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. 

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APPEAL FROM: DistrictCourt of theThirteenth~udicial ~istrict, In and for the County of Carbon, The Honorable G. Todd Baugh, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Gary L. Beiswanger, Attorney at Law, Billings, Montana For Respondent: RichardF. Cebull; Anderson,Brown, Gerbase, Cebull, Fulton,Harman & Ross, P.C., ~illings, Montana

Filed: submitted on Briefs: November 8, 1990 Decided: March 21, 1991a JusticeWilliam 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 respondents1property. Defendants and appellants are owners of a 320-acre tract of land located in Carbon County, Montana. Their land is completely surrounded by respondents1adjoining land. Appellants1land was originally homesteaded by Horace Pierce in 1914 but has not been owner-occupied since the 19201swhen Mr. Pierce moved to Laurel, Montana. Appellant Rita Harding initially purchased theproperty in her own name in July, 1983, from Ethel Pierce, absentee owner and widow of Horace Pierce. She later transferred one-half interest in theproperty to her husband, Nevins Harding. Access to the appellants1property isby a roadwhich runs in

a northwesterly direction from the Edgar/Pryor Road across land owned by Arden and Gloria Blair, who are not parties to this 2I I 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 respondentsand otherpersons not parties tothisactiontoapoint 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 gateshad ever been locked until some time after the respondentspurchased 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 respondents1land 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 beenI ' permissive while appellants claimed a prescriptive easement over the route the road takes across the respondents1property. Both parties agreed that the road overwhich the appellantsclaimed the easement is not a county road, and that there is no easement by implicationornecessityduetoa lack of commonality of ownership. The District Court entered its findings of fact, conclusions of law, and judgment in favor of the respondentson February 9,1990. This appeal followed. The party seeking to establish a public or private easement by prescription has theburden of showing several elements. That partymust show open,notorious,exclusive, adverse, continuousand 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 statutoryperiod is fiveyears. Section 70-19-401, MCA

# . The appellants were unable to sustain their burden of proof of a private easementby prescription fortheperiod of time after they purchased theirproperty. The record showsappellants1first distinctand positive assertion of a claim of righttouse theroad occurred in the fall of 1983 when they cut chains from the respondents1gates. 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 orpermissive. Ifpermissive 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. Taylorv. Petranek (1977),173Mont. 433, 437, 568 P.2d 120, 122. Once the required elements are established, adverse use is presumed. O1Connerv. 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, Rathbunv. Robson (1983)

## , 203 Mont. 319,661P.2d 850; Thomasv. Barnum (1984),211Mont. 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, attackingmany of the court's findings of fact

asclearlyerroneous. Our standard of review of a district court's

# . I 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 thewitnesses. 

# . .. If thedistrict court's findingsarebased 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 thehistorical use of the road over which the appellants claim a prescriptive easement. Fourof thesewitnesses,TomTaylor, Glen Marsh,Dorothea Landyand Ethel Holton, were elderly and knew the road from the "old days." The District Court found that: The gist of their testimonywas that the use and custom since homesteader days was that in this areapeople came and went on this road/trail as necessary to their purposes with the understanding among all that use of this sort was conditionedupon observation of theproper respect for the landowner's interests and uses. The Court finds and concludes that this use waspursuant 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 faculties1Iand "[t] heir memories seemed sharp.

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# . Furthermore, based on our review of the record, we conclude the District Court's finding is an accurate reflection of these witnesses1testimony. Arden Blair also testified topermissive 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 topeoplewishing to use theroad. He also testified that hispredecessors in interesthad givenpermission toGeraldGreeno, the respondents1predecessor in interest, to use the road across the Blair property. The appellants challenge Mr. Blair's testimony arguing that hewasnot a crediblewitness. Innon-jurytrials,thecredibility 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 toreachSuffolk. Thisevidence is sufficientto 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 privateeasementbyprescription,weneed not considerwhether 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: 

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