), 282 Mont. 189, 193, 936 P.2d 807, 810. Generally, a party claiming an 

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easement by prescription must establish open, notorious, exclusive, adverse, 

continuous, and uninterrupted use of the claimed easement for the statutory fiveyear period. Rettig, 282 Mont. at 193, 936 P.2d at 810. We have applied this same 

criteria, although worded differently, in the context of public prescriptive easements. 

In Granite County v. Komberec (1990), 245 Mont. 252, 257, 800 P.2d 166, 169, we 

held:

That the public may acquire the right by prescription to pass over private land is 

undisputed and such is the law in Montana. To establish the existence of a public road by 

prescription it must be shown that the public followed a definite course continuously and 

uninterruptedly for the prescribed statutory period together with an assumption of control 

adverse to the owner . . . .

Because a public prescriptive easement is "public," the element of exclusivity is not 

required in establishing the existence of a public prescriptive easement.

¶17. To be "open and notorious," the use of a claimed right must give the landowner 

actual knowledge of the claimed right, or be of such a character as to raise a 

presumption of notice. Mildenberger v. Galbraith (1991), 249 Mont. 161, 167, 815 

P.2d 130, 134-35. To be "continuous and uninterrupted," the use of a claimed right 

must not be abandoned by the user or interrupted by an act of the landowner. 

Komberec, 245 Mont. at 257, 800 P.2d at 169. To be "adverse," the use or 

assumption of control of a claimed right must be exercised under a claim of right and 

not as a mere license revocable at the pleasure of the landowner. Public Lands Access 

Ass'n v. Boone & Crockett (1993), 259 Mont. 279, 283, 856 P.2d 525, 527. The 

landowner must know about and acquiesce in the user's claim of right. Boone & 

Crockett, 259 Mont. at 283, 856 P.2d at 527.

¶18. Regarding proof of adversity, we have held that regular maintenance of a 

roadway by the party asserting a prescriptive easement is evidence of adverse, rather 

than permissive, use. Rafanelli v. Dale (1996), 278 Mont. 28, 37, 924 P.2d 242, 248. 

Similarly, we have held that the public's use coupled with a county government's 

regular maintenance of a roadway without the landowner's permission is evidence of 

adverse use. Rasmussen v. Fowler (1990), 245 Mont. 308, 312, 800 P.2d 1053, 1056; 

McClurg v. Flathead County Comm'rs (1980), 188 Mont. 20, 24, 610 P.2d 1153, 1156. 

The fact that a roadway has been barred by gates or other obstructions to be opened 

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and closed by the parties passing over the land is strong evidence that use of the 

roadway is permissive rather than adverse. Boone & Crockett, 259 Mont. at 285, 856 

P.2d at 528.

¶19. At the summary judgment hearing, the County presented the following evidence 

in support of its position that a public prescriptive easement exists over German 

Gulch Road. Mr. Hitshew testified that from 1989 until the time of the summary 

judgment hearing, a total of seven years, he was aware that the public was using 

German Gulch Road and that the County was maintaining the road. Mr. Hitshew 

testified that he never erected gates, other barriers, or signs on the road to create the 

impression that use of the road was permissive. He testified that he never verbally 

notified the County that its use and maintenance of the road was permissive. The 

record is void of any evidence that the public abandoned its use of the road. Don 

Ueland testified that during his family's ownership of the Ueland property, 

approximately 70 years, the public has used German Gulch Road without restriction. 

Jim Johnston testified that for the entire period he has served as Public Works 

Director for the County, 22 years, the County has maintained German Gulch Road 

and has used it without restriction. For approximately 40 years, German Gulch Road 

has been referenced on maps prepared by the State Highway Commission as a road 

maintained by Silver Bow County.

¶20. Applying these facts to the law, we determine that the County presented 

sufficient evidence establishing that the public's use of German Gulch Road was 

open, notorious, continuous, uninterrupted, and adverse for the statutory five-year 

period, or, that "the public followed a definite course continuously and 

uninterruptedly for the prescribed statutory period together with an assumption of 

control adverse to the owner."

¶21. Once the County established all the elements of prescription, the burden shifted 

to the Hitshews to prove permissive use or license. Warnack, 266 Mont. at 216, 879 

P.2d at 723. If a landowner shows permissive use, no easement can be acquired 

because the theory of prescriptive easement is based on adverse use. Boone & 

Crockett, 259 Mont. at 283-84, 856 P.2d at 525. The Hitshews argue that the 

County's use of German Gulch Road was permissive because it was based on 

neighborly accommodation. See Boone & Crockett, 259 Mont. at 284, 856 P.2d at 528 

("use of a neighbor's land based upon mere neighborly accommodation or courtesy is 

not adverse"). However, at the summary judgment hearing and on appeal, the 

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Hitshews failed to present evidence of neighborly accommodation. No evidence 

appears of record indicating that neighborly accommodation was the local custom 

concerning use of German Gulch Road. A party opposing summary judgment must 

present facts of a substantial nature and cannot rely on speculative, fanciful, or 

conclusory statements. Sprunk v. First Bank System (1992), 252 Mont. 463, 466, 830 

P.2d 103, 105. Mere conclusory statements are insufficient to raise a genuine issue of 

material fact. Sprunk, 252 Mont. at 466-67, 830 P.2d at 105. Based on the absence of 

evidence establishing permissive use, we conclude that the District Court did not err 

in finding that no question of fact existed regarding the public's prescriptive 

easement over German Gulch Road.

¶22. Next, the Hitshews argue that a question of fact exists as to whether the County 

exceeded the scope of its prescriptive easement by constructing the service road to 

TIFID No. 2. We have held that "if an easement is not specifically defined, it need 

only be such as is reasonably necessary and convenient for the purpose for which it 

was created." Strahan v. Bush (1989), 237 Mont. 265, 268, 773 P.2d 718, 720. 

Similarly, we have held:

no use may be made of the right-of-way different from the use established at the time of 

the creation of the easement so as to burden the servient estate to a greater extent than was 

contemplated at the time the easement was created.

Leffingwell Ranch, Inc. v. Cieri (1996), 276 Mont. 421, 431, 916 P.2d 751, 757. Applying 

these rules, the Hitshews argue that the scope of the County's prescriptive easement 

includes only travel over and maintenance of German Gulch Road. The Hitshews allege 

that the County exceeded the scope of its easement when it left German Gulch Road and 

constructed the service road. The Hitshews premise this allegation on the assertion that the 

true property boundary of Tract A is not the southern edge of German Gulch Road but 

rather the southern fence located thirty feet from and parallel to the southern edge of 

German Gulch Road. Upon this assertion, the Hitshews reason that in constructing the first 

thirty feet of the service road and traveling over property allegedly owned by the 

Hitshews, the County unduly exceeded the scope of its prescriptive easement over German 

Gulch Road. 

¶23. The County does not dispute that the scope of its prescriptive easement includes 

only travel over and maintenance of German Gulch Road. However, the County 

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disputes the allegation that it exceeded the scope of its easement by constructing the 

service road to TIFID No. 2. The County argues that the uncontradicted evidence 

shows that the property over which the service road was being constructed was 

owned not by the Hitshews, but by Ueland, from whom the County had acquired a 

separate temporary easement. Thus, the County argues, no genuine issue of material 

fact exists with regard to whether the County exceeded the scope of its easement. We 

agree.

¶24. At the summary judgment hearing, the County presented a survey map 

prepared by Robert Everly, a licenced surveyor, showing that the southern property 

boundary of Tract A was the southern edge of German Gulch Road, not the fence 

located 30 feet from the southern edge of the road. The Hitshews failed to present 

any evidence contradicting the survey map other than Mr. Hitshew's conclusory 

statement that the southern fence was the southern property boundary of Tract A. 

Again, mere conclusory statements are insufficient to raise a genuine issue of 

material fact. Sprunk, 252 Mont. at 466-67, 830 P.2d at 105. We conclude that the 

Court did not err in finding that no genuine issue of material fact existed with regard 

to whether the County exceeded the scope of its easement.

¶25. Next, the Hitshews argue that a question of fact exists regarding whether 

construction of the service road unduly changed the amount and character of use of 

German Gulch Road in such a manner as to overburden the servient estate beyond 

what was contemplated by the public prescriptive easement. See Leffingwell, 276 

Mont. at 431, 916 P.2d at 757. The Hitshews note that this issue was presented in its 

brief opposing summary judgment, but that the District Court failed to discuss the 

issue in its order and memorandum granting summary judgment to the Respondents. 

This failure, the Hitshews argue, is another reason why summary judgment was 

improper in this case.

¶26. We need not address the matter of the court's failure to discuss the issue of 

increased burden on the servient estate because the Hitshews failed to present to the 

District Court any evidence of increased burden on the servient estate. The only 

evidence in the record pertaining to this matter is Don Ueland's testimony that he 

"would imagine" construction of the service road changed the amount and character 

of use of German Gulch Road, but only up to the point where German Gulch Road 

intersects the extreme northeast corner of Tract A. We note that the service road 

connects to German Gulch Road at the extreme northeast corner of Tract A. Mr. 

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Ueland testified that he did not observe any change in the amount and character of 

use of German Gulch Road as that road continues in a southwesterly direction 

through the length of Tract A. Based on the absence of evidence establishing 

increased use of German Gulch Road as it passes over Tract A, we conclude that no 

question of material fact exists regarding whether construction of the service road 

unduly changed the amount and character of use of German Gulch Road to the 

detriment of the servient estate.

¶27. Lastly, the Hitshews again cite Leffingwell, 276 Mont. at 431, 916 P.2d at 757, 

and argue that a question of fact exists regarding whether Ueland exceeded the scope 

of its reserved easement over German Gulch Road by granting the County use of the 

reserved easement. The District Court did not address this issue in its order and 

memorandum granting summary judgment to Respondents. We need not address the 

court's failure to discuss this issue because the issue is moot. We have already 

determined that a public prescriptive easement exists over German Gulch Road. 

Thus, by virtue of this easement, the County had a right to travel over German 

Gulch Road independent of the easement it obtained from Ueland. In light of these 

facts, we decline to discuss the merits of whether Ueland exceeded the scope of its 

reserved easement over German Gulch Road by granting the County use of its 

reserved easement.

Issue Two

¶28. Did the District Court err in denying the County's request for the costs of survey 

maps and an aerial photograph?

¶29. We review a district court's denial or award of costs for abuse of discretion. 

Springer v. Becker (1997), 284 Mont. 267, 275, 949 P.2d 641, 646.

¶30. In its Bill of Costs submitted to the District Court, the County requested costs in 

the amount of $216 for certain survey maps and an aerial photograph pursuant to § 

25-10-201(8), MCA. That statute provides in pertinent part:

Costs generally allowable. A party to whom costs are awarded in an action is entitled to 

include in his bill of costs his necessary disbursements, as follows: . . . (8) the reasonable 

expenses for making a map or maps if required and necessary to be used on trial or 

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hearing; . . .

The Hitshews objected to these costs on the ground that the expenses incurred in the 

making of the survey maps and in the taking of the aerial photograph predated the filing of 

the complaint in this action. On this basis, the Hitshews argued that these expenses were 

not incurred in preparation for a trial or hearing as required by § 25-10-201(8), MCA. The 

court agreed and denied the County recovery of the costs.

¶31. On appeal, the County argues that the District Court erred in denying recovery 

of these costs because the record demonstrates that the survey maps and aerial 

photograph, collectively referred to as Exhibit 1, were prepared at the request of the 

County for specific use in this action. In response to the question whether he 

prepared Exhibit 1 at the request of counsel for the County, Mr. Everly replied, 

"That's correct."

¶32. The Hitshews counter that despite Mr. Everly's comment, the record 

demonstrates that the survey maps and aerial photograph at issue predated this 

litigation. The Hitshews point to Mr. Everly's testimony that one survey, Certificate 

of Survey 191-A, is dated December 18, 1980, and that the fly date of the aerial 

photograph is listed as April 15, 1996. We note that the other survey, Certificate of 

Survey 87, is dated March 28, 1977. The creation of all three documents occurred 

before commencement of this action.

¶33. It appears there is confusion among the parties as to whether the costs incurred 

in the preparation of Exhibit 1 related to the expenses of creating the survey maps 

and aerial photograph, or to the expenses of copying the survey maps and aerial 

photograph. The County's Bill of Costs, Mr. Everly's testimony, and the briefs on 

appeal fail to shed light on whether the claimed $216 related to the creation or 

copying of these documents. However, we have examined the survey maps 

comprising Exhibit 1 and have found that a signature, stamp, and seal of the county 

clerk and recorder appears on each survey map, indicating that it "is a true, 

complete, and correct copy of the original." The survey maps are dated November 20 

and 25, 1996, indicating that they were copied approximately seven months after 

commencement of this action. Thus, it appears that the costs claimed for the survey 

maps related to the copying of the maps and did not predate this litigation. We 

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conclude that the County is entitled to recover the cost of copying the survey maps as 

it was a necessary disbursement incurred in the preparation for the summary 

judgment hearing.

¶34. The aerial photograph was not delivered to this Court as part of the record on 

appeal. We have not found any evidence in the transcripts on appeal indicating 

whether the aerial photograph used in Exhibit 1 was the original, created on April 

15, 1996, or a copy of the original, made sometime after commencement of this 

action. Without this knowledge we are unable to determine whether the County is 

entitled to recover the cost of the aerial photograph. We remand this issue to the 

District Court for a determination as to whether the aerial photograph used in 

Exhibit 1 was the original or a copy of the original. If the photograph was a copy of 

the original, and if that copy was made after commencement of the action, then the 

County is entitled to recover the cost of the aerial photograph.

¶35. With respect to issue one of this opinion, the judgment of the District Court is 

affirmed. With respect to issue two of this opinion, the judgment of the District Court 

is reversed and this cause is remanded to the District Court for further proceedings 

consistent with this opinion.

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ TERRY N. TRIEWEILER

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

/S/ KARLA M. GRAY

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