NQ. 12145 

IN THE SUPREME COURT OF THE SmTE OF MQNTANA 

1972 

FjIFFORD W, POEPPING and JOYCE M. POEPPING, 

husband and wife, 

Plaintiffs and Respondents, 

WAYNE NEIL and RUTH NEIL, 

husband and wife, 

Defendants and Appellants. 

Appeal from: District Court of the First Judicial District, 

Honorable Nat Allen, Judge presiding, 

Counsel of Record: 

For Appellant : 

Gough, Booth, Shanahan and Johnson, Helena, Montana, 

Ward A. Shanahan argued, Helena, Montana. 

For Respondent : 

Loble, Picotte, Loble, Pauly& Sternhagen, Helena, 

Montana. 

Gene Picotte argued, Helena, Montana, 

Submitted: May 15, 1972 

Decided: JUL 19 1972 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a judgment entered on findings of 

fact and conclusions of law by the district court of the first 

judicial district, Lewis and Clark County, the Honorable Nat Allen 

presiding. The judgment and a subsequent order were in favor of 

plaintiffs. Defendants appeal. 

The issues on appeal are: 

1) Did the district court err in concluding that plaintiffs had established a prescriptive right to use an access road 

and driveway which crosses the land of defendants? 

2) If a prescriptive right was shown, did the district 

I I court, after extinguishing" a driveway easement because of the 

actions of plaintiffs, err in failing to extinguish the "access 

road" easement because of the increased burdens created by the 

change in character of the use by plaintiffs? 

3) If a prescriptive right was shown, did the district 

court err in failing to limit the use of the "access road" easement to those uses existing prior to March 1970? 

Plaintiffs, respondents here, are man and wife and will 

be referred to as Poepping. Defendants, appellants here, are 

also man and wife and will be referred to as Neil. 

Poepping and Neil are neighbors. Poepping commenced this 

to 

actiodenjoin the construction of a fence and erection of boundary 

signs, and to declare an access road and driveway easements by 

prescription. 

The properties here involved are located adjacent to the 

"Canyon Creek Store1' some sixteen miles north of Helena. Both 

properties had a common ownership until 1946. In 1946 Anderson, 

the owner, sold the Canyon Creek Store and five acres to one Wall, 

who in 1952 sold to Young, who in turn sold to Poepping on April 

10, 1969. In 1950 Neil bought the ranch surrounding the store 
property on three sides. So, what had been a common ownership 

was now split. The property line in contention runs in a northsouth direction between the store building and a residence building, 

down the middle of a driveway running north and south. There were 

no reservations of easements. 

A public road known as the Lincoln Road runs in an eastwest direction and is contiguous to the southern edge of the 

Poepping property/%$ Neil property. From that public road a 

somewhat "elliptical" access road comes off the public road to the 

north across the "borrow pit", then parallels the public road and 

11 rejoins the public road back across the borrow pit". This access 

road is on both properties and was historically used by the single 

owner. The property line running north-south and the driveway 

between the buildings, previously mentioned, bisects or joins the 

I I access road". 

Poepping operated a country store and a postoffice. His 

It patrons commonly used the access road". Neil operated a farm and 

he used the "access road". Both parties used the "driveway" as 

well. 

In November 1969 Neil had a survey made of his property 

to determine the boundary line between the parties. It was in 

1969 that Poepping had purchased his property on a contract and 

was discussing improvements. In March 1970 Poepping began to build 

a cafe extension on the side of the Canyon Creek Store. This extension projected to the east into the driveway used by both 

parties, projected to within about twenty inches of the center 

line of the driveway, which was the property line. Neil protested 

and construction was stopped for a time and then started again. 

At this point, Neil put up marker signs and began to install steel 

fence posts on his property line, down the middle of the driveway. 

The driveway was hard packed but otherwise unimproved. 
On May 1, 1970, Poepping brought an action claiming a 

prescriptive right and irreparable injury and obtained a temporary 

restraining order against Neil to stop the installation of the 

fence. 

Neil answered by general denial and two counterclaims. 

He asserted, in effect, that Poepping had, by constructing the 

'cafe building on the joint driveway, waived any claim to the 

driveway; and further, concerning the "access road", that such 

use was a permissive use, and since the use was being materially 

changed by a beer sale license and the new cafe construction, 

that such increased and changed usage was an attempt to change 

and enlarge any access or prescriptive right, if any there had been. 

Issue was joined and testimony taken. We shall not 

discuss ancillary matters such as motions, contempt, and other 

things not relevant to the main issue. The trial judge found 

and treated the "access" road and the "driveway" as two separate 

and distinct matters. Both the "access"road and "driveway" are 

hardpacked areas bordered by grass but otherwise unimproved. As 

Co the common driveway, the trial court found that although 

Poepping had established a prescriptive right to a driveway easement between the properties, he had forced a change in the manner 

and location of the easement such as to cause an abandonment by 

him in March 1970, when the cafe was built. (Because of this 

"abandonment" Neil chose to build the fence.) 

As to the separated "access road", the trial court found 

that Poepping had established a prescriptive right or easement to 

use it and it was necessary for ingress and egress to the Poepping 

land, store, and United States postoffice which Poepping operated. 

A supplementary order was made which spelled out the 

rights on the "access easement", granting access and parking rights 
to both parties with fencing rights and even down to the detail 

of describing a "Do Not Block rivew way" sign. 

Heretofore we set forth the issues; and subsequently we 

described the facts briefly to preface a discussion of what we 

consider the main issue. That is ---- whether a "prescriptive 

right" as distinguished from a "permissive right" was established 

to the access road? 

First, the two properties derived from - one ownership. 

No easements were resewed. The Poepping property is a store, 

a postoffice, and other buildings which has ample room for ingress 

and egress on the other side. Anderson, the single owner, severed 

the five acre piece when he sold to Wall in 1946. That the driveway and access roadwere jointly used is clear. Until the fall of 

1969, no problem existed. At that time all indicia of permissive 

user were present. 

But, what indicia of prescriptive or adverse user were 

present? The trial court found, as to the use of the access road, 

that there was "no open and notorious objections thereto until on 

or about April 29, 1970 * * *. If This is not the rule. Rather, 

the rule is the opposite. In White v. Kamps, 119 Mont. 102, 114, 

171 P.2d 343, this Court discussed prescriptive easements and 

stated that there must be a distinct and positive assertion of a 

right hostile to the rights of the owner and must be brought to the 

attention of the owner. OtConnor v. Brodie, 153 Mont. 129, 454 

P.2d 920. 

Here there is really no evidence or testimony of adverse 

use other than the joint use known to each owner and not objected 

to. There is testimony that succeeding owners of the store property 

orally understood they could use the access and driveway. This, 

however, is consistent with permissive use. We simply do not find 

in the record evidence to support a prescriptive easement. In this 
case it is difficult to demonstrate the negative. Any prescriptive use, recognizing that a permissive use may ripen into a 

prescriptive right under some circumstances, is simply not shown 

here. It is as if a private sidewalk to a person's dwelling house 

which visitors and patrons even use for years suddenly becomes a 

prescriptive right in the public. 

Poepping seems to recognize the difficulty of finding evidence to support the finding of prescriptive easement. A ground 

not urged before (counsel on appeal is different than at trial) 

is put forth, Poepping now urges an easement by virtue of section 

67-1607, R.C.M. 1947, what may be termed an implied reservation or 

grant of an easement by necessity. 

In Thisted v. Country Club Tower Corp., 146 Mont. 87, 102, 

405 P.2d 432, this Court discussed section 67-1607, together with 

other statutes, and said: 

"We think certain Montana statutes, under the facts 

in this case, are controlling: 

"'13-722. Necessary incidents implied. All 

things that in law or usage are considered as 

inciaental to a contract,-or as necessary to carry 

it into effect, are implied therefrom, unless some 

of them are expressly mentioned therein, when all 

other things of the same class are deemed to be 

excluded . ' 

"'67-1607. What easements pass with property. 

A transfer of real Drovertv passes all easements 

attached thereto, ahd creakes in favor thereof an 

easement to use other real property of the person 

whose estate is transferred in the same manner and 

to the same extent as such property was obviously 

and permanently used by the person whose estate is 

transferred, for the benefit thereof, at the time 

when the transfer was agreed upon or completed. I 

"'13-721. Reasonable stipulations--when applied. 

Stipulations which are necessary to make a contract 

reasonable, or conformable to uiage, are implied, in 

respect to matters concernin? which the contract manifests no contrary intention. 

"'49-114. One who grants a thing is presumed to 

grant also whatever is essential to its use. 1 
"'49-121. That which ought to have been done 

is to be regarded as done, in favor of him to whom, 

and against him from whom, performance is due. I 

"We are further of the opinion that under all the 

facts shown in evidence here and as heretofore referred to herein, an implied equitable servitude 

attached to the transfers of the apartments in 

question, requiring the use of the apartments for 

residential purposes only. 

"'67-606. Extent of servitudes. The extent 

of a servitude is determined by the terms of the 

grant, or the nature of the enjoyment by which it 

was acquired, 1 

"BY reason of our statutes and what has been heretofore said, there can be implied reservations or 

implied grants of easement by necessity in Montana, 

and insofar as the holding in Simonson v. McDonald, 

131 Mont. 494, 311 P.2d 982, states to the contrary 

we must observe that the language therein used was 

too broadly put and should have been limited in its 

application to the facts existent in that case. 

Under the facts and circumstances existing here that 

holding is expressly overruled. (See criticism of 

Simonson v. McDonald in Vol. 19, Montana Law Review, 

page 73.)" 

The foregoing quote demonstrates how an implied easement may 

arise. 

As to the driveway, Poepping did not rely on an implied 

easement existing. He built on it and the court found that it was 

abandoned. As to the access road, Poepping's brief states that 

the buildings occupy only a very tiny portion of his property. 

Poepping has ample room for ingress and egress. This simply is 

not a case where the facts indicate an "implied easement" nor did 

Poepping attempt to establish such, 

Were we to develop the theory of an implied easement, we 

would necessarily have to discuss the material change in the use 

since the building of the cafe; but we do not deem this necessary 

here. 

Poepping would also have us declare a "public easement", 

since people go to the store and postoffice by means of the access 

road. However, we fail to see how the public gets any right under 

the circumstances here. 
We have examined the entire record and recognize that the 

trial court made a valient effort to attempt to settle a dispute 

between neighbors. Nevertheless, we fail to find evidence sufficient to uphold the findings and conclusions as to prescriptive 

rightssand thus reverse the judgment, 

The cause is returned to the district court for entry of 

judgment for appellants, 

~ssociite Justice 

/ / Chief ~ustice 

Associate Justices.