No. 89-05 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

DAVE JOHNSON, 

Plaintiff and Respondent, 

-vsWARREN A. McMILLAN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph B. Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John P. Atkins; Bryan & Atkins, Bozeman, Montana 

For Respondent: 

H. A. Bolinger, Bozeman, Montana 

Submitted on Briefs: June 16, 1989 

Decided : August 11, 1989 

Filed: :L: I' . \ -_. 

... ,--4 

L -. k.-; 

, ", .I 

-. ": 

. . ; ' Clerk .,, $",. . . -- I: . . 

I ; . . 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

This appeal from the District Court of the Eighteenth 

Judicial District, Gallatin County, involves a dispute over 

public use of a road across appellant McMillan's property. 

The District Court permanently enjoined McMillan from 

interfering with use of the road holding that the road 

constituted a public way. Respondent Johnson had requested 

the relief granted by the lower court arguing that the road 

was a public way by virtue of prescriptive use from 

approximately 1895 to 1985. We affirm. 

Timberline road follows Timberline Creek up several 

miles from the Jackson Creek Interchange on Interstate 90. 

The road is on an old railroad bed built by the Northern 

Pacific Railway in the early 1890's. The rail line formerly 

connected Northern Pacific's main line to the Timberline coal 

mining camp. The camp flourished during most of the 18801s, 

but died out in the early 1890's. In 1912, the rail was 

removed from the bed. 

Testimony at trial documented public use of the old 

railroad bed as a road across what is today McMillan's 

property in the late 1930's. Testimony also documented 

public use of the road from the early 1950's to 1976, when 

McMillan purchased the land. Following McMillan's purchase 

of the property, witnesses testified that public use of the 

road continued up until McMillan placed a locked gate on the 

road in 1985. 

During the period from the early 1950's to the present, 

various unlocked gates have been installed and in operation 

on the road. However, the gates were erected to keep cattle 

from roaming rather than to deny public access. Except for 

McMillan's locked gate, there is no evidence that any other 
landowner has attempted to restrict public access during the 

long period of time that the road has been in use by the 

public. Hilda Peterson, McMillan's predecessor in interest 

to the land involved, testified she maintained gates to keep 

cattle in pasture, but freely allowed all public access 

through the gates. Other landowners whose property is 

adjacent to the road also testified that they never 

considered denying public access, although they may have 

denied access if the public use had been abused. Hilda 

Peterson also testified that hunters had sought and obtained 

her permission to travel the road and hunt on her property. 

Issue 

Whether the District Court erred in concluding that the 

Timberline Road is a public road by reason of a prescriptive 

easement? 

The public's acquisition of a prescriptive easement on a 

private road may be explained as follows: 

That the public may acquire the right by 

prescription to pass over private land is 

undisputed and such is the law in Montana. To 

establish the existence of a public road by 

prescription it must be shown that the public 

followed a definite course continuously and 

uninterruptedly for the prescribed statutory period 

together with an assumption of control adverse to 

the owner. . . . 

By "continuous and uninterrupted use" is meant that 

the use was not interrupted by the act of the owner 

of the land, and that the right was not abandoned. 

by the one claiming it. . . . 

This court has said that to establish a 

prescriptive right it must be shown that the use 

was adverse and not by permission of the landowner. 

However, the older a road the more difficult it 

usually is to produce the proof of actual adverse 

use because the witnesses are no longer usually 

available. . . . 
The fact that a road has been barred by gates to be 

opened and closed by the parties passing over the 

land has always been considered as strong evidence 

of a mere license to the public to pass over the 

designated way. [citations omitted] 

Kostbade v. Metier (1967), 150 Mont. 139, 142-45, 432 P.2d 

382, 384-86. 

Use of an alleged easement for the full statutory 

period, unexplained, creates a presumption of use adverse to 

the owner which may be overcome by evidence that the use is 

permissive. Lunceford v. Trenk (1974), 163 Mont. 504, 518 

P.2d 266. District courts sitting as finders of fact occupy 

the best position to determine if the use was permissive or 

adverse. Lunceford, 518 P.2d at 267. 

McMillan contends that the lower court erred by finding 

use of Timberline Road adverse to prior owners. He points 

out that "the general rule is that the use of the road by 

another will generally be regarded as permissive where such 

use does not injure or interfere with the owner's use." 

White v. Kamps (1946), 119 Mont. 102, 115-16, 171 P.2d 343, 

349. McMillan also contends that the fact that landowners 

long gated the road, and the fact that he placed a locked 

gate on the road in 1985, provides sufficient proof to 

overturn the lower court's finding that public use 

established the easement. 

Referring again to the standard of review applicable 

here, absent a demonstration by McMillan that the lower 

court's determinations are "clearly erroneous", we must 

affirm the lower court. Rule 52(a), M.R.Civ.P. The lower 

court determined that the presence of gates on Timberline 

Road did not overcome the presumption that the public's use 

was by claim of right, adverse to McMillanls predecessors in 

title. We acknowledge the rule from previous cases that 

standing a.lone, evidence of use by the public of a road 
obstructed by gates is insufficient to establish a 

prescriptive easement in favor of the public. Descheemaeker 

v. Anderson (1957), 131 Mont. 322, 326, 310 P.2d 587, 589. 

But this Court has also held that a gate constructed "not to 

stop people but cattle, is not enough standing alone to rebut 

the presumption established by such [over 50 years] long 

public use." Kostbade, 432 P.2d at 386. 

There is substantial evidence here to support a finding 

that public travelers pursued a definite, fixed course, 

continuously and uninterruptedly, down the old railroad bed 

for nearly one hundred years. The evidence of permissive use 

brought out by McMillan is scant. Previous landowners could 

only speculate that they may have attempted to bar public 

access if gates had been left open by travelers on the road. 

Hilda Peterson offered another solution to the open gate 

hypothetical question posed by McMillan's counsel: 

Q. Do you think that you -- if a member of 

the public came in there and left your gate open, 

did you think that you had the right to go in there 

and ask him to leave? 

A. I would have-- yes, I think maybe I would 

have felt that way. I would certainly have felt 

like asking him to please keep the gate closed. 

(Tr. at 52) Hilda Peterson also testified as follows: 

Q. And as far as you are concerned and your 

dad was concerned, you gave permission to everybody 

to go up through there? 

A. There was no specific permission given to 

anybody to go in there. People went in there, 

that's all. 

(Tr. at 52) 
Prior to 1954, the relevant statutory period for 

establishing the right at issue here was ten years. Section 

9015 R.C.M. (1935). Since 1953, the period has been five 

years. Section 70-19-401, MCA. The long public use as 

documented in the record sufficiently supports the District 

Court's finding that Timberline Road is a public way. 

McMillanls evidence purporting to demonstrate permissive use 

does not overcome such public use. We affirm. 

-- 

('z 4' 6/J&[.f ". 

Justice / 

We Concur: