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: 

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ClerkMr. Justice Daniel J. Shea delivered the Opinion of the Court.

Mountain View Cemetery appeals from ajudgment 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 footblue spruce trees on the Cemetery's property. The Grangers crossappeal from the District Court's findings that the cemetery fence linewas the trueboundary linebetween the properties and from the award of $4,000 damages for the wrongful cutting of the cemetery's trees. The Cemetery, a corporation, brought actionMarch 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 treesjust inside the Cemetery's fence line. The Grangers answered and fileda 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 allegedby the Cemetery. The District Court ordered a separate trialon 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 stripof land approximately 25 feetwide by 247 feet long on the southborder of the Granger's land as a second roadway intothe cemetery. The road runs from west toeast. The fence line involved 

### isjust to the south of the roadway. The blue spruce trees were just tothe south of the fence, aswas a garage and shed owned and used by the Cemetery. Over a period of 30 years the Cemetery corporation president, CarrollFabian, had builtup the roadway 

### 2 to 3 feet, maintained the road at alltimes, kept it plowed inwinter, and erected a "slow" sign

near the road todirect traffic coming into the roadway from HarrisonAvenue, a major thoroughfare inButte which leads south out of Butte. Until the time of the controversyhere, the Granger land was open, unenclosed, and unimproved, although at

one time part of the landwas 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 therehad 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, atwhich time they began construction of a car dealership on that site. The Cemetery continued touse the roadway until the Grangers blocked the roadway by parking large trucks and automobiles init. The blockage of the road resulted inthis action filedby the Cemetery against the Grangers seeking to establish the roadway as an easement. The Cemetery alsoalleged damages forwrongful cutting of 2 60-foot blue spruce treesjust south of the alleged easement and inside the cemetery's fence line. 

### Eb~dingthe outcome of litigation the District Court granted a temporary order allowing the Cemetery touse a strip 15 feetby 130 feet of the area inquestion, 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 orhostile use. The court also fixed the cemetery fence line as theboundary linebetween the adjoining properties and assessed damages of $2,000 each for the 2blue spruce trees cutby ~rangers' agents. The court did not award treble damages inthe amount of $12,000 as requested by the Cemetery for the cutting of the trees. The Cemetery contends the trialcourt 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 trialcourt erred indetermining that the cemetery fence line 

### is the actualboundary linebetween 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 to45 years. The corporation's president testified that on Memorial Day alone, asmany as 600 cars used the roadway inthe past. Each day atleast ten automobiles used the roadway togo tothe cemetery. The Cemetery's evidence there

was never permissive use was uncontradicted. Grangers contend it is not their duty toprove they or their predecessors in interest gave permission tothe Cemetery touse the road. Over objection, the Cemetery introduced in evidence a 1914 map depicting theboundaries of the cemetery property tobe as the court found them. It isnot clearwhether 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 allthe years he was inoffice, the county surveyor and his crews relied on the map as their "Bible" when they were working in the area of the cemetery. Also, CarrollFabian, 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 fencewas actually

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

were alsoon 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 treeswere cut, inconjunction 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 toaccept the evidence and testimony offered by the 

### 2 surveys. Grangers further contend that even if it isultimately determined the treeswere not on their property, nevertheless, incutting the trees they relied ingood faithupon a survey which showed the trees tobe 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 full5 years. Taylor v. Petranek, (1977), Mont

# . ,568 P.2d 120, 34 St.Rep. 905,909; Scott

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


### v.> Kamps, (1946), 

### 119Mont. 102, 114, 

### 171P.2d 343. The controversy here 

### iswhether the use of the roadway was adverse

orpermissive. -5-

### Montana has consistently followed theminority rulewith regard to unimproved and unenclosed lands,whichholds that open,visible, continous and uninterrupted use of another's land raises a presumption that the usewas also adverse. Taylor

v. Petranek,supra;Lunceford v. Trenk, (1974), 163Mont. 504, 508, 518P.2d 266;O'Connor v. Brodie, (1969), 153Mont. 129, 139,454 P.2d 920;Scottv. Weinheimer, supra;TeSellev. Storey, (1957), 133Mont. 

### 1,5,319 P.2d 218;Glantzv. Gable, (1923), 66Mont. 134, 141, 212P. 858. InO'Connor this Court placed the burden upon the owner to show that the usewas 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 courtdid 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 usewas initially permissive, and theywholly failed in this burden. They presentedno evidence at all on this issue. They rely instead on the general rule thatmere use of land for right ofway raises

a presumption of permissive use,

### and does not establish the element of adverse orhostile usewhich ripens into a prescriptive easement. SeeAnno. 

### 46ALR2d 

### 1140. Grangers further contend laches bars the Cemetery's right to assert a prescriptive right. Evenwhere the general rule is followedhowever,exceptions have been createdwhere the circumstances of the claimant's use indicate somethingmore than "mere use." Among these are circumstanceswhere the owner is aware of and has not objectedto-theuse and the claimant has never solicitedpermission, Flener v. Lawrence, (1920), 187Ky. 384, 220 

### S.W. 1041; where the claimant has improved the land and the landowner has acquiesced inthe 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; orwhere thevacant land was situated in an urban orwell-
# settled area, or otherwise in such a condition that the owner knew or should have known of the adverse use, Castillov. 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 ininterest did not know of the use. The trial court found this asa fact and the Grangers do not contest that finding. Here, the Cemetery had builtup the road to a height of almost 3 feet over a 30 year period and had maintained the road for the trafficof the cemetery. The cemetery fence linewas to the south of the road and any owner of the land involved would have been put on notice asto 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 allother days. A "slowt' signdirected traffic on the road. This certainly

was evidence of hostile intent. InOIConnorv. Brodie, (1969), 153Mont. 129,140, 454 P.2d 920, the Court stated there was a duty of a landowner tobe on inquiry asto the physical evidence of use of his land by another, and that lack of objectionby the landowner under certain circumstances "implies acquiescence and not a grant of license." Here, the Grangers and theirpredecessors in interest failed to object to the use of the road and the activityon the road.Even the general rule ascontended forby the Grangers would not save them under these circumstances. The exceptions carved out of the general rulewould alsodefeat their claim that the

use was initiallypermissive. Neither do we find any merit inthe Grangers' claim that the Cemetery should be barred by laches from enforcing a prescriptive easement. Over the entire45 year period the Cemetery enjoyed the use of the land with complete acquiescence of the true owners. It was not until large trucks and carswere 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 yetjudicially 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 in0'Connor:

"

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# ** Prescriptive titleonce established 

### isnot divestedby the subsequent transfer of the servient estate. The defendants' lack of knowledge, if any 

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# * * is a matter which must be settledbetween the defendants and their grantor." 153Mont. 139. The only clear threat to the enjoyment of this roadway

was when itwas blocked by trucks and cars. Laches applies when a party has been negligent inassertinghisright, and 

### "*

# ** where therehas been a delay of such duration as to render enforcement of the asserted right inequitable." Davis

v. Steingruber, (1957), 131Mont. 468, 470, 311P.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 seeno duty imposed on the Cemetery to take action declaring 

### its easement until such time as the Grangers threatened theactual enjoyment of the use of the road. The Cemetery had no duty to seekjudicial enforcement of an easement until the easement's benefits were injeopardy. 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, aswell

as their own knowledge of the use of the road, they, and their predecessors ininterest, were on notice long before construction began that the Cemetery was using the property indispute as a roadway. Grangers cannot now claim that laches bars the Cemetery's right toenforce an easement upon that land. The final issue here concerns the failure of the court toaward treble damages for cutting the trees. The District Court found that the cemetery fence linewas the trueboundary linebetween the adjacent properties and awarded actualdamages for the value of the trees, $2,000 each. The Cemetery contends the trialcourtwas bound by section 17-503, R.C.M. 1947, to award trebledamages. The Grangers do not question the value of the trees, but contend in their crossappeal that the trial court was inerror in fixing the cemetery fence line as the trueboundary linebetween 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 trialcourt was bound to establishthe boundaries as shown by the Grangers' evidence. The Grangers relied on two independent surveys, one before this controversyarose, and the other inpreparation for this controversy. Each survey established the trueboundary lineas south of the fence lineand south of the trees. However, the trialcourt was not bound toaccept their testimony. During 

### itscase the Cemetery introduced over objection, a 1914map which set out the boundaries of the cemetery property. It was not done inconjunction with a survey nor apparently even inreliance on a survey. However, the Grangers do not contend

on appeal that it was error to admit this evidence. The former SilverBow County surveyor testified that while he was inoffice he and his crews relied on this map extensively as establishing theboundaries of the cemetery. The president of the Cemetery corporation testified tohis own measurements which conformed to the measurements depicted by the map. Neither do the Grangers contend it was error toadmit this testimony. The conflict inthe testimony and the evidence created a question of fact for the trialcourt and itwas, of course, within the province of the trialcourt to resolve that issue against the Grangers as long as there was substantial evidence Mont

# . to support it. Taylor v. Petranek, (1977), -3 568 P.2d 120, 

### 34 St.Rep. 905,909. There was substantialevidence and accordingly, the trialcourtwas correct indetermining that the cemetery fence linewas the true property linebetween the adjoiningproperties. 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 isthree times such a sum aswould 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; inwhich 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

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# *." Attrial it was agreed that this statute controlled as to whether ornot the Cemetery was entitled to treble damages. In entering its findingshowever, the trialcourt relied on section 93-6103, R.C.M. 1947 (a statuteregarding trespass to property and cutting of treesbut not applicable to this case). Section 93-6103 has been interpretedby this Court torequire that treble damages are only allowed where treeswere cut with malice, wantonness, or evildesign. The trialcourt found that there was no malice, wantonness or evildesign, and accordingly, denied treble damages. Because the same finding 

### isnot required under section 17-503, the Cemetery asserts that it 

### is entitled to trebledamages as a matter of law. On the otherhand, Grangers contend the trialcourt's decision on treble damages should be upheld, even if itwas given for the wrong reasons, because there was evidence to support such a finding. They rely on a survey upon which they acted incutting the trees, feeling the treeswere on their property. The rulewhich the Grangers ask us to invoke 

### is, one, under certain circumstances a salutary/ In reWilliams' Estate, (1919, 52 Mont. 192, 156 P. 1087; Estate of Maricich, 145Mont. 146,

400 P.2d 873 (1965); but we do not agree it shouldbe followed inthis case.The determination of whether treble damages should be awarded under section 17-503, is a factual question. We cannot stateas a matter of law that treble damages were required. Neither

canwe statethat under allcircumstances one can avoid treble damages by relying on a survey indicating the trees were on one's own property. The trialcourt made no findings as to the whether/treble damages provision of the statutewas excused under the factsof this case. We reverse thejudgment of theDistrict Court and direct thatjudgment be entered granting an appropriate easement to the Cemetery, together with the appropriate dimensions. We vacate the findings and conclusions of the trialcourt on the issue of treble damages and direct that findings and conclusionsbe 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: 

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## Lhie£Justice