NO. 88-350 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

ACE M. WOODS, 

Plaintiff and Appellant, 

-vsPAMELA A. HOULE, SEAN DUKE, 

Defendants and Respondent. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C.R. McNeil, 7udge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ace M. Woods, pro se, Wisconsin Rapids, Wisconsin 

For Respondent: 

James A. Manley, Polson, Montana 

Submitted on Briefs: Oct. 27, 1988 

Decided: December 14, 1988 
Mr. 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 

implication or an implied easement by way of necessity. 

The District Court determined that defendant, Sean Duke, 

had not appeared in the action, made no claim to any easement 

over Woods' land, and judgment of dismissal was 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 12 were 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 12 was in apparent and 

regular use. During the period October, 1971, 

through January, 1976, title to Lot 12 was 

held by D. J. Rarthrop and others, but our 

record does not 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 1.976 became 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 to use the road under three theories: 

prescriptive easement, easement implied by reservation and 

easement by necessity. 

PRESCRIPTIVE EASEMENT 

The person who holds legal title to the real property 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 in 
subordination 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 establish a prescriptive easement, the party claiming 

the right must "show open, notorious, exclusive, adverse, 

continuous and uninterrupted use of the easement claimed for 

the full statutory period." Graham v. Mack (Mont. 1984), 699 

P.2d 590, 595, 41 St.Rep. 2521, 2525, citing Thomas v. Rarnum 

(1984), 211 Mont. 137, 684 P.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 rest upon mere allegations or denials, but to 

respond by affidavit or otherwise, setting forth specific 

facts showing there was a genuine issue of material fact for 

trial. Rule 56, supra. 

None of the deeds among the various parties 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 indulgence of the owners of Lot 11, 

and not by possession adverse to them. 

When Ace M. Woods took over the ownership of Lot 11 in 

1972, the roadway over Lot 11 had 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. It was the burden of Ace 

M. Woods to show that the use was permissive: 
In our view, the logical inference is that 

Stringham began 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 Stringham held under a claim of right 

and not by license of Gardner, and the same is true 

as to the successors in interest of each. In order 

to overcome that presumption, thereby saving its 

title from the encumbrance of an easement, the 

burden is on the defendant to show that the use was 

permissive . . . 

Groshean, et al. v. Dillmont Realty Company (1932) , 92 Mont. 

227, 239-240, 12 P.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 communicate by 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, 92 Mont. at 241, 12 P.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 of material fact, 

and accordingly, we affirm the decision of the District 

Court, granting summary judgment to Pamela Houle on her 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 facts here, we must reverse that holding. 
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 servitude by 

mere implication. Goeres v. 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 easement by 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 1972 deeded 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 be met." 

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-motion under 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 

easements by way of necessity, said: 

There are two basic elements (1) unity of 

ownership; and, (2) strict necessity. The 

necessity must exist at the time the unified tracts 

are severed. (Citing authority.) 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 there must be strict 

unity of ownership. 

699 P.2d at 596. 

None of the requirements for a way of necessity are met 

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 another mile and a 

half to get to a public road, over the properties of third 

parties. Under Graham v. Mack, supra, a way of necessity may 

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 judgment on this issue in favor of Pamela 

A. Houle is reversed and Ace M. Woods is entitled to summary 

judgment on his cross-motion under Rule 56. 

SUMMAT I ON 

We affirm the summary judgment granted by the District 

Court, finding a prescriptive easement over the lands of Ace 

M. Woods to serve the dominant ownership of Pamela Houle. We 
reverse the District Court's judgments of easements by 

implication and by way of necessity, and direct the entry of 

summary judgments in favor of Ace M. Woods on those issues. 

No costs to either party. 

We concur: 1