No. 82-214 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

CLAUDE I. BURLINGAME .and 

CAROL T. BURLINGAME, 

Plaintiffs and Appellants, 

FRED B. MARJERRISON and 

JEANNINE 0. !.WRJERRISON, 

Defendants and Respondents. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Sanders, 

The Honorable Douglas G. Harkin, Judge presiding. 

Counsel of Record: 

For Appellants: 

Claude I. Burlingame, pro se, Thompson Falls, 

Montana 

For Respondents: 

Morales, Volinkaty & Harr; Richard Volinkaty, 

Missoula, Montana 

Submitted on Briefs: February 3, 1983 

Decided: June 30, 1983 

~iled: JUN 3 0 1983 

Clerk 
Mr. Chief Justice Frank I. Baswell delivered the Opinion of 

the Court. 

Claude and Carol Burlingame filed a quiet title action 

to determine ownership, control and use rights of a parcel 

of land located in Sanders County, Montana. The District 

Court sitting without a jury decreed that title to the 

property was vested in Burlingames but that Marjerrisons had 

acquired prescriptive easements for grazing, agriculture and 

timber harvesting. Costs were awarded to Marjerrisons. Following the District Court's denial of Burlingames' motions 

to retax the costs and to amend the findings of fact, conclusions of law and decree, Burlingames appeal. We reverse. 

On March 24, 1978, Burlingames entered a contract for 

deed to purchase the southeast quarter of the northeast 

quarter (SE1/4 NE1/4) of Section 30, Township 20 North, 

Range 26 West, M.P.M. Marjerrisons hold title to the 

northeast quarter of the southeast quarter (NE1/4 SE1/4) of 

Section 30, Township 20 North, Range 26 West M.P.M. Marjerrisons' title was acquired through two deeds dated November 

3, 1945, and January 24, 1962. Both the Burlingame parcel 

and the Marjerrison parcel were originally acquired by 

United States patent in 1906 by Alexander Rhone and were 

held as one tract until Marjerrisons' predecessor in 

interest divided the property. 

A survey was conducted on behalf of Burlingames as a 

condition to the sale of the property. It revealed that a 

fence between the two parcels enclosed approximately five 

acres of the Burlingame tract on its southern border. 

For purposes of illustration, the following rough 
sketch is provided: 

SKETCH of SECTION 30 

The dark line between A and B represents the surveyed 

line, established by Gene Warren and recognized by Burlingames as the south boundary of SE1/4 NE1/4. The dotted line 

between A1 and B1 represents the fence claimed by Marjerrisons as the north boundary of the NE1/4 SE1/4. 

Fred Marjerrison has lived on the Marjerrison tract 

since Christmas day, 1935. Marjerrisons built their home on 

that tract and they have used the tract, including the fiveacre parcel, for cattle grazing, agriculture and timber 

harvesting since 1935. 

Public records show that taxes on the two tracts were 

consistently paid by the two parties and their predecessors 

in interest. A determination of acreage for tax purposes 
has been accomplished by a review of plat books and is based 

upon the legal descriptions provided in deeds and contracts. 

No boundary agreements or surveys otherwise affecting the 

legal description of either parcel have been located. 

The District Court, after consideration of all the 

evidence and the issues raised at trial, and after an 

inspection of the premises, found that: no agreed boundary 

change existed; Marjerrisons had not acquired equitable 

title to the property through adverse possession; and, that 

the survey was correct. It also found, however, that 

Marjerrisons had acquired prescriptive easements on the 

parcel for grazing, agricultural, and timber harvesting 

purposes and the court awarded costs to Marjerrisons. 

Burlingames present three issues on appeal: 

1. Whether substantial credible evidence supports the 

decree; 

2. Whether the District Court erred in denying Burlingames' motion to retax costs; and, 

3. Whether the amended bill of costs is valid. 

We will address only the first issue, which is dispositive of this case. 

This Court will not overturn the findings of fact of a 

District Court where they are supported by substantial, 

though conflicting, evidence unless there is a clear preponderance of the evidence against the findings. State ex rel. 

tillson v. Department of Natural Resources and Conservation 

of State of Montana, Water Resources Div. (1982), Mont. 

, 648 P.2d 766, 772, 39 St.Rep. 1294, 1302. We view the 

evidence in the light most favorable to the prevailing 
party. Cameron & Jenkins v. Cameron (1978), 179 Mont. 219, 

228, 587 P.2d 939, 944. Here, the evidence does not support 

the District Court's finding of prescriptive easements. 

An easement is a right which one person has to use the 

land of another for a specific purpose or a servitude 

imposed as a burden on land. Park County Rod and Gun Club 

v. Department of Highways (1973), 163 Mont. 372, 376-377, 

517 P.2d 352, 355. An easement consists of both a dominant 

tenement, or land to which the easement is attached, and a 

servient tenement or land on which a burden is imposed. 

Section 70-17-103, MCA. 

At common law, an easement was defined as a 

nonpossessory interest in land that did not include the 

right to take the soil or a substance of the soil. William 

E. Burby, Real Property, S 22 at 62-64; 25 Arn.Jur.2d Easements and Licenses, s§ l, 2. A nonpossessory interest in 

land that consisted of a right to take the soil or substance 

of the soil, such as the right to take wild game or fish, 

\\ 

was known as a profit a prendre. Burby, Real Property, S 22 

at 62-64; Black v. Elkhorn Min. Co. (1892), 49 F. 549, 

aff'd 52 F. 859, aff'd (1896), 163 U.S. 445, 16 S.Ct. 1101, 

41 L.Ed. 221. Other examples of profits 2 prendre include 

the right to feed cattle on another's land and the right to 

take gravel or stone or minerals from another's land. 

Thompson on Real Property, S 135 at 474 (1980 replacement). 

Both easements and profits may be acquired by express grant, 

reservation in a deed of the servient land, implied grant, 

or by prescription. Thompson, supra, S 135 at 488-489; 

Burby, supra, SS 26-31 at 68-83; Prentice v. McKay (1909), 
38 Mont. 114, 98 P. 1081. 

This Court has long recognized both servitudes. R. M. 

Cobban Realty Co. v. Donlan (1915), 51 Mont. 58, 66, 149 P. 

484, 487. See also, Brannon v. Lewis & Clark County (1963), 

143 Mont. 200, 204, 387 P.2d 706, 709. Both forms of servitudes have been codified by the legislature in sections 70- 

17-101 and -102, MCA. The first of the two sections 

provides : 

"The following land burdens or servitudes 

upon land may be attached to other land 

as incidents or appurtenances and are 

then called easements: 

"(1) the right of pasture; 

"(5) the right of taking water, wood, 

minerals, and other things." (Emphasis 

added. ) 

Section 76-17-102, MCA, also defines land burdens or 

servitudes that may be granted and held even though not 

attached to land. It too provides as servitudes the right 

of pasture, the right of taking water, and the right of 

taking other things. While a servitude may by definition be 

an easement, not all servitudes are easements since not all 

servitudes are attached to other land as appurtenances. 

By contrast, the doctrine of adverse possession refers 

to acquisition of a possessory interest in land and results 

in acquisition of title to the property. Brannon v. Lewis & 

Clark County, supra, 143 Mont. at 206, 387 P.2d at 710. The 

property must be claimed under color of title or by possession which is actual, visible, exclusive, hostile and continuous for the statutory period. The party claiming adverse 

possession must also have paid the taxes on the property for 
the full statutory period pursuant to section 70-19-411, 

MCA. Swecker v. Dorn (1979), 181 Mont. 436, 441, 593 P.2d 

1055, 1058. 

Here, the District Court held that Marjerrisons had 

not acquired title to the parcel through adverse possession 

since they did not pay property taxes on the disputed parcel 

as required pursuant to section 70-19-411, MCA. Brannon v. 

Lewis & Clark County, supra, 143 Mont. at 206, 387 P.2d at 

710. It also found no agreed boundary change and no error 

in the survey. It then concluded that Marjerrisons had 

acquired prescriptive easements for the purpose of grazing, 

agriculture and timber harvesting. We disagree. 

Both prescriptive easements and title by adverse 

possession are established in a similar manner. Brannon v. 

Lewis and Clark County, supra. The claimant must show use 

that is open, notorious, exclusive, adverse, continuous, and 

uninterrupted for the full statutory period. Blasdel v. 

Montana Power Co. (1982), Mon t . , 640 P.2d 889, 

895, 39 St.Rep. 219, 225; sections 70-19-404, -405, MCA. 

Here, Marjerrisons needed to demonstrate and did demonstrate 

each of these elements for a five-year period. Blasdel, 640 

P.2d at 895, 39 St.Rep. at 225. 

An easement, however, is by definition a nonpossessory 

interest. Here, Marjerrisons held complete possession of 

the parcel for the statutory period. They did not merely 

impose a burden upon the Burlingame parcel for the benefit 

of a dominant tenement. 

In a case on all fours with this, the Florida Court of 

Appeals distinguished easements from the right to occupy and 
enjoy the land itself. It held that where, as here, the 

claimant had complete possession of the subject property, 

the claim amounted to "a complete taking inconsistent with a 

claim of easement." Platt v. Pietras (Fla.App. 1980), 382 

So.2d 414, 416. See also, Black v. Elkhorn Min. Co., supra. 

We agree. 

Where a prescriptive right to a servitude has the 

effect of leaving the owner with an empty fee title, the 

situation is not one of prescriptive right in the form of an 

easement. It has ripened into a claim for adverse possession. All of the requirements of adverse possession must 

then be met, including payment of taxes. Brannon v. Lewis 

and Clark County, supra, 143 Mont. at 206, 387 P.2d at 710. 

Here, Marjerrisons' use and occupancy of the land did not 

amount to acquisition of an easement that was merely 

appurtenant to the dominant tenement. It must rather be 

characterized as complete possession, dominion and use of 

the parcel to the exclusion of Burlingames and their 

predecessors in interest. It takes on the aspect of a fee. 

Marjerrisons first lived on the property in 1935. 

Testimony established that the plot was used for gardening. 

Corn was raised. Cows and horses were pastured and watered 

there. A fence in some form or another has existed since 

1935. Dr. Edwin J. Burke, a wood scientist at the 

University of Montana, examined wood fragments removed from 

the corner fence post at the northeast corner of Marjerrisons' property. His expert testimony established that the 

original corner post of the fence was most likely set around 

1916. The district judge visited the land and personally 
viewed the site at the request of the parties. The use has 

been open, notorious, exclusive, adverse, continuous and 

uninterrupted. 

One cannot gain adverse possession to land unless one 

pays the taxes on the land throughout the statutory period. 

Nor can one acquire a prescriptive right to property which 

in effect usurps the ownership of the fee title without 

paying the taxes thereon. Marjerrisons failed to do so. 

They have acquired no interest in the property. 

Burlingames also challenge some of the costs included 

in Marjerrisons' memorandum of costs and the amendment of 

the bill of costs. These issues are moot on reversal since 

Burlingames now prevail and will not be assessed costs. 

Reversed and remanded to the District Court for entry 

of a decree consistent with this opinion. 

~LA-Q$64dA,Au&, Chief ~us'fice 

We concur: