NO. 88-350
IN THE SUPREME COURT OF THE STATEOF MONTANA 1988

ACE M. WOODS, Plaintiffand Appellant,-vsPAMELAA. HOULE, SEANDUKE, Defendantsand Respondent.

APPEAL FROM: District Court of theTwentieth Judicial District, In and for the County of Lake, The HonorableC.R. McNeil, 7udgepresiding.
COUNSEL OF RECORD:
ForAppellant:
AceM. Woods,pro se,Wisconsin Rapids, Wisconsin
For Respondent:
JamesA. Manley, Polson,Montana

Submitted on Briefs: Oct. 27, 1988 Decided: December 14,1988Mr. Justice John C. Sheehy delivered 

### the Opinion of the Court.

In this case, the District Court, Twentieth Judicial District, Lake County, entered summary judgment in favor of Pamela A. Houle, granting her an easement for a roadway over lands owned by Ace M. Woods, trustee. The District Court judgment held that Pamela A. Houle held an easement by prescription, an easement by implication and an implied easement by way of necessity. We affirm the District Court
on its finding of an easement by prescription, and reverse its holding that Pamela A. Houle established an easement by implicationor an implied easementby way ofnecessity. The District Court determined that defendant, SeanDuke, had not appeared in the action, made no claim to any easement over Woods' land,and judgmentofdismissalwas entered as to him. No issue involving Sean Duke is presented on this appeal. Pamela Houle owns Lot 12, Block 6, Safety Ray Villa Sites, near Flathead Lake in Lake County,Montana. Her home is located on the lot, built on a cliff. Ace M. Woods, trustee, is the owner of Lot 11, which abuts and is immediately south of Lot 12. Because of the cliff, the driveway to the Houle home on Lot 12 curves to the south, crossing a part of Lot 11. This is the only road into the Houle household. Prior to 1969,both Lots 11 and 12were owned by Ace E. Woods and Margaret

### N. Woods. Subsequent deeds,affecting the road,may be listed as follows: 1969 Ace E. Woods and Margaret N. Woods deeded Lot 12 to Charles Rarthrop. Six months following the deed, Charles Barthrop married Pamela Houle.

### Charles Barthrop and Pamela built the home on the cliff on Lot 12, and the roadway access, part of which crossed Lot 11.
Ace M. 

### Woods and Margaret

### N. Woods deeded Lot. 11 to Ace M. 

### Woods, as trustee for relatives. At the time of this transfer, the road crossing Lot 11 to Lot 12was in apparent and regularuse. During theperiod October, 1971, through January, 1976, title to Lot 12 was held by D. J. 

### Rarthrop and others, but our record doesnot show a deed. Charles K. 

### Barthrop and Pamela Houle were divorced. At that time, they held the property in joint ownership. Eventually, out of the marital dissolution, Pamela Houle, by quit claim deed in 1.976became the sole owner of Lot 11.
Ace 

### M. Woods, trustee, erected a barricade, blocking access to Lot 12. Pamela Houle removed the barricade from the roadway in question. 1983

## - Counsel for Ace M. 

### Woods and Pamela Houl~ 1984 made cross-claims as to the right of Houle to use the roadway. 1987 Quiet title action commenced.
Ace 

### M. Woods filed an action to quiet the title to Lot 11, in 1987, naming as defendants Pamela A. Houle and Sean Duke. The quiet title action placed in issue the easement claimed by Houle to use the roadway over Lot 11. Pamela Houle claimed the right touse the road under three theories: prescriptive easement, easement implied by reservation and easementby necessity. PRESCRIPTIVEEASEMENT Thepersonwho holds legal title to the realproperty is presumed to have been possessed thereof within the time required by law, and the occupation of that property by any other person is deemed to have been under and insubordination of the legal title unless it appears that the property has been held in possession adversely to such legal^ title for five years before the commencement of the action. Section 70-19-404,MCA. To establisha prescriptive easement, theparty claiming the right must "show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutoryperiod." Grahamv. Mack (Mont.1984), 699 P.2d 590, 595,41 St.Rep. 2521,2525, citing Thomasv. Rarnum

(1984),211Mont. 137, 684P.2d 1106. In support of a Rule 56,M.R.Civ.P. motion for summary judgment, Pamela Houle filed affidavits which recited facts that would fulfill the requirements for 

### a prescriptive easement. It thereupon became the duty of Ace M. Woods, trustee, not to restupon mere allegations or denials, but to respond by affidavit or otherwise, setting forth specific facts showing therewas a genuine issue ofmaterial fact for trial. Rule 56, supra. None of thedeeds among thevariousparties listed above made any mention of the easement for the roadway utilized by Pamela Houle. The responses of Ace M. Woods to the affidavits filed by Houle are to the effect that the roadway
was used by permission or indulgenceof the owners of Lot 11, and notby possession adverse to them. When Ace M. Woods took over the ownership of Lot 11 in 1972, the roadway overLot 11had been in existence for about. two years. The use of the roadway, if adverse, had not yet ripened into a prescriptive easement because the statutory time period had not passed. Nothing in the record indicates that Ace M. Woods, orally or by other action, either granted permission, or prevented the use of the roadway until the erection of the barricade in 1983. Itwas the burden ofAce M. Woods to show that the use was permissive:In our view, the logical inference is that Stringhambegan his use under a claim of right. In the absence of any evidence on the subject, the presumption under the circumstances shown here would be that Stringhamheld under a claimof right and notby license ofGardner,and the same is true as to the successors in interest of each. Inorder to overcome that presumption, thereby saving its title from the encumbrance of an easement, the burden ison thedefendant to show that the use was permissive

# ... Groshean, et al. v. Dillmont Realty Company (1932)

### , 92Mont. 227, 239-240, 12P.2d 273, 275. See also Rathbun v. Robson (1983), 203 Mont. 319, 661 P.2d 850; Stamm v. Kehrer (Mont. 1986), 720 P.2d 1194, 43

Under the facts of this case, Pamela Houle was under no duty to communicateby word of mouth to Ace M. Woods or his predecessors in interest, that she was using the roadway under a claim of right and adversely to them. Groshean, supra, 92Mont. at 241, 12P.2d at 276. Woods' contention in this case is that Charles Rarthrop, D. K. Barthrop,and others were all relatives,and that their
use of the roadway must have been permissive. Aside from conclusory allegations to that effect, we are left in the dark by Woods as to when and by whom permission, as distinguished from adverse user,was granted for the roadway. Woods failed to establish a genuine issue ofmaterial fact, and accordingly, we affirm the decision of the District Court, granting summary judgment to PamelaHoule onher claim of easement

### by prescription. IMPLIED EASEMENT

### BY RESERVATION The District Court further granted summary judgment to Pamela Houle on her claim of an easement

### by implication. On the factshere, we must reverse thatholding.Courts are reluctant to find easements by implication for the reason that such an action results in depriving a person of the use of his property by imposing 

### a servitudeby
mere implication. Goeresv. Lindey's, Inc. (~ont. 1980), 619 P.2d 1194, 1197, 37 St.Rep. 1846. Implied easements must rest upon an implied intent of the parties gathered from the circumstances surrounding the conveyance. Pioneer Mining Company v. Bannack Gold ~ining Company (1921), 60 Mont. 254, 264, 198 P.2d 748; Graham v. Mack, supra. The claimed easement must be so apparent that it is discoverable upon reasonable inspection. Pioneer Mining Company, supra. Pamela Houle may have met those requirements, but she failed in other essentials. To create
an easementby implication from a pre-existing use imposed on
one part of the property for the benefit of another party, unity of title at the time of the severance thereof is required. 25 Am.Jur.2d 443 Easements, S 29. When A. E. Woods and Margaret N. Woods deeded the property to C. K. Barthrop, the road was not in existence. When A. E. Woods and Margaret M. Woods in 1972deeded Lot 11 to Ace M. Woods, the road was in existence, but there was no longer unity of title of the two lots in the grantors. Thus, in Graham v. Mack, supra, 699 P.2d at 596, we held that an easement by implication could not be established because "the first element,unity of ownership,would not bemet." Accordingly, we reverse the summary judgment granting Pamela A. Houle an easement by i.mplication. On this issue, Ace M. Woods is entitled to a summary judgment based on his cross-motionunder Rule 56. EASEMENT BY WAY OF NECESSITY In like manner, the District Court granted. summary judgment in favor of Pamela A. Houle for an easement by way 

### of necessity. Again, we reverse.In Graham v. Mack, supra, this Court, speaking of easementsby way ofnecessity, said: There are two basic elements (1) unity of ownership; and, (2) strict necessity. The necessitymust exist at the time the unified tracts are severed. (Citingauthority.) The way granted must be over the grantor's land and never over the land of a third party or stranger to the title (citing authority)and finally theremust be strict unity of ownership. 699 P.2d at 596. None of the requirements for a way of necessity aremet here. The evidence in this case is that the way of necessity does not give access to Pamela A. Houle from her land to a public road. Rather, the encroachment on Lot 11 goes from one part of Lot 12 to another part of Lot 12, passing over Lot 11. In that situation, no way of necessity can be created. Boumhoff v. Lochhaas (Mo. 1923), 253 S.W. 762. Indeed in this case, it appears that the road,after leaving the property of the parties must traverse anothermile and a half to get to a public road, over the properties of third parties. Under Grahamv. Mack, supra,away ofnecessitymay not exist in that situation. 699 P.2d at 597. Finally, a way of necessity is incompatible with a prescriptive right for the same easement. A prescriptive right never accrues in a way of necessity as long as the necessity continues. Hanna v. Means (Fla.App. 1975), 319 So.2d 61,

### 64. Again, summary judgmenton this issue in favor of Pamela A. Houle is reversed and Ace M. Woods is entitled to summary judgmentonhis cross-motionunder Rule 56. SUMMATI ON We affirm the summary judgment granted by the District Court, finding a prescriptive easement over the lands ofAce 

### M. Woods 

### to serve the dominant ownership of PamelaHoule. Wereverse the District Court's judgments of easements by implication and by way of necessity, and direct the entry of summary judgments in favor ofAce M. Woods on those issues. No costs to either party.

We concur: 1