IN THE SUPREME COURT OF THE STATE OF MONTANA 

WILLIAM H. RETTIG and 

PATRICIA A. RETTIG, 

Plaintiffs and Appellants, 

STEVE P. KALLEVIG and 

GAYLE L. KALLEVIG, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Carbon, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Renee L. Coppock, Crowley, Haughey, Hanson, Toole & 

Dietrich, Billings, Montana 

For Respondents: 

P. Bruce Harper, Harper Law Firm, Billings, Montana 

Ffy p-< * k:. -_* 

-49 Submitted on Briefs: January 23, 1997 

Filed: i. '+r , .+3;fi;;:: 

fLcPu +..- --=i~krc~,p~ c-l;,,a7 STA~~~ 6g i,f&&&$ 

~~~id~d: April 10, 1997 
Justice William E. Hunt, Sr. delivered the Opinion of the Court. 

Appellants William H. Rettig and Patricia A. Rettig (Rettigs) appeal fiom the findings 

of fact, conclusions of law, and judgment entered by the Thirteenth Judicial District Court, 

Carbon County, determining that Rettigs had not established a prescriptive easement over 

real property owned by Steve P. Kallevig and Gayle L. Kallevig (Kallevigs). 

We affirm. 

We review whether the District Court erred in concluding that Rettigs did not 

establish a prescriptive easement over Kallevigs' property because Rettigs' use was 

permissive. 

BACKGROUND 

Rettigs and Kallevigs own adjoining parcels of real property in Carbon County, 

Montana. Rettigs purchased their parcel (the Rettig property) in 1983 fiom Jim Englert, and 

became neighbors with Kallevigs in 1994 when Kallevigs purchased their parcel (the 

Kallevig property) fiom Mrs. Kallevig's father, Edward DeRudder. Englert and DeRudder 

were neighbors for nearly fifteen years, and their history is an important part of this case. 

The western border of the Kallevig property abuts a paved highway that runs in a 

north-south direction, passing through the nearby towns of Fromberg and Bridger. The 

Rettig property is to the east of the Kallevig property and does not abut the highway. 

1 Traditionally, the Rettig property was connected to the paved highway by one of two routes: 

~ via the Skunk Creek Road, a county road that runs along the northern border of the Rettig 
property, and via the Temple Road, a track across the Rettig property that eventually 

connects with the Skunk Creek Road. 

In the early 1960s, DeRudder dug a silage pit on his property (later, the Kallevig 

property) and built a road connecting the silage pit and the paved highway. DeRudder 

erected a fence and gate at the junction of the silage pit road and the paved highway. With 

DeRudder's express permission, Englert extended the road fiom the silage pit in an easterly 

direction over DeRudder's property to his, Englert's, property (later, the Rettig property). 

Englert graveled the road and installed a drainage pipe. After the road was constructed, 

Englert moved his mailbox fiom the junction of the highway and Skunk Creek Road to the 

junction of the highway and the silage pit road. DeRudder did not object to these actions. 

This silage pit road provided Englert a more convenient access to the paved highway 

than did the Skunk Creek Road or the Temple Road. DeRudder allowed Englert to use the 

silage pit road, subject to his clearly expressed authority to revoke the permission should 

certain circumstances arise which would prompt him to do so. Englert understood that his 

use of the silage pit road was permissive. 

In the early 1980s, Englert informed DeRudder of his intention of selling his property. 

DeRudder advised Englert that all prospective buyers be instructed that the use of the silage 

pit road was not a right but a privilege, based on DeRudder's grant of permission. 

Englert testified that when Rettigs, as prospective buyers, came to inspect the 

property, he informed them of the permissive nature of the use of the silage pit road. Rettigs 
denied that this statement was made. Englert explained during his testimony at trial that 

Rettigs asserted their belief that they could establish a right to use the road, and that this 

statement was made in response to his warning that the use of the road was permissive. A 

real estate agent, Bill Huyser, testified that he was present during this conversation, that he 

heard the statements described by Englert, and that he himself informed Rettigs that the use 

of the silage pit road was permissive. The court found Englert's testimony credible. 

Rettigs purchased the property in 1983 and immediately began using the silage pit 

road as the primary access to their property. Rettigs often saw DeRudder as they drove the 

road, and they usually exchanged smiles and waves in passing. Rettigs were never informed 

directly by DeRudder that their use of the road was permissive. 

While DeRudder maintained the section of the road from the highway to the silage pit, 

Rettigs maintained the section of the road from the silage pit to their property. Rettigs' 

graveled the road, replaced the drainage pipe previously installed by Englert with a culvert, 

and put in a cattle guard. On particularly snowy days when the silage pit road was 

impassable without four-wheel drive, Rettigs parked their car on the road. Rettigs also 

placed their mailbox at the junction of the highway and the silage pit road. DeRudder did 

not object to any of these actions. 

In 1985, Rettigs plowed under the Temple Road, placed a sprinkler system on the 

property, and converted the plowed under road to agricultural use. However, Rettigs did not 

remove the entry gates, the entry arch, or the road apron where their property joined the 
Skunk Creek Road. DeRudder testified that he had no knowledge that Rettigs had plowed 

under the Temple Road. 

In 1994, DeRudder sold his property to his daughter and son-in-law, Kallevigs. 

Kallevigs informed Rettigs that they could no longer use the silage pit road, and in January, 

1995, closed and locked a gate across the roadway at the point at which it connects to the 

paved highway. Rettigs filed suit seeking a judgment declaring that they held a prescriptive 

easement across Kallevigs' property. After a non-jury trial, the court entered judgment for 

Kallevigs, concluding that a prescriptive easement had not been established and that use of 

the silage pit road was merely permissive. Rettigs appeal from this judgment. 

STANDARDS OF REVIEW 

In the recent case of Rafanelli v. Dale (Mont. 1996), 924 P.2d 242, 53 St.Rep. 746, 

where we considered whether the district court erred in concluding that a prescriptive 

easement had been established, we explained the applicable standards of review: 

We review a district court's findings of fact to determine whether they 

are clearly erroneous, giving "due regard ... to the opportunity of the trial court 

to judge of the credibility of the witnesses." Rule 52(a), M.R.Civ.P. In 

determining whether a court's findings of fact are clearly erroneous, we apply 

a three-part test: 

First, the Court will review the record to see if the findings are 

supported by substantial evidence. Second, if the findings are 

supported by substantial evidence we will determine if the trial 

court has misapprehended the effect of evidence. Third, if 

substantial evidence exists and the effect of evidence has not 

been misapprehended, the Court may still find that "[A] finding 
is 'clearly erroneous' when, although there is evidence to support 

it, a review of the record leaves the [Clourt with the definite and 

firm conviction that a mistake has been committed." 

Interstate Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320,323, 820 P.2d 

1285, 1287 (citations omitted). We review conclusions of law to determine 

whether the district court's interpretation of the law is correct. Public Lands 

Access Ass'n, Inc. v. Boone and Crockett Club Found., Inc. (1993), 259 Mont. 

279,283, 856 P.2d 525,527. 

Rafanelli, 924 P.2d at 245. We also explained that 

[i]t is within the province of the trier of fact to weigh the evidence and assess 

the credibility of witnesses and we will not second-guess those determinations. 

Moreover, we will uphold a district court's findings when there is substantial 

evidence to support them even when there is also evidence supporting contrary 

findings. 

Rafanelli, 924 P.2d at 245-46 (citations omitted). 

DISCUSSION 

Did the District Court err in concluding that Rettigs did not establish a prescriptive 

easement over Kallevigs' property because Rettigs' use was permissive? 

A prescriptive easement is created by operation of law in Montana. Swandal Ranch 

Co. v. Hunt (1996), 276 Mont. 229, 233, 915 P.2d 840, 843. The party claiming the 

easement must establish "open, notorious, exclusive, adverse, continuous and uninterrupted 

use" of the claimed easement for the statutory five-year period. Public Lands Access Ass'n, 

Inc. v. Boone and Crockett Club Found., Inc. (1993), 259 Mont. 279,283,856 P.2d 525,527 
(citations omitted). However, because the theory of prescription is based on adverse use, a 

landowner may rebut a prescriptive easement claim by establishing that the use of the 

claimed easement was permissive. Rathbun v. Robson (1983), 203 Mont. 319,322,661 P.2d 

850, 852. 

That Rettigs' use of the silage pit road was open, notorious, exclusive, continuous and 

uninterrupted is not disputed; prior to Kallevigs erecting the locked gate in 1995, Rettigs had 

used, with DeRudder's knowledge, the silage pit road for some eleven years. However, the 

District Court concluded that Rettigs' use of the silage pit road was permissive and therefore 

had not ripened into a prescriptive easement. Rettigs attack this conclusion on several 

grounds. 

First, Rettigs claim that the court's conclusion was erroneous because DeRudder never 

informed them that their use of the road was permissive. Second, Rettigs claim that the 

court's conclusion was erroneous because, assuming Englert and Huyser informed them of 

the permissive use of the road (which Rettigs deny), the only way such information would 

have the effect of a grant of permission from DeRudder himself would be if DeRudder had 

issued written authority to Englert and Huyser to grant permission on his behalf. See § 28-2- 

903(l)(d), MCA (contract involving interest in real property must be in writing). There was 

no evidence that such a relationship was created. Third, Rettigs claim the court's conclusion 

was erroneous because Englert's permissive use of the road was not automatically transferred 

to Rettigs upon their purchase of Englert's property. Rather, Rettigs argue that the nature of 
their use of the road must be evaluated upon its own merits, and that such an evaluation 

clearly reveals that their use was adverse to DeRudder's ownership for the statutory period. 

Kallevigs contend, essentially, that the fact that DeRudder did not directly, or, 

indirectly through Englert or Huyser, grant Rettigs permission to use the road is not 

dispositive here. Similarly, Kallevigs contend that Rettigs' "transferred permission" 

argument is inapplicable. Rather, Kallevigs argue that the initial, undisputedly permissive 

nature of the road continued uninterrupted until that permission was revoked in 1995. In that 

respect, Kallevigs argue that the permissive nature of the use of the road was not dependent 

on DeRudder affirmatively granting Rettigs permission to use the road. Moreover, Kallevigs 

contend that DeRudder was neither prompted nor required to take any action to uphold the 

permissive nature of the use of the road, because Rettigs did not use the road in a 

substantially different manner than did Englert before them. The court's findings and 

conclusions reflect Kallevigs' argument, and are supported by substantial credible evidence. 

The trial testimony of Englert and DeRudder clearly establishes that the use of the 

silage pit road was permissive from the moment construction of the road was completed. 

The record also shows that Englert, in building, maintaining, and using the road, graveled the 

road, installed a drainage pipe, moved his mailbox to the junction of the silage pit road and 

the paved highway, and used the road as his principal access to his residence. These 

activities manifested the use of the road permitted by DeRudder. 
When Rettigs purchased the property, they used the silage pit road in much the same 

manner as did Englert. They used the road as their primary access to their residence. They 

replaced the drainage pipe with a culvert. They graveled the road. They placed their 

mailbox at the junction of the silage pit road and the paved highway. While Rettigs in some 

specific ways used the road differently than did Englert, as in installing a cattle guard and 

parking their car on the road on particularly snowy days, Rettigs' overall use of the roadway 

was not inconsistent with the use initially permitted by DeRudder. In addition, Rettigs' 

plowing under of the Temple Road, an event which Rettigs claim indicated their intent to use 

the silage pit road as their own, was done, according to testimony which the court found 

credible, without DeRudder's knowledge. Finally, in light of the nature of Rettigs' use of the 

road, consistent with the use initially permitted by DeRudder, Rettigs' statement to Englert 

during purchase negotiations in the early 1980s that they believed they could establish a 

prescriptive easement (a statement apparently relayed to DeRudder) stands alone and 

ineffective as an indication to DeRudder of Rettigs' intentions. Therefore, DeRudder was 

effectively without notice that Rettigs considered their use of the road adverse to his 

ownership rights, and was under no compulsion, legal or otherwise, to assert his right of 

ownership and clarifL that use of the road was permissive only. "[A] landowner should not 

be forced to give up title to property without notice of the alleged adverse claim and the 

opportunity to know that his title is in jeopardy." Arnerimont, Inc. v. Gannett (Mont. 1996), 

924 P.2d 1326, 1333,53 St.Rep. 929,933 (citations omitted). 
In addition, transferred permission is not involved here; rather, the permissive use 

initially contemplated by DeRudder and Englert continued without substantial change, 

modification, or hesitation until 1995. Rettigs correctly assert that this Court has held that 

permissive use is not transferable. Luoma v. Donohoe (1978), 179 Mont. 359,363,588 P.2d 

523,525. In Luoma, defendant argued that even if use of a trail over plaintiffs property had 

been permissive in the past, the permissive nature of the use of the trail did not extend to him 

because permissive use is not transferrable. In explaining the non-transferability of 

permissive use, we stated that one who has received permission to use a road may not 

transfer a "limited personal right or license to use the road to any other person or persons." 

Luoma, 588 P.2d at 525 (citing Cope v. Cope (1971), 158 Mont. 388, 493 P.2d 336). 

However, the rule regarding non-transferability of permissive use does not work to limit the 

landowner's ability to permit whomever he wishes to use his land. A landowner may, as 

here, determine that any owner of a particular parcel of property be allowed to use a roadway 

over his property; the identity of the permitted user may change without running afoul of the 

rule regarding non-transferability of permissive use. 

Rettigs contend, however, that the permissive use originally contemplated by 

DeRudder did not extend to them because they were never informed by DeRudder, either 

directly or indirectly, that the use of the silage pit road was permissive. This contention is 

without merit. First, periodic, express grants of permission are not required to maintain the 

permissive character of the use of a road. "[Ilf a use begins as a permissive use it is 
presumed to continue as such." White v. Kamps (1946), 1 19 Mont. 102, 1 14, 171 P.2d 343, 

349. Moreover, the relevant facts here, that use of the road by Englert and Rettigs was 

essentially the same, that DeRudder did not object to either Englert's or Rettigs' use, and that 

DeRudder intended that the use be permissive only, support a conclusion that Rettigs' use of 

the road was pursuant to DeRudder's implied permission. "[Wlhere the use of a way by a 

neighbor was by express or implied permission of the owner ... continuous use of the way 

by the neighbor [is] not adverse and [does] not ripen into a prescriptive right." Tanner v. 

Dream Island (1996), 275 Mont. 414,425,913 P.2d 641,648 (citations omitted). Further, 

the court found credible the testimony that Englert and Huyser informed Rettigs of the 

permissive nature of the use of the road. While Englert's and Huyser's information did not, 

by itself, create a permissive use situation, it nevertheless indicated to Rettigs DeRudder's 

characterization of the use of the road. And, as we have discussed, Rettigs' use of the road 

was not inconsistent with DeRudder's characterization. 

Our review of the record leaves us with the firm conviction that the District Court's 

findings of fact are supported by evidence and are not clearly erroneous, and that the court's 

conclusions of law are correct. Based upon the witness testimony and other evidence before 

it, the court concluded that Rettigs' use of the silage pit road was a continuation of the 

permissive use initially established by DeRudder and Englert. Based upon this conclusion, 

the court determined that Rettigs had not established a prescriptive easement. The court did 

not err. 
Affirmed. 

Justice 

We Concur: 

Justices 
Justice James C. Nelson dissenting. 

I respectfully dissent from the Court's opinion in this case. I would hold that the 

Rettigs' use of the road was adverse; that the Kallevigs failed in their burden to establish 

permissive use; and, thus, that the Rettigs did have a prescriptive easement over the 

Kallevigs' property. 

As the Court's opinion correctly states, a claim to an easement by prescription may 

be defeated by the landowner demonstrating that the claimant's use was with the landowner's 

permission. Rathbun v. Robson (1983), 203 Mont. 319,322,661 P.2d 850, 852. While the 

Court also correctly states that permissive use is not transferrable, Luoma v. Donohoe (1 978), 

179 Mont. 359,363, 588 P.2d 523,525, it then ignores that principle and the record in this 

case to reach the incorrect conclusion that "the permissive use initially contemplated by 

DeRudder and Englert continued without substantial change, modification, or hesitation until 

1995." 

Contrary to this assertion, a substantial change did occur in that Englert sold his 

property to the Rettigs in 1983. Although Englert's use of the road was with the express 

permission of DeRudder, the testimony at trial showed that the Rettigs and DeRudder never 

discussed the use of the road that crossed DeRudder's property. Englert and Huyser testified 

that when the Rettigs, as prospective buyers, came to inspect Englert's property, they 

informed the Rettigs that the easement was permissive. This, however, did not make the 

Rettigs' use of the road permissive. As we have already stated, Englert could not give 

13 
someone else the right to permissively use DeRudder's property; permission is not 

transferrable. Luoma, 588 P.2d at 525. Moreover, even if DeRudder made Englert his agent 

to advise the Rettigs of DeRudder's intent to make the Rettigs' use permissive (and there is 

absolutely no evidence that he did), the agency failed because it was not in writing. See $5 

28-2-903,28- 10-20 1 and 28- 10-203, MCA; Palin v. Gebert Logging, Inc. (1 986), 220 Mont. 

405,407, 716 P.2d 200,202. 

Regardless of Englert's use of the roadway being permissive, such use could not, as 

a matter of law, nor was it in this case, as a matter of fact, transferred to the Rettigs. Rather, 

the Rettigs' claim of prescriptive use of the roadway must stand or fall on its own. We must 

look strictly at the conduct between the Rettigs and DeRudder to determine whether the 

Rettigs established a prescriptive use or whether that claim was defeated by DeRudder's grant 

of permission. 

In this regard, it is undisputed that DeRudder did not expressly grant or deny 

permission for the Rettigs to use the roadway. Rather, DeRudder, at the most, merely 

acquiesced in the Rettigs' use of the road. "Implied acquiescence is not the same as 

permission." Cremer v. Cremer Rodeo Land and Livestock Co. (1 98 I), 192 Mont. 208,2 1 1, 

627 P.2d 1 199,1201. Acquiescence means "passive conduct on the part of the owner of the 

servient estate consisting of failure on his part to assert his paramount rights against the 

invasion thereof by the adverse user. 'Permission' means more than mere acquiescence; it 

denotes the grant of a permission in fact or a license." Cremer, 627 P.2d at 1201 (citations 
omitted). Clearly, DeRudder, by failing to assert his rights, merely acquiesced in the Rettigs' 

use of the road and did not give the necessary "permission in fact or a license" that would be 

sufficient to defeat the Rettigs' claim of adverse use. 

Moreover, if Englert's testimony was credible, as the District Court found and as 

Kallevigs argue, then as early as 1983, when the Rettigs negotiated for the purchase of their 

property, Englert put DeRudder on notice that the Rettigs claimed a prescriptive use of the 

road. Once that happened, DeRudder was obligated to take some affirmative action to advise 

or to show the Rettigs' that their claim of adverse use was incorrect and that they were 

privileged to use the road over his property only with his permission. See Cremer, 627 P.2d 

at 1201. Without citing any supporting authority, the Court incorrectly holds that DeRudder 

"was effectively without notice that Rettigs considered their use of the road adverse to his 

ownership rights, and was under no compulsion, legal or otherwise, to assert his right of 

ownership and clarify that use of the road was permissive only." That is not the record in this 

case, nor is it the law. 

The Rettigs were under no duty to communicate to DeRudder that they were using the 

road under a claim of right, adverse to DeRudder. Warnack v. Coneen Family Trust (1996), 

53 St.Rep. 8 12, 8 13,923 P.2d 1087, 1089 (citing Tanner v. Dream Island, Inc. (1996), 275 

Mont. 414,425,913 P.2d 641,648). 

[Allthough the plaintiffs bear the burden of establishing that their claim is 

known to and acquiesced in by the owner, they need not specifically noti@ the 

servient landowners that they are using the easement under a claim of right. 
Warnack, 923 P.2d at 1089. Moreover, the Rettigs' open, notorious, and hostile acts (daily 

use of the road as the sole means of ingress to and egress from their property; treating the 

road as if it were their own by installing a cattle guard and a culvert and spreading gravel on 

the road; and never seeking DeRudder's permission to use the road) were inconsistent with 

DeRudder's title to the road and were more than sufficient to constitute notice to DeRudder. 

Lemont Land Corp. v. Rogers (1994), 269 Mont. 180, 185,887 P.2d 724, 728. 

The Court holds, again without citing any supporting authority, that a landowner may 

determine "that any owner of a particular parcel of property be allowed to use a roadway over 

his property; the identity of the permitted user may change without running afoul of the rule 

regarding non-transferability of permissive use." This statement is in direct contradiction to 

the rule that permissive use is not transferrable and is incorrect. 

Moreover, the Court states that "periodic, express grants of permission are not 

required to maintain the permissive character of the use of a road." For this proposition the 

Court cites White v. Kamps (1946), 1 19 Mont. 102, 171 P.2d 343, wherein this Court held 

that a use is presumed to be permissive if it began as such. While it may be true that, as to 

the person given permission by the landowner to use the landowner's property, permission 

does not have to be re-granted, that is not the case here. DeRudder's grant of permission was 

to Englert only; DeRudder never granted permission to the Rettigs. The Court's statement, 

thus, implies that Englert's permissive use was transferred to the Rettigs, contradictory to our 

later holding in Luoma. 
The record establishes that the Rettigs proved all of the elements of a prescriptive 

easement. In fact, the Court's opinion concedes that "Rettigs' use of the silage pit road was 

open, notorious, exclusive, continuous and uninterrupted . . . with DeRudder's knowledge . 

. . for some eleven years." What is not proven, however, is that DeRudder ever defeated the 

Rettigs' claim of prescription by showing that he had granted them permissive use of the road 

over his property. While the Kallevigs may have proved permissive use as between 

DeRudder and Englert, that permissive use, as a matter of law, did not transfer to the Rettigs, 

and the Kallevigs wholly failed in their burden to show any permissive use as between the 

Rettigs and DeRudder. Accordingly, I would hold that the District Court erred in finding that 

the Rettigs did not have a prescriptive easement over the road on the Kallevigs' property. 

I would reverse. 

Justice Karla M. Gray concurs in the foregoin