No. 90-260 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

H. ALLEN KEEBLER and BETTY KEEBLER, 

Plaintiffs and Respondents, 

-vs - 

NEVINS HARDING and RITA HARDING, 

Defendants and Appellants. smith 

cL~~K OF SUPREME 

STATE OF MQNT~~~ 

APPEAL FROM: District Court of the Thirteenth ~udicial ~istrict, 

In and for the County of Carbon, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gary L. Beiswanger, Attorney at Law, Billings, 

Montana 

For Respondent: 

Richard F. Cebull; Anderson, Brown, Gerbase, Cebull, 

Fulton, Harman & Ross, P.C., ~illings, Montana 

Filed: 

submitted on Briefs: November 8, 1990 

Decided: March 21, 1991 
a 

Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

Defendants and appellants, Nevins and Rita Harding, appeal 

from a judgment of the District Court of the Thirteenth Judicial 

District, Carbon County, sitting without a jury, denying their 

claim of the existence of a public or private easement by 

prescription or otherwise across property owned by plaintiffs and 

respondents, H. Allen and Betty Keebler. The court permanently 

enjoined the appellants from using respondents' property without 

permission and from interfering in any way with their possession, 

use and enjoyment of their property. We affirm. 

The sole issue on appeal as framed by this Court is whether 

the District Court properly determined that appellants failed to 

establish the existence of a prescriptive easement across the 

respondents1 property. 

Defendants and appellants are owners of a 320-acre tract of 

land located in Carbon County, Montana. Their land is completely 

surrounded by respondents1 adjoining land. Appellants1 land was 

originally homesteaded by Horace Pierce in 1914 but has not been 

owner-occupied since the 19201s when Mr. Pierce moved to Laurel, 

Montana. Appellant Rita Harding initially purchased the property 

in her own name in July, 1983, from Ethel Pierce, absentee owner 

and widow of Horace Pierce. She later transferred one-half 

interest in the property to her husband, Nevins Harding. 

Access to the appellants1 property is by a road which runs in 

a northwesterly direction from the Edgar/Pryor Road across land 

owned by Arden and Gloria Blair, who are not parties to this 

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action, and across land owned by the respondents. From the 

appellants' property the road continues in a northwesterly 

direction toward Silesia, Montana, across lands owned by the 

respondents and other persons not parties to this action to a point 

where it forks, with one route continuing toward Silesia, and the 

other route turning south until a point where it joins a county 

road which ultimately intersects the Edgar/Pryor Road. Improvements have been made to the road at unestablished times over the 

years. Apparently the road has followed substantially the same 

course since homestead days. Gates across the road exist in 

several locations. However, it appears that none of the gates had 

ever been locked until some time after the respondents purchased 

their property from Gerald Greeno in 1979. 

This dispute arose shortly after the appellants purchased 

their property in 1983. On August 6 of that year, they met with 

respondents who told them that no easement existed across their 

land to appellants1 land. In the fall of 1983, the appellants 

began cutting chains from gates across the road on respondents' 

property for access to their land. The respondents discontinued 

locking their gates in 1984. 

The respondents filed this action on April 11, 1988, 

requesting the District Court to declare that appellants have no 

right, title, or interest whatsoever across the respondents1 land 

and to enjoin them from trespassing across their lands as a means 

of ingress to and egress from their property. The respondents1 

position was that access across their lands has always been 
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permissive while appellants claimed a prescriptive easement over 

the route the road takes across the respondents1 property. Both 

parties agreed that the road over which the appellants claimed the 

easement is not a county road, and that there is no easement by 

implication or necessity due to a lack of commonality of ownership. 

The District Court entered its findings of fact, conclusions of 

law, and judgment in favor of the respondents on February 9, 1990. 

This appeal followed. 

The party seeking to establish a public or private easement 

by prescription has the burden of showing several elements. That 

party must show open, notorious, exclusive, adverse, continuous and 

uninterrupted use of the easement claimed for the full statutory 

period. Downing v. Grover (1989), 237 Mont. 172, 175, 772 P. 2d 

850, 852. The statutory period is five years. Section 70-19-401, 

MCA . 

The appellants were unable to sustain their burden of proof 

of a private easement by prescription for the period of time after 

they purchased their property. The record shows appellants1 first 

distinct and positive assertion of a claim of right to use the road 

occurred in the fall of 1983 when they cut chains from the 

respondents1 gates. The respondents subsequently brought this 

action in April, 1988, within the five-year statutory period. 

Therefore, the existence of a prescriptive easement depends on 

whether the historical use of the road was adverse or permissive. 

If permissive use is shown, no easement can be acquired since the 

theory of prescriptive easements is based on adverse use. Wilson 
. v. Chestnut (1974), 164 Mont. 484, 525 P.2d 24. 

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. Taylor v. Petranek (1977), 173 Mont. 433, 437, 568 P.2d 120, 

122. Once the required elements are established, adverse use is 

presumed. O1Conner v. Brodie (1969), 153 Mont. 129, 137, 454 P.2d 

920, 925. Additionally, adverse use will be presumed and will be 

sufficient to establish a title by prescription if there has been 

unexplained use of the alleged easement for the full statutory 

period. Taylor, 173 Mont. at 437, 568 P.2d at 122. Either 

presumption may be overcome by evidence that the use was 

permissive. See, Rathbun v. Robson (1983) , 203 Mont. 319, 661 P. 2d 

850; Thomas v. Barnum (1984), 211 Mont. 137, 684 P.2d 1106. 

The District Court determined the use of the road across the 

respondents' property had historically been permissive until the 

appellants purchased their property in 1983 and, therefore, any 

presumption of adverse use was effectively rebutted. The court 

further concluded that even if a private easement had been 

established prior to 1983, any such easement was extinguished by 

inconsistent acts on the part of the appellants and their 

predecessors in interest. 

The appellants challenge the District Court's determination 

of permissive use, attacking many of the court's findings of fact 

as clearly erroneous. Our standard of review of a district court's 
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findings of fact is clear. Rule 52(a), M.R.Civ.P., provides in 

pertinent part: 

Findings of fact shall not be set aside unless clearly 

erroneous, and due regard shall be given to the 

opportunity of the trial court to judge of the 

credibility of the witnesses. . . . 

If the district court's findings are based on substantial credible 

evidence, they are not clearly erroneous. Downing, 237 Mont. at 

178, 772 P.2d at 853. Upon reviewing the record, we hold the 

District Court's findings of fact are not clearly erroneous. 

Several witnesses testified concerning the historical use of 

the road over which the appellants claim a prescriptive easement. 

Four of these witnesses, Tom Taylor, Glen Marsh, Dorothea Landy and 

Ethel Holton, were elderly and knew the road from the "old days." 

The District Court found that: 

The gist of their testimony was that the use and custom 

since homesteader days was that in this area people came 

and went on this road/trail as necessary to their 

purposes with the understanding among all that use of 

this sort was conditioned upon observation of the proper 

respect for the landowner's interests and uses. The 

Court finds and concludes that this use was pursuant to 

implied consent of the landowner. 

Appellants argue that these witnesses did not necessarily 

appreciate the subtle distinctions involved when describing the 

nature of the use under cross-examination by the respondents1 

counsel and that it is clear that permission was something never 

considered by the users over the years. It appears the District 

Court was fully aware of this possibility and specifically found 

that, although these witnesses were elderly, they were ''in full 

command of their faculties1I and " [t] heir memories seemed sharp. " 
. Furthermore, based on our review of the record, we conclude the 

District Court's finding is an accurate reflection of these 

witnesses1 testimony. 

Arden Blair also testified to permissive use of the road. He 

testified that the road over his land is currently being used with 

permission and that he provides a key to a locked gate on his 

property to people wishing to use the road. He also testified that 

his predecessors in interest had given permission to Gerald Greeno, 

the respondents1 predecessor in interest, to use the road across 

the Blair property. 

The appellants challenge Mr. Blair's testimony arguing that 

he was not a credible witness. In non-jury trials, the credibility 

of witnesses and the weight accorded their testimony is a matter 

properly left to the discretion of the district court. Matter of 

Estate of Murnion (1984), 212 Mont. 107, 113, 686 P. 2d 893, 896. 

The District Court found Mr. Blair to be a ''totally credible and 

truthful1' witness. We will not substitute our judgment for that 

of the District Court's. 

We have previously held that evidence of a local custom of 

neighborly accommodation or courtesy, without more, is sufficient 

to establish permissive use. In Taylor v. Petranek (1977), 173 

Mont. 433, 438, 568 P.2d 120, 123, this Court stated: 

Here the record is replete with testimony from both 

plaintiff's and defendant's witnesses that the 

homesteaders who initially lived in the area developed 

common practice of allowing others to cross their lands 

to reach Suffolk. This evidence is sufficient to support 

a use permissive in its inception and not under a claim 

of right. 
. See also, Rathbun v. Robson (1983), 203 Mont. 319, 661 P.2d 850. 

We hold the District Court properly determined that the use of the 

road over which the appellants claim an easement has always been 

permissive and, therefore, no private easement by prescription 

exists. Because we hold the appellants failed to establish a 

private easement by prescription, we need not consider whether such 

easement was extinguished. 

The District Court also correctly determined that no public 

easement by prescription exits over the road in question. There 

is evidence in the record that the road has occasionally been used 

by hunters, hikers, neighbors gathering firewood, and others. 

However, this type of occasional use has been held to be 

insufficient to raise a presumption of adverse use. See, Graham 

v. Mack (1985), 216 Mont. 165, 699 P.2d 590; Harland v. Anderson 

(1976), 169 Mont. 447, 548 P.2d 613; Ewan v. Stenberg (1975), 168 

Mont. 63, 541 P.2d 60. 

Affirmed. 

We concur: 

/ Chief Justice 

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Justices ("