NQ. 12145 INTHE 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 theFirstJudicial 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

### 1972Mr. 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 HonorableNat Allen presiding. The judgment and a subsequent orderwere 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 drivewaywhich crosses the land of defendants? 2) Ifa prescriptive rightwas shown,did the district

II court, after extinguishing" a driveway easementbecause of the actions of plaintiffs, err in failing to extinguish the "access road" easementbecause of the increased burdens createdby the change in character of the use by plaintiffs? 3) Ifa prescriptive rightwas shown,did the district court err in failing to limit theuse of the "access road" easement to thoseuses existing prior to March 1970? Plaintiffs, respondentshere, areman and wife andwill be referred to as Poepping. Defendants,appellantshere, are alsoman andwife and will be referred to asNeil. Poepping and Neil are neighbors. Poepping commenced this to actiodenjoin the construction of a fence and erection ofboundary signs,and to declare an access road and driveway easements by prescription. The propertieshere involved are located adjacent to the "Canyon Creek Store1'some sixteenmiles north of Helena. Both propertieshad a common ownership until 1946. In 1946Anderson, 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 1950Neil bought the ranch surrounding the storeproperty on three sides. So, what had been a common ownership

was now split. The property line incontention runs ina northsouth directionbetween the storebuilding and a residence building, down themiddle of a driveway running north and south. There were
no reservations of easements. A public road known as the Lincoln Road runs inan eastwest direction and iscontiguous 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 historicallyused by the single

owner. The property linerunning north-south and the driveway between the buildings, previously mentioned, bisects orjoins the

IIaccess 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 linebetween the parties. It was in 1969 that Poepping had purchased hisproperty on a contract and

was discussing improvements. InMarch 1970 Poepping began tobuild

a cafe extension on the side of the Canyon Creek Store. This extension projected tothe east into the driveway used by both parties, projected towithin 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 hisproperty line, down the middle of the driveway. The driveway was hard packed but otherwise unimproved.OnMay 1, 1970, Poepping brought an action claiming a prescriptive right and irreparable injury and obtained a temporary restraining order against Neil to stop the installationof the fence. Neil answered by general denial and two counterclaims. He asserted, in effect, that Poeppinghad,by constructing the 'cafe building on the joint driveway, waived any claim to the driveway; and further, concerning the "access road", that such
usewas 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 usagewas 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 ancillarymatters such asmotions, contempt, and other thingsnot 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 otherwiseunimproved. As Co the common driveway, the trial court found that although Poeppinghad 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 inMarch 1970,when the cafewas built. (Because of this "abandonment"Neil chose to build the fence.) As to the separated "access road", the trial court found that Poeppinghad established a prescriptive right or easement to
use it and itwas necessary for ingress and egress to the Poepping land, store,and United Statespostofficewhich Poepping operated. 

### A supplementary orderwas made which spelled out the rights on the "access easement", granting access and parking rightsto both parties with fencing rights and even down to the detail of describing a "Do Not Block 

### rivew way" sign. Heretoforewe set forth the issues;and subsequentlywe described the facts briefly to preface a discussion ofwhat 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 Poeppingproperty 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 jointlyused 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 therewas "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. InWhite v. Kamps, 119Mont. 102, 114, 171 P.2d 343, this Court discussed prescriptive easements and stated that there must be a distinct and positive assertion of a righthostile to the rights of the owner and must be brought to the attention of the owner. OtConnorv. Brodie, 153 Mont. 129, 454 P.2d 920. Here there is reallyno 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 consistentwith permissive use. We simply do not find in the record evidence to support a prescriptive easement. In thiscase 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 simplynot shown here. It is as if a private sidewalk to a person's dwelling house which visitors and patrons evenuse for years suddenlybecomes 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, Poeppingnowurges 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. InThisted v. Country Club Tower Corp., 146Mont. 87, 102, 405 P.2d 432, this Court discussed section 67-1607,togetherwith other statutes, and said: "We think certainMontana statutes, under the facts in this case, are controlling: "'13-722. Necessary incidents implied. All things that in law or usage are consideredas inciaental to a contract,-oras 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 Drovertvpasses 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 samemanner and to the same extent as such propertywas obviously and permanently used by the personwhose estate is transferred, for the benefit thereof, at the time when the transferwas agreed upon or completed.I "'13-721. Reasonable stipulations--whenapplied. Stipulationswhich are necessary to make a contract reasonable, or conformable to uiage,are implied, in respect to matters concernin? which the contractmanifestsno contrary intention. "'49-114. One who grants a thing is presumed to grant alsowhatever is essential to itsuse. 1"'49-121. That which ought to have been done is to be regarded as done, in favor of him towhom, and against him fromwhom, 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 residentialpurposes only. "'67-606. Extent of servitudes. The extent of a servitude is determinedby 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 canbe implied reservations or implied grants of easement by necessity inMontana, and insofar as the holding in Simonsonv. McDonald, 131Mont. 494, 311 P.2d 

### 982,states to the contrary we must observe that the language thereinused was toobroadly put and shouldhave been limited in its application to the facts existent in that case. Under the facts and circumstances existinghere that holding is expressly overruled. (See criticism of Simonsonv. McDonald inVol. 19,Montana Law Review, page 73.)" The foregoing quote demonstrateshow 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 itwas abandoned. As to the access road, Poepping's brief states that the buildings occupy only avery tinyportion of his property. Poeppinghas 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", sincepeople go to the store and postoffice by means of the access road. However,we fail to seehow the public gets any right under the circumstanceshere.We have examined the entire record and recognize that the trial court made a valient effort to attempt to settle a dispute betweenneighbors. Nevertheless,we fail to find evidence sufficient to uphold the findings and conclusions as to prescriptive rightssandthus reverse the judgment, The cause is returned to the district court for entry of judgment for appellants,

~ssociite Justice



# // Chief ~ustice

Associate Justices.