### No. 13119 INTHE 

### SUPREME COURT OF THE 

### STATE OF MONTANA 1976

GERALD R. 

### HARLAND, Plaintiff and Appellant,

ROY 

### ANDERSON and LOTTIE ANDERSON, husband and wife, and ANDERSON 

### RANCH CO., 

### a corporation, and the STATE OF 

### MONTANA, Defendants and Respondents.

Appeal from: District Court of the Eighth Judicial District, Honorable R. J. 

### Nelson, Judge presiding. Counsel of Record: For Appellant: 

### Cure, Borer and Lynch, Great Falls, Montana Edward W. 

### Borer argued, Great Falls, Montana For Respondents: Graybill, Ostrem, Warner & 

### Crotty, Great Falls,

Montana Donald L. 

### Ostrem argued, Great Falls, Montana

Submitted: March 

### 1, 1976

Decided: 

## 9P)i9

# -1976 Filed: 

### ;~.PR$ * 

## m996Yr. JuscLce ~ohli Jonway darrison Lellvered :he Jpiniur~ 

### ~i he Court.

Plaintiff Gerald R. Harland appeals from a summary judgmenc granted on two of three counts in a complaint filed in the district court, Cascade County, seeking to establish an 5asernent across property owned by defendants Roy Anderson and Lottie Anderson, husband and wife, and Anderson Ranch Co. (hereindfter referred to asAndersons). The complaint set forth three counts: Count I, seeking to establish an easement by prescription. Count 11, alleging damages forwrongful interference. Count 111, requesting a road orright of way be condemned over defendants' land for plaintiff's use. On motion of Andersons proceedings on Count TI1were stayed, pending the determination of Counts I and 11. The actionwas commenced January 25, 1972. Andersons answered and took depositions from Harland and one Clifford Obrecht, ~arland's predecessor in interest. On the basis of these two depositions and Andersons' answers to interrogatories, Andersons moved for summary judgment which was denied. Thereafter, Andersons secured the depositions of three other individuals whose testimony could allegedlydemonstrate the long and continued

use of a road leading to~arland's property. The property was viewed by the presidingjudge and counsel forboth parties. Andersons renewed theirmotion for summary judgment. The district court on April 21, 1975, entered its order granting that motion. Harland appeals that order. The record before this Court consists of the pleadings, interrogatories toAndersons, the aforementioned depositions and memoranda of counsel concerning the motion for summary judgment. From this it appears that since early 1971, Harland has been the

owner of about 3580 acres of land located in Township 16North, Range 1West, Cascade County, Montana. In addition he leases about 2360 acres owned by the United States and administered by theBureau ~.f ~clrid :.lanagernenC, these !ancis 3re I-ocaced i-n and are idntiguous with the mountain areas southeast of Cascade, Montana. They are surrounded by other ranch properties owned by various parties, including the Andersons, who control lands to thewest and northwest. For over 50 years a two track dirtroad has run across ;3nJersons1 land to the real estatewhich 

### is the subject of this appeal. The road 

### is crossed atseveralpoints by fences and closed gates owned and controlled by the Andersons. ~arland's predecessor in interest, Clifford Obrecht, acquired the property in 1945. In June 1948, an agreement was executed between Obrecht and Andersons which granted a right to

use the contested road by permission. This agreement was terminated in 1959 and never renewed. Harland affirms that any claims he may have toward the use of this road exist onlyby virtue of those rightswhich Obrecht may have had. Yet, Obrecht admitted in his deposition that he had not used the road continuously for the fiveyears precedent to the filingof this action. It isclear chat no positive representations regarding the existence of an easement were ever made toHarland during the negotiations which led to the sale of the property. Rule 56(c), M.R.Civ.P., provides that summary judgment is proper if: 

# "* 7k

# * the pleadings, depositions, answers to interrogatories, and admissions on file'show that there isno genuine issueastoany material fact and that the moving party 

### is entitled to a judgment 

### 3s a matter of law. 

# * 9~ *I' This Court has on many occasions commented upon the nature af che jurcien of proof imposed on the moving party under Rule 

### 56. Fhe Court has consistently held that the party moving for summary judgment has the burden of showing the complete absence of any genuine issue 

### as toallfactswhich aredeemed material in light of those substantive principles which entitled him to a judgment as

a matter of law. We have alsoheld theruleoperates tohold the

II rnovant to a strict standard" and that:"I* 

### +:To satisfy hisburden the movant must make a showing that is

### quite clearwhat the truth 

### is, and that excludes any real doubt as tothe existence of any genuine issue of material fact.

# ** *"' Kober & 

### Kyriss v. Stewart & 

### Billings Deaconess Hospital, 148 Mont. 

### 117, 122, 417 P.2d 476. The district court does not function to adjudicate genuine issues of fact on a motion for summary judgment cause--it merely determines whether such issues exist. Thus the party opposing the motion 

### willbe indulged to the extent of allinferences which may be reasonably drawn from the offered proof. Mally v. Asanovich, 149 Mont. 99, 105, 423 P.2d 294; Johnson v. St. patrick's Hospital, 148Mont. 125, 417 P.

### 2d 469. The primary policy and general purpose underlying Rule 56, M.R.Civ.P., is toencourage judicial economy through the prompt elimination of questions not deserving of resolution by trial. Silloway v. Jorgenson, 146Mont. 307, 310, 406 P.2d 167. Thus while the initialburden of proof must attach to themovant, that burden shiftswhere therecord discloses no genuine issue of material fact. Under these circumstances, the party opposing the motion must come forward with substantial evidence raising the issue. Rickard v. Paradis, Mont

# . , 539 P.2d 718, 32 St.Rep. 834; Roope v. The Anaconda Company, 159Mont. 28, 494 P.2d 922; Flansberg v. Montana Power Company, 154Mont. 53, 460 P.2d 263. Once theburden has shifted, the party opposing the motion 

### isheld toa standard of proof about equal tothat initially imposed upon the moving party:

llI+c

# * +< 

### the party opposing motion must present facts inproper form

# - conclusions of law 

### willnot suffice; and the opposing party's factsmust be material and of a 

### substantialnature, not fanciful, frivolous, gauzy, nor merely suspicious. I It 

### Silloway v. Jorgenson, 146Mont. 307, 310, 406 P.2d 167. To establish the existence of an easement by prescription,



### th3 party so claiming must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement for the statutory period prescribed by section 93-2507, R.C.M. 

### 1947.

### In support of his claims to this Court, Harland sets forth several arguments. The depositions of Warehime, Perrine, and James are offered inan attempt toestablishuse of theroad by the generalpublic for theyears 1916-1948, for recreational and occasional other purposes. He cites Scott v. Weinheimer, 140 Mont. 554, 

### 374 P.2d 91, for the proposition that the unexplained

use of an easement for the statutoryperiod will

### be presumed tobe under a claim of right and therefore adverse. But Scott is inapplicable here, where theuse of the road was more than adequately explained in therecord. Deponents admittedly owned no land in the area and could not therefore have used the road togain access totheirholdings. There is

### no doubt deponents and others used the road forrecreation, hunting, fishing and occasional timbering operations, but this isnot sufficient toraise the presumption of adverseuse, or a claim of right under the rulein Scott. The district court so found and we seeno reason tooverrule it. 

### We next examine the claim that an easement by prescription may existby virtue of adverse use by the Obrechts during the time they owned the property now in question. At

### the outset, we discount any use of theroad between 1948 through 1959 indetermining the validity of the prescriptive claim. This use was allowed under a duly executed agreement which Andersons terminated in 1959. Any use which 

### ispermissive in 

### itsinception may not ripen intoa prescriptive right, unless therehas been a distinct and positive assertionby the claimant owner of a right hostile to the owner of the servient estate. Drew v. Burggraf, 141Mont. 405, 

### 378 P.2d 232. It is

### clear therewas no such positive assertion here. In fact, the record and Obrechtlsdeposition disclose.to the contrary: "Q. 

### Were you permitted touse thisroad as access toyour mountain properties? A. 

### Formerly, yes. "Q. 

### How about inthe last few years? A. 

### Well, I 

### haven't taken cattleup or anything. There was too much fighting and stuff like that."(2. '\loproblem with

### Mr. ,inderson if you went up there to fixa fence or anything? A. No. Not at first.II 'Che district court found:

1I

.,A -1- -1- ,, ,, the record 

### isentirelydevoid of any evidence of open, common, notorious, exclusive, ddverse, continuous oruninterrupted use of said roadway by any parties

# * +: +< which consists of more than fiveyears prior to the filing of the Complaint herein. fl Chis tinding is sustainedby the record. The district court aiso found theAndersons had maintained "total dominion" over che roadway. This findingconforms to the ruling in Peasley v. Crosper, 103Mont. 401, 64 P.2d 109, wherein the Court held that the presence of gateswhich must be opened by the user 

### is strong evidence of permissive rather than adverse use. Finally, Harland contends that as the lessee of the Uni~ecl Stateshe is entitled touse any easement appurtenant to the leasehold property. But this statement ismade without a scintillaof evidence to show that an easement has eitherbeen ciaimed or establishedby the federal government. The allegation is therefore strictlyconclusory and speculative. As such, it was properly resolved in the proceedings for summary judgment. The judgment isaffirmed.

sitting for Chief JusticeHarrison.