### 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, Judgepresiding. Counsel of Record: For Appellant: JamesA. 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: 

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### Filed: &' . --Mr. Justice John Conway Harrison delivered the Opinion of the Court. Maude Wiedman brought this action inthe 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 districtplan for installationof curbs and gutters along Washington StreetinKalispell without cutting a curb atthe entrance toproperties she had used for access for years. The Honorable 

### James M. Salansky held a trialwithout a jury on the issue of whether Ms. Wiedman had established an easement by prescription over the property inquestion. 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

### limitsof Kalispell on the northwest corner of Washington Street and Fourth Avenue. The property 

### ismarked asthe "Weidman Property" on themap 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 toMs. Wiecknun's soleownership. She has remained the soleowner of the property ever since. When Ms. Weidman and her former husband purchased the property they expected the Townsite Company toextend 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 

### westportion of the expected extension of Fourth Avenue ina manner which anticipated 

### its laterdedication. 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

### isover this access route thatMs. Wiedman now claims a prescriptive easement. The property includes the 

### west 35 feetof what would have been Fourth Avenue for 75 feetnorth of Washington Streetadjacent toMs. Wiedmanfs property. It 

### ismarked "claimed easement" on the map. It should be pointed out thatMs. Wiedman does have a door to her house that faces south toward Washington Street. She also can gain access toher garage via an alleyrunning parallel toher property on the 

### west, although thiswould require her toremove some trees and change the door on her garage. About fiveyears after Ms. Wiedman purchased her property, the Townsite Company decided not todedicate 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 noneed tobuy property thatwas a public 

### street. The Company subsequently sold the property to 

### a Mr. Scovel, who lived in



### a home located immediately tothe north of Ms. Wiedman's property

# . Not long afterMr. Scovel purchased the property, he and Ms. Wiedman had a conversation about the 

### sale of half theproperty toMs. Wiedman. Mr. Scovel 

### isnow deceased. Ms. Wiedman recalled the conversation ina 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 saidhe would never try to stop

### me from coming inthere- "Q. He had 

### it allthe 

### timeuntil 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 

### letyou use 

### it, too, haven't they? "A. Yes." AttrialMs. Wiedman testified concerning the conversation 

### as follows: "Q. [Mr. Heckathorn] And so he [Mr. Scovel] then bought 

### it [theproperty inquestion] and he then told you that as far as he was concerned you could use thatarea and he wouldn't attempt to stopyou, 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 thateffect. But he said he didn't think he could stop

### me if he wanted to. "Q. But anyhow he conveyed toyou that he didn't want to try to stopyou and that you could go ahead and use it."A. I think he wanted to, allright, but he didn't want topursue 

### it. "Q. Did he indicate that you could continue to use 

### it as long ashe had it? "A. Well, I used 

### it aslong ashe had it and I have used it ever since. "Q. After that discussion did you and he ever have any furtherdiscussion about that? "A. I don't believe 

### we did. There 

### was nothing to discuss. Hewouldn't sell

### me half of 

### it for 

### a driveway so it 

### was dropped. "Q. And then the TrinityChurch 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 TrinityEvangelical 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. Trinitymade littleuse of the disputed property after it 

### was acquired. The church now plans toexpand the school facilitites, The plans include extension of the school playground toutilize the property over which Ms. Wiedman 

### claims the easement. In expanding the playground, Trinity plans tofence the property and have curbing installed alongWashington Street. The City of Kalispell agreed to install the curbing. Ms. Wiedman brought this suitwhen the City began installing curbing without cutting outa portion of the curb toallow her access to the propertyover which she claims the easement. The sole issuepresented by this case iswhether the DistrictCourt erred infinding thatMs. Wiedman's use of the property inquestion 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 statutoryperiod. 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), Mont

# . - I 576 P.2d 1115, 1117, 35 St.Rep. 367, 369; Taylor v. Petranek (1977), 173Mont. 433, 437, 568 P.2d 120, 122; Harland v. Anderson (1976), 169Mont. 447, 451, 548 P.2d 613, 615. The controversy here centers around the District Court's finding thatMs. Wiedman's use of the property inquestion

### 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 districtcourt's findings are clear. Rule 52(a),M.R.Civ.P., provides in pertinent part:

I' I

# .. . Findings of fact shallnot be 

### set aside unless clearly erroneous, and due 

### regard shallbe given to the opportunity of the 

### trial court tojudge the credibility of the witnesses 

# . . .' "This Court's function on appeal 

### is simply todetermine whether there 

### is substantial evidence to support the districtcourt's findings and 

### willnot reverse them unless there isa 

### clear preponderance of evidence against them. Merritt v. Merritt, 165Mont. 172, 526 P.2d 1375; Finley v. Rutherford, 151Mont. 488, 444 P.2d 306." 173Mont. at437, 568 P.2d at122. The evidence before the trialcourt 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 [theproperty inquestion] anytime you wanted to?"Ms. ~iedman answered "Yes." Attrial the church's attorney asked Ms. ~iedman,"And sohe [Mr. Scovel] then bought it [theproperty inquestion] and he then told you that as far

ashe 

### was concerned you could use that area and he wouldn't attempt to stopyou, 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 DistrictCourt were clearly erroneous. There certainly isno 

### clear preponderance of the evidence against the finding that the use of the disputed property



### waspermissive. In fact, the testimony indicates Mr. Scovel did indeed give Ms. Wiedrnan permission touse the property. We therefore uphold the finding of the trial court thatMs. Wiedman's use of the disputed property was permissive. When 

### a party's use of property 

### ispermissive at

### its inception, the use cannot ripen into a prescriptive right unless there 

### is a laterdistinctassertion of a right hostile to the owner, which 

### isbrought to the attention of theowner, and the use is continued for the fullprescriptiveperiod. Medhus, supra, 603 P.2d at672, 36 St-Rep. at 2047-2048; Taylor, supra, 173Mont. at438, 568 P.2d 

### at 123; Wilson v. Chestnut (1974), 164 Mont. 484, 491, 525 P12d 24, 27. The above discussion shows thatMs. Wiedman's use of the disputed property 

### was initiallypermissive. ~efore her

use of the property could become hostile and eventually ripen into a prescriptive right, Ms. Wiedman would have had tomake some positive assertion of the hostile nature of heruse of the property and bring the factof her hostileuse to the attentionof the owner of the property. The record 

### is totally devoid of any such actionby Ms. Wiedman. She testified that she and Mr. Scovel did not discuss her use of the property after their conversation inwhich he granted her permission touse the property. The evidence also shows thatMs. Wiedman never discussed her use of the property with the owners of TrinityEvangelical Lutheran Church. Ms. Wiedman's use of the property was thus permissive atits inception and continued tobe so up to the 

### time she initiated this action. The 

### trial court therefore correctly concluded Ms. Wiedman did not gain the right touse the disputed property by prescription. We affirm that conclusion on this appeal.

We concur:

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Hono able Peter G. Me 

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trict Judge,

# sittlmplace 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 continuanceof that use. Medhus v. Dutter

(1979)

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# . , 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 Scovelwas permissive, there is no presumption of law that continues suchpermissive 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 overwhich 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. 17Am.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, itmust 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 itmight 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. 

### (Emphasisadded.) The conversationwith 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.