No. DA 06-0018 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 314

SCOTT SLAUSON, Plaintiff and Appellant,

v. BERTELSEN FAMILY TRUST, NEIL BERTELSEN and PHYLLIS A. BERTELSEN, Trustees, Defendants and Respondents.

APPEAL FROM: The District Court of the Nineteenth Judi cial District, In and For the County of Lincoln, Cause No. DV 04-137, Honorable Michael C. Prezeau, Presiding Judge

COUNSEL OF RECORD: For Appellant: Amy N. Guth, Attorney at Law, Libby, Montana For Respondents: William A. Douglas, Douglas Law Firm, P.C., Libby, Montana

Submitted on Briefs: September 20, 2006 Decided: December 5, 2006 Filed:

__________________________________________ ClerkJustice W. William Leaphart delive red the Opinion of the Court. ¶1 This case involves a disput e between adjoining landow ners: Scott Slauson, the plaintiff and appellant, and th e Bertelsen Family Trust, Ne il Bertelsen and Phyllis A. Bertelsen, the trustees of the family trust, the defendants and respondents, referred to herein as Bertelsen. Slauson, on December 29, 2004, filed a comp laint alleging that certain fixtures and a driveway/parking lo t, used by Bertelsen’s lessee, Amerigas, encroached upon his property . The District Court conducted a non-jury trial on November 8, 2005. In its findings of fact and conclusions of law, the court found that Bertelsen had acquired a prescriptive easement. Slauson then filed this appeal. We affirm. ¶2 We restate the issue as follows: ¶3 Did the District Court err in concluding that Bertelsen established a prescriptive
easement? BACKGROUND ¶4 Bertelsen owns two lots on the southeastern outskirts of Libby, Montana. When Bertelsen purchased the lots, the western bound ary of the lots was a county road which, in 1971, was formally abandoned by Lincol n County. When th e county road was abandoned, all that separated Bertelsen’s pr operty from U.S. Highway 2 was a pie-shaped sliver of land, the land at issue here, on wh ich the Montana Department of Transportation (MDOT) held an easement but which was othe rwise undeveloped. Since 1987, Bertelsen has leased his two lots to Am erigas, a company which sells propane. Amerigas has since

2constructed or placed a number of improvements on the pie-shaped property at issue here, including a septic drain field and a control meter. ¶5 In October 2002, Slauson purchased a lot located southeast of Bertelsen’s property, fronting Highway 2. While researching the purchase of his new property, Slauson noticed that the land immediately nor thwest of his original property, the pieshaped property at issu e here, did not appear to be a part of Bertelsen’s property. This pie-shaped property forms a long narrow tria ngle, the base of which runs 74 feet and borders Slauson’s original property, and one side of which runs 159 feet adjacent to Highway 2. ¶6 Slauson researched the ownership of the pie-shaped property and discovered that the property technically belonged to Alma Edwards, who owned a large tract of land located across Highway 2. Th e pie-shaped property, howeve r, had never been separately identified by deed, Edwards was not aware that she owned it, and the pie-shaped property was not on the Lincoln County tax roles. Apparently, when Highway 2 was constructed, this pie-shaped property was split off from Edwards’ s larger tract west of the highway. Slauson contacted Edwards and showed her the pie- shaped property. She was surprised to learn she owned it, and expressed concern a bout paying extra proper ty taxes. In order to avoid the possibility of a property tax liab ility, she agreed to tran sfer the pie-shaped property to Slauson for free. Slauson had a deed prepared which Edwards signed in July, 2003. Although the deed makes no reference to the portion of the pie-shaped property encompassed by the abandoned county roadway, the District Court found that, because half of the county roadway ceded to Edwards wh en the road was abandoned, Edwards
3intended to transfer her half to Slauson in the 2003 deed, al ong with the re st of the pieshaped property. Neither Be rtelsen nor Slauson challenge the court’s conclusion on appeal. ¶7 Slauson had the pie-shaped land surveyed, and the survey showed that Amerigas was using what was now Slauson’s property for its customers to access the Amerigas office and to park. In additio n, the survey showed that several of the improvements which Amerigas had construc ted, including a portion of two chain link fences and a “control box unit” protected by three concrete posts, were encroaching on the property which Slauson had acquired from Edwards. Amerigas’s septic drain field also encroached on the property at the time, but has since been relocated. ¶8 Slauson contacted MDOT, which agreed to discharge its easement on the pieshaped property, and he cont acted the Lincoln County Clerk and Recorder’s Office and placed the property b ack on the tax roles. Slauson then approached Amerigas and Bertelsen and offered to lease the pie-shaped property to Bertelsen. Bertelsen asserted his right to continued use of the property and Slauson filed suit to enforce his property rights and recover compensation and damages fro m Bertelsen. Bertelsen argued that he had acquired the property through advers e possession, or that he had acquired a prescriptive easement allowing Am erigas to use the property. ¶9 The District Court, at the conclusion of a non-jury trial, found that, because there was insufficient evidence that Bertelsen ha d paid taxes on the pie-shaped property as required by § 70-19-411, MCA, Bertelsen did not acquire th e property through adverse possession. However, the court did find that Bertelsen, and his lessee, Amerigas, had
4established a prescriptive easement to ma intain the improvements and to transact Amerigas’s business on th e pie-shaped property. STANDARD OF REVIEW ¶10 We review a district court’s findings of fact to ascertain whether they are clearly

erroneous. Gelderloos v. Duke , 2004 MT 94, ¶ 22, 321 Mont. 1, ¶ 22, 88 P.3d 814, ¶ 22 (citations omitted). A finding is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the e ffect of the evidence, or if our review of the record convinces us that a mistake has been committed. Gelderloos , ¶ 22 (citations omitted). The standard of review of a distri ct court’s conclusions of law is whether the court’s interpretation of the law is correct. Gelderloos , ¶ 22 (citations omitted). DISCUSSION ¶11 Did the District Court err in conclu ding that Bertelsen established a prescriptive easement? ¶12 A. Was Bertelsen’s use open and notorious and adverse ? ¶13 Slauson claims that Bertelsen’s use of the pie-shaped propert y was not open and notorious because the ownershi p of the property was unclear and Edwards, the original owner, did not know she owned the property. Slauson also argues that Bertelsen’s use was not adverse because at all times he so ught and received pe rmission from MDOT to use the property. ¶14 The party seeking to establish a prescrip tive easement must show open, notorious, exclusive, continuous, uninte rrupted and adverse use of th e easement for the statutory period of five years. Combs-DeMaio Living Trust v. Kilby Butte Colony, Inc. , 2005 MT
571, ¶ 13, 326 Mont. 334, ¶ 13, 109 P.3d 252, ¶ 13 (citations omitted); § 70-19-401, MCA. Slauson only questions whether the us e was open and notorio us and adverse. ¶15 Slauson is correct that for a use to be open and noto rious the owner must have knowledge of the use. However, the requisite knowledge may be actual or constructive. What is required is that the use “give[] the owner of the se rvient estate actual knowledge of the hostile claim, or is of such character as to rais e a presumption of notice because it is so obvious the owner could not be deceived.” Combs-DeMaio , ¶ 14 (citations omitted) (emphasis added). Here, Amer igas, Bertelsen’s lessee, us ed the property for public access and as a parking lot for Amerigas’s office, providing Edwards, the previous owner, with notice of use. ¶16 To be adverse, the use of pr operty must be exercised und er a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land; such claim must be known to, and acquiesced in by, the owners of the land. Lemont Land Corp. v. Rogers , 269 Mont. 180, 185, 887 P.2d 724, 727 (1994) (citations omitted). After a claimant has established the preliminary requirements for a prescriptive right, a presumption of adverse use arises and the burden shifts to th e owner of the land on which the prescriptive easement is claimed to establish permissive use or license. Lemont Land Corp. , 269 Mont. at 185, 887 P.2d at 727-28 (citations omitted). ¶17 Here, as stated above, Bertelsen has proven open, notorious, excl usive, continuous and uninterrupted use of the pie-shaped property for the requisite five-year period. Bertelsen is thus entitled to the presump tion of adverse use. To overcome this presumption, Slauson must prove that Bertel sen’s use was permissive. Slauson contends
6that Bertelsen’s use was permissive because Bertelsen sought and received permission to use the property from MDOT, which held a highway easement on the pie-shaped property until 2003, when MDOT discharged the easement at Slauson’s request. ¶18 Slauson’s argument fails because pe rmission must be granted by the owner of the property, here Edwards, no t MDOT who was merely an easement holder. Further, Bertelsen was not required to notify Edwards that his use of the pie-shaped property was adverse. Bertelsen’s acts al one, which were inconsistent with Edwards’s title, were sufficient to constitute notice. Lemont Land Corp. , 269 Mont. at 185, 887 P.2d at 728 (citations omitted). ¶19 Bertelsen thus established the elements necessary to acqu ire a prescriptive easement of the pie-shaped pr operty now owned by Slauson, including that the use was open and notorious and adverse. ¶20 B. Did Bertelsen’s use rise to the level of a possessory interest so that Bertelsen was required to prove all the elements of adverse possession? ¶21 Slauson also contends that, even if all the prescriptive easement requirements were met, Bertelsen’s claim must fa il because his use of the proper ty was so extensive that it amounted to possession and thus Bertelsen had th e burden of proving all the elements of adverse possession, including payment of ta xes, as opposed to merely proving the elements of prescriptive easement. Citing Burlingame v. Marjerrison , 204 Mont. 464, 665 P.2d 1136 (1983), Slauso n claims he will be left w ith an “empty fee title” if a prescriptive easement is granted.

7¶22 Slauson failed to make this argument before the District Court. We will not allow him to raise the issue for th e first time on appeal, because it is fundamentally unfair to fault a district court for failing to rule correc tly on an issue it never had the opportunity to consider. State v. Johnson , 2005 MT 318, ¶ 13, 329 Mont . 497, ¶ 13, 125 P.3d 1096, ¶ 13. CONCLUSION ¶23 We affirm the District Court’s determ ination that Bertelsen has established a prescriptive easement to use Slauson’s propert y for an access and parking lot, and agree with the District Court’s pronouncement that the easement is lim ited to these existing

uses.

/S/ W. WILLIAM LEAPHART

We concur: /S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ JIM RICE

Justice Patricia O. Cotter concurs. ¶ 24 I concur in the result reached by the Co urt, but I disagree with its reasoning in arriving at the outcome. Although virtua lly all of the Amerigas encroachments are located within the aban doned roadway, the deed Slauson prepared for Edwards’ signature did not encompass this portion of the propert y. Opinion, ¶ 6. This means that Edwards—and not Slauson—still owns the property upon wh ich the encroachments are

8situated. This being so, Slau son has no legal standing to enforce any property rights against or collect any damages from Bertelsen. I would affirm the Di strict Court’s ruling in favor of Bertelsen on this basis, and I would not reac h the prescriptive easement question.

/S/ PATRICIA COTTER

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