No. 13691 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

MOUNTAIN VIEW CEMETERY, 

A Corporation, 

Plaintiff and Appellant, 

DAVID GRANGER and MRS. DAVID 

GRANGER et al., 

Defendants and Respondents and 

Cross Appellants. 

Appeal from: District court of the Second Judicial District, 

Honorable Arnold Olsen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Corette, Smith and Dean, Butte, Montana 

Kendrick Smith argued, Butte, Montana 

For Respondents: 

Henningsen, Purcell & Genzberaer, Butte, Montana 

Rex F. Henningsen argued, Butte, Montana 

Filed: 

Submitted: October 3, 1977 

Decided : JPN : i: 1978 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Mountain View Cemetery appeals from a judgment entered in 

the District Court, Silver Bow County, denying the Cemetery a 

roadway easement over the adjacent property of defendants 

Granger and denying an award of treble damages for the Grangers' 

cutting of two 60 foot blue spruce trees on the Cemetery's 

property. The Grangers crossappeal from the District Court's 

findings that the cemetery fence line was the true boundary 

line between the properties and from the award of $4,000 damages 

for the wrongful cutting of the cemetery's trees. 

The Cemetery, a corporation, brought action March 21, 1975, 

against the Grangers to establish the Cemetery's right to an 

easement by prescription across the southwest edge of Grangers' 

property near the city of Butte. The Cemetery also alleged 

damages of $12,000 for the cutting of the two trees just inside 

the Cemetery's fence line. 

The Grangers answered and filed a counterclaim against the 

Cemetery for encroachments upon Grangers' property. Grangers 

also filed a third party complaint against F.& S. Contracting 

Company and Title Insurance Company of Minnesota for insuring 

title free of the encumbrance of the easement alleged by the 

Cemetery. The District Court ordered a separate trial on the 

third party complaint pending outcome of the Cemetery-Granger 

dispute. 

The Cemetery property is adjacent to and south of the 

Granger property. For approximately 45 years cemetery personnel, 

and visitors to the cemetery regularly used, without interference, 

a strip of land approximately 25 feet wide by 247 feet long on 

the south border of the Granger's land as a second roadway into 
the cemetery. The road runs from west to east. The fence 

line involved is just to the south of the roadway. The blue 

spruce trees were just to the south of the fence, as was a 

garage and shed owned and used by the Cemetery. Over a period 

of 30 years the Cemetery corporation president, Carroll Fabian, 

had built up the roadway 2 to 3 feet, maintained the road at 

all times, kept it plowed in winter, and erected a "slow" sign 

near the road to direct traffic coming into the roadway from 

Harrison Avenue, a major thoroughfare in Butte which leads south 

out of Butte. Until the time of the controversy here, the 

Granger land was open, unenclosed, and unimproved, although at 

one time part of the land was used for a sand pit. 

The Grangers purchased the land adjacent to the cemetery 

in 1968. In 1973 the Grangers notified the Cemetery by mail to 

quit using the road. The Cemetery did not reply and continued to 

use the road. Before this letter there had never been contact 

between Cemetery personnel and the Grangers or their predecessors 

in interest concerning the use of the road. The ~rangers' land 

remained unfenced and unimproved until 1973, at which time they 

began construction of a car dealership on that site. 

The Cemetery continued to use the roadway until the 

Grangers blocked the roadway by parking large trucks and automobiles in it. The blockage of the road resulted in this action 

filed by the Cemetery against the Grangers seeking to establish 

the roadway as an easement. The Cemetery also alleged damages 

for wrongful cutting of 2 60-foot blue spruce trees just south 

of the alleged easement and inside the cemetery's fence line. 

Eb~ding the outcome of litigation the District Court granted a 

temporary order allowing the Cemetery to use a strip 15 feet by 

130 feet of the area in question, for access pending the outcome 

of the trial. 
The District Court denied the easement, finding that all 

elements for a prescriptive easement had been established except 

for adverse or hostile use. The court also fixed the cemetery 

fence line as the boundary line between the adjoining properties 

and assessed damages of $2,000 each for the 2 blue spruce trees 

cut by ~rangers' agents. The court did not award treble damages 

in the amount of $12,000 as requested by the Cemetery for the 

cutting of the trees. 

The Cemetery contends the trial court should have granted 

the easement and should have awarded $12,000 as treble damages 

for the cutting of the trees. In their crossappeal the Grangers 

contend the trial court erred in determining that the cemetery 

fence line is the actual boundary line between the adjacent 

properties. They further contend the $4,000 damages for cutting 

of the trees was improper because two surveys demonstrate the 

trees were actually on the ~rangers' property. 

Cemetery witnesses, including undertakers and florists, 

as well as the Cemetery owners, testified they had regularly 

used the road without seeking permission and without interference 

during periods of up to 45 years. The corporation's president 

testified that on Memorial Day alone, as many as 600 cars used 

the roadway in the past. Each day at least ten automobiles used 

the roadway to go to the cemetery. The Cemetery's evidence there 

was never permissive use was uncontradicted. Grangers contend 

it is not their duty to prove they or their predecessors in 

interest gave permission to the Cemetery to use the road. 

Over objection, the Cemetery introduced in evidence a 1914 

map depicting the boundaries of the cemetery property to be as 

the court found them. It is not clear whether nor not the map 

was based on a previous survey. In support of the map's accuracy 

a former Silver Bow County surveyor testified that during all 
the years he was in office, the county surveyor and his crews 

relied on the map as their "Bible" when they were working in 

the area of the cemetery. Also, Carroll Fabian, the Cemetery's 

corporation president, testified that using the map as a guide, 

he had measured to the fence line and it conformed to the 

dimensions stated in the-map. 

The Grangers introduced 2 independent surveys of the 

land involved, which established the cemetery fence was actually 

on the Grangers' property and that the trees south of the fence 

were also on the Grangers' property. There was a slight discrepancy between the 2 surveys. They agreed however, that one 

of the trees rested midway between the cemetery property and 

the Grangers' property. One of the surveys was made before the 

trees were cut, in conjunction with the purchase of the land 

by the Grangers, and the other was made after the trees were 

cut and after this controversy started. The Grangers contend 

the court was bound to accept the evidence and testimony offered 

by the 2 surveys. 

Grangers further contend that even if it is ultimately 

determined the trees were not on their property, nevertheless, 

in cutting the trees they relied in good faith upon a survey 

which showed the trees to be on their property. 

Under section 93-2507, R;C.M. 1947, a party claiming the 

existence of an easement by prescription must show open, 

notorious, exclusive, adverse continuous and uninterrupted use 

of the easement claimed for the full 5 years. Taylor v. Petranek, 

(1977), Mont . , 568 P.2d 120, 34 St.Rep. 905,909; Scott 

v. Weinheimer,(l962), 140 Mont. 554, 560, 374 P.2d 91; White 

v.> Kamps, (1946), 119 Mont. 102, 114, 171 P.2d 343. The 

controversy here is whether the use of the roadway was adverse 

or permissive. 

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Montana has consistently followed the minority rule with 

regard to unimproved and unenclosed lands, which holds that 

open, visible, continous and uninterrupted use of another's 

land raises a presumption that the use was also adverse. Taylor 

v. Petranek, supra; Lunceford v. Trenk, (1974), 163 Mont. 504, 

508, 518 P.2d 266; O'Connor v. Brodie, (1969), 153 Mont. 129, 

139, 454 P.2d 920; Scott v. Weinheimer, supra; TeSelle v. 

Storey, (1957), 133 Mont. 1, 5, 319 P.2d 218; Glantz v. Gable, 

(1923), 66 Mont. 134, 141, 212 P. 858. In O'Connor this Court 

placed the burden upon the owner to show that the use was 

permissive in order to overcome this presumption. 

The District Court found the Cemetery's use was open, 

visible, continuous and uninterrupted, but was not adverse or 

hostile. It is plain the court did not apply the presumption 

that the use is presumed hostile where the other elements are 

established under section 93-2507. Accordingly, it was incumbent upon the Grangers to establish that the use was initially 

permissive, and they wholly failed in this burden. They presented no evidence at all on this issue. They rely instead on 

the general rule that mere use of land for right of way raises 

a presumption of permissive use, and does not establish the 

element of adverse or hostile use which ripens into a prescriptive easement. See Anno. 46 ALR2d 1140. Grangers further contend laches bars the Cemetery's right to assert a prescriptive 

right. 

Even where the general rule is followed however, exceptions 

have been created where the circumstances of the claimant's use 

indicate something more than "mere use." Among these are 

circumstances where the owner is aware of and has not objected 
to -the use and the claimant has never solicited permission, 

Flener v. Lawrence, (1920), 187 Ky. 384, 220 S.W. 1041; where 

the claimant has improved the land and the landowner has 

acquiesced in the improvement, Gaut v. Farmer,(1963), 215 C.A.2d 

278, 30 Cal.Rptr. 94,97; Akers v. Moore, (Ky. 1958), 309 S-W.2d 

758; or where the vacant land was situated in an urban or well- # 

settled area, or otherwise in such a condition that the owner 

knew or should have known of the adverse use, Castillo v. 

Tabet Lumber Company, (1965), 75 N.M. 492, 406 P.2d 361, 363; 

Carlson v. Craig, (1953), 264 Wis. 632, 60 N.W.2d 395,398. 

It cannot be reasonably contended the Grangers and their 

predecessors in interest did not know of the use. The trial 

court found this as a fact and the Grangers do not contest 

that finding. Here, the Cemetery had built up the road to a 

height of almost 3 feet over a 30 year period and had maintained 

the road for the traffic of the cemetery. The cemetery fence 

line was to the south of the road and any owner of the land 

involved would have been put on notice as to the use made by 

the cemetery. Traffic on the road varied from as many as 

600 on a Memorial Day to a minimum of 10 on all other days. 

A "slowt' sign directed traffic on the road. This certainly 

was evidence of hostile intent. 

In OIConnor v. Brodie, (1969), 153 Mont. 129,140, 454 P.2d 

920, the Court stated there was a duty of a landowner to be on 

inquiry as to the physical evidence of use of his land by another, 

and that lack of objection by the landowner under certain circumstances "implies acquiescence and not a grant of license." 

Here, the Grangers and their predecessors in interest failed to 

object to the use of the road and the activity on the road. 
Even the general rule as contended for by the Grangers would 

not save them under these circumstances. The exceptions carved 

out of the general rule would also defeat their claim that the 

use was initially permissive. 

Neither do we find any merit in the Grangers' claim that 

the Cemetery should be barred by laches from enforcing a prescriptive easement. Over the entire 45 year period the Cemetery 

enjoyed the use of the land with complete acquiescence of the 

true owners. It was not until large trucks and cars were 

parked on the roadway that the Cemetery was prevented from 

enjoying the use of the road. By this time the Cemetery had 

already acquired its easement although not yet judicially 

enforced. When Grangers bought the land, they bought it 

subject to the easement. Section 67-1607, R.C.M. 1947. 

Accordingly, by operation of law the Grangers were put on 

notice of the easement when they purchased the land. This 

Court stated in 0' Connor : 

" * * * Prescriptive title once established is not 

divested by the subsequent transfer of the servient 

estate. The defendants' lack of knowledge, if any * * * is a matter which must be settled between the 

defendants and their grantor." 153 Mont. 139. 

The only clear threat to the enjoyment of this roadway 

was when it was blocked by trucks and cars. Laches applies 

when a party has been negligent in asserting his right, and 

"* * * where there has been a delay of such duration as to 

render enforcement of the asserted right inequitable." Davis 

v. Steingruber, (1957), 131 Mont. 468, 470, 311 P.2d 784. The 

Grangers argue their property investment is devalued because 

the Cemetery delayed bringing the action until after a large 

investment had been made and construction started. However, 

we see no duty imposed on the Cemetery to take action declaring 

its easement until such time as the Grangers threatened the 
actual enjoyment of the use of the road. The Cemetery had no 

duty to seek judicial enforcement of an easement until the 

easement's benefits were in jeopardy. 

We note that the only harm which results from upholding 

the easement arises from the Grangers' precipitous and premature 

commencement of construction without first settling the question 

of the road, From physical evidence of the road itself, as well 

as their own knowledge of the use of the road, they, and their 

predecessors in interest, were on notice long before construction 

began that the Cemetery was using the property in dispute as a 

roadway. Grangers cannot now claim that laches bars the 

Cemetery's right to enforce an easement upon that land. 

The final issue here concerns the failure of the court 

to award treble damages for cutting the trees. The District 

Court found that the cemetery fence line was the true boundary 

line between the adjacent properties and awarded actual damages 

for the value of the trees, $2,000 each. The Cemetery contends 

the trial court was bound by section 17-503, R.C.M. 1947, to 

award treble damages. The Grangers do not question the value 

of the trees, but contend in their crossappeal that the trial 

court was in error in fixing the cemetery fence line as the 

true boundary line between the adjacent properties. They contend 

the true boundary line is south of the fence line and even a 

little south of the area where the trees were growing. If 

correct, then the fence and the trees would be on the Grangers' 

property and they would not of course be liable for damages in 

cutting the trees. 

We do not agree the trial court was bound to establish the 

boundaries as shown by the Grangers' evidence. The Grangers 

relied on two independent surveys, one before this controversy 
arose, and the other in preparation for this controversy. Each 

survey established the true boundary line as south of the fence 

line and south of the trees. However, the trial court was not 

bound to accept their testimony. 

During its case the Cemetery introduced over objection, a 

1914 map which set out the boundaries of the cemetery property. 

It was not done in conjunction with a survey nor apparently even 

in reliance on a survey. However, the Grangers do not contend 

on appeal that it was error to admit this evidence. The former 

Silver Bow County surveyor testified that while he was in office 

he and his crews relied on this map extensively as establishing 

the boundaries of the cemetery. The president of the Cemetery 

corporation testified to his own measurements which conformed 

to the measurements depicted by the map. Neither do the Grangers 

contend it was error to admit this testimony. 

The conflict in the testimony and the evidence created a 

question of fact for the trial court and it was, of course, 

within the province of the trial court to resolve that issue 

against the Grangers as long as there was substantial evidence 

to support it. Taylor v. Petranek, (1977), Mont . -3 

568 P.2d 120, 34 St.Rep. 905,909. There was substantial evidence 

and accordingly, the trial court was correct in determining that 

the cemetery fence line was the true property line between the 

adjoining properties. 

We do not agree with the Cemetery however, that the trial 

court was bound to award treble damages against the Grangers 

for cutting the trees. The Cemetery relies on section 17-503, 

R.C.M. 1947, which provides: 
"For wrongful injuries to timber, trees, or 

underwood upon the land of another, or removal 

thereof, the measure of damage is three times 

such a sum as would compensate for the actual 

detriment, except where the trespass was casual 

and involuntary, or committed under the belief 

that the land belonged to the trespasser, or 

where the wood was taken by the authority of 

highway officers for the purposes of a highway; 

in which cases the damages are a sum equal to 

the actual detriment. It 

Under section 17-503 treble damages may be allowed except 

where the trespass was "casual and involuntary, or committed 

under the belief that the land belonged to the trespasser * * *." 

At trial it was agreed that this statute controlled as to 

whether or not the Cemetery was entitled to treble damages. 

In entering its findings however, the trial court relied on 

section 93-6103, R.C.M. 1947 (a statute regarding trespass to 

property and cutting of trees but not applicable to this case). 

Section 93-6103 has been interpreted by this Court to require 

that treble damages are only allowed where trees were cut with 

malice, wantonness, or evil design. The trial court found that 

there was no malice, wantonness or evil design, and accordingly, 

denied treble damages. Because the same finding is not required 

under section 17-503, the Cemetery asserts that it is entitled 

to treble damages as a matter of law. 

On the other hand, Grangers contend the trial court's 

decision on treble damages should be upheld, even if it was 

given for the wrong reasons, because there was evidence to 

support such a finding. They rely on a survey upon which they 

acted in cutting the trees, feeling the trees were on their 

property. The rule which the Grangers ask us to invoke is, 

one, 

under certain circumstances a salutary/ In re Williams' Estate, 

(1919, 52 Mont. 192, 156 P. 1087; Estate of Maricich, 145 Mont. 146, 

400 P.2d 873 (1965); but we do not agree it should be followed 

in this case. 
The determination of whether treble damages should be 

awarded under section 17-503, is a factual question. We cannot 

state as a matter of law that treble damages were required. Neither 

can we state that under all circumstances one can avoid treble 

damages by relying on a survey indicating the trees were on 

one's own property. The trial court made no findings as to 

the 

whether/ treble damages provision of the statute was excused 

under the facts of this case. 

We reverse the judgment of the District Court and direct 

that judgment be entered granting an appropriate easement to 

the Cemetery, together with the appropriate dimensions. We 

vacate the findings and conclusions of the trial court on the 

issue of treble damages and direct that findings and conclusions be entered guided by the provisions of.section 17-503, 

R.C.M. 1947. 

This cause is remanded to the District Court for further 

proceedings consistent with this opinion. 

We Concur: 

r 

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hie£ Justice