No. 14649 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

MAUDE J. WIEDMAN, 

Plaintiff and Appellant, 

VS. 

TRINITY EVANGELICAL LUTHERAN CHURCH 

and THE CITY OF KALISPELL, 

Defendants and Respondents. 

Appeal from: District Court of the Eleventh Judicial District, 

Honorable James M. Salansky, Judge presiding. 

Counsel of Record: 

For Appellant: 

James A. Cumming argued, Columbia Falls, Montana 

For Respondents: 

Murphy, Robinson, Heckathorn and Phillips, Kalispell, 

Montana 

I. James Heckathorn argued, Kalispell, Montana 

Submitted: February 21, 1980 

Decided: $pk 1 - MQ . . - ., 

I '. - ,- 

p :L,; 4 Filed: &' . . 

. -- -, 5.: .- 2 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Maude Wiedman brought this action in the Eleventh 

Judicial District, Flathead County, to establish an easement 

by prescription for the use of certain land which adjoined 

her property. By her suit she also attempted to enjoin the 

City of Kalispell and the Trinity Evangelical Lutheran 

Church from implementing a special improvement district plan 

for installation of curbs and gutters along Washington 

Street in Kalispell without cutting a curb at the entrance 

to properties she had used for access for years. 

The Honorable James M. Salansky held a trial without a 

jury on the issue of whether Ms. Wiedman had established an 

easement by prescription over the property in question. 

Judge Salansky found Ms. Wiedman's use of the property had 

been permissive and concluded that she had not established 

an easement by prescription. Judgment was entered accordingly. This appeal followed. 

Ms. Wiedman and her former husband purchased a parcel 

of property from the Kalispell Townsite Company in 1934. 

The property was located just outside the city limits of 

Kalispell on the northwest corner of Washington Street and 

Fourth Avenue. The property is marked as the "Weidman 

Property" on the map below. 

SDIWT. AUD 

AO'IIYIS~TIOP 

BUIWIYOS 
 bout a year after they purchased the property, Ms. 

~iedman and her husband were divorced and the property was 

conveyed to Ms. Wiecknun's sole ownership. She has remained 

the sole owner of the property ever since. 

When Ms. Weidman and her former husband purchased the 

property they expected the Townsite Company to extend Fourth 

Avenue northward along the eastern boundary of the property. 

They built a house on the property oriented to the expected 

future street. Ms. Wiedman used the west portion of the 

expected extension of Fourth Avenue in a manner which anticipated its later dedication. She situated her garage so 

that its entrance faced the future street. Ms. Wiedman 

parked cars on the expected avenue, and when friends and 

family visited they parked their vehicles on the same location. This use continued daily from 1934 until the present. 

It is over this access route that Ms. Wiedman now 

claims a prescriptive easement. The property includes the 

west 35 feet of what would have been Fourth Avenue for 75 

feet north of Washington Street adjacent to Ms. Wiedmanfs 

property. It is marked "claimed easement" on the map. It 

should be pointed out that Ms. Wiedman does have a door to 

her house that faces south toward Washington Street. She 

also can gain access to her garage via an alley running 

parallel to her property on the west, although this would 

require her to remove some trees and change the door on her 

garage. 

About five years after Ms. Wiedman purchased her property, the Townsite Company decided not to dedicate the 

extension of Fourth Avenue for street purposes. t he Company 

approached Ms. Wiedman with an offer to sell the property to 

her. She did not buy the property, apparently feeling no 
need to buy property that was a public street. The Company 

subsequently sold the property to a Mr. Scovel, who lived in 

a home located immediately to the north of Ms. Wiedman's 

property . 

Not long after Mr. Scovel purchased the property, he 

and Ms. Wiedman had a conversation about the sale of half 

the property to Ms. Wiedman. Mr. Scovel is now deceased. 

Ms. Wiedman recalled the conversation in a deposition taken 

before trial as follows: 

"Q. [Mr. Heckathorn] Who is that [who owned 

the property before Trinity Lutheran Church]? 

"A. [Ms. Wiedman] Clyde Scovill [sic]. And 

he said he would never try to stop me from 

coming in there- 

"Q. He had it all the time until the Trinity 

Lutheran Church had got it? 

"A. Yes. 

"Q. And he said that you could use it anytime 

you wanted to? 

"A. Yes. 

"Q. And did the church ever say you couldn't? 

"A. No. 

"Q. They have just let you use it, too, haven't 

they? 

"A. Yes." 

At trial Ms. Wiedman testified concerning the conversation as follows: 

"Q. [Mr. Heckathorn] And so he [Mr. Scovel] 

then bought it [the property in question] and 

he then told you that as far as he was concerned you could use that area and he wouldn't 

attempt to stop you, isn' t that correct? 

"A. [Ms. Wiedman] And he went on to say-- I 

don't remember the exact conversation. I suppose it was to that effect. But he said he 

didn't think he could stop me if he wanted to. 

"Q. But anyhow he conveyed to you that he didn't 

want to try to stop you and that you could go 

ahead and use it. 
"A. I think he wanted to, all right, but he 

didn't want to pursue it. 

"Q. Did he indicate that you could continue to 

use it as long as he had it? 

"A. Well, I used it as long as he had it and 

I have used it ever since. 

"Q. After that discussion did you and he ever 

have any further discussion about that? 

"A. I don't believe we did. There was nothing 

to discuss. He wouldn't sell me half of it for 

a driveway so it was dropped. 

"Q. And then the Trinity Church people came in 

and bought it and, as I understand it, they just 

bought out Scovill's [sic] interest and you had 

no contact with them and they had no contact 

with you. 

"A. None whatsoever." 

Respondent Trinity Evangelical Lutheran Church purchased the property over which Ms. Wiedman now claims the 

easement from Mr. Scovel in 1957. The church constructed an 

elementary school on property adjacent to the disputed 

property. Trinity made little use of the disputed property 

after it was acquired. The church now plans to expand the 

school facilitites, The plans include extension of the 

school playground to utilize the property over which Ms. 

Wiedman claims the easement. In expanding the playground, 

Trinity plans to fence the property and have curbing installed along Washington Street. The City of Kalispell 

agreed to install the curbing. Ms. Wiedman brought this 

suit when the City began installing curbing without cutting 

out a portion of the curb to allow her access to the property over which she claims the easement. 

The sole issue presented by this case is whether the 

District Court erred in finding that Ms. Wiedman's use of 

the property in question was permissive. 
To establish a prescriptive easement, the party claiming the easement must show open, notorious, exclusive, 

adverse, continuous and uninterrupted use of the easement 

for the statutory period. Medhus v. Dutter (1979), 

Mont. - , 603 P.2d 669, 672, 36 St.Rep. 2044, 2047; Garrett 

v. Jackson (1979), - Mont. - , 600 P.2d 1177, 1179, 36 

St.Rep. 1769, 1771; Hayden v. Snowden (1978), Mon t . - I 

576 P.2d 1115, 1117, 35 St.Rep. 367, 369; Taylor v. Petranek 

(1977), 173 Mont. 433, 437, 568 P.2d 120, 122; Harland v. 

Anderson (1976), 169 Mont. 447, 451, 548 P.2d 613, 615. The 

controversy here centers around the District Court's finding 

that Ms. Wiedman's use of the property in question was 

permissive rather than adverse. In Taylor, supra, the Court 

stated: 

"The legal principles governing defendants' 

attack on the sufficiency of the evidence to 

support the district court's findings are 

clear. Rule 52(a), M.R.Civ.P., provides in 

pertinent part : 

I' I 

. . . Findings of fact shall not be set 

aside unless clearly erroneous, and due regard shall be given to the opportunity of 

the trial court to judge the credibility of 

the witnesses . . .' 

"This Court's function on appeal is simply 

to determine whether there is substantial 

evidence to support the district court's 

findings and will not reverse them unless 

there is a clear preponderance of evidence 

against them. Merritt v. Merritt, 165 Mont. 

172, 526 P.2d 1375; Finley v. Rutherford, 

151 Mont. 488, 444 P.2d 306." 173 Mont. 

at 437, 568 P.2d at 122. 

The evidence before the trial court that the use was 

permissive consistsmainlyof the testimony of Ms. Wiedman 

concerning her conversation with Mr. Scovel about her use of 

the property. In her deposition Trinity Lutheran's attorney 

asked Ms. Wiedrnan, "And he [Mr. Scovel] said that you could 

use it [the property in question] anytime you wanted to?" 
Ms. ~iedman answered "Yes." At trial the church's attorney 

asked Ms. ~iedman, "And so he [Mr. Scovel] then bought it 

[the property in question] and he then told you that as far 

as he was concerned you could use that area and he wouldn't 

attempt to stop you, isn't that correct?" Ms. Wiedman 

responded, "And he went on to say-- I don't remember the 

exact conversation. - I suppose ---- it was to that effect. But 

he told me he didn't think he could stop me if he wanted 

to. " (Emphasis added. ) 

Presented with this type of evidence, it cannot be said 

the findings of the District Court were clearly erroneous. 

There certainly is no clear preponderance of the evidence 

against the finding that the use of the disputed property 

was permissive. In fact, the testimony indicates Mr. Scovel 

did indeed give Ms. Wiedrnan permission to use the property. 

We therefore uphold the finding of the trial court that Ms. 

Wiedman's use of the disputed property was permissive. 

When a party's use of property is permissive at its 

inception, the use cannot ripen into a prescriptive right 

unless there is a later distinct assertion of a right 

hostile to the owner, which is brought to the attention of 

the owner, and the use is continued for the full prescriptive period. Medhus, supra, 603 P.2d at 672, 36 St-Rep. at 

2047-2048; Taylor, supra, 173 Mont. at 438, 568 P.2d at 123; 

Wilson v. Chestnut (1974), 164 Mont. 484, 491, 525 P12d 24, 

27. 

The above discussion shows that Ms. Wiedman's use of 

the disputed property was initially permissive. ~efore her 

use of the property could become hostile and eventually 

ripen into a prescriptive right, Ms. Wiedman would have had 

to make some positive assertion of the hostile nature of her 
use of the property and bring the fact of her hostile use to 

the attention of the owner of the property. The record is 

totally devoid of any such action by Ms. Wiedman. She 

testified that she and Mr. Scovel did not discuss her use of 

the property after their conversation in which he granted 

her permission to use the property. The evidence also shows 

that Ms. Wiedman never discussed her use of the property 

with the owners of Trinity Evangelical Lutheran Church. 

Ms. Wiedman's use of the property was thus permissive 

at its inception and continued to be so up to the time she 

initiated this action. The trial court therefore correctly 

concluded Ms. Wiedman did not gain the right to use the 

disputed property by prescription. We affirm that conclusion on this appeal. 

We concur: 

/# 

P Hono able Peter G. Me 

trict Judge, sittlm place 

of Mr. Chief Just ce aswell. 
Mr. Justice John C. Sheehy dissenting: 

I cannot agree that a person who has used as a driveway a strip of land belonging to three other successive 

owners over a period of forty five years has not established 

open, notorious, exclusive, adverse, continuous, and uninterrupted use of the easement to establish her prescriptive 

right to the continuance of that use. Medhus v. Dutter 

(1979) , - Mon t . , 603 P.2d 669, 36 St.Rep. 2044, 2047. 

The ground upon which the majority find a permissive 

use here is that Mr. Scovel, prior to 1957, had a conversation 

with Mrs. Wiedman, which at best is equivocal, and out of 

which the court finds a permissive use. What is ignored here 

is that the ownership changed in 1957, and that since that 

time, Trinity Evangelical Lutheran Church, although the 

ostensible owner of the property, has done nothing in the 

face of the continued adverse, notorious and open use of 

the driveway by Mrs. Wiedman over what was then the church's 

property. Even if we assume that her use under Scovel was 

permissive, there is no presumption of law that continues 

such permissive use when the ownership changes hands and there 

is no indicia of any kind that the subsequent owner continues 

the permission. 

In this case, the prior owner had established a gate 

or barrier at the north end of the area over which Mrs. 

Weidman claimed an easement. This is strongly indicative 

that the prior owner acquiesced in Mrs. Wiedman's right under 

an adverse user. An owne2s acquiescence in an adverse user 

of a driveway across his land without more, does not show 

that the use, claimed to be adverse, was in fact permissive. 

Dozier v. Krmpotich (1949), 227 Minn. 503, 35 N.W.2d 696. 

-9- 
There was no showing in this case that the user was 

permissive "in the inception", which is the foundation 

requirement for proof of a permissive use. The majority 

has confused "permissive" use in this case with the "acquiescence" 

that always accompanies an adverse use. 

". . . The very foundation of a right to an 

easement by prescription is the acquiescence 

by the owner of the servient tenement in the acts 

relied upon to establish such prescriptive right. 

17 Am.Jur., Easements, section 66. It is also 

the rule that, where the user is permissive on the 

part of the owner, there can be no prescriptive 

right, and that, if the user was permissive -- in its 

inception, it must become adverse to the knowledge 

of the owner of the servient estate before any 

prescriptive rights can arise (citing a case.) It 

must be apparent therefore, that 'acquiescence', 

regardless of what it might mean otherwise, means, 

when used in this connection, passive conduct on the 

part of the owner of the servient estate consisting 

of failure on his part to assert his paramount 

rights against the invasion thereof by the adverse 

user.. . ." Dozier v. Krmpotich, supra, 35 N.W.2d 

at 699. (Emphasis added.) 

The conversation with Scovel, beg* long after the 

inception of the use of the driveway, and after which Scovel 

acted in acquiescence in placing the barrier as he did, shows 

that Scovel agreed with plaintiff's claim of right, and 

acquiesced in a manner that made his land servient to the 

prescriptive right of Mrs. Weidman to her driveway. 

I would reverse.