No. 13119 

IN THE 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)i 9 - 1976 

Filed: ;~.PR $ * m996 
Yr. 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 as Andersons). The complaint set forth three 

counts: Count I, seeking to establish an easement by prescription. Count 11, alleging damages for wrongful interference. 

Count 111, requesting a road or right of way be condemned over 

defendants' land for plaintiff's use. On motion of Andersons 

proceedings on Count TI1 were stayed, pending the determination 

of Counts I and 11. 

The action was 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 allegedly demonstrate the long and continued 

use of a road leading to ~arland's property. The property was 

viewed by the presiding judge and counsel for both parties. Andersons renewed their motion 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 to Andersons, 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 16 North, 

Range 1 West, Cascade County, Montana. In addition he leases 

about 2360 acres owned by the United States and administered by the 
Bureau ~.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 the west and 

northwest. For over 50 years a two track dirt road has run across 

;3nJersons1 land to the real estate which is the subject of this 

appeal. The road is crossed at several points 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 only by virtue of 

those rights which Obrecht may have had. Yet, Obrecht admitted in 

his deposition that he had not used the road continuously for the 

five years precedent to the filing of this action. It is clear 

chat no positive representations regarding the existence of an 

easement were ever made to Harland 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 is no genuine issue as to any 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 to all facts which are deemed material in light 

of those substantive principles which entitled him to a judgment as 

a matter of law. We have also held the rule operates to hold the 

I I rnovant to a strict standard" and that: 
"I* +:To satisfy his burden the movant must make 

a showing that is quite clear what the truth is, 

and that excludes any real doubt as to the 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 will be indulged to the extent of all inferences 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, 

148 Mont. 125, 417 P. 2d 469. 

The primary policy and general purpose underlying Rule 56, 

M.R.Civ.P., is to encourage judicial economy through the prompt 

elimination of questions not deserving of resolution by trial. 

Silloway v. Jorgenson, 146 Mont. 307, 310, 406 P.2d 167. Thus 

while the initial burden of proof must attach to the movant, that 

burden shifts where the record 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, Mon t . , 539 P.2d 718, 32 

St.Rep. 834; Roope v. The Anaconda Company, 159 Mont. 28, 494 

P.2d 922; Flansberg v. Montana Power Company, 154 Mont. 53, 460 

P.2d 263. Once the burden has shifted, the party opposing the 

motion is held to a standard of proof about equal to that initially 

imposed upon the moving party: 

llI+c * +< the party opposing motion must present facts 

in proper form - conclusions of law will not suffice; 

and the opposing party's facts must be material and 

of a substantial nature, not fanciful, frivolous, 

gauzy, nor merely suspicious. I It Silloway v. Jorgenson, 

146 Mont. 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 in an attempt to establish use of the road 

by the general public for the years 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 statutory period will be presumed to be 

under a claim of right and therefore adverse. But Scott is 

inapplicable here, where the use of the road was more than adequately 

explained in the record. Deponents admittedly owned no land in 

the area and could not therefore have used the road to gain access 

to their holdings. There is no doubt deponents and others used 

the road for recreation, hunting, fishing and occasional timbering 

operations, but this is not sufficient to raise the presumption of 

adverse use, or a claim of right under the rule in Scott. The 

district court so found and we see no reason to overrule it. 

We next examine the claim that an easement by prescription 

may exist by 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 the road between 1948 through 1959 in determining the validity of the prescriptive claim. This use was 

allowed under a duly executed agreement which Andersons terminated 

in 1959. Any use which is permissive in its inception may not 

ripen into a prescriptive right, unless there has been a distinct 

and positive assertion by the claimant owner of a right hostile to 

the owner of the servient estate. Drew v. Burggraf, 141 Mont. 405, 

378 P.2d 232. It is clear there was no such positive assertion 

here. In fact, the record and Obrechtls deposition disclose. to 

the contrary: 

"Q. Were you permitted to use this road as access 

to your mountain properties? A. Formerly, yes. 

"Q. How about in the last few years? A. Well, I 

haven't taken cattle up or anything. There was too 

much fighting and stuff like that. 
"(2. '\lo problem with Mr. ,inderson if you went up 

there to fix a fence or anything? A. No. Not 

at first. I I 

'Che district court found: 

1 I .,A -1- -1- ,, ,, the record is entirely devoid of any 

evidence of open, common, notorious, exclusive, 

ddverse, continuous or uninterrupted use of said 

roadway by any parties * +: +< which consists of more 

than five years prior to the filing of the Complaint 

herein. fl 

Chis tinding is sustained by the record. The district court 

aiso found the Andersons had maintained "total dominion" over 

che roadway. This finding conforms to the ruling in Peasley v. 

Crosper, 103 Mont. 401, 64 P.2d 109, wherein the Court held that 

the presence of gates which 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 States he is entitled to use any easement appurtenant to 

the leasehold property. But this statement is made without a 

scintilla of evidence to show that an easement has either been 

ciaimed or established by the federal government. The allegation 

is therefore strictly conclusory and speculative. As such, it was 

properly resolved in the proceedings for summary judgment. 

The judgment is affirmed. 

sitting for Chief Justice Harrison.