No. 84-12 INTHESUPREMECOURT OF THE STATE OFMOXTANA 1984

JEROMEH. THOMAS,RUTHN. THOLIAS, D. GARYTHOMAS,PHILLIPMARK THOMAS, and LEECRAFTON, Plaintiffsand Respondents,

EDWIN BARNUM, DefendantandAppellant.

APPEAL FROM: DistrictCourtof theFourth Judicial District, Inand for the CountyofLake, TheHonorableJamesB. Wheelis,Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Warden, Christiansen, Johnson & Berg; StephenC. Berg,Kalispell,Montana

For Respondents: Turnage & McNeil,John Mercer,Polson,Montana

SubmittedonBriefs: April 12,1984 Decided: June 28, 1984

Filed: 8-bSVIh:

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ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.Defendant Edwin Barnum appeals from a judgment of the District Court of the Fourth JudicialDistrict,Lake County, finding aprescriptive easement across his property in favor of plaintiffs, and enjoining him from obstructing plaintiffsguse of the easement. We affirm. In dispute is the right to use without permission or obstruction a dirt and gravel road running north from the Lake Mary Ronan Highway through lands owned by plaintiffs Gary and Phillip Thomas and continuing through the property of Edwin Barnum. The road then enters property owned by Jerome and Ruth Thomas, and continues in a northerly direction through other lands owned by Phillip and Gary Thomas. The road thenwinds througha small sectionof land owned by Thomas Crafton, the father of Lee Crafton, and eventually terminates on property owned by the Glacier Park Company. The testimony of witnesses at trial establishes the historical practices surrounding use of the road and the circumstances leading up to thedispute over itsuse. None of the parties disagree that the lands now owned by them were probably homesteaded around the turn of the century, and that the road inquestion was constructed about 19QQand has remained virtually unaltered since that time. According to plaintiffs' witness Bill Wilhelm, an eighty-three year old, lifetime resident of the area,all of the homesteaders probably built the road together. Wilhelm also testified that since its construction, the road has been used continuously and without permission by area landowners,whoare involved primarily in ranching and logging, to reach their properties, move cattle either to grazing or market, and ship logs to market. Hunters have also used the road for many years. Perhaps the most critical observation offered by Wilhelm was that the road was used continuously during the forty years that one Theodore Savall owned the Barnum property. According to Wilhelm, Savall never hampered the use of the road, and no one ever asked or needed permission to use the road during or after the period of Savall's ownership of the adjacent land. Wilhelmt s testimony is supported in large part by the testimony of Jack Meuli, a local rancher, lifetime residentand nephew of Theodore Savall. From trial testimony and the on-scene view of the premises by the trial judge, it is also clear that fences

run along both sides of the road for most of the distance through the Barnum property. According to Wilhelm, Saval.1 andWilhelm's fathermay have installed the fence during the early 1900's. The only portion left unfenced was a southwest corner,but Barnum apparently fenced this at some time after hepurchased theproperty in 1961. Some kind of gate was strung along the northern edge of the road, very close to the Barnum-Jerome Thomas property line. This "north gate" was probably installed by the Scotts, predecessors-in-interest to Barnum. Although none of the parties were certain when it was installed or for what purpose, Meuli testified that, to his knowledge, the gate had never been locked prior to 1977. At the very least,

none of the plaintiffs or their witnesses regarded it as a bar to unrestricted use of the road.The instantdisputebegan inthe summer of 1977, when Barnum padlocked thenorthgateand obstructedtheroadwith logs and other debris, actions which virtually curtailed

access by the Thomases, Meuli and Crafton to their respective properties. Prior tothistime, theThomaseshad used the road for their Christmas tree business, and Meuli used it for moving cattle to and from pasture land leased fromJerome Thomas. Thomas soughtlegalassistancefromthe county attorney, who advised Barnum to remove the lock and permit access. Nevertheless, in September of that same year, Barnum again restrictedaccess, thistimeby erecting another locked gatealong the southernpartof theroad not far fromhisproperty line. Thisgateobstructed accessby Thomas, Meuli and Lee Crafton, who was verbally threatened by Barnum and prevented from hauling materials to a cabin construction site on his father's land. Thomas again contacted the county attorney, who again spoke to Barnum about theaccessproblem. Inresponse, Barnum lefta key to the south gate with Thomas, although Thomas testified at trial that he never accepted the key, and that Barnum had just 'plunked it down on the windowsill" of Thomas1 home. Meuli also received a key to the south gate, but Crafton apparentlydidnot. The plaintiffscontinued tohave trouble with Barnum, and eventually filed suit seeking declaration of a prescriptive easement in that portion of the road running through Barnum1s land and an injunction against further obstruction of the road and harrassment of plaintiffs. A temporary restraining order against Barnum was issued shortly thereafter. A stipulation was then entered intopermitting access by plaintiffs during the course of litigation. This stipulation was made part of a court order allowing temporary access. Nevertheless, in apparent defiance of the order, Barnum barred or conditioned access by both Meuli and Crafton on at least threeoccasions. The case came to trial inJune,1983. Barnum appeared

as the only witness for thedefense. He maintained thatuse of the road was subject to his permission, although he had

no personal knowledge of practices concerning use of the road before he purchased the land in 1961. He testified that the south gate was constructed only to keep hunters from entering the property, but also claimed that Meuli ran too many cattle along the road, and that the cattle were "scattered" over the property. TheDistrict Court rejected Barnum's contentions and rendered judgment in favor of plaintiffs. The sole issueonappeal is whether theDistrict Court properly found that plaintiffs had acquired a prescriptive easement in that portion of the road running through Barnum'sproperty. The law on acquiring an easement by prescription was set forth clearly in Taylor v. Petranek (1977), 173 Mont.

"'To establish the existence of an easement by prescription, the party so claiming must show open, notorious, exclusive, adverse, continuous and uninterrupteduse of the easement claimed for the full statutoryperiod.' Scott

### v. Weinheimer, 140Mont. 554, 560, 374 P.2d 91; White v. Kamps, 119 Mont. 102, 171 P.2d 343. [The statutory period in Montana was originally set at ten years. Section 9015,R.C.M. 1935, In 1954, the period was reduced to five years. See section 70-19-401, MCA and 1954 Mont. Laws ch. 224.1

### " To be adverse, the use must be exercised under a claim of right and not as amere privilege or license revocable at thepleasure of the owner of the land; such claim must be known to, and acquiesced inby, the owners of the land. Whitev. Kamps, supra. If there hasbeen use of an alleged easement for the full statutory period, unexplained, itwill be presumed to be under a claim 

### of right, and adverse,and will be sufficient to establish a title by presumption of a 

### ------------ grant. Scott v. ~ei%heimer, supra; Te Selle v. Storey, 133 Mont. 1, 319 P.2d 218; Glantz v. Gabel, 66Mont. 134, 141, 212P.2d 858. Thispresumption exists to overcome I"

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## * the general infirmity of human nature, the difficulty of preserving the muniments of title 

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II 1 and to promote public policy of supporting long and uninterrupted possessions. Glantz v. Gable, supra

[citing Ricard v. Williams (1822), 20 U.S. (7Wheat.) 59, 109, 5 L.Ed. 398, 410.1" 173Mont. at 437-38, 568 P.2d at 122. (Emphasisadded.) The presumption may be overcome by evidence that use is permissive and notunder claim of right. Taylor, supra, 173 Mont. at 438, 568 P.2d at 123. See also State v. Cronin & Wilson (1978),178Mont. 481,488,587P.2d 396, 400. Assuming the proper legal standard is applied by the trial court, we evaluate the court's evidentiary findings under the substantial evidence test. "ThisCourt's function

on appeal is simply to determine whether there is substantial evidence to support the district court's findings

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# . . [W]ewill not reverse them unless there is a clear preponderance of evidence against them." Taylor, supra, 173 Mont. at 437, 568 P.2d at 122 (citations omitted). Due regard is given the opportunity of the district court to judge the credibility of witnesses, Rule 52(a), M.R.Civ.P., and resolve conflicts or inconsistencies in testimony, Bauer v. Cook (1979), 182Mont. 221, 225-26,596 P.2d 200, 203. The testimony of Thomas, Meuli and Wilhelm supports the trial court's finding that use of the road was open, notorious, exclusive, adverse, continuous and uninterrupted for all the years leading up to the currentdispute. Itwas up to Barnum to establish that use was purely permissive. The trial court was not convinced of the validity of his claims, and we find no error in the court's judgment. Barnum had nopersonal knowledge of the area or uses of the road prior to 1961, other than the knowledge possessed by

men like Wilhelm. Wilhelm's testimony confirmed the plaintiffs' assertion that permission to use the road by

area residents was never sought and, more importantly, was unnecessary. Indeed, from 1961 to 1977, Barnum personally acquiesced in use of the road by area residents who believed they could travel it under a claim of right. Although Barnum insists that Thomas had asked permission to use the road in his Christmas tree business, Thomas indicated that he had once asked permission to cut trees on Barnum's property,

### notpermission to use the road. Barnum offered no evidence to establish permissive use other than his uncorroborated assertions. Nevertheless, Barnum argues that the testimony of Thomas, Meuli and Wilhelm actually supports his theory that, historically, use of the road was a matter of neighborly cooperation and implied consent of the landowner since the time of the early homesteaders. Where there is evidence of such a custom or an understanding to cross one's land or use a road thereon,

we have held that use was permissive and could not ripen into a presciptive easement. See, e.g., Rathbun v. Robson(Mont. 1983), 661P.2d 850, 852, 40 St.Rep. 475, 477; Ewan

v. Stenberg (1975), 168 Mont. 63, 67, 541 P.2d 60, 63; Wilson v. Chestnut (1974),164Mont. 484, 491, 525 P.2d 24, 27. Under the direction of leading questions propounded by Barnum's attorney, plaintiff Thomas and the other witnesses agreed with counsel that concepts such as "custom" and "understanding" described the historical use practices. Barnum relies on these answers to rebut the presumption supporting a prescriptive easement. It is clear that, in answering defense counsel's questions, Thomas, Meuli and Wilhelm did not necessarily appreciate the subtle distinctions involved when describing the nature of use. The trial court, however, obviously understood what was happening and looked to the complete record of witness testimony regarding use before giving credence only to the answers given under cross-examination. Wilhelm, whose recollections of the history behind use of the road were the most detailed, testified that all of the l?omesteaders constructed the road around 1900. Savall and his successor-in-interest acquiesced in the use of the road by neighbors and others, all of whom regarded use of the road as under claim of right for many years. Thomas' and Meuli's observations corroborate the crucial fact that permission was something never considered by users over the years. Under the circumstances, any prescriptive easement was already in existence asamatter of law before 1961, the year Barnum purchased the land. He therefore purchased the land subject to the easement. Scott v. Weinheimer (1962), 140 Mont. 554, 561, 374 P.2d 91, 95. He cannot now extinguish the easementby abelated assertion of ownership.xhe presence of the old north gate along the road is of no consequence. While it is true that thepresence of a gate which must be opened and closed can be "strong evidence" of a mere license to use a road, see Rostbade v. Metier (1967), 150 Mont. 139, 145, 432 P.2d 382, 386, evidence of adverse use of the road will prevail. Here, as inKostbade, thegatewas never locked,andwas not regarded

as a hindrance or obstruction by plaintiffs, their predecessors-in-interest, or the plaintiffs' witnesses. Indeed, the absence of another gate on the southern edge of the property prior to Barnilm's construction of the south gatepermits an inference thatuse was not tobe restricted. We note further that the District Court was not convinced of Barnum's credibility as a witness. Barnum testified that Lake County authorities never maintained the road, yet on rebuttal Thomas and Wilhelm indicated that county crews had worked the road up to the north gate for many years. Similarly, Barnum claimed that cattle would stray onto his land from the road, yet the trial judge observed that the road was flanked on either side by steep hillside and fences, making it unlikely that cattle would stray. Barnum offered no explanation of thesediscrepancies inhis testimony. In summary,we find substantial evidence in the record to support the District Court's finding of a prescriptive easement. The judgment isaffirmed.

fWe concur: 

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