No. 84-12 

IN THE SUPREME COURT OF THE STATE OF MOXTANA 

1984 

JEROME H. THOMAS, RUTH N. THOLIAS, 

D. GARY THOMAS, PHILLIP MARK THOMAS, 

and LEE CRAFTON, 

Plaintiffs and Respondents, 

EDWIN BARNUM, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Lake, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Warden, Christiansen, Johnson & Berg; Stephen C. 

Berg, Kalispell, Montana 

For Respondents: 

Turnage & McNeil, John Mercer, Polson, Montana 

Submitted on Briefs: April 12, 1984 

Decided: June 28, 1984 

Filed: 8- bSV Ih: ii i984 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Defendant Edwin Barnum appeals from a judgment of the 

District Court of the Fourth Judicial District, Lake County, 

finding a prescriptive easement across his property in favor 

of plaintiffs, and enjoining him from obstructing 

plaintiffsg use 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 then winds through a small section of 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 the dispute over its use. 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 in question was constructed about 19QQ and 

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, who 
are 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 resident and 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 

and Wilhelm's father may 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 he purchased the property 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 instant dispute began in the summer of 1977, when 

Barnum padlocked the north gate and obstructed the road with 

logs and other debris, actions which virtually curtailed 

access by the Thomases, Meuli and Crafton to their 

respective properties. Prior to this time, the Thomases had 

used the road for their Christmas tree business, and Meuli 

used it for moving cattle to and from pasture land leased 

from Jerome Thomas. Thomas sought legal assistance from the 

county attorney, who advised Barnum to remove the lock and 

permit access. Nevertheless, in September of that same 

year, Barnum again restricted access, this time by erecting 

another locked gate along the southern part of the road not 

far from his property line. This gate obstructed access by 

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 the access problem. In response, Barnum left a 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 

apparently did not. 

The plaintiffs continued to have 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 into 
permitting 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 three occasions. 

The case came to trial in June, 1983. Barnum appeared 

as the only witness for the defense. He maintained that use 

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. The District Court rejected 

Barnum's contentions and rendered judgment in favor of 

plaintiffs. 

The sole issue on appeal is whether the District Court 

properly found that plaintiffs had acquired a prescriptive 

easement in that portion of the road running through 

Barnum's property. 

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 

uninterrupted use of the easement claimed 

for the full statutory period.' Scott v. 

Weinheimer, 140 Mont. 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 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. 

White v. Kamps, supra. If there has been 

use of an alleged easement for the full 

statutory period, unexplained, it will 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, 66 Mont. 134, 141, 

212 P.2d 858. This presumption exists to 

overcome I" * * * the general infirmity 

of human nature, the difficulty of 

preserving the muniments of title * * * 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. (7 Wheat.) 59, 109, 5 L.Ed. 398, 

410.1" 173 Mont. at 437-38, 568 P.2d at 

122. (Emphasis added.) 

The presumption may be overcome by evidence that use is 

permissive and not under claim of right. Taylor, supra, 173 

Mont. at 438, 568 P.2d at 123. See also State v. Cronin & 

Wilson (1978), 178 Mont. 481, 488, 587 P.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. "This Court's function 

on appeal is simply to determine whether there is 

substantial evidence to support the district court's 

findings . . . [W]e will 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), 182 Mont. 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 current dispute. It was 

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 no personal 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, not permission 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), 661 P.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), 164 Mont. 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 as a matter 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 easement by a belated assertion of ownership. 
xhe presence of the old north gate along the road is 

of no consequence. While it is true that the presence 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 

in Kostbade, the gate was never locked, and was 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 

gate permits an inference that use was not to be 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 these discrepancies 

in his testimony. 

In summary, we find substantial evidence in the record 

to support the District Court's finding of a prescriptive 

easement. The judgment is affirmed. 

f 
We concur: 

Cd? Chief Justice 

Justices #