No. 90-225 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

ROCKWOOD SCOTT BROWN and DEBORA A. BROWN, 

husband and wife, 

Plaintiffs and Respondents. 

DOUGLAS E. TINTINGER, PEARL TINTINGER and 

THOMAS TINTINGER, 

Defendants and Appellants. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

I- For Appellant: nf 

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*a Carl A. Hatch; Small, Hatch, Doubek & Pyfer; Helena, a: 

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-2 F For Respondent: -L LL 

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z * Peter Michael Meloy; Meloy Law Firm; Helena, Montana 

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=E Submitted on Briefs: October 11, 1990 

Filed: 

~ecided: November 29, 1990 
Justice Fred J. Weber delivered the Opinion of the Court. 

Plaintiffs, Rockford and Debora Brown (Browns), filed this 

suit to quiet title to their real property and particularly to 

determine whether defendants, Douglas, Pearl, and Thomas Tintinger 

(Tintingers), have a perfected prescriptive easement across Browns' 

property. Tintingers cross claimed, claiming a right of access 

across Browns' property, intentional attempt by Browns to deprive 

them of use of the access, and seeking damages caused by the 

deprivation of access. Following a non-jury trial, the District 

Court for the First Judicial District, Lewis and Clark County, 

entered judgment for the plaintiffs, quieting title in plaintiffs 

as owners in fee simple, and declaring that defendants have no 

right, title, or interest in or upon plaintiffs' property. 

Defendants appeal. We affirm. 

The issues are: 

1. Did the District Court err in concluding that the Quiet 

Title Decree issued in 1948 extinguished any alleged easement 

claimed by Tintingers? 

2. Did the District Court err in concluding that following 

the Quiet Title Decree in 1948 the use of the road by the 

Tintingers was permissive and not adverse? 

In 1984 the Browns purchased a parcel of land situated in 

Lewis and Clark County. Tintingers are the owners of a patented 

mining claim known as the "Independent," and have the right to mine 

on an unpatented claim known as the ItGood Chance. The Independent 

and Good Chance are located north of the property owned by the 
Browns. A strip of Forest Service land lies between the mining 

claims and Browns' property. An unimproved dirt road begins at a 

public road on the south boundary of the Browns' property, crosses 

Browns' property, then crosses the Forest Service strip and ends 

at the Independent. 

Various members of the Tintinger family used this dirt road 

for access to the Independent and Good Chance mining claims for 

over 50 years. In 1947, the Henkes, previous owners of the Browns' 

property, brought a quiet title action naming all previous owners 

of the property together with: 

any and all persons unknown who claim or may claim any 

right, title, or interest in, or lien or encumbrance upon 

the real property described in this complaint, or any 

part thereof, adverse to the plaintiff's [sic] title 

thereto, whether such claim or possible claim be present 

or contingent, including any claim or possible claim of 

dower, inchoate or accrued. 

A Decree of Quiet Title for the Henkes was issued February 17, 

Eugene Menth subsequently purchased the property from the 

Henkes. Menth deeded the property to Norwest Bank in lieu of 

foreclosure in 1982. The Browns purchased the property from 

Norwest Bank in 1984 and in November of that year the Browns 

erected a chain barrier across the entrance to the road to keep out 

hunters and Christmas tree cutters. 

In May of 1985, the Tintingers called the Browns and demanded 

access to the road. The Browns refused to give permission and the 

Tintingers used the road without permission until 1987 for their 

annual assessment work at the mines. In 1987, Browns gave 

permission to the Tintingers to use the access for the annual 
assessment work. In April 1988, the Browns filed this action to 

prevent the Tintingers' further use of the road. 

Did the District Court err in concluding that the Quiet Title 

Decree issued in 1948 extinguished any alleged easement claimed by 

Tintingers? 

None of the Tintingers were named as defendants in the 1948 

Quiet Title Action. The District Court concluded that any easement 

that might have existed in behalf of the Tintingers was 

extinguished under the Decree's language "any and all persons 

unknown who claim or may claim any right, title, or interest in, 

or lien or encumbrance upon . . .I' The court's Conclusion of Law 

No. 2 states: 

The decree of quiet title issued in 1948 extinguished any 

alleged easement claimed by the Tintingers. The decree, 

by its own language, extinguished any lien or 

encumbrance on the property adverse to the owner. The 

Tintingers are bound by the decree, pursuant to Section 

70-28-109, M.C.A., which provides: 

Every person made a defendant to such action 

by name and every unknown claimant or possible 

claimant upon whom service has been made by 

publication . . . shall be bound by the 

judgment or decree entered in such action, 

subject to the right of any such defendants to 

apply for relief in any manner provided by the 

statutes applicable to the case of a 

defaulting defendant served only by 

publication. (Emphasis added.) 

The record does not reveal any legal action taken by the 

Tintingers to challenge the quiet title decree on the 

basis of faulty or invalid service of process pursuant 

to the above-quoted statute. 

The Tintingers argue that the Henkes obviously knew the 

Tintingers were using the road as access to their mining claims and 
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therefore they were not unknown or possible claimants, and that by 

law the Henkes should have named the Tintingers as defendants if 

they intended to extinguish the easement. 

There is no evidence in the record showing that the Henkes 

knew of the Tintingers use. Absent knowledge by Henkes, the 

npersons unknownn language in the Decree extinguished, any right, 

title, or interest Tintingers may have or may have been attempting 

to perfect during the period prior to the 1948 Quiet Title Decree. 

We hold the District Court did not err in concluding that the 

Quiet Title Decree issued in 1948 extinguished any alleged easement 

claimed by Tintingers. 

I1 

Did the District Court err in concluding that following the 

Quiet Title Decree in 1948 the use of the road by the Tintingers 

was permissive and not adverse? 

In order to establish a prescriptive easement, the Tintingers 

must show open, notorious, exclusive, adverse, continuous and 

uninterrupted use for the full statutory period. Downing v. Grover 

(1989), 237 Mont. 172, 175, 772 P.2d 850, 852. The statutory 

period is five years. Section 70-19-401, MCA. All elements of 

prescriptive easement must be proved by a preponderance of the 

evidence or the claim will fail. Downinq at 175, 772 P.2d at 852. 

All elements must be proved in a case such as this because "one who 

has legal title should not be forced to give up what is rightfully 

his without the opportunity to know that his title is in jeopardy 

and that he can fight for it." Id. 

In order to perfect a prescriptive easement, the Tintingers 

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must establish the elements during a 5 year period following the 

1948 Quiet Title Decree. The Henkes sold the property to Menth 

in 1951. Menth testified: 

Q. During your ownership of the land, do you ever 

remember seeing Mr. Tintinger using that road? 

A. Yes. 

Q. .How often did you see him use it, if you can 

remember? 

A. To my knowledge, not very often. Once a month. 

I don't know. I have no idea, really. 

Q. Did you have any conversations with him -- 

A. Sure. I talked to him all the time. 

Q. While he was up in the vicinity of your 

property? 

A. Sure. We were good friends. 

Q. What was your understanding about his use of 

that road? Did he have your permission to use it? 

A. Definitely. 

The standard of review for a civil case for a judge sitting 

without a jury is whether or not the District Court's findings are 

clearly erroneous. Dennis v. Tomahawk Services, Inc. (1989), 235 

Mont. 378, 379, 767 P.2d 346, 347. This Court will not substitute 

its judgment for that of the trial court absent that showing. Id. 

Menth's testimony is sufficient to support the District Court's 

finding that Tintingersl use of the road from 1951 to 1982 was 

permissive and not adverse. 

In 1982 Menth deeded the property to Norwest Bank and Norwest 

Bank sold the property to the Browns in 1984. In November 1984, 

the Browns erected the chain barrier, and in May of 1985 the Browns 
refused to give permission to the Tintingers to use the road. In 

1987 the Browns gave the Tintingers permission to use the road for 

their yearly assessment work only. 

There is no evidence that Norwest Bank had any notice 

whatsoever that the ~intingers were using the road either 

permissively nor adversely. Likewise there is no evidence that the 

Browns knew of any permissive or adverse use of the road by the 

Tintingers until May of 1985. The period of time from May 1985 

until the filing of this action in April, 1988 is less than the 

statutory five-year period to establish a prescriptive easement and 

thus it is immaterial whether Tintingers' use was adverse or 

permissive during this period. Therefore, the Tintingers have not 

established an easement by prescription over the Browns' property. 

We hold that the District Court did not err in concluding that 

following the ~uiet ~itle Decree in 1948, the use of the road by 

the Tintingers was permissive and not adverse. 

Af f irmed. 

We Concur: A" 

Chief Justice 

Justices C/