### No. 82-214 IN THE SUPREME COURTOF THE STATE OF MONTANA 1983

CLAUDE I. 

### BURLINGAME.and CAROL T. 

### BURLINGAME, PlaintiffsandAppellants,

FRED

### B. MARJERRISON and JEANNINE 0. 

### !.WRJERRISON, Defendants and Respondents.

Appeal from: District Court of the Fourth Judicial District, Inand for the County of Sanders, TheHonorable Douglas G. Harkin,Judgepresiding.

Counsel 

### of Record: ForAppellants: 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:

# JUN30

## 1983

ClerkMr. Chief Justice Frank I. Baswell delivered the Opinion of theCourt.

Claude and Carol Burlingame filed a quiettitleaction 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 propertywas vested inBurlingames but thatMarjerrisons had acquired prescriptive easements for grazing, agricultureand timber harvesting. Costswere awarded toMarjerrisons. 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. Wereverse. 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 Section30, Township 20 North, Range 26 West M.P.M. Marjerrisons' titlewas 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 interestdivided theproperty. A survey was conducted on behalf of Burlingames as a condition to the saleof theproperty. It revealed that a fence between the two parcels enclosed approximately five

acresof theBurlingame tracton its southernborder. For purposes of illustration, the following roughsketch is provided:

SKETCH of SECTION30

The dark linebetween A and B represents the surveyed line, established by Gene Warren and recognized by Burlingames asthe southboundary of SE1/4 NE1/4. The dotted line between A1 and B1 represents the fence claimed by Marjerrisons asthenorth boundary of theNE1/4 SE1/4. Fred Marjerrison has lived on the Marjerrison tract sinceChristmas day, 1935. Marjerrisonsbuilttheir home on that tract and theyhave 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 consistentlypaid by the two parties and their predecessors in interest. A determination of acreage for tax purposeshas been accomplished by a review of platbooks and isbased upon the legaldescriptionsprovided indeeds and contracts. No boundary agreements or surveys otherwise affecting the legal description of eitherparcel 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 totheproperty 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 coststoMarjerrisons. Burlingamespresent three issueson appeal: 1. Whether substantial credibleevidence supportsthe decree; 2. Whether the District Court erred in denying Burlingames' motion toretax costs; and, 3. Whether the amended billof costs is valid. We will address only the first issue, which is dispositive of thiscase. This Courtwillnotoverturn the findingsof factof a District Court where they are supported by substantial, though conflicting, evidence unless there is a clearpreponderance of theevidence against the findings. Stateex rel. tillson v. Department of Natural Resources and Conservation of Stateof Montana, Water Resources Div. (1982), Mont.



## ,648 P.2d 766, 772, 39 St.Rep. 1294, 1302. Weview the evidence in the light most favorable to the prevailingparty. Cameron & Jenkins v. Cameron (1978), 179 Mont. 219, 228, 587 P.2d 939, 944. Here, theevidence does not support theDistrictCourt's finding of prescriptiveeasements. An easement is a rightwhich oneperson has touse 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 towhich the easement is attached, and a servient tenement or land on which a burden is imposed. Section70-17-103, MCA. At common 

### law, an easement was defined as a nonpossessory interest in land that did not include the right totake the soilor a substance of the soil. William E. Burby, Real Property, S 22 at62-64; 25 Arn.Jur.2d Easements and Licenses, 

## s§ l, 2. A nonpossessory interest in land that consistedof 

### a righttotake the soilor substance of the soil, such as the right to take wild game or fish,

\\ was known as a profita 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), 163U.S. 445, 16 S.Ct. 1101, 41L.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 profitsmay be acquired by expressgrant, 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 at68-83; Prentice v. McKay (1909),38 Mont. 114, 98 P. 1081. ThisCourthas long recognized both servitudes. R. M. Cobban Realty Co. v. Donlan (1915), 51Mont. 58, 66, 149 P. 484, 487. See also, Brannon v. Lewis & Clark County (1963), 143Mont. 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 toother land as incidents or appurtenances and are then calledeasements: "(1)therightof 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 servitudemay by definitionbe

an easement, not all servitudes 

### are easements sincenot all servitudesareattached toother land as appurtenances. By contrast, the doctrineof adverse possession refers to acquisition of a possessory interest in land and results inacquisitionof titletotheproperty. Brannon v. Lewis & ClarkCounty, supra, 143Mont. at206, 387 P.2d at710. The property must be claimed under color of titleor by possession which is actual, visible, exclusive, hostile and continuous for the statutoryperiod. The party claiming adverse possessionmust alsohave paid thetaxes on theproperty 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), Mont

# . , 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 fourswith this, the Florida Court of Appeals distinguished easements from the 

### right to occupy andenjoy the land itself. It held that where, as here, the claimant had complete possession of the subject property, theclaim amounted to "a complete taking inconsistentwith 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 isnot one of prescriptiveright intheform 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, 143Mont. at206, 387 P.2d at710. 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 ininterest. Ittakes on theaspectof a fee. Marjerrisons first lived on the property in 1935. Testimony established that theplot 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 thefencewas most likelysetaround 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 consistentwith this opinion. 

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

We concur: