NO. 95-094 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

JACK R. TANNER and PATRICIA L. TANNER, 

FREDERICK MCFARLAND, SHERRIE MCFARLAND, 

and THOMAS J. FARRELL, 

Plaintiffs, Respondents, and 

Cross-Appellants, 

v. 

DREAM ISLAND, INC., a Nevada Corporation, 

and JUANITA DALY, 

Defendants, Appellants, and 

Cross-Respondents. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of .Lake~ ~-T, 

The Honorable Ed McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

John M. Morrison, Meloy & Morrison, 

Helena, Montana 

For Respondents: 

James A. Manley, Manley Law Offices, 

Poison, Montana 

Filed: 

Submitted on Briefs: January 25, 1996 

Decided: March 21, 1996 
Justice Charles E. Erdmann delivered the opinion of the Court. 

Defendants appeal from jury findings incorporated into a 

judgment, order, and permanent injunction issued by the Twentieth 

Judicial District Court, Lake County. The District Court adopted 

the jury's special verdict concerning disputed road easements and 

permanently enjoined defendants from obstructing plaintiffs' use 

and enjoyment of the easements. Plaintiffs cross-appeal on the 

issue of attorney fees. We affirm in part and reverse in part. 

The issues on appeal are as follows: 

1. What is the effect of the District Court's injunction, 

issued during the trial, which prevented Daly from obstructing 

plaintiffs' use and enjoyment of Indian Boulevard? 

2. Was there substantial credible evidence to support the 

jury verdict which found road easements by grant, prescription, and 

necessity? 

3. Did the District Court err in instructing the jury 

regarding prescriptive easements? 

4. Did the District Court abuse its discretion in concluding 

that an equitable award of attorney fees was not proper for either 

party in this case? 

FACTS 

The parties are adjoining landowners of lake front property on 

Flathead Lake. The properties are part of Lot 4, Block 2, of the 

Armo Villa townsite near the town of Big Arm. When the United 

States government platted the villa sites in 1910 it reserved a 
forty-foot boulevard called Indian Boulevard between the lots and 

the lake shore. This boulevard, like others around the lake, has 

historically been used for vehicular and foot traffic. In some 

places the boulevard has been used by adjacent lot owners as a lawn 

area or for cabin sites or boat houses. 

In 1932 Lot 4, Block 2, was divided in half. The Mueller 

Realty Company conveyed the north half to Eugenia Rochester (who 

also owned a nearby island named Dream Island) and the south half 

to Harry Mueller. Plaintiffs' title derives from Mueller and 

defendants' title derives from Rochester. The indenture to 

Rochester reserved: 

[Al right-of-way for road purposes over and upon the 

premises herein conveyed, to Harry J. Mueller of Butte, 

Montana, and to his heirs and assigns, forever, over and 

upon any and all roads now laid out and heretofore 

traveled over upon and across said premises, or any 

portion thereof. 

The transfer of the south half of Lot 4 to Mueller contained an 

identical easement reservation over and upon the land conveyed to 

Rochester. 

In 1959 Juanita Daly and her late husband, Marcus Daly III, 

purchased the north half of Lot 4 and Dream Island (the Daly 

property) from the Kirks who then owned the Rochester property. In 

1964 the Dalys conveyed the property to Dream Island, Inc., a 

solely owned private corporation. In 1965 Ross and Delores Young 

purchased the south half of Lot 4 from the Boetchers who then owned 

the Mueller property. The Youngs subdivided the property into 

3 
three smaller lots. These sublots were purchased by plaintiffs' 

predecessors and later conveyed to plaintiffs for summer homes. 

In 1971 Jack and Patricia Tanner purchased the sublot adjacent 

to the Daly property (the Tanner property). In 1981 Frederick and 

Sherrie McFarland purchased the sublot adjacent to the Tanner 

property (the McFarland property). In 1971 Thomas Farrell 

purchased the third sublot which lies adjacent to the Tanner and 

McFarland properties (the Farrell property). In 1974 Farrell 

conveyed his property to the United States to be held in trust for 

him as a tribal member. 

The Daly property lies north of the plaintiffs' property 

except for a small triangle of the McFarland property which is 

situated north of the Daly property. The Tanner property lies 

adjacent to and south of the Daly property. The McFarland property 

lies adjacent to and south of the Tanner property. The Farrell 

property lies adjacent to and southeast of both the Tanner and 

McFarland properties. The roads at issue are designated as A, Al, 

A2, B, C, D, E, F, and G. 

No witnesses were found who remembered the property in 1932 

but two nearby landowners remembered the property as far back as 

1934 or 1935. Sid Walker clearly remembers that the Rochesters and 

others, including the Tanners' predecessors, used roads A and G. 

Red Tucker bought nearby property in the mid-1930s and identified 

road B as the old county road. He and other landowners used road 

A to get down to road G on the boulevard. He testified that the 

4 
public, as well as the parties' predecessors, used roads A, B, 

and G. Other testimony established that prior residents used roads 

A, G, and E. 

Tanner testified that he has used roads A, A2, D, E, and G. 

Mrs. McFarland testified that she and her husband have used roads 

A, B, F, and G and Farrell testified that he has used roads A, Al, 

A2, and G. The Tanners and Farrells testified that they have used 

the roads for over twenty years and all parties stated they never 

sought permission from Daly to use the roads, as they believed 

permission was not necessary. Although Daly objects to plaintiffs 

using road A across her property, she admits that she uses road A 

across other people's property without their permission. 

In 1989 Daly's attorney wrote a letter to the plaintiffs 

acknowledging that plaintiffs had an easement over her property for 

those roads which were in existence in 1932--roads A and G--but 

that she intended to rescind her alleged permission to use other 

roads running across her property. Daly indicated in her letter 

that she intended to install a fence down the south boundary of her 

property, thereby blocking use of roads B, C, and D. 

In the fall of 1992, after the plaintiffs had left their 

property for the season, Daly erected a fence around her property. 

The fence extended nearly to the water, cutting off access to the 

Farrell property and to McFarlands' lake front property, as well as 

to their source of water. The fence made access to the Tanners' 

cabin difficult and cut Tanners off from their boat house, dock, 

5 
NO. 95-094 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

JACK R. TANNER and PATRICIA L. TANNER, 

FREDERICK MCFARLAND, SHERRIE MCFARLAND, 

and THOMAS J. FARRELL, 

Plaintiffs, Respondents, and 

Cross-Appellants, 

v. 

DREAM ISLAND, INC., a Nevada Corporation, 

and JUANITA DALY, 

Defendants, Appellants, and 

Cross-Respondents. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of ~La'ke. -:, 

The Honorable Ed McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

John M. Morrison, Meloy & Morrison, 

Helena, Montana 

For Respondents: 

James A. Manley, Manley Law Offices, 

Poison, Montana 

Filed: 

Submitted on Briefs: January 25, 1996 

Decided: March 21, 1996 
Justice Charles E. Erdmann delivered the opinion of the Court. 

Defendants appeal from jury findings incorporated into a 

judgment, order, and permanent injunction issued by the Twentieth 

Judicial District Court, Lake County. The District Court adopted 

the jury's special verdict concerning disputed road easements and 

permanently enjoined defendants from obstructing plaintiffs' use 

and enjoyment of the easements. Plaintiffs cross-appeal on the 

issue of attorney fees. We affirm in part and reverse in part. 

The issues on appeal are as follows: 

1. What is the effect of the District Court's injunction, 

issued during the trial, which prevented Daly from obstructing 

plaintiffs' use and enjoyment of Indian Boulevard? 

2. Was there substantial credible evidence to support the 

jury verdict which found road easements by grant, prescription, and 

necessity? 

3. Did the District Court err in instructing the jury 

regarding prescriptive easements? 

4. Did the District Court abuse its discretion in concluding 

that an equitable award of attorney fees was not proper for either 

party in this case? 

FACTS 

The parties are adjoining landowners of lake front property on 

Flathead Lake. The properties are part of Lot 4, Block 2, of the 

Armo Villa townsite near the town of Big Arm. When the United 

States government platted the villa sites in 1910 it reserved a 

2 
forty-foot boulevard called Indian Boulevard between the lots and 

the lake shore. This boulevard, like others around the lake, has 

historically been used for vehicular and foot traffic. In some 

places the boulevard has been used by adjacent lot owners as a lawn 

area or for cabin sites or boat houses. 

In 1932 Lot 4, Block 2, was divided in half. The Mueller 

Realty Company conveyed the north half to Eugenia Rochester (who 

also owned a nearby island named Dream Island) and the south half 

to Harry Mueller. Plaintiffs' title derives from Mueller and 

defendants' title derives from Rochester. The indenture to 

Rochester reserved: 

[A] right-of-way for road purposes over and upon the 

premises herein conveyed, to Harry J. Mueller of Butte, 

Montana, and to his heirs and assigns, forever, over and 

upon any and all roads now laid out and heretofore 

traveled over upon and across said premises, or any 

portion thereof. 

The transfer of the south half of Lot 4 to Mueller contained an 

identical easement reservation over and upon the land conveyed to 

Rochester. 

In 1959 Juanita Daly and her late husband, Marcus Daly III, 

purchased the north half of Lot 4 and Dream Island (the Daly 

property) from the Kirks who then owned the Rochester property. In 

1964 the Dalys conveyed the property to Dream Island, Inc., a 

solely owned private corporation. In 1965 Ross and Delores Young 

purchased the south half of Lot 4 from the Boetchers who then owned 

the Mueller property. The Youngs subdivided the property into 

3 
three smaller lots. These sublots were purchased by plaintiffs' 

predecessors and later conveyed to plaintiffs for summer homes. 

In 1971 Jack and Patricia Tanner purchased the sublot adjacent 

to the Daly property (the Tanner property). In 1981 Frederick and 

Sherrie McFarland purchased the sublot adjacent to the Tanner 

property (the McFarland property). In 1971 Thomas Farrell 

purchased the third sublot which lies adjacent to the Tanner and 

McFarland properties (the Farrell property). In 1974 Farrell 

conveyed his property to the United States to be held in trust for 

him as a tribal member. 

The Daly property lies north of the plaintiffs' property 

except for a small triangle of the McFarland property which is 

situated north of the Daly property. The Tanner property lies 

adjacent to and south of the Daly property. The McFarland property 

lies adjacent to and south of the Tanner property. The Farrell 

property lies adjacent to and southeast of both the Tanner and 

McFarland properties. The roads at issue are designated as A, Al, 

AZ, B, C, D, E, F, and G. 

No witnesses were found who remembered the property in 1932 

but two nearby landowners remembered the property as far back as 

1934 or 1935. Sid Walker clearly remembers that the Rochesters and 

others, including the Tanners' predecessors, used roads A and G. 

Red Tucker bought nearby property in the mid-1930s and identified 

road B as the old county road. He and other landowners used road 

A to get down to road G on the boulevard. Be testified that the 

4 
public, as well as the parties' predecessors, used roads A, B, 

and G. Other testimony established that prior residents used roads 

A, G, and E. 

Tanner testified that he has used roads A, A2, D, E, and G. 

Mrs. McFarland testified that she and her husband have used roads 

A, B, F, and G and Farrell testified that he has used roads A, Al, 

A2, and G. The Tanners and Farrells testified that they have used 

the roads for over twenty years and all parties stated they never 

sought permission from Daly to use the roads, as they believed 

permission was not necessary. Although Daly objects to plaintiffs 

using road A across her property, she admits that she uses road A 

across other people's property without their permission. 

In 1989 Daly's attorney wrote a letter to the plaintiffs 

acknowledging that plaintiffs had an easement over her property for 

those roads which were in existence in 1932--roads A and G--but 

that she intended to rescind her alleged permission to use other 

roads running across her property. Daly indicated in her letter 

that she intended to install a fence down the south boundary of her 

property, thereby blocking use of roads B, C, and D. 

In the fall of 1992, after the plaintiffs had left their 

property for the season, Daly erected a fence around her property. 

The fence extended nearly to the water, cutting off access to the 

Farrell property and to McFarlands' lake front property, as well as 

to their source of water. The fence made access to the Tanners' 

cabin difficult and cut Tanners off from their boat house, dock, 

5 
and barbecue pit. The fence was constructed of iron fence posts 

and chicken wire and the east end was nailed to the Tanners' boat 

house. When Mr. Tanner returned to the property in May 1993, he 

hired a crew to remove the section of the fence which crossed the 

boulevard. 
In March 1993 the Tanners and McFarlands filed a complaint in 

District Court claiming easements by grant and prescription and 

seeking an injunction to prohibit Daly from obstructing the use of 

their property or their egress and ingress. Plaintiffs requested 

a jury trial to determine compensatory, emotional distress, and 

punitive damages. In September 1993 the District Court granted 

plaintiffs' motion to join Farrell as a plaintiff who alleged 

easements by grant, prescription, and necessity. 

On June 13, 1994, Daly filed a motion for partial summary 

judgment on the issues of emotional distress, compensatory damages, 

and punitive damages. On July 20, 1994, Daly filed a motion for 

partial summary judgment on the issue of attorney fees. Plaintiffs 

subsequently withdrew their claim for emotional distress and on 

July 22, 1994, the District Court denied Daly's motion for summary 

judgment on compensatory and punitive damages. The claims for 

compensatory and punitive damages went to trial on August 30 

and 31, 1994. In an August 30, 1994, opinion and order, the 

District Court concluded as a matter of law that attorney fees were 

not available to either party. 

During trial the District Court issued an injunction 

prohibiting Daly from blocking road G which sits on Indian 

Boulevard. However, because there was still an issue of the 

reasonableness or maliciousness of Daly's actions in erecting the 

fence across the boulevard, the District Court did not want the 

jury contaminated or Daly prejudiced by knowledge of the 
injunction. The parties and the court agreed that the jury's 

special verdict form would therefore include the issue of easements 

over road G, even though that issue had already been decided by the 

court as a matter of law. 

The jury returned a special verdict for the plaintiffs and on 

September 12, 1994, the District Court entered its judgment and 

order incorporating the jury verdict. The jury determined that all 

plaintiffs had an easement by grant over roads A, Al, A2, B, and G. 

The jury found that Tanner had a prescriptive easement over roads 

D, E, and G, and that McFarland had a prescriptive easement over 

roads E and G. In addition, the jury found that Farrell had a 

prescriptive easement over road G, as well as an easement by 

necessity over roads A, Al, and G. The jury awarded compensatory 

damages in the amount of $166.25 (costs to remove the fence) and 

determined that no punitive damages should be awarded. On 

November 2, 1994, the District Court issued its final opinion, 

order, and permanent injunction denying the defendants' motion for 

judgment notwithstanding the verdict and upholding the jury 

verdict. This appeal and cross-appeal followed. 

ISSUE 1 

What is the effect of the District Court's injunction, issued 

during the trial, which prevented Daly from obstructing plaintiffs' 

use and enjoyment of Indian Boulevard? 

Ownership of Indian Boulevard is a complex issue with a number 

of different parties, including individual landowners, Lake County, 
the Confederated Salish and Kootenai Tribes, and the United States 

government, all claiming ownership interest. The plaintiffs did 

not allege ownership of the boulevard in their complaint and stated 

that resolution of that issue was beyond the scope of this action. 

Plaintiffs instead claimed that Daly had no right to the exclusive 

use of road G on the boulevard either because it belonged to the 

United States government or, if Daly did own it, it was subject to 

easements. 

On the second day of trial, and out of the presence of the 

jury, the District Court concluded as a matter of law that: 

Until such time as [Daly] has acquired a right to [Indian 

Boulevard] or permission from a court of jurisdiction, 

after serving notice on the Tribe and on the United 

States Government, and bringing an action with them as 

parties, she's enjoined from obstructing [road G on the 

boulevard]. 

In its November 2, 1994, opinion and order, the District Court 

clarified this issue: 

As to road G, the Court has previously ruled, as a matter 

of law, that ownership of Indian Boulevard cannot be 

decided without naming the relevant native american 

tribes and the United States government. However, as 

between Plaintiffs and Defendants, the jury found that to 

the extent Defendants claim to have any interest in 

road G, there is an easement by grant across Indian 

Boulevard in favor of Plaintiffs which is enforceable 

against the Defendants' claimed interest. Thus, 

Defendants and their successors in interest are 

permanently enjoined by the Court from obstructing in any 

way Plaintiffs' use and enjoyment of road G, no matter 

whom is ultimately decided to be the owner of Indian 

Boulevard. 

Daly does not appeal the issuance of the injunction concerning 

the boulevard, but rather limits her appeal to the easement 

9 
determinations. The issuance of the injunction renders the 

easement issues as to road G moot. As noted above, the jury was 

purposely made unaware of the fact that the District Court had 

issued an injunction during trial concerning Indian Boulevard. The 

jury therefore addressed the issue of easements over road G during 

its deliberation. Since the issuance of the injunction regarding 

road G is not before us and since the injunction renders the 

easements over the boulevard moot, we conclude that a review of the 

jury findings pertaining to easements on road G is unnecessary. 

ISSUE 2 

Was there substantial credible evidence to support the jury 

verdict which found road easements by grant, prescription, and 

necessity? 

We review a jury's verdict to determine if it is supported by 

substantial credible evidence. Barthule v. Karman (1994), 268 

Mont. 477, 485, 886 P.2d 971, 976 (citing Interstate Prod. Credit 

Ass'n v. DeSaye (1991), 250 Mont. 320, 322-23, 820 P.2d 1285, 

1287). Substantial evidence is defined as that evidence that a 

reasonable mind might accept as adequate to support a conclusion. 

Head v. Central Reserve Life (1993), 256 Mont. 188, 201, 845 P.2d 

735, 743. Evidence which is inherently weak and conflicting may 

still be considered substantial. Head, 845 P.2d at 743. When 

conflicting evidence exists, the weight and credibility given to it 

are within the province of the jury. Whiting v. State (1991), 248 

Mont. 207, 213, 810 P.2d 1177, 1181. When determining if 

10 
substantial evidence exists, this Court views the evidence in the 

light most favorable to the prevailing party. Whitinq, 810 P.Zd at 

1181. 

Easements bv Grant 

The jury found that plaintiffs possessed an easement by grant 

over roads A, Al, A2, and B, based on the 1932 deed transfers from 

the Mueller Realty Company to Eugenia Rochester and Harry Mueller. 

Daly argues on appeal that (1) she was a bona fide purchaser 

without knowledge of the easements, and (2) there was not 

sufficient evidence indicating that the above-mentioned roads were 

those referenced in the 1932 deeds. 

Daly's first argument fails for two reasons. The deeds in 

question which refer to the easements were admitted as plaintiffs' 

exhibits 0 CT, and ,1 D t1 at trial. The exhibits, on their face, 

indicate they were both recorded in the Lake County land records on 

October 19, 1932. The parties stipulated that the chain of title 

documents would be admitted into evidence without foundational 

testimony. Even though Daly argues on appeal that the deeds bears 

no signatures or notary seal, Daly did not object when the exhibits 

were admitted into evidence. She cannot now be allowed to refute 

the deeds' authenticity as failure to object to the issue at trial 

precludes her from raising the issue on appeal. See Hando v. PPG 

Industries, Inc. (1995), 272 Mont. 146, 900 P.2d 281; Bridger v. 

Lake (1995), 271 Mont. 186, 896 P.2d 406. Furthermore, Daly 

admitted that she was aware of the roads across her property when 

11 
she and her husband purchased the land, thus she had actual 

knowledge of the roads and therefore cannot now claim bona fide 

purchaser status. 

With respect to Daly's second argument, she is correct that 

there is no direct evidence that roads A, Al, A2, and B were those 

referred to in the 1932 deed. Neither party could find anyone 

whose memory dated back that far or obtain aerial photographs that 

old. However, the jury was presented with circumstantial evidence 

regarding the roads in question. Two elderly witnesses, Sid Walker 

and Red Tucker, testified that roads A and B existed in the 

mid-1930s and were well-traveled at the time. Walker identified 

the roads from a 1937 aerial photograph and testified that he used 

road A as a youngster to reach the lake. Tucker testified that 

road A was used at the time to get down to the boulevard and that 

road B was the old county road. Furthermore, Daly's attorney 

admitted in the 1989 letter to the plaintiffs that road A existed 

in 1932. 

The jury was presented with the evidence and weighed the 

testimony accordingly. Roads Al and A2 are actually a part of 

road A and are merely different forks, both of which lead to road G 

on the boulevard. Testimony was received that the public used 

road A in the mid-1930s to reach road G and that road B was the old 

county road. We conclude there was substantial credible evidence 

to support the jury's finding that plaintiffs possessed an easement 

12 
by grant over roads A, Al, A2, and B, and therefore affirm that 

portion of the jury's verdict. 

Easements bv Prescription 

The jury determined that Tanner possessed a prescriptive 

easement over roads D and E and that McFarland possessed a 

prescriptive easement over road E. Daly argues that there was no 

evidence in the record which established that plaintiffs' use of 

roads D and E was not permissive. Daly relies on a theory of 

neighborly accommodation alleging there was never any discussion 

between the parties or their predecessors regarding use of the 

roads and argues that courtesy by neighbors is not adverse and 

cannot ripen into a prescriptive easement. 

Plaintiffs concede that the jury erred in finding a 

prescriptive easement over road E in McFarlands' favor. The 

McFarlands did not testify that they used road E and therefore they 

did not establish a prescriptive use of the road. The Tanners, 

however, claim they were using roads D and E adversely under a 

belief of right based on the language of the 1932 deeds and argue 

that the burden was on Daly to show that the use was permissive. 

To establish an easement by prescription, the party claiming 

the easement must show open, notorious, exclusive, adverse, 

continuous, and uninterrupted use of the easement claimed for the 

full statutory period of five years. Public Lands Access v. Boone 

& Crockett (19931, 259 Mont. 279, 283, 856 P.Zd 525, 527 (citing 

Keebler v. Harding (1991), 247 Mont. 518, 521, 807 P.2d 1354, 

13 
1356). The burden is on the party seeking to establish the 

prescriptive easement and all elements must be proved. Public 

Lands Access, 856 P.2d at 527 (citing Downing v. Grover (1989), 237 

Mont. 172, 175, 772 P.2d 850, 852). To be adverse the use of the 

alleged easement must be exercised under a claim of right and not 

as a mere privilege or license revocable at the pleasure of the 

owner of the land. Public Lands Access, 856 P.2d at 527 (citing 

Keebler, 807 P.2d at 1356-57). Such claim must be known to and 

acquiesced in by the owner of the land. Public Lands Access, 856 

P.2d at 527 (citing Keebler, 807 P.2d at 1357). 

If the owner shows permissive use, no easement can be acquired 

since the theory of prescriptive easement is based on adverse use. 

Public Lands Access, 856 P.2d at 527 (citing Rathbun v. Robson 

(1983), 203 Mont. 319, 322, 661 P.2d 850, 852). We have stated 

that "'where the use of a way by a neighbor was by express or 

implied permission of the owner . . . continuous use of the way by 

the neighbor [is] not adverse and [does1 not ripen into a 

prescriptive right."' Public Lands Access, 856 P.2d at 528 

(quoting Wilson v. Chestnut (1974), 164 Mont. 484, 491, 525 P.2d 

24, 27). 

Roads D and E branch off of road A and lead to the Tanners' 

garage which has been there for at least fifty years. Mr. Tanner 

testified that he has used the roads openly and continuously and 

without permission for as long as he has owned his property--over 

twenty years. The Tanners believed they had a right to use the 

14 
roads based on the language of the 1932 deed and therefore 

permission from Daly was unnecessary. The Tanners were under no 

duty to communicate to Daly they were using the roads under a claim 

of right and adversely to her. See Woods v. Houle (1988), 235 

Mont. 158, 162, 766 P.2d 250, 252. 

Daly was aware of the 1932 deeds and their reservation of 

easements, and was also aware of the Tanners' use of the roads. 

The Tanners and Daly had unsuccessfully attempted to work out a 

cooperative maintenance agreement for roads. Daly was therefore 

aware of the right created by the deeds and acquiesced in the 

Tanners' use of the roads for a number of years. The Tanners 

established a presumption of adverse use of roads D and E under a 

claim of right based on their 1932 deed. 

We have stated that I" [iln order to overcome [the claim of 

right1 presumption, thereby saving its title from the encumbrance 

of an easement, the burden is on the defendant to show that the use 

was permissive."' Woods 766 P.2d at 252 (quoting Groshean, et al. 

v. Dillmont Realty Co. (1932), 92 Mont. 227, 239-40, 12 P.2d 273, 

275). The burden therefore shifted to Daly to present evidence of 

permissive use in support of her theory of neighborly 

accommodation. 

Daly testified as follows: 

Q: Now, you would agree, would you not, that you never 

gave anybody permission to use Roads B, C, D, E, F or G? 

A: I never told them not to. 

15 
Q: Well, would you agree that, in your deposition, you 

admitted that you never gave anyone permission to use any 

of those roads? 

A: Right 

. . . . 

Q: You didn't, in fact, socialize with them, did you? 

A: No. 

Q: You didn't have much contact at all with them, did 

YOU? 

A: No. 

Q: You didn't ever do anything -- 

A: No. 

Q: -- that led them to believe that you were granting 

them permission? 

A: No. 

The jury was presented with evidence and weighed the testimony 

concerning whether or not Daly granted permission to plaintiffs to 

use the roads in support of her theory of neighborly accommodation. 

The jury concluded that permissive use had not been established. 

The District Court stated that "there has been anything but 

neighborly accommodation on the part of Defendants regarding 

Plaintiffs' use of the roads in question." 

We conclude that there was substantial credible evidence to 

support the jury's finding that the Tanners possessed a 

prescriptive easement over roads D and E and therefore affirm that 

portion of the jury's verdict. We further conclude that the jury's 

finding that McFarland possessed a prescriptive easement over road 

16 
E is not supported by substantial credible evidence. We reverse 

that portion of the jury's verdict and remand for further 

proceedings in that regard. 

Easements by Necessity 

The jury determined that Farrell possessed an easement by 

necessity over roads A and Al. Daly argues that this issue should 

not have gone to the jury and that no easements by necessity were 

established as a matter of law, citing Schmid v. McDowell (1982), 

199 Mont. 233, 649 P.2d 431. 

In Issue 2 we held that all of the plaintiffs possessed an 

easement by grant over roads A, Al, A2, and B. We therefore need 

not reach the issue of whether Farrell possessed an easement by 

necessity over roads A and Al. 

ISSUE 3 

Did the District Court err in instructing the jury regarding 

prescriptive easements? 

The District Court instructed the jury as follows: 

The use of a neighbor's land based on neighborly 

accommodation or courtesy is not adverse and cannot ripen 

into a prescriptive easement. Thus, where the use of a 

right-of-way by a neighbor was by express or implied 

permission of the owner, the continuous use of the way by 

the neighbor is not adverse and does not ripen into a 

prescriptive right. The mere use of a way for the 

required time is not sufficient to give rise to the 

presumption of a grant. Some circumstances or act, in 

addition to the use, tending to indicate that the use was 

not merely permissive, is required. 

To establish an easement by prescription, the burden is 

on the Plaintiffs to show several elements. Plaintiffs 

or their predecessors in interest must have used the 

route openly, notoriously, exclusively, adversely, 

17 
continuously, and uninterrupted for the full statutory 

period of five years. 

Once the Plaintiffs establish these elements, adverse use 

is presumed, and the burden is then on the Defendants to 

show that the use was permissive. 

The Plaintiffs and their predecessors were under no duty 

to communicate by word of mouth to Defendants, or their 

predecessors in interest, that Plaintiffs were using the 

roadway under a claim of right and adversely to 

Defendants. 

Daly argues that on the one hand the District Court instructed 

the jury that the use of a neighbor's land based on neighborly 

accommodation is not adverse and cannot ripen into a prescriptive 

easement. Yet, on the other hand, the District Court instructed 

the jury that adverse use is presumed once the remaining elements 

for prescriptive easement are established. Daly claims that where 

the defense is permissive use through neighborly accommodation the 

presumption of adverse use should not apply. 

The plaintiffs counter that the presumption of adverse use 

applies in both express permission and implied permission 

situations and in any event Daly still had the burden to establish 

permissive use. The plaintiffs argue that even if the instruction 

was improper, it was harmless error because Daly did not come 

forward with sufficient evidence showing neighborly accommodation 

or permissive use. 

The general rule in Montana is that 111 [ilf the given instructions, when viewed in their entirety, state the correct law 

applicable to the case, there is no reversible error."' Buhr v. 

Flathead County (1994), 268 Mont. 223, 235, 886 P.2d 381, 388 

18 
(quoting Walden v. State (1991), 250 Mont. 132, 137, 818 P.2d 1190, 

1193). We have stated that 'I' [wlhen examining whether certain jury 

instructions were properly given or refused, we must consider the 

jury instructions in their entirety and in connection with other 

instructions given and the evidence introduced at trial."' Buhr -r 

886 P.2d at 388 (quoting Story v. City Bozeman (1993), 259 Mont. 

207, 222, 856 P.2d 202, 211). 

We conclude that the jury instruction given by the District 

Court correctly states the law applicable to the case. The 

substance of the instruction was taken from our holdings in Public 

Lands and Woods and it embodies the requirement that Daly has the 

burden to present evidence of permissive use. Plaintiffs believed 

they were using the roads adversely under a claim of right derived 

from the 1932 deed and Daly failed to adequately rebut this 

presumption. We affirm the District Court on this issue. 

ISSUE 4 

Did the District Court abuse its discretion in concluding that 

an equitable award of attorney fees was not proper for either party 

in this case? 

In its July 22, 1994, opinion and order denying Daly's motion 

for summary judgment on the issue of compensatory damages, the 

District Court stated that "should Plaintiffs prevail on their 

malice claims, equity may require an award of attorneys' fees under 

the Fey exception in order to fully compensate Plaintiffs in this 

action." 

19 
(1990), 245 Mont. 308, 800 P.2d 1053, and urges us to affirm the 

District Court's grant of summary judgment in her favor. 

The longstanding rule in Montana is that absent statutory or 

contractual authority attorney fees will not be awarded. Howell v. 

State (1994), 263 Mont. 275, 285, 868 P.2d 568, 574 (citing 

Goodover v. Lindey's, Inc. (19921, 255 Mont. 430, 445, 843 P.2d 

765, 774; Bitney v. School Dist. No. 44 (1975), 167 Mont. 129, 137, 

535 P.2d 1273, 1277; Ehly v. Cady (1984), 212 Mont. 82, 100, 687 

P.2d 687, 696). Our review of a district court's legal conclusion 

that no basis for attorney fees exists is plenary. Howell, 868 

P.2d at 574 (citing Steer, Inc. v. Dept. of Revenue (19901, 245 

Mont. 470, 474-75, 803 P.2d 601, 603). 

In isolated instances a district court may award attorney fees 

to make an injured party whole under its equity powers. See 

Stickney v. State (19811, 195 Mont. 415, 636 P.2d 860; Holmstrom 

Land Co. v. Hunter (1979), 182 Mont. 43, 595 P.2d 360; m. 

Furthermore, in certain instances in which bad faith or malicious 

behavior are involved this Court has made an equitable award of 

attorney fees. See Matter of Estate of Lindgren (1994), 268 Mont. 

96, 102, 885 P.2d 1280, 1284. 

1n FOY we created an exception to the general rule in order to 

compensate a party who, through no fault of her own, had been 

forced to hire an attorney to write and argue a motion to dismiss. 

We have subsequently explained the distinguishing characteristics 

of w by stating: "The Foy exception has been narrowly drawn and 

21 
HOWeVer, in its August 30, 1994, opinion and order the 

District Court concluded that " [tlhis Court has been presented with 

no facts which would justify the imposition of attorneys' fees 

under the Fov exception, and the equitable awarding of attorneys' 

fees is not proper as to either party in this case." 

The District Court further ordered that neither party would be 

allowed to present evidence of attorney fees to the jury, thus 

concluding as a matter of law that any compensatory damages which 

might be awarded would not include attorney fees. 

Plaintiffs argue that the District Court misconstrued their 

claim for attorney fees. Plaintiffs rely on Boz-Lew Builders v. 

Smith (1977), 174 Mont. 448, 571 P.2d 389, and Cate v. Hargrave 

(1984), 209 Mont. 265, 680 P.2d 952, and argue that when Daly 

erected the fence and denied them access to their lake shore 

properties, dock, and boat house, she set in motion a sequence of 

events under which they would inevitably incur attorney fees. 

Plaintiffs contend that the District Court erred by analyzing the 

issue under Foy v. Anderson (1978), 176 Mont. 507, 580 P.2d 114, 

and maintain that the issue should have gone to the jury as part of 

its determination of compensatory damages. 

Daly counters that the decision of whether or not to award 

attorney fees involves a question of equity and therefore lies 

within the discretionary powers of the District Court. Daly argues 

that resolution of the issue is controlled by Rasmussen v. Fowler 

20 
is applicable only where the action into which the prevailing party 

has been forced is utterly without merit or frivolous." Goodover, 

843 P.2d at 776 (citing State ex rel. Wilson v. Dept. of Natural 

Resources (1982), 199 Mont. 189, 202, 648 P.2d 766, 772). 

We first note that the present case presents neither a 

statutory nor a contractual basis for the award of attorney fees. 

Furthermore, we conclude this case does not fit within any of the 

narrow exceptions to the general rule. The Fov exception is not 

applicable, as here the plaintiffs obtained an attorney to initiate 

legal action. They were not forced to defend wholly frivolous 

litigation through no fault of their own. We stated in Goodover 

that "Goodover's position as the plaintiff in this litigation . 

will preclude an award of attorney's fees under Fey.” Goodover, 843 

P.2d at 775. Nor does the exception involving malicious action 

apply to the present case. Even though plaintiffs sought punitive 

damages due to Daly's alleged malicious conduct, the jury 

determined that punitive damages should not be awarded. The 

plaintiffs did not appeal that finding. 

Plaintiffs' reliance on fate is misplaced. There we affirmed 

the jury's award of attorney fees to Hargrave, a senior water 

appropriator, who suffered damages to a dam and headgate due to 

Gate's interference with the dam and headgate. Cate filed suit for 

a judicial determination as to whether Hargrave was wasting water 

by failing to maintain the dam and whether Hargrave was exceeding 

22 
his lawful appropriation of water. We affirmed the jury's award of 

attorney fees stating: 

The Hargraves as defendants were compelled to expend 

substantial sums of money to prove that which was obvious 

to them from the start: their valid senior right to 

thirteen cubic feet per second of McGregor Creek. 

w, 680 P.2d 957 (emphasis added). 

We distinguish the present case from Gate by noting that here 

the plaintiffs were not forced to defend a frivolous legal action 

nor were the easement rights they claimed as definitive as those 

associated with Hargrave's senior water right. Finally, while we 

do not condone Daly's actions in erecting the fence around her 

property we cannot conclude that such action is so reprehensible as 

to fall in line with our holding in Q.&. 

In Rasmussen the plaintiff operated a dry-land wheat farm on 

state leasehold property. When the defendant erected a gate across 

a road used by Rasmussen to reach the property, Rasmussen filed 

suit and requested injunctive relief. We determined that a 

prescriptive easement existed across the road but affirmed the 

district court's denial of attorney fees. Rasmussen, 800 P.2d at 

1057. 

We have held that absent an abuse of discretion this Court 

will not reverse the district court's decision concerning attorney 

fees. Sage v. Rogers (19931, 257 Mont. 229, 242, 048 P.2d 1034, 

1042 (citing Joseph Russell Realty Co. v. Kenneally (1980), 185 

Mont. 496, 505, 605 P.Zd 1107, 1112). The test for abuse of 

discretion is whether the trial court acted arbitrarily without 

23 
employment of conscientious judgment or exceeded the bounds of 

reason resulting in substantial injustice. Gaustad v. City of 

Columbus (1995), 272 Mont. 486, 488, 901 P.2d 565, 567. We 

conclude that the District Court did not abuse its discretion in 

determining that an equitable award of attorney fees was not proper 

for either party in this case. We affirm the District Court on 

this issue. 

Justice 

We concur: 

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