DA 16-0192

IN THE SUPREME COURT OF THE STATE OF MONTANA

2017 MT 2N

PAT CAHILL, RONNIE D. CURTIS and CRAIG

M. CURTIS, RANDIE CURTIS, DONNA M.

SARGENT, MARK G. GOLDHAHN, MONICA

R. GOLDHAHN, LONNY R. ANDREASEN,

TERRY JENDRO and SHANNON JENDRO,

 Plaintiffs and Appellees,

 v.

PAPA’S CABIN, LLC

APPEAL FROM: District Court of the Third Judicial District,

In and For the County of Powell, Cause No. DV 14-22

Honorable Ray Dayton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

R.J. “Jim” Sewell, Jr., Craig D. Charlton, Scott H. Clement, Smith Law 

Firm, P.C., Helena, Montana

For Appellee:

Marcel A. Quinn, Hammer, Quinn & Shaw, PLLC, Kalispell, Montana

Submitted on Briefs: November 10, 2016

 Decided: January 3, 2017

Filed:

__________________________________________

Clerk

01/03/2017

Case Number: DA 16-0192
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Justice Beth Baker delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating 

Rules, this case is decided by memorandum opinion and shall not be cited and does not 

serve as precedent. Its case title, cause number, and disposition shall be included in this 

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana 

Reports. 

¶2 Papa’s Cabin, LLC, appeals the Third Judicial District Court’s order granting 

summary judgment on Appellees’ claim that they possessed a prescriptive easement on a 

road crossing Papa’s Cabin’s property.1 We affirm.

¶3 The Evanses—parents of one of the Claimants, Pat Cahill—owned land that now 

constitutes all of Claimants’ respective properties. In order to access their property, the 

Evanses constructed a roadway in 1954 across the property of their neighbors, the 

Parkers—the property now owned by Papa’s Cabin. The Evanses did not ask the 

Parkers’ permission before they built the road. 

¶4 The Evanses lived and operated a sawmill business on their property from 1954 to 

the 1970s. Their family, friends, and customers used the road almost daily during that 

time. The road sat in close proximity to the Parkers’ cabin. The first time the Evanses 

met the Parkers was after they built and had started using the road; they later agreed to 

the Parkers’ request to move the road farther from the cabin. 

 

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 Appellees are Pat Cahill, Ronnie Curtis, Craig Curtis, Randie Curtis, Donna Sargent, Mark 

Goldhahn, Monica Goldhahn, Lonny Andreasen, Terry Jendro, and Shannon Jendro. We refer to 

them collectively as “Claimants.” 
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¶5 In August 2013, Papa’s Cabin locked a gate on its property to prevent Claimants 

from using the road. Cahill then filed a petition for a permanent prescriptive easement. 

Cahill’s claim was consolidated with claims of the remaining Appellees over Papa’s 

Cabin’s objection. 

¶6 The District Court granted summary judgment to Claimants. It concluded that no 

genuine issue of fact existed as to whether Claimants’ use of the road was open, 

notorious, exclusive, continuous, or uninterrupted and that Papa’s Cabin had failed to 

present facts showing that Claimants’ use of the road was permissive. Finally, the court 

found that the original scope of the prescriptive easement encompassed both residential 

and commercial use and that the easement’s current residential use did not exceed its 

original scope. 

¶7 On appeal, Papa’s Cabin contends that Claimants bore the burden of 

demonstrating that their use of the road was adverse and that they failed to satisfy that 

burden. Alternatively, Papa’s Cabin argues that even if it bore the burden of 

demonstrating that Claimants’ use of the road was permissive, it presented sufficient 

evidence to raise a genuine issue of material fact on this question. Lastly, Papa’s Cabin 

asserts that the District Court erred by expanding the scope of the original easement and 

by permitting joinder of the parties and consolidation of their actions for trial. 

¶8 We review de novo a district court’s ruling on summary judgment, applying the 

criteria of M. R. Civ. P. 56(c)(3). Citizens for a Better Flathead v. Bd. of Cnty. Comm’rs, 

2016 MT 256, ¶ 10, 385 Mont. 156, 381 P.3d 555. Summary judgment is proper only 

when no genuine issues of material fact exist and the moving party is entitled to judgment 
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as a matter of law. Harrington v. Crystal Bar, Inc., 2013 MT 209, ¶ 9, 371 Mont. 165, 

306 P.3d 342. Once the moving party meets its initial evidentiary burden demonstrating 

facts to support its entitlement to judgment as a matter of law, the burden shifts to the 

non-moving party to present substantial evidence, as opposed to mere denial, speculation, 

or conclusory statements, raising a genuine issue of material fact. Ternes v. State Farm 

Fire & Cas. Co., 2011 MT 156, ¶ 27, 361 Mont. 129, 257 P.3d 352. We review a district 

court’s determination of judgment as a matter of law for correctness. Roe v. City of 

Missoula, 2009 MT 417, ¶ 14, 354 Mont. 1, 221 P.3d 1200. 

¶9 A party seeking to establish a prescriptive easement must show “open, notorious, 

exclusive, adverse, continuous[,] and uninterrupted use of the claimed easement” for a 

period of five years. Lemont Land Corp. v. Rogers, 269 Mont. 180, 183, 887 P.2d 724, 

726 (1994). It is well established that a presumption of adverse use arises once the 

claimant establishes the other five elements; the burden then shifts to the landowner 

opposing the prescriptive easement to prove that the use was permissive rather than 

adverse. Lemont, 269 Mont. at 185, 887 P.2d at 727-28; Brown & Brown of MT, Inc. v. 

Raty, 2012 MT 264, ¶ 19, 367 Mont. 67, 289 P.3d 156; Albert v. Hastetter, 2002 MT 

123, ¶ 20, 310 Mont. 82, 48 P.3d 749; Larsen v. Richardson, 2011 MT 195, ¶ 57, 361 

Mont. 344, 260 P.3d 103; Glantz v. Gabel, 66 Mont. 134, 141, 212 P. 858, 860 (1923). 

“[I]f the owner of the servient estate shows that use was permissive,” the claimant cannot 

acquire a prescriptive easement. Leisz v. Avista Corp., 2007 MT 347, ¶ 17, 340 Mont. 

294, 174 P.3d 481. 
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¶10 The District Court reviewed undisputed evidence that the Parkers were aware of 

the Evanses’ use of the road, that the Evanses’ use of the road did not depend on anyone 

else’s use of the road, and that the Evanses and their successors used the road 

continuously and without interruption from 1954 until 2013. Based on these undisputed 

facts, the court concluded correctly that Claimants demonstrated open, notorious, 

continuous, uninterrupted, and exclusive use of the road for well over five years. See 

Lemont, 269 Mont. at 183, 887 P.2d at 726. The court then properly shifted the burden to 

Papa’s Cabin to show that a genuine issue of material fact existed as to whether 

Claimants used the road with permission. See Lemont, 269 Mont. at 185, 887 P.2d at 

727-28. Papa’s Cabin failed to meet its burden because it did not present evidence that 

the Evanses’ use of the road was permissive between 1954 and 1959—the five-year 

period in which the District Court determined that the prescriptive easement was 

established. See Lemont, 269 Mont. at 183, 887 P.2d at 726. 

¶11 The only evidence that Papa’s Cabin presented that did not clearly pertain to the 

1960s or later—deposition testimony from Pat Cahill that her parents, the Evanses, asked 

the Parkers for a written easement at one time after the road was built—is inadmissible 

hearsay. The conversation that Cahill described constitutes an out-of-court statement 

offered “to prove the truth of the matter asserted”—that the Evanses sought a written 

easement. M. R. Evid. 801(c). Claimants moved to exclude this statement from 

consideration on summary judgment. The District Court was not required to consider the 

testimony in its summary judgment ruling. See N. Cheyenne Tribe v. Roman Catholic 

Church, 2013 MT 24, ¶ 21, 368 Mont. 330, 296 P.3d 450 (“District courts need consider 
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only admissible evidence when determining whether to grant a motion for summary 

judgment.”). 

¶12 We are unpersuaded by Papa’s Cabin’s argument that Cahill’s testimony was not 

hearsay because it qualifies as an admission by a party-opponent under M. R. Evid. 

801(d)(2)(A). That testimony was not an admission by a party-opponent, because the 

Evanses are not a party to this action. 

¶13 The admissible evidence before the District Court undisputedly established that 

the Evanses acquired a prescriptive easement by 1959. In reviewing this evidence, the 

court correctly determined that Claimants satisfied their burden and that Papa’s Cabin did 

not satisfy its burden. See Roe, ¶ 14; Ternes, ¶ 27. 

¶14 Finally, the District Court rightly found that Claimants’ use of the road did not 

exceed the easement’s original scope. We have held, in the context of a prescriptive 

easement, that the “right of the owner of the dominant estate is governed by the character 

and extent of the use during the period requisite to acquire it.” Brown & Brown of MT, 

Inc. v. Raty, 2013 MT 338, ¶ 13, 372 Mont. 463, 313 P.3d 179 (Brown II). When the 

Evanses acquired the prescriptive easement in the 1950s, the “character and extent of the 

use” included both residential and commercial use. Brown II, ¶ 13. Claimants presented 

evidence that they now use the road primarily for residential purposes and not for 

commercial purposes. They satisfied their burden of establishing that their use of the 

easement did not exceed the easement’s original scope. See Ternes, ¶ 27. Papa’s Cabin 

failed to meet its burden of presenting evidence that Claimants exceeded the residential 
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and commercial scope of the easement. See Ternes, ¶ 27. As such, the court’s ruling on 

summary judgment was proper. See Harrington, ¶ 9. 

¶15 Because we affirm the District Court’s award of summary judgment to Claimants, 

we do not address Papa’s Cabin’s assertion that the court erred in permitting joinder of 

the Appellees and consolidation of their actions for trial. 

¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of 

our Internal Operating Rules, which provides for noncitable memorandum opinions. This 

appeal presents no constitutional issues, no issues of first impression, and does not 

establish new precedent or modify existing precedent. The District Court’s order 

granting summary judgment to Claimants is affirmed. 

/S/ BETH BAKER

We Concur: 

/S/ MICHAEL E WHEAT

/S/ LAURIE McKINNON

/S/ JAMES JEREMIAH SHEA

/S/ JIM RICE