No. 13665 

IN THE SUFREBQ7 COURT OF THE STATE OF MONTANA 

1977 

JAMES C. TAYLOR, 

Plaintiff and Respondent, 

CHARLES PETRANEK and MRS. CHARLES 

PETRANEK, his wife, and GEORGE A. 

FETMNEK and MRS. GEORGE A. FETRANEK, 

his wife, 

Defendant and Appellant. 

Appeal from: District Court of the Tenth Judicial District, 

Honorable Nat Allen, Judge presiding. 

Counsel of record: 

For Appellant: 

Bradley Parrish argued, Lewistown, Montana 

For Respondent: 

Morrow, Nash and Sedivy, Bozeman, Montana 

James Morrow argued, Bozeman, Montana 

Filed: 

Submitted: June 8, 1977 ! - , . , 

Decided: '( ,'I 

Clerk 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

~efendants appeal from a decree quieting title in plaintiff 

to certain land in north central Fergus County and denying defendants either a public or private easement across plaintiff's ranch. 

Plaintiff is James C. Taylor, the successor in interest 

to his father and brother who purchased the "Horse Ranch" southeast of Suffolk in Fergus County, Montana in 1946. Defendants are 

Charles and George A. Petranek and their respective wives; they 

own a ranch adjacent to plaintiff's on the north and east sides. 

A road, known as the Suffolk-East Road, runs easterly from 

the town of Suffolk toward the Petranek ranch. The first six miles 

of this road is a dedicated county road. The next seven miles runs 

easterly along the top of a ridge, over a hill, down into Murphy's 

Coulee, across the coulee and through a school section where it 

splits. One fork joins a trail which leads south for about five 

miles to the "Horse Ranch" buildings; the other fork leads east to 

the Petranek ranch buildings, then becomes a trail leading south to 

the "Horse Ranch" buildings. 

Initially, the "Horse Ranch" lands did not include any part 

of the Suffolk-East road. However, in the early 19401s, the Taylor 

family's predecessor in interest expanded the "Horse Ranch" holdings. 

Today the Suffolk-East road passes through a part of the "~orse 

Ranch" property. 

In 1914 the Petraneks' father purchased the land upon which 

defendants' ranch buildings are now located. At that time the 

country between Suffolk and the Petranek ranch was occupied by 

homesteaders who forged trails across the countryside to reach 

Suffolk by the shortest possible routes. As the homesteaders' 

ranches were fenced in, a common practice developed among them to 

allow one another to cross the fenced lands when traveling to ~uffolk. 
Although many trails covered the countryside, the Suffolk-East 

road was the main route into Suffolk from that area. 

By the mid-1920's most of the homesteaders' operations had 

failed. heir fences fell into disrepair and were eventually removed. For awhile, the country through which the Suffolk-East road 

passes became open range. 

Then in 1930 defendant Charles Petranek and his father 

fenced in the west side of their property where it adjoins what is 

now the "Horse Ranch" property and installed a gate where the fence 

line crossed the Suffolk-East road. In 1936 Milton Butcher bought 

the property immediately west of the present day "Horse Ranch" and 

fenced in his property. After the Taylor family acquired the "Horse 

Ranch" in 1940, they fenced in their property and installed a gate 

at the point where the Suffolk-East road crosses from the Butcher 

property to the "Horse Ranch". 

In 1952 the Taylors' gate was replaced by a cattle guard. 

In 1973, the Butchers' removed this cattle guard and the foreman of 

the "Horse Ranch" installed a gate. The "Horse Ranch" foreman 

locked this gate from July to October, 1972, and again in October, 

1973. He offered keys to the Butchers and the Petraneks, but the 

Petraneks refused to accept one. The Petraneks persisted in cutting 

locks on this gate after its closing in 1973, claiming a right to 

use the Suffolk-East road where it crossed the "Horse Ranch". The 

present lawsuit followed. 

Plaintiff Taylor filed a complaint seeking to quiet title 

to his lands under claim of ownership and denying any claim of 

interest in these lands by defendants or any of them. Defendants 

filed an amended answer in which they denied any claim of ownership 

in plaintiff's lands, but they asserted that the public, or in the 

alternative they as private individuals, had acquired an easement 

by prescription in the road which crossed plaintiff's property and 
that this road could not be closed by a quiet title action. 

Judge Nat Allen assumed jurisdiction and granted a preliminary injunction restraining defendants from going upon plaintiff's property during the pendency of the action. Following trial 

by the court sitting without a jury, Judge Allen entered findings 

of fact, conclusions of law and a decree quieting title in plaintiff, denying defendants' claims of public or private easement by 

prescription in the roadway, and enjoined defendants from asserting 

any interest in plaintiff's property or any claim of right to use 

any roadway across it. Defendants have appealed from this decree. 

The issues on appeal can be summarized in this manner: 

(1) The sufficiency of the evidence to establish a private 

road easement by prescription across plaintiff's land; 

(2) The sufficiency of the evidence to establish a public 

road easement by prescription across plaintiff's land; 

(3) Whether Fergus County is an indispensable party to 

defendants' claim of easement. 

The legal principles governing defendants' attack on the 

sufficiency of the evidence to support the district court's findings 

are clear. Rule 52(a), M.R.Civ.P., provides in pertinent part: 

" * * * Findings of fact shall not be set aside 

unless clearly erroneous, and due regard shall be 

given to the opportunity of the trial court to 

judge of the credibility of the witnesses * * *." 

This Court's function on appeal is simply to determine whether there 

is substantial evidence to support the district court's findings and 

will not reverse them unless there is a clear preponderance of evidence against them. Merritt v. Merritt, 165 Mont. 172, 526 P.2d 

1375; Finley v. Rutherford, 151 Mont. 488, 444 P.2d 306. 

The law on acquiring a public or private easement by prescription is equally clear: 

"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 controversy between plaintiff and defendants in this 

case boils down to whether defendants1 use of the road was adverse 

or permissive. 

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 owner 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 

prescription and to authorize the presumption of a grant. Scott v. 

Weinheimer, supra; Te Sellev. Storey, 133 Mont. 1, 319 P.2d 218; 

Glantz v. Gabel, 66 Mont. 134, 141, 212 P. 858. This presumption 

exists to overcome "' * * * the general infirmity of human nature, 

the difficulty of preserving the muniments of title * * * "' and 

to promote the public policy of supporting long and uninterrupted 

possessions. Glantz v. Gabel, supra. 

Defendants rely heavily on this presumption. They argue 

that this Court in Te Selle substituted this presumption for "the 

tortured and burdensome definition of what is and what isn't adverse use contained in the White v. Kamps case". In our view, 

White sets out very clearly what the law on adverse and permissive 

use is, contrary to defendants1 assertion. The presumption upon 

which defendants1 rely, first adopted in Glantz, was not at issue 

in White.: 

Defendants contend that plaintiff has not overcome the 

presumption by adequately explaining defendants' use of plaintiff's 

land. Rebuttable presumptions may be overcome by other evidence, 
direct or indirect. Section 93-1301-5, R.C.M. 1947; Lunceford v. 

Trenk, 163 Mont. 504, 518 P.2d 266; O'Connor v. Brodie, 153 Mont. 

129, 454 P.2d 920. Here the record is replete with testimony from 

both plaintiff's and defendants' witnesses that the homesteaders 

who initially lived in the area developed common practice of allowing others to cross their lands to reach Suffolk. This evidence is 

sufficient to support a use permissive in its inception and not 

under a claim of right. 

Although a use permissive in its inception may ripen into 

a prescriptive right, it cannot do so unless there is a later distinct and positive assertion of a right hostile to the owner, which 

must be brought to the attention of the owner, and the use continued 

for the full prescriptive period. White v. Kamps, supra; also, see 

Poepping v. Neil, 159 Mont. 488, 499 P.2d 319. 

Here the evidence shows that when the Taylors purchased 

the "Horse Ranch" in 1946, they fenced in their property, inst,alled 

gates, and posted "No Hunting" and "No Trespassing" signs. The 

record does not clearly reveal who the intermediate owners of that 

part of the present "Horse Ranch" crossed by the Suffolk-East road 

were. However, in our view, the record does reveal that defendants' 

first distinct and positive assertion of a hostile right to the 

rights of the owner which was brought to the attention of the owner 

was when Charles Petranek cut the locked gates of the "Horse Ranch" 

in October, 1973. The full statutory period to establish an easement by prescription did not elapse thereafter. 

Defendants' claim that the general public had acquired an 

easement across the plaintiff's land fails for the same reason. 

Although defendants point out that hunters occasionally used the 

road, plaintiff's testimony that he considered the road a private 

road and his foreman's testimony of posting "No ~unting" and "NO 

 re spas sing" signs on the gates supports permissive rather than 
adverse use. This Court recently held that use of a road for recreation, hunting or fishing in itself was not sufficient to raise a 

presumption of adverse use or claim of right. Harland v. Anderson, 

(1976) Mont . , 548 P.2d 613, 33 St.Rep. 363. Additionally, 

this Court has considered gates which must be opened and closed by 

persons passing over the land as strong evidence of a mere license to 

the public to pass over the designated way. Kostbade v. Metier, 

150 Mont. 139. 432 P.2d 382. 

Defendants additionally challenge the district court's finding that there is no instrument in writing conveying right of way 

across plaintiff's land on file with the Fergus County clerk and 

recorder. The evidence does not support defendants' contention. 

In summary we hold that there is substantial evidence supporting the district court's determination that neither the general 

public nor the defendants individually have acquired an easement 

by prescription across plaintiff's land. 

In view of our holding against defendants on the first two 

issues, the third issue becomes immaterial as it would not change 

the result in this case. 

The decree of the district court is affirmed. 

Justice 

We Concur: 

Mr. Justice Daniel J. Shea did not participate in this Cause.