NO. 87-544 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

FRANCES CAROLINE PARKER, 

Plainti-ff and Respondent, 

-vsCARRIE WILMOTH EIJDER, 

ROBERT DALTON and VADA DALTON, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Big Horn, 

The Honorable G. Todd Raugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bert W. Kronmiller and James E. Torske, Hardin, 

Montana 

For Respondent: 

Freeman Law Firm; Natasha Morton, Hardin, Montana 

Filed: 

Submitted on Briefs: May 19, 1988 

Decided: July 21, 1988 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The District Court for the Thirteenth Judicial District, 

Big Horn County, has entered a permanent injunction enjoining 

defendants from interfering with plaintiff's use of a road 

which crosses defendant Carrie Wilmoth Elder's land. For 

reasons expressed herein we affirm. Defendants raise the 

following issues on appeal: 

1. Did the District Court err by concluding that the 

subject road was a public road by reason of and pursuant to 

43 U.S.C. § 932? 

2. Did the District Court err by concluding that the 

plaintiff had a road right of way by reason of prescriptive 

easement? 

The action involves a road located about 20 miles east 

of Decker, Montana, on property owned by Carrie Wilmoth 

Elder. The road begins at a county road and runs northwest 

across Mrs. Elder's land for approximately four-tenths of a 

mile. This is the portion now in dispute. The road then 

enters property owned by plaintiff Frances Caroline Parker 

and continues northwest less than one-half mile to Mrs. 

Parker's home and ranch buildings. 

Gloria Schwalbe testified that her father, in 1916, 

homesteaded what is now Mrs. Parker's place. Mrs. Schwalbe 

lived there from 1917 to 1941, and during that period no 

other road existed for travel to the county road. Her family 

and at least three other families used the subject road 

regularly since 1916. 

Mrs. Elder and her husband occupied land southeast of 

Mrs. Schwalbe's home, at least by 1926. Mr. Elder received a 

patent for the land from the United States in 1927. This 

property included the land upon which the disputed lower 

portion of the road runs. Mrs. Schwalbe testified that 
children used the road to attend the Pine Butte School, 

starting in 1925. 

About the time Mrs. Schwalbe left in 1941, her father 

sold the ranch to Mrs. Parker's brother-in-law. Mrs. Parker 

and her husband bought the ranch in 1946 and moved onto the 

place in 1947. Mrs. Schwalbe testified that she returned for 

a short visit in 1957, and she used the same road she and her 

family had always used since 1916. 

Mrs. Parker testified that she used the road almost 

daily for 39 years. In November 1985 she drove down the road 

from her home toward the county road, but when she came to 

the fence line between her property and Mrs. Elder's, she 

found that the gate had been removed and two steel posts had 

been driven into the road between the gate posts. Four 

strands of wire had been stretched across the road and attached to the steel posts. Mrs. Parker later saw that the 

gate at the county road had also been wired shut. Sometime 

before this, bad relations had developed between Mrs. Parker 

and Mrs. Elder's daughter and son-in-law, Vada and Robert 

Dalton. The Daltons, who are defendants in this action, had 

wired the gates shut. Mrs. Parker filed this action seeking 

injunctive relief and damages. 

Did the District Court err by concluding that the subject road was a public road by reason of and pursuant to 43 

U.S.C. S 932? 

In 1866, Congress enacted Revised Statute § 2477 which 

read as follows: 

The right of way for the construction of highways 

over public lands, not reserved for public uses, is 

granted. 
That section was in effect during the years pertinent to 

litigation of this issue. 43 U.S.C. S 932 (repealed 1976). 

Section 2477 was explained in State ex rel. Dansie v. Nolan 

(1920), 58 Mont. 167, 172-73, 191 P. 150, 152: 

Section 2477 of the Revised Statutes of the United 

States goes no further than to grant a right of way 

for the construction of a highway across public 

lands . . . The grant is but an offer of the right 

of way for the construction of a public highway on 

some particular strip of public land, and can only 

become fixed when a highway is definitely established and constructed in some one of the ways 

authorized by the laws of the state in which the 

land is situated. 

Section 1339, RCM (1915) (previously S 1337, RCM (190711, 

described the ways authorized by the State of Montana for 

establishing public highways: 

All highways, roads, lanes, streets, alleys, 

courts, places and bridges laid out or erected by 

the public or now traveled or used by the public, 

or if laid out or erected by others, dedicated or 

abandoned to the public, or made such by the petition [sic, should read "partition"] of real property, are public highways. 

Montana law recognized the existence of highways by 

prescription when used by the public for the appropriate 

statutory period of limitation. State v. Auchard (1898) , 22 

Mont. 14, 16-17, 55 P. 361, 362, overruled on other grounds, 

Reid v. Park County (Mont. 1981), 627 P.2d 1210, 1213, 38 

St.Rep. 631, 634. The applicable statute of limitations for 

purposes of this case was 10 years. Sections 4571 and 6432, 

RCM (1907). Additionally, the public use "must be shown to 

have continued over the exact route claimed. . . . " Dansie, 

191 P. at 152; see also Montana Ore-Purchasing Co. v. Butte & 

Boston Consol. Mine Co. (1901), 25 Mont. 427, 65 P. 421. 
This Court shall not set aside findings of fact made by 

a district court unless those findings are clearly erroneous. 

Rule 52 (a), M.R.Civ.P. If there is substantial credible 

evidence to support the findings, those findings are not 

clearly erroneous. See City of Billings v. Billings 

Firefighters (1982), 200 Mont. 421, 430-31, 651 P.2d 627, 

632; Olson v. Westfork Properties, Inc. (1976), 171 Mont. 

154, 157, 557 P.2d 821, 823. 

After thorough review of the record, we conclude that 

the plaintiff failed to establish use by the public of the 

exact route claimed over public land for the 10 year period 

prior to 1927 when the patent was issued by the United States 

to Mr. Elder. Because there is not substantial credible 

evidence to support the District Court's finding that the 

road was in place, was in use, and was a granted public road 

by reason of and pursuant to 43 U.S.C. S 932, we conclude 

that the finding was clearly erroneous. 

I1 

Did the District Court err by concluding that the plaintiff had a road right of way by reason of prescriptive 

easement? 

To establish a prescriptive easement, the owner of the 

dominant tenement must establish an open, notorious, exclusive, adverse, continuous, and uninterrupted use by the owner 

or successors in interest for the statutory period. Rathbun 

v. Robson (1983), 203 Mont. 319, 322, 661 P.2d 850, 852. The 

element of adverse use is established by presumption if all 

other elements of the claim are demonstrated. Garrett v. 

Jackson (1979), 183 Mont. 505, 508, 600 P.2d 1177, 1179. 

Then the burden shifts to the owner of the servient tenement 

to show that the use was merely permissive, not. adverse. 

Garrett, 600 P.2d at 1179. 
The District Court concluded that Mrs. Parker had 

presented evidence sufficient to establish the presumption of 

adverse use. We conclude that substantial evidence supports 

the District Court's determination. 

Mrs. Elder argues that she properly rebutted the presumption of adverse use by establishing that Mrs. Parker's 

use of the road has always been a permissive use. "A disputable presumption may be overcome by a preponderance of evidence contrary to the presumption. " Rule 301 (2) , M. R.Evid. 

The District Court concluded that Mrs. Elder had failed to 

establish permissive use by a preponderance of credible 

evidence. The issue before us is whether the court's determination was clearly erroneous. Rule 52(a), M.R.Civ.P. 

Mrs. Elder contends that she met her burden by presenting "extensive evidence" of permissive neighborhood usage of 

the road. She argues that the Elders granted permission for 

use of the road as a route to the school house across the 

county road. However, Mrs. Schwalbe, a witness the lower 

court found to be "most credible," testified that her family 

(the plaintiff's predecessors in interest) and a number of 

other families were using the road in 1917 before the Elders 

ever moved to the area. 

Mrs. Elder also argues that she demonstrated that her 

family exercised control over the road sufficient to overcome 

the presumption of adverse use. She relies upon Mrs. Parker's testimony that she would not have placed shale upon the 

road in 1979 had Mr. Elder objected. Mrs. Parker testified 

that she called Mr. Elder to see if he had any objection to 

her putting shale on the road, and he had none. However, she 

also testified that she never sought permission to either use 

or shale the road, that her call concerning shaling the road 

was merely a "neighborly act." 
Another point of evidence relied upon by Mrs. Elder is 

her own deposition testimony that her husband had denied an 

earlier request by Mr. Parker to shale the road. The lower 

court did not find that this testimony outweighed the presumption of adverse use, and we do not find error in the 

court's conclusion. Mrs. Elder was testifying about an 

alleged conversation between her husband and Ralph Parker, 

both of whom are deceased. 

Lastly, Mrs. Elder contends that the two gates across 

the road, together with all other evidence presented, was 

sufficient evidence to establish permissive use. The presence of gates may be strong evidence of mere license. 

Kostbade v. Metier (1967), 150 Mont. 139, 145, 432 P.2d 382, 

386. However, the evidence supports the court's finding that 

the gates were used to control cattle. They were not used to 

control travel over the road. This evidence was not sufficient to rebut the presumption. Kostbade, 432 P.2d at 386. 

We conclude that Mrs. Elder has failed to show that the 

District Court was clearly erroneous in finding that she had 

not established permissive use by a preponderance of evidence. We affirm the District Court's determination that 

Mrs. Elder had failed to rebut the presumption of adverse 

use. 

Mrs. Elder argues that Mrs. Parker had failed to prove 

adverse use. We agree with the District Court's conclusion 

that adverse use need not be proved independent and apart 

from the presumption of adverse use. Unless properly rebutted, the presumption stands. Rule 301(2), M.R.Evid. 

Finally, Mrs. Elder argues that the road has changed in 

location over the years; therefore, the prescriptive easement 

must fail. The same argument was discussed in Scott V. 

Weinheimer (1962), 140 Mont. 554, 562, 374 P.2d 91, 96: 
Although neither the owner of the dominant 

estate, nor the owner of the servient estate, may 

ordinarily change the location of all or part of a 

right of way, without consent of the other, the 

location may be changed by mutual consent of both 

parties and such consent may be implied from their 

acts and acquiescence. 

Mrs. Parker testified that although the road had changed 

slightly, the changes were apparent to everyone and the 

Elders never objected. It is clear from the evidence that 

the Elders acquiesced in the changes in the road. The lower 

court found that the changes had been agreed to by the parties or their predecessors in title. We conclude that substantial credible evidence supports this finding. 

We affirm the court's holding as to Issue 11, that 

plaintiff had a road right of way by reason of prescriptive 

easement. 

Affirmed. 

We Concur: 

/-" . / - 

Justices