No. 93-659 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

A.C. WARNACK, Trustee of the 

A.C. WARNACK TRUST, and 

KENNETH R. McDONALD, 

Plaintiffs and Respondents, 

THE CONEEN FAMILY TRUST; ELK 

CANYON ASSOCIATES LIMITED 

PARTNERSHIP, a Montana Limited 

Partnership, and J. BOWMAN 

WILLIAMS, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Meagher, 

The Honorable Byron L. Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Perry J. Moore & Cindy E. Younkin, Moore, OIConnell 

& Refling, Bozeman, Montana (Elk Canyon Ranch Assoc. 

& J. Bowman Williams); Patrick F. Hooks, Townsend, 

Montana (The Coneen Family Trust) 

For Respondents: 

John V. Potter, Jr. White Sulphur Springs, Montana 

Submitted on Briefs: June 24, 1994 

Filed: 
Justice James C. Nelson delivered the Opinion of the Court. 

This is an appeal from the findings of fact, conclusions of 

law, judgment and injunction order of the Fourteenth Judicial 

District Court, Meagher County, which, following a bench trial, 

awarded Respondents Warnack and McDonald, as well as nonparty 

~elvin E. (Bud) Dawson, an easement for various purposes over, 

across and through the lands owned by the Appellants. We reverse 

and remand for further proceedings consistent with this opinion. 

The following issues are raised on appeal: 

1. Did the District Court err in granting a prescriptive 

easement to a nonparty? 

2. Did the District Court err in granting a prescriptive 

easement to the Plaintiffs/Respondents? 

3. Was the prescriptive easement granted overbroad? 

Respondents Warnack and McDonald (Respondents) brought this 

action, claiming a prescriptive easement over a road which runs 

through the lands of Appellants Coneen, Elk Canyon and Williams 

(Appellants) . The District Court, following a bench trial on March 

22 and 23, 1993, concluded that the Respondents did, indeed, have 

a prescriptive easement over the road which runs "from the end of 

a county road westerly across state school section 36, then 

northwesterly over defendants Elk Canyon, Williams and Coneen to 

the south edge of plaintiffs1 premises, then continues 

northwesterly across Warnack and another area of Coneen to Bud 

Dawsonl s land in the Tenderfoot. l1 The District Court also 

described an alternate route over which the Respondents also 
claimed a prescriptive easement. The dispute over this latter 

route was resolved over the course of this litigation and is no 

longer in contention. 

The District Court found that there was a prescriptive 

easement because the origin of the use of the road remained 

ltunexplained. I' The court stated: 

The primary easement claimed by plaintiffs is a 

clearly defined and visible roadway which several 

witnesses stated they had no trouble following, was 

improved over the years for vehicles by Doggetts with 

heavy equipment long before Coneen came, was in use well 

before the memory of any living witness, and the origins 

of that use (whether permissive or adverse) remains 

unexplained. 

The court further concluded that unexplained use for longer than 

the statutory period gave rise to a presumption that the use of the 

road was under a claim of right and adverse to the owners of the 

land upon which the route was located. Moreover, the court found 

that the Appellants acquiesced in the use of the primary easement 

by the Respondents. Finally, the court found that the appropriate 

uses of the primary easement included: 

... use without obstruction [of] the primary access road 

by all ordinary modern means for purposes of access to 

their lands, construction of residences and outbuildings, 

all agricultural purposes, including timber management 

and logging, and hunting, fishing, camping and 

recreation. 

From the above findings, conclusions, judgment and order, 

Appellants appeal. 

STANDARD OF REVIEW 

Our standard of review for conclusions of law by a district 

court is whether the tribunal's interpretation of the law is 
correct. Public Lands Access v. Boone and Crockett (1993), 259 

Mont. 279, 283, 856 P.2d 525, 527. Having concluded that the 

District Court erred in its application of the law to this 

prescriptive easement case, we decline to address the factual 

record established at trial and, instead, remand to the District 

Court for reconsideration of its decision in light of the legal 

principles set forth in this opinion. 

1. NONPARTY EASEMENT 

Appellants contend that the District Court erred in granting 

an easement to Melvin E. (Bud) Dawson because Dawson was not a 

party to the instant litigation. The Respondents merely state that 

the finding of a prescriptive easement for the nonparty Dawson was 

supported by uncontradicted evidence and that the road in question 

provides the only access to the Dawson place. 

Dawson was not a party to this action, although he did testify 

at the trial and does live within the general area served by the 

roadway at issue. Further, Dawson stated that he generally uses a 

different road, a logging road, to access his property. Thus, in 

the present case, Dawson, a nonparty, was awarded an easement that 

he will likely not even use. 

Because he is not a party to the action, Dawson cannot be a 

party to the judgment. In Moore v. Capitol Gas Corporation (1945), 

117 Mont. 148, 156, 158 P.2d 302, 306, we stated: 

[I] t is a fundamental principle of our jurisprudence 

that it is only against a party to the action that a 

judgment can be taken and that the judgment is not 

binding against a stranger to the action. 

The same rule pertains where judgment is awarded in favor of a 

4 
nonparty. See, 46 Am. Jur. 2d Judments, 5 86 at page 373. 

Accordingly, we reverse that part of the District Court's judgment 

and order which grants a prescriptive easement to Melvin (Bud) 

Dawson. 

2. EASEMENT TO THE RESPONDENTS 

Appellants also contend that the District Court erred in 

granting a prescriptive easement to the Respondents based on the 

llunexplainedll use of the roadway for more than the statutory 

period. Appellants argue that if a party can be deemed to have 

acquired a prescriptive easement merely because the use of the 

roadway is wunexplained,ll then the party "winsw without proof of 

any of the elements necessary to establish prescriptive use. The 

Respondents counter that Montana law makes it clear that when 

Itthrough the passage of time and beyond the recollection of living 

witnesses it becomes impossible to determine whether the initial 

use of a roadway was permissive or adverse under claim of right, 

the law will presume that initial use was adverse.I1 We agree with 

Appellants. 

In Montana the general rule as to the establishment of a 

prescriptive easement is well settled: 

To establish an easement by prescription, the party 

claiming an easement "must show open, notorious, 

exclusive, adverse, continuous and uninterrupted use of 

the easement claimed for the full statutory period ..." 

The burden is on the party seeking to establish the 

prescriptive easement. I1All 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.'" 

Boone and Crockett, 856 P.2d at 527. (Citations omitted.) "To be 
adverse, the use of the alleged easement must be exercised under a 

claim of right and not as a mere privilege or license revocable at 

the pleasure of the owner of the land; such claim must be known to 

and acquiesced in by, the owner of the land.I1 Keebler v. Harding 

(1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356-1357. (Citation 

omitted.) "If the owner shows permissive use, no easement can be 

acquired since the theory of prescriptive easement is based on 

adverse use." Rathbun v. Robson (1983), 203 Mont. 319, 322, 661 

P.2d 850, 852. (Citation omitted.) 

It is axiomatic that it is the function of the district court, 

and not of this Court to hear the testimony, to resolve conflicts 

in the evidence, to judge the credibility of the witnesses and to 

determine the facts. According to the District Court, this case 

involved 'I... a grab bag of testimony, [mostly imprecise and 

relating to events and conversations of 10-50 years ago] so there 

was something for every attorney ...I1 Our concern here, however, 

is not so much with what testimony or with which witnesses the 

court believed, as with the legal principles the court applied to 

the evidentiary record in reaching its decision. 

While the District Court concluded, as an aside, that 

Respondents had proven the elements of adverse possession as 

described above, it is equally clear that bearing heavily, if not 

primarily, in the court's rationale that Respondents were entitled 

to a prescriptive easement over Appellants' lands, was the 

proposition that a presumption of claim of right and adverse use 

arises by a long, continued I1unexplainedtt use of the claimed 
easement for more than the statutory period and that such 

presumption relieves the easement claimant of proving the elements 

of prescription. As the court put it: 

By reason of . . . long continued unexplained use of the 

primary easement for much longer than the ... statutory 

period . . . there arises a legal presumption that the road 

use was under a claim of right and adverse to the 

respective people whose lands it crossed. This is 

sufficient to establish title to the easement by 

presumption of a grant if not overcome by a preponderance 

of evidence that the use was permissive . . . Finding of 

Fact No. 17. 

Where plaintiffs have established a presumption of 

adverse use of the primary easement by long unexplained 

use as aforementioned, it is not necessary that they 

prove all of the elements of adverse possession that 

would otherwise be necessary. However, plaintiffs have 

done so anyway ... . Finding of Fact No. 42. 

Plaintiffs ... have proven they are entitled to a 

prescriptive road easement along the primary route ... because of long continued unexplained use for over 70 

years ... Conclusion of Law B. 

After plaintiffs established the presumption of adverse 

use by long continuous unexplained use for more than the . . . statutory period . . . it was not necessary for 

plaintif is to also prove other elements of adverse 

possession, but plaintiffs did so ... Conclusion of Law 

D. 

This notion -- that a presumption of claim of right and 

adverse use arises by long, continued wunexplainedt' use -- so 

permeates the District Court's findings of fact and conclusions of 

law that we are unable to determine what decision the court might 

have otherwise come to on the evidentiary record, had it not so 

heavily relied on that proposition -- a proposition which, as we 
will hereafter point out, is without legal foundation and is 

erroneous. 

In fairness to the District Court, that it utilized the 

concept of "unexplained" use is understandable given the 

inadvertent and improper injection of that term into Montana case 

law by virtue of one of our prior decisions and by reason of the 

subsequent incorporation of that proposition, as dicta, in other 

prescriptive easement cases. 

The term "unexplained" use first appears in Montana's 

prescriptive easement case law as dicta in Scott v. Weinheimer 

(1962), 140 Mont 554, 374 P.2d 91. In that case, after reciting 

the general rule that a prescriptive easement is established by a 

claimant showing ... open, notorious, exclusive, adverse, 

continuous and uninterrupted use of the easement claimed for the 

full statutory period . . .Iv, the Court then goes on to make the 

following statement: 

If there has been the use of an alleged easement for ten 

years (or five years subsequent to the 1953 amendment 

referred to above), unexplained, it will be presumed to 

be under a claim of right, and adverse, and will be 

sufficient to establish a title by prescription and to 

authorize the presumption of a grant. (Emphasis added) . 

Scott, 374 P.2d at 95. 

As authority for that statement, we cited Te Selle v. Storey 

(1957), 133 Mont. 1, 319 P. 2d 218. However, as will be pointed out 

later in this opinion, our decision in Te Selle never mentioned the 

phrase "unexplained use," nor was that case decided by utilizing 

that concept. 

Importantly, Scott was not decided by application of the 
concept of ggunexplainedM use, but rather on the basis of the well 

settled general rule that in order to establish an easement, the 

party claiming such right must show open, notorious, exclusive, 

adverse, continuous and uninterrupted use of the easement for the 

full statutory period. 

The testimony by the plaintiff in Scott was to the effect that 

he traveled over the road in question without permission, that he 

felt he had a legal right to do so, and that he maintained the 

road. He also stated that he and his predecessors had used the 

road for over 45 years and that it was the only access to his land 

and buildings. Scott, 374 P.2d at 94. The defendant's predecessor 

in interest testified that the road was continuously used by the 

plaintiff and his predecessors; that he never objected to their use 

of the road; and that the plaintiffs never asked for permission to 

travel the road nor was permission ever granted to use the road. 

We concluded that this testimony, in and of itself, westablishe[d] 

the fact that the use by the plaintiffs and their predecessors in 

interest of the road in question was adverse and without license or 

permission." Scott, 374 P.2d at 95. This statement appears as our 

conclusion that the elements necessary to prove a prescriptive 

easement were established. 

However, after referring to the fact that the plaintiffs and 

their predecessor in interest used the road for 35 years before the 

defendants became the owners of their land, we also stated that, 

[tlhis use, unexplained, raises a presumption that it was adverse, 

and under a claim of right." Scott, 374 P.2d at 95. (Emphasis 
added). 

The confusion created by the Scott opinion stems from the fact 

that, although this Court stated that the use of the road was 

unexplained and that there was no proof that the use was continuous 

and uninterrupted, the testimony of the defendant's predecessor in 

interest clearly demonstrated that the use of the road was "open, 

notorious, exclusive, adverse, continuous and uninterruptedlv for 

the full statutory period. Boone and Crockett, 856 P.2d at 527. 

Moreover, the testimony of the plaintiff also demonstrated his 

use of the road was without permission, under a belief that he had 

a legal right to traverse the road, and that it was the only means 

of egress and ingress to his land. The dicta regarding 

"unexplainedw use of the claimed easement was not pertinent to the 

final disposition of Scott as adverse possession was clearly 

established by the evidence and on the basis of the general rule. 

Furthermore, there was no legal precedent for the inclusion of 

the unexplained use concept in Scott. As mentioned above, Scott 

cited Te Selle for the proposition that unexplained use of a 

claimed easement will give rise to a presumption that the use of 

the easement was adverse. However, a careful reading of Te Selle, 

an easement case pertaining to the use of a water ditch and water 

pipeline, demonstrates that nowhere in that opinion does the phrase 

"unexplained use1' appear nor is that proposition in any way 

discussed. 

Te Selle does refer to the unmolested use of a claimed 

easement. Our opinion recites the rule that ''where claimant had 
shown open, visible, continuous and unmolested use for the 

statutory period, such use will be presumed to be under a claim of 

right, and not by license.I1 Te Selle, 319 P.2d at 220. (Emphasis 

added). The trial court in Te Selle found that the defendant, his 

grantors and predecessors in interest had "been in open, visible, 

continuous and unmolested use of a right of way easement to flow 

250 inches. . . of water. It Te Selle, 319 P.2d at 219. (Emphasis 

added). The defendant testified that no one had molested him in 

his use of the water from the ditch or draw for over 20 years. Te 

Selle, 319 P.2d at 220. This Court affirmed the district court, 

stating that I1[t]he evidence was ample to sustain the finding of 

the trial court that defendant had acquired title to the easement 

by prescription." Te Selle, 319 P.2d at 221. 

Accordingly, Te Selle was concerned with the llunmolestedll use 

of a claimed easement, not the "unexplained" use. Unmolested use 

is not the same thing as unexplained use. In fact, in the context 

of the general rule and the numerous cases that cite the general 

rule, it is clear that unmolested use and uninterrupted use refer 

to the same element of prescription. uUninterruptedw means "use 

not interrupted by the act of the owner of the land or by voluntary 

abandonment by the party claiming the right." Downing v. Grover 

(1989), 237 Mont. 172, 176, 772 P.2d 850, 852. On the other hand, 

a use which is llunexplainedll is simply a use, the origin or 

continuation of which is undecipherable, unknown or is, otherwise, 

without an articulable reason or justification. llUnexplainedlt 

cannot be substituted for I1unmolestedn or "uninterruptedw in the 
elements of the general rule. 

Respondents cite Thomas v. Barnum (1984), 211 Mont. 137, 684 

P.2d 1106, and Glantz v. Gabel (1922), 66 Mont. 134, 212 P. 858, in 

support of the District Court's conclusion that a presumption of 

adverse possession arises from long, continuous unexplained use. 

Neither of those cases serve as authority for that proposition, 

however. 

There is no mention whatsoever of unexplained use in Glantz. 

That case refers to unmolested use of an easement. Glantz recites 

and applies the general rule: 

Where the claimant has shown an open, visible, 

continuous, and unmolested use of the land of another for 

the period of time sufficient to acquire title by adverse 

possession, the use will be presumed to be under a claim 

of right, and not by license of the owner. In order to 

overcome this presumption, thereby saving his title from 

the encumbrance of an easement, the burden is upon the 

owner to show that the use was permissive. This rule is 

sustained by the great weight of authority. 

Glantz, 212 P. at 860. (Citations omitted.) (Emphasis added.) 

Moreover, the only presumption discussed in Glantz is the 

presumption of adverse use which arises from proof of all of the 

elements of prescription reauired by the aeneral rule. Immediately 

following the statement of the general rule quoted above, the 

Glantz court goes on to explain that presumption as follows: 

This is a rule of repose. As said by Mr. Justice 

Story, in Richard v. Williams, supra: 

"Presumptions of this nature are adopted from the 

general infirmity of human nature, the difficulty of 

preserving muniments of title, and the public policy of 

supporting long and uninterrupted possessions. They are 

founded upon the consideration, that the facts are such 

as could not, according to the ordinary course of human 

affairs, occur, unless there was a transmutation of title 
to, or an admission of an existing adverse title in, the 

party in posses~ion.~ 

When the claimant's use has thus been open, visible, 

continuous, unmolested, and under a claim of right, the 

corollary is that it has been adverse to the owner. ... 

Glantz, 212 P. at 860. (Citations omitted.) 

Glantz does not state that a presumption arises from 

"unexplainedw use. Accordingly, Glantz is not properly cited for 

the proposition that unexplained use of a claimed easement gives 

rise to a presumption of claim of right and adverse use. 

Thomas, on the other hand, does refer to wunexplainedv' use. 

However, like Scott, it does so only after first reciting the 

general rule (quoted from Taylor v. Petranek (1977) , 173 Mont. 433, 

568 P.2d 120), that a prescriptive easement is established by the 

claimant showing open, notorious, exclusive, adverse, continuous 

and uninterrupted use of the easement for the full statutory 

period. Thomas, 684 P.2d at 1110. Thomas then continues with the 

following statement: 

I1To be adverse, the use must be exercised under a 

claim of right and not as a mere privilege or license 

revocable at the pleasure of the owner of the land; such 

claim must be known to, and acquiesced in by, the owners 

of the land. White v. Kamps [I19 Mont. 102, 171 P.2d 

3431. If there has been use of an allesed easement for 

the full statutory period, unexplained, it will be 

presumed to be under a claim of risht, and adverse, and 

will be sufficient to establish a title bv resumption of 

a arant. Scott v. Weinheimer, supra; Te Selle v. Storey, 

133 Mont. 1, 319 P.2d 218; Glantz v. Gabel, 66 Mont 134, 

141, 212 P.2d 858. This presumption exists to overcome "* * * the general infirmity of human nature, the 

difficulty of preserving the muniments of title * * *"I 

and to promote public policy of supporting long and 

uninterrupted possessions ...It (Citing Glantz) (Emphasis 

in quote from Thomas.) 
Thomas, 684 P.2d at 1110. 

While the Thomas court correctly quotes the dicta referring to 

wunexplainedll use from Scott, as pointed out above, the use of the 

word llunexplainedl' in that case was without precedent, inadvertent 

and had nothing to do with the facts or disposition of that case. 

Similarly, the Thomas quote's citations to Te Selle and Glantz are 

improper as neither of those cases even refer to the concept of 

llunexplainedll use. Finally, as the actual passages from Glantz 

quoted earlier in this opinion clearly demonstrate, the 

"presumptionw referred to in the quote from Thomas refers, not to 

a presumption of adverse use from I1unexplainedt1 use as Thomas leads 

the reader to believe, but, rather, to a presumption of adverse use 

which arises from proof of all of the elements of prescription 

under the general rule. Glantz, 212 P. at 860. Under the 

circumstances, the above passage from Thomas cannot stand as 

authority for the proposition that a presumption of claim of right 

and adverse use arises from "unexplained" use. 

That passage from Thomas aside, a review of our decision, 

nevertheless, demonstrates that there actually was no issue as to 

an unexplained use of the claimed easement in that case. We 

concluded that I1[t]he testimony of Thomas, Meuli and Wilhelm 

supports the trial court's finding that use of the road was open, 

notorious, exclusive, adverse, continuous and uninterrupted for all 

the years leading up to the current dispute.11 Thomas, 684 P.2d at 

1110. The opinion also states that permission to use the road was 

never sought and that Barnum, himself, "personally acquiesced in 
the use of the road by area residents who believed they could 

travel it under a claim of right." Thomas, 684 P.2d at 1110. 

Accordingly, there was ample evidence in Thomas that the use of the 

road was adverse, not unexplained, and that all elements necessary 

to establish a prescriptive easement under the general rule had 

been proven. Thomas, therefore, provides no authority for the 

proposition that an unexplained use of a claimed easement gives 

rise to a presumption of adverse use. 

Similarly, a review of easement cases decided since Scott 

which have either cited Scott or have referred to the concept of 

unexplained use as giving rise to a presumption of claim of right 

and adverse use, reveals that any mention of unexplained use was, 

in actuality, superfluous to the final disposition of the 

prescription issue. In each case, there was sufficient evidence to 

prove either adverse or permissive use of the claimed easements in 

question under the general rule. See, Lunceford v. Trenk (1974), 

163 Mont. 504, 518 P.2d 266; Harland v. Anderson (1976), 169 Mont. 

447, 548 P.2d 613; Taylor v. Petranek (1977), 173 Mont. 433, 568 

P.2d 120; Yecny v. Day (1977), 174 Mont. 442, 571 P.2d 386; Hayden 

v. Snowden (1978), 176 Mont. 169, 576 P.2d 1115; Johnson v. 

McMillan (1989), 238 Mont. 393, 778 P.2d 395; Granite County v. 

Kornberec (1990), 245 Mont. 252, 800 P.2d 166; Murray v. Countryman 

Creek Ranch (1992), 254 Mont. 432, 838 P.2d 431. 

Finally, the establishment of a prescriptive easement by 

munexplainedw use is without sound legal basis in any event. It is 

fundamental that in order to establish a prescriptive easement, the 
claimant I1must show open, notorious, exclusive, adverse, continuous 

and uninterrupted use of the easement claimed for the full 

statutory period." Boone and Crockett, 856 P. 2d at 527. (Emphasis 

added.) An easement established by llunexplainedNt use does & 

fulfill the requirement that the easement claimant bear the burden 

of provinq the elements of prescription -- i . e. open, notorious, 

exclusive, adverse, continuous and uninterrupted use of the 

easement for the full statutory period. 

"To be adverse, the use of the alleged easement must be 

exercised under a claim of right and not as a mere privilege or 

license revocable at the pleasure of the owner of the land; such 

claim must be known to, and acquiesced in by, the owner of the 

land." Keebler, 807 P.2d at 1356-1357. (Emphasis added.) A use 

tlunexplainedw is, in fact, the antithesis of the rule requiring 

proof of the elements of prescription. In effect, by proving 

nothing, the claimant proves everything. 

Moreover, if the use of the easement is truly t~unexplained,w 

there is no way in which the court can determine the character and 

scope of the easement during the prescriptive period so as to apply 

the rule, referred to in our discussion of Issue 3, that the use of 

the roadway cannot exceed the use which the easement claimants made 

of it during the prescriptive period. See also, State v. Portmann, 

(1967), 149 Mont. 91, 96, 423 P.2d 56, 58: ll[R]ights acquired by 

adverse use can never exceed the greatest use made of the land for 

the full prescriptive period.I1 

We can only surmise that Scott inadvertently misquoted Te 
Selle by substituting the word wunexplained" for l'unmolestedw and, 

in so doing, created the legal error, perpetuated in subsequent 

cases, which we now find necessary to correct. We hold that a 

prescriptive easement cannot be established through "unexplainedw 

use of the road or trail in question; the requisite elements for 

establishing a prescriptive easement must be proved by the claimant 

-- i.e. that the use is an open, notorious, exclusive, adverse, 

continuous and uninterrupted (unmolested) use of the easement 

claimed for the full statutory period. Each of those elements is 

a term of art, defined in our prior cases. See, Rappold v. 

Durocher (1993), 257 Mont. 329, 332, 849 P.2d 1017, 1019. 

The fact that the origin and early use of the road or trail 

may be lost in history or is beyond the recollection of witnesses, 

does not negate the obligation of the easement claimant to prove 

the elements of prescription. In this regard it should be 

remembered that the claimant need only prove the elements of 

prescription for the full statutory period, not for the entire 

existence of the roadway or trail at issue. 

Moreover, our decision on this issue mandates that Scott and 

its progeny be overruled to the extent that those cases stand for 

the proposition that a prescriptive easement may be established by 

merely showing the long, continued unexplained use of a road or 

trail for the statutory period; to the extent that those cases 

stand for the proposition that a presumption of claim of right and 

adverse use arises from long, continued wunexplainedv use; and to 

the extent that such presumption negates an easement claimant's 
burden of proving the elements of prescription. 

While a presumption of adverse use or adversity arises once 

the claimant establishes open, notorious, exclusive, continuous, 

and uninterrupted (unmolested) use for the full statutory ~eriod, 

(see Glantz, 212 P. at 860, and Rappold, 849 P.2d at 1020), it 

remains the burden of the easement claimant to prove each of those 

remaining elements of prescription, and unless and until the 

claimant proves those elements under the general rule, the burden 

does not shift to the land owner to prove permissive use or 

license. Rappold, 849 P.2d at 1020. 

As pointed out above, adverse use or adversity simply refers 

to the requirement that the easement must be exercised under a 

claim of right and not as a mere privilege or license revocable at 

the pleasure of the owner of the land and that such claim must be 

known to, and acquiesced in by the owner of the land. Keebler, 807 

P.2d at 1356-1357. Given that definition, it logically follows 

that adverse use or adversity will, in most instances, be proven 

from the same evidence by which easement claimant establishes his 

open, notorious, exclusive, continuous and uninterrupted 

(unmolested) use of the easement for the full statutory period. 

Adverse use or adversity cannot, however, be presumed from the 

claimant's inability to prove those remaining elements of 

prescription; if those elements are not proven, then the 

presumption of adverse use or adversity never springs into 

existence. Adverse use or adversity will not be presumed from 

"unexplainedn use. 
In the instant case, while the District Court concluded, as an 

aside, that Respondents had proven the elements of adverse 

possession, it is also clear that the court relied heavily on our 

statements regarding unexplained use in Scott and its progeny, and 

that the erroneous application of that concept to the evidentiary 

record significantly influenced the court's decision. Under the 

circumstances, it is appropriate that the District Court reconsider 

its decision on this issue and apply the correct legal principles 

set forth in this opinion to the evidentiary record established at 

trial. Accordingly, we reverse and remand for further proceedings 

In its conclusions of law, the District Court stated: 

The rights of plaintiffs, their heirs, successors, 

assigns and agents to use said primary road easement 

should be on foot, horseback, and all ordinary modern 

means of transportation for purposes of access to their 

lands, construction of residences and outbuildings, all 

agricultural purposes, including but not limited to 

timber management and logging, and hunting, fishing, 

camping and recreation. However, none of the parties 

should be prohibited from placing unlocked gates or 

cattleguards on their property boundaries to confine 

livestock. 

The Appellants contend that the easement granted by the 

District Court was overbroad and far exceeds the character and 

extent of the use of the claimed easement during the prescriptive 

period. The Respondents answer that the evidence supports the 

District Court Is finding as to the scope of the easement. Since we 

are remanding this case to the District Court for its 

reconsideration of whether, on application of the correct law to 
the evidentiary record established at trial, there exists a 

prescriptive easement in favor of the Respondents, we decline to 

address the merits of this issue. 

For the guidance of the District Court on remand, however, we 

note that if the court determines that the Respondents have met 

their burden of proof and have established a prescriptive easement 

over the lands of the Appellants, the court must then determine the 

appropriate scope and extent of the easement under the following 

rule: 

It is settled law in Montana that in acquiring a 

prescriptive easement, "the right of the owner of the 

dominant estate is governed by the character and extent 

of the use during the period requisite to acquire it." 

Marta v. Smith (1981), 191 Mont. 179, 183, 622 P.2d 1011, 1013. 

(Citation omitted.) The Marta court went on to state, 

I' [tlherefore, Martas' use of the roadway cannot exceed the use 

which they made of it during the prescriptive period.I1 Marta, 622 

P.2d at 1013. (Citations omitted.) 

The District Court must carefully evaluate the prior use of 

the roadway and, applying the above stated rule, limit the scope 

and extent of any easement found to have been established to the 

use made of it during the prescriptive period. 

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH 

THIS OPINION.