DA 13-0026

IN THE SUPREME COURT OF THE STATE OF MONTANA

2013 MT 306

GAYLE P. PEDERSEN,

as Trustee of the Gayle P. Peterson Trust,

 Plaintiff and Appellee,

 v.

DEAN ZIEHL and NANCY ZIEHL,

individually and as Trustees of Ziehl

Family Trust dated January 16, 2004,

 Defendants and Appellants.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and For the County of Flathead, Cause No. DV 09-312A

Honorable Heidi Ulbricht, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Donald V. Snavely; Snavely Law Firm; Missoula, Montana

Evonne Smith Wells, Tal M. Goldin; Wells & McKittrick, P.C.; 

Missoula, Montana

For Appellee:

Randall A. Snyder; Snyder Law offices; Bigfork, Montana

Submitted on Briefs: August 21, 2013

 Decided: October 16, 2013

Filed:

__________________________________________

Clerk

October 16 2013
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Justice Jim Rice delivered the Opinion of the Court. 

¶1 Dean and Nancy Ziehl (the Ziehls) appeal from the Judgment of the Montana 

Eleventh Judicial District Court determining that they do not own a prescriptive easement 

over a portion of dock that extends onto Gayle Pederson’s (Pederson) property. The 

District Court ordered that the intruding portion of dock be removed and costs be 

awarded to Pederson. We affirm and address the following issue, restated by this Court: 

¶2 Did the District Court err by holding that the Ziehls failed to adversely use the 

dock for the required statutory period in order to obtain a prescriptive easement? 

FACTUAL AND PROCEDURAL BACKGROUND

¶3 This case involves a big dispute over a small piece of dock located on the Swan 

River in Bigfork. To explain the dispositive facts about the conflict, it is necessary to 

trace the ownership history of the properties involved. Prior to 2000, Fred and Judy 

Bysshe (the Bysshes) owned the north half of Lot 4 and Lots 5, 6, and 7 of Block 1 of 

Bigfork Original. Lots 4, 5, and 6 directly bordered the Swan River, and Lots 5 and 6 

each had their own dock. At that time, Lot 7 did not touch the river and had no dock.

¶4 In July of 2000, the Bysshes decided to sell Lot 7 to Paul Nicodemus 

(Nicodemus). The property was initially advertised as having river-front access even 

though it did not. In an effort to accommodate the advertised listing, the Bysshes 

commissioned a boundary adjustment survey to redraw the property lines. The survey 

shifted the boundary between Lots 6 and 7 in order to give Lot 7 access to the river. In so 

doing, the survey divided the dock that had previously fronted only Lot 6. After the 
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survey, most of the dock was located on Lot 7, but the Bysshes had purposefully retained 

a portion of the dock’s southwestern corner for Lot 6. The survey also renamed Lot 6 

and Lot 7 as “Lot 6A” and “Lot 7A,” respectively. Nicodemus closed his purchase of Lot 

7A and recorded the deed on September 8, 2000.

¶5 From the time of the survey until 2002, the Bysshes continued to own Lot 6A. 

Judy Bysshe discussed the dock situation with Nicodemus and her realtor. The District 

Court found that Judy Bysshe clearly told Nicodemus that the southwestern portion of the 

dock belonged to Lot 6A, but was to be shared and used permissively as a neighborly 

accommodation. And although the dock’s condition had deteriorated over the years, 

Nicodemus would occasionally use it and park his boat there. 

¶6 Pederson began considering purchasing Lot 6A from the Bysshes in 2001. 

Although she visited the property a number of times, Pederson failed to observe anyone 

using the dock. On October 15, 2002, Pederson closed on Lot 6A, and immediately 

began cleaning and clearing brush from the property. In 2003, Pederson re-landscaped 

the riverfront area, and in 2004, she constructed a residence and business on the property. 

During this time, Pederson did not use the dock, nor did she see Nicodemus using it. 

¶7 In August of 2004, the Ziehls purchased Lot 7A from Nicodemus. The Ziehls 

began using the dock in June of 2005 and then hired a contractor, Dan Day (Day), to 

renovate it in 2006. Before beginning work, Day applied for a permit, which incorrectly 

identified the Ziehls as the exclusive owners of the existing dock. At some point during 

construction, Pederson informed Day that he was trespassing on her property and 
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demanded that he cease working. Day told the Ziehls about Pederson’s objections, but 

nothing was done to resolve the issue and construction continued. 

¶8 The significantly improved new dock generally followed the footprint of the old 

one, although its width was increased by at least one additional foot outward into the 

river. By the time construction wrapped up in April of 2006, a 2.6 by 3.69 foot section of 

the dock extended onto Pederson’s property. Throughout 2006, 2007, 2008, and part of 

2009, the Ziehls used the dock for recreational purposes and boat parking. Pederson 

occasionally used the dock when being picked up and dropped off by friends who boated 

to her residence. Pederson and the Ziehls never discussed whether the Bysshes’ original 

grant of permission to Nicodemus had subsequently been revoked or amended. 

¶9 On March 4, 2009, Pederson filed a complaint in the District Court for the 

Eleventh Judicial District, seeking to eject the Ziehls from her property, quiet title to the 

portion of the dock located on Lot 6A, and obtain an order that the Ziehls permanently 

remove that portion. The Ziehls answered and counterclaimed, arguing that they had 

acquired a prescriptive easement allowing them to maintain and use the entire dock. On 

January 18, 2011, the case was tried before the District Court, Hon. Stewart E. Stadler, 

presiding, sitting without a jury. After receiving evidence and the arguments of both

parties, the District Court issued its Findings of Fact, Conclusions of Law, and Decree on 

November 26, 2012. The District Court ruled in favor of Pederson, determining that the 

Ziehls did not hold a prescriptive easement and granting Pederson’s requested order. The 

Ziehls appeal. 
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STANDARD OF REVIEW

¶10 We affirm the factual findings of a district court sitting without a jury unless those 

findings are clearly erroneous. M. R. Civ. P. 52(a); Steiger v. Brown, 2007 MT 29, ¶ 16, 

336 Mont. 29, 152 P.3d 705 (citation omitted). A district court’s findings are clearly 

erroneous if they are not supported by substantial evidence, if the district court has 

misapprehended the effect of the evidence, or if a review of the record leaves this Court 

with the definite and firm conviction that a mistake has been committed. Steiger, ¶ 16 

(citing Ray v. Nansel, 2002 MT 191, ¶ 19, 311 Mont. 135, 53 P.3d 870). We view the 

evidence in the light most favorable to the prevailing party when determining whether 

substantial credible evidence supports the district court’s findings. Steiger, ¶ 16 (citing 

Ray, ¶ 19). We review a district court’s conclusions of law to determine whether those 

conclusions are correct. Steiger, ¶ 16 (citing Ray, ¶ 20). 

DISCUSSION 

¶11 Did the District Court err by holding that the Ziehls failed to adversely use the 

dock for the required statutory period in order to obtain a prescriptive easement? 

¶12 The parties generally do not dispute the factual findings of the District Court. 

Indeed, the Ziehls concede that any minor factual issues do not affect our analysis on 

appeal. The parties instead focus their arguments almost exclusively on the legal 

character of Nicodemus’ and the Ziehls’ use of the dock. More specifically, the entire 

outcome of this case turns on whether Nicodemus’ use of the dock after the Bysshes sold 

Lot 6A to Pederson in 2002 was adverse or permissive.
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¶13 A prescriptive easement arises by operation of law when a claimant proves that his 

or her use of another’s property was open, notorious, exclusive, adverse, continuous, and 

uninterrupted for the statutory period. Heller v. Gremaux, 2002 MT 199, ¶ 12, 311 Mont. 

178, 53 P.3d 1259 (emphasis added). Section 70-19-404, MCA, sets Montana’s 

prescriptive period at five years. See also §§ 70-19-405, 23-2-322, MCA. If a claimant 

establishes the elements of open, notorious, exclusive, continuous, and uninterrupted, “a 

presumption arises that the use is adverse to the servient estate and the burden then shifts 

to the owner to show the use was permissive.” Combs-Demaio Living Trust v. Kilby 

Butte Colony, Inc., 2005 MT 71, ¶ 13, 326 Mont. 334, 109 P.3d 252. However, proof of 

permissive use overcomes the presumption of adversity and causes a prescriptive 

easement claim to fail. Heller, ¶ 15.

¶14 The Ziehls and Pederson stipulated that use of the disputed portion of dock was

open, continuous, and uninterrupted throughout the entire period that Nicodemus and the 

Ziehls owned Lot 7A. The other two elements necessary to raise the presumption of 

adverse use—notorious and exclusive—were not squarely addressed by the District 

Court. The Ziehls argue that both of these elements were also clearly satisfied and 

therefore this Court must presume adversity. While the Ziehls offer a technically correct

theory, we need not here engage in a burden-shifting analysis. A demonstration of 

permissive use overcomes any presumption of adversity and defeats a prescriptive 

easement claim as a matter of law. On this point, the District Court concluded that 

Nicodemus used the dock at all times during his ownership of Lot 7A with permission.

We agree.
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A. Permissive use

¶15 Under well-settled Montana law, use of another’s property based on neighborly 

accommodation or courtesy does not give rise to a prescriptive easement because 

adversity is lacking. Heller, ¶ 14; Rathbun v. Robson, 203 Mont. 319, 323, 661 P.2d 850, 

852 (1983). Put another way, if permissive use is shown, “no easement can be acquired 

since the theory of prescriptive easements is based on adverse use.” Keebler v. Harding, 

247 Mont. 518, 521, 807 P.2d 1354, 1356 (1991); Tanner v. Dream Island, 275 Mont. 

414, 424-25, 913 P.2d 641, 648 (1996). “If a use begins as a permissive use it is 

presumed to continue as such.” Rettig v. Kallevig, 282 Mont. 189, 196, 936 P.2d 807, 

811 (1997) (quoting White v. Kamps, 119 Mont. 102, 114, 171 P.2d 343, 349 (1946)). In 

fact, “[i]f the use begins as a permissive use, it cannot ripen into a prescriptive right, no 

matter how long it may continue, unless there is a distinct and positive assertion of a right 

hostile to the owner.” Morrison v. Higbee, 204 Mont. 515, 520, 668 P.2d 1025, 1027 

(1983).

¶16 In its Findings of Fact, the District Court found:

14. Judy Bysshe not only acknowledged the encroachment, she discussed it 

with her realtor and with Paul Nicodemus. She clearly stated that her 

retained portion of the dock (on Lot 6A) was the property of 6A and use 

was to be shared and permissively used by each owner as a neighborly 

accommodation.

16. Nicodemus occasionally parked his boat at the dock and used it during 

his property ownership.

17. Gayle Pederson began looking at Lot 6A in 2001. Lot 6A was then a 

bare lot. [Pederson] looked at the property a number of times, but never 

saw any use along the dock before her purchase. She signed her purchase 

agreement in 2001 and closed her purchase on October 15, 2002. . . .
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19. Although the dock was in deteriorated condition, the owners of Lot 7A 

were able to use the dock at times during their ownership.

21. Defendants Ziehl purchased Lot 7A from Nicodemus in August 2004. 

They used the existing dock in the summer of 2005 but did not undertake 

reconstruction of the riverfront or dock area until 2006.

24. Ziehls completed their dock reconstruction in April 2006, and used the 

dock in 2006, 2007, 2008 and minimally in 2009, for family recreation and 

for docking his boat between June and September of a given year. 

28. No notice was ever provided by any party that the initial permissive and 

continuing use of the dock by the owners of Lot 6A and Lot 7A was altered 

or revoked.

Based on these findings and our case law regarding the continuing nature of permissive 

use, the District Court concluded that the Bysshes’ original grant of permission to 

Nicodemus continued after Pederson purchased Lot 6A from the Bysshes, and that 

Nicodemus enjoyed this permission until he sold Lot 7A to the Ziehls in August of 2004. 

The District Court was not convinced that the Bysshes’ initial permission terminated even 

after Nicodemus sold Lot 7A, but determined that even if the Ziehls’ use became adverse 

immediately upon acquiring Nicodemus’ property, “there is not five years of adverse use 

between Defendant’s purchase of Lot 7A in August 2004 and M[arch] 2009, when 

litigation was commenced.” Pederson urges us to uphold the District Court’s decision for 

these same reasons and further contends that the Ziehls’ use did not become adverse until 

Pederson ordered Day to leave her property when the dock was being renovated in 

2006—only three years prior to the commencement of this action, well short of the five 

year prescriptive period. 
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¶17 The Ziehls maintain that even though the Bysshes originally granted Nicodemus 

permission to use the dock in 2000, “Bysshe’s permission ended when she sold the 

servient estate [Lot 6A] to Pederson [in 2002].” The Ziehls go on to explain that after 

acquiring the property, Pederson never expressly authorized Nicodemus to use the dock.

Therefore, Pederson merely “acquiesce[d]” to Nicodemus’ use, which is not the same 

thing as permission. See Cremer v. Cremer Rodeo Land & Livestock Co., 192 Mont. 208, 

211, 627 P.2d 1199, 1201 (1981). According to the Ziehls, Nicodemus’ use from 2002 to 

2004 should have been included by the District Court when calculating the period of

adverse use—approximately seven years by the time litigation commenced in 2009. In 

support of this argument, the Ziehls rely primarily on our decision in Han Farms, Inc. v. 

Molitor, 2003 MT 153, 316 Mont. 249, 70 P.3d 1238 for the proposition that “[o]ne

owner’s grant of permission does not continue by default to the next owner”—that is, the 

Bysshes’ grant of permission to Nicodemus did not continue when Pederson purchased 

Lot 6A. Pederson, in turn, argues that Molitor is irreconcilable with our body of

permissive use law and should not control in this case. 

¶18 In Molitor, Han Farms utilized a road that crossed Molitor’s property to access 

Han Farms for residential and agricultural purposes. Molitor, ¶ 7. Certain tenants of Han 

Farms began using the road more frequently than in the past, prompting Molitor to 

withdraw permission. Molitor, ¶ 8. Han Farms brought suit claiming that it had acquired 

a prescriptive easement over Molitor’s property. At trial, Molitor testified that her 

predecessor in interest had given Han Farms’ predecessor in interest permission to use 

the road. Molitor, ¶ 14. 
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¶19 On appeal, we affirmed the district court’s decision to grant Han Farms a 

prescriptive easement, explaining that although Molitor’s predecessors in interest may

have given Han Farms’ predecessors in interest permission to use the road, the record 

contained no evidence that Molitor ever did, proving fatal to her defense. Molitor, ¶¶ 14-

16. As authority, we cited Rettig, 282 Mont. at 195, 936 P.2d at 811 for the blanket

proposition that “[p]ermissive use is not transferable.” Molitor, ¶ 14. However, as 

Pederson correctly points out, Rettig did not create or adopt a non-transferability of 

permissive use rule. In fact, Rettig’s discussion of the rule should have precluded its 

application in Molitor. 

¶20 In Rettig, DeRudder gave his neighbor Englert permission to use a silage pit road 

that crossed his property. Rettig, 282 Mont. at 191, 936 P.2d at 808. Some years later, 

Englert decided to sell his property to the Rettigs. Before the sale went through, 

DeRudder told Englert that any purchasers of Englert’s property could continue to use the 

silage pit road, subject to his permission. Rettig, 282 Mont. at 191, 936 P.2d at 808. The 

Rettigs purchased Englert’s property and used and improved the silage pit road for eleven 

years without ever receiving express permission from DeRudder to do so. Rettig, 282 

Mont. at 192, 936 P.2d at 809. DeRudder eventually sold his property to the Kallevigs, 

who immediately informed the Rettigs that they could no longer use the road. The 

Rettigs sued, claiming they had acquired a prescriptive easement. Rettig, 282 Mont. at 

192, 936 P.2d at 809.

¶21 The district court rejected the Rettigs’ claim, and this Court affirmed. We 

explained that the Rettigs did not acquire a prescriptive easement because permissive use, 
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once granted, is presumed to continue as permissive. Rettig, 282 Mont. at 196, 936 P.2d

at 811. Indeed, “periodic, express grants of permission are not required to maintain the 

permissive character of the use . . . .” Rettig, 282 Mont. at 196, 936 P.2d at 811. We 

found it convincing that the Rettigs continued to use the road in the same manner as 

Englert, and DeRudder did not object. Rettig, 282 Mont. at 196, 936 P.2d at 811. More 

importantly, we specifically rejected the Rettigs’ non-transferability of permissive use 

argument because that rule stands only for the proposition that “one who has received 

permission . . . may not transfer a ‘limited personal right or license . . . to any other 

person or persons.’” Rettig, 282 Mont. at 195-96, 936 P.2d at 811 (citing Luoma v. 

Donohoe, 179 Mont. 359, 363, 588 P.2d 523, 525 (1978) in turn citing Cope v. Cope, 158 

Mont. 388, 493 P.2d 336 (1971)). In other words, the rule provides that if you receive 

permission to use your neighbor’s land, you cannot unilaterally extend that permission to 

others.

¶22 It is clear that Molitor incorrectly applied the non-transferability of permissive use 

rule. The issue in Molitor was not whether the dominant user could unilaterally transfer a 

permissive right of use to another—which is the nature and scope of the rule—but, rather, 

whether permission granted by the servient owner continued after the sale of the servient 

property. Indeed, contrary to Molitor’s blanket “permission does not transfer” holding, 

our other cases demonstrate that the approach of this Court is to examine the nature of the 

arrangement between the parties at the outset of the use in determining the extent and 

duration of permissive use. Keebler, 247 Mont. at 521-23, 807 P.2d at 1357-58

(concluding that historical uses and custom prior to Appellant’s acquisition of the 
12

property provided evidence that use had “always been permissive”); Morrison, 204 Mont. 

at 520-21, 668 P.2d at 1027-28 (construing use by Defendant’s predecessors in interest as 

“indicat[ing] friendly cooperation between neighbors.”); Rathbun, 203 Mont. at 322-23, 

661 P.2d at 852 (determining that initial homesteader practices were “sufficient to 

support a use permissive in its inception and not under a claim of right”); Cope, 158 

Mont. at 390-94, 493 P.2d at 338-40 (finding strong support for permissive use based on 

the actions of the families prior to Plaintiff’s acquisition of the property, and stating “the 

courts look to a variety of acts [sic] and circumstances to determine whether the user in a 

particular case was adverse or permissive . . . .”).

¶23 The Ziehls argue that our cases discussing the continuing nature of permissive use

are factually distinguishable from the case at bar because they “involve continuous 

ownership of the servient estate by the same owner who initially gave permission, or . . .

direct evidence of subsequent permission to a new owner.” Certainly, neither of these 

scenarios exists in this case—the Bysshes did not maintain continuous ownership of the 

servient estate, and Pederson never expressly granted Nicodemus permission to use the 

dock. Based on this factual distinction, the Ziehls urge us reject the permissive use line 

of precedent cited by Pederson and instead apply the expansive rule stated in Molitor.

¶24 The facts in Molitor do appear very similar to the facts here, but, as we have 

explained, Molitor was premised upon an irrelevant principle of law, one which our prior 

cases neither recognized nor adopted in such a context. It makes little sense to follow a 

rule that clearly does not apply, based solely on factual similarities, when the weight of 

our existing law demands a contrary result. Thus, to the extent that Molitor determined
13

that permission can never carry over from one owner to another after sale of the servient 

property, it is overruled. “[S]tare decisis does not require that we follow a manifestly 

wrong decision.” Formicove, Inc. v. Burlington Northern, Inc., 207 Mont. 189, 194-95, 

673 P.2d 469, 472 (1983). A thorough reading of our permissive use cases makes clear 

that this Court has always, with the exception of Molitor, considered the nature of the 

initial agreement and the attendant circumstances surrounding any continuing use when

determining whether permission exists. This approach presents a more comprehensive

and sound method of analyzing permissive use questions than ignoring case-specific facts

and circumstances in favor of a rigid “permission never carries over” rule.

¶25 Resolving permissive use questions in this way does not result in “tacking” of

permissive use periods, as the Ziehls describe Pederson’s position to be. We are not 

holding that permission given by the servient owner automatically continues after sale of 

the servient property. Such an approach could, by default, subordinate the intentions of 

current property owners to the intentions of their predecessors in title and produce absurd 

results in some cases. At the same time, it cannot be said that the weight of our law

supports the inverse proposition that the mere sale of property, without more,

automatically transforms permissive use into use that is adverse to the purchaser’s 

ownership interest.

¶26 In its Findings of Fact, the District Court determined that Judy Bysshe expressly

granted Nicodemus permission to use the dock, which he occasionally did throughout his 

ownership of Lot 7A. This finding is supported by substantial credible evidence in the 

record. The Ziehls attempt to undermine this finding by citing testimony from Judy 
14

Bysshe about a conversation she had with Nicodemus wherein she stated: “[A]s far as 

[she] was concerned as long as we [Bysshes] owned [a portion of the dock] he 

[Nicodemus] was welcome to use it, and if somebody else owned it he’d have to work 

out an arrangement to share the space.” The Ziehls argue that this statement expressly 

limited Nicodemus’ permission to the Bysshes’ term of ownership. We do not agree.

The fact that Judy Bysshe mentioned that Nicodemus would have to work out an 

arrangement with a new owner at some point in the future does not make the District 

Court’s finding that permission existed at all times during Nicodemus’ use of the dock

clearly erroneous. Importantly, the District Court did not find, and the Ziehls do not 

argue, that Nicodemus ever changed the character of his use or took active steps to claim 

the entire dock as a matter of right. It is telling that Pederson never even saw Nicodemus 

use the dock in 2003 and 2004. Our decision in Morrison makes quite clear that in order 

to transform a permissive use into an adverse one, there must be a “distinct and positive 

assertion of a right hostile to the owner.” Morrison, 204 Mont. at 520, 668 P.2d at 1027 

(emphasis added). As the District Court reasoned, “[t]here was no ‘overt act’ or event 

which would notify Bysshes or Pederson that either owner of Lot 7A claimed the use of 

the full dock as their right.” Given these facts, we cannot conclude that the mere sale of 

Lot 6A to Pederson in 2002, without more, changed Nicodemus’ occasional use of the 

dock, which had at all times previously been permissive, into an adverse and hostile

claim of right.

¶27 Since we have determined that Nicodemus used the dock with permission at all 

times during his ownership of Lot 7A, there is no need to pinpoint the exact date when 
15

the Ziehls’ use became adverse. As the District Court correctly decided, even if the 

Ziehls’ use became adverse immediately upon purchasing Lot 7A in August of 2004, the 

statutorily imposed five-year adversity period had not yet elapsed by the time litigation 

commenced in March of 2009. 

¶28 Accordingly, the Judgment of the District Court is affirmed.

/S/ JIM RICE

We concur: 

/S/ MIKE McGRATH

/S/ MICHAEL E WHEAT

/S/ LAURIE McKINNON

/S/ BRIAN MORRIS