No. 14693 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

MELROY L. MEDHUS, JR., BEN WILLIAMS, 

BILLY G. REDDIG and LYNNE A. REDDIG, 

Plaintiffs and Appellants, 

KENNETH A. DUTTER, MARY E. DUTTER, 

THOMAS J. DEUTSCH, and JANET M. DEUTSCH, 

Defendants and Respondents. 

Appeal from: District Court of the Eleventh Judicial District, 

Honorable Robert Sykes, Judge presiding. 

Counsel of Record: 

For Appellants: 

Hash, Jellison, O'Brien and Bartlett, Kalispell, Montana 

For Respondents: 

Moore, Lympus and Doran, Kalispell, Montana 

Warden, Walterskirchen and Christiansen, Kalispell, 

Montana 

Submitted on briefs: August 15, 1979 

Decided: YOV 2 1 1979 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Appellants initiated this action in District Court, the 

Eleventh Judicial District, the Honorable Robert C. Sykes 

presiding, asking the court to enjoin respondents from 

obstructing appellants' use of a road that crossed respondents' property. Appellants sought to obtain a decree granting them an easement along the road. Appellants also sought 

damages for interference with the use of the road, and appellant Medhus sought damages for trespass to his property. 

Respondents filed a counterclaim against appellant 

Medhus for timber trespass and sought an order requiring 

Medhus to move a fence erected along the boundary of their 

property and the Medhus property. 

The District Court found that appellants had an easement for roadway purposes across a portion of respondents' 

property, but found no easement across another section of the 

property. The court ordered appellants be allowed to remove 

some personal property from the portion of the roadway across 

which no easement was found. However, the court entered no 

findings, conclusions or judgment concerning appellants' 

trespass claim. 

The court further found appellant Medhus had not committed timber trespass but had erected a fence on respondents' 

property. The court ordered the fence moved to the correct 

boundary line. The District Court awarded costs of the suit 

to respondents, including the cost of a boundary survey done 

at the request of respondents. Appellants appeal this judgment. 

Respondents Thomas Deutsch and Janet Deutsch are the 

legal owners, and respondents Kenneth Dutter and Mary Dutter 
are the equitable owners, being purchasers under contract 

for deed, of certain real property located in Flathead 

County. The disputed road passes across their property. 

The Deutsches acquired the property in 1964 from A. P. and 

Martha T. Marcoux. The Marcouxes conveyed the property to 

the Deutsches by a warranty deed. The deed contained language referring to an easement for road purposes across the 

premises. The notice of purchasers' interest giving notice 

of the contract under which the Dutters hold their equitable 

interest to the property contains similar language. This 

property will be referred to as the "Dutter property." 

Appellant Melroy Medhus owns real property that lies 

east of the Dutter property and above it on a mountainside. 

This property will be referred to as the "Medhus property." 

Appellants Billy G. Reddig and Lynne A. Reddig are buying a 

portion of the Medhus property under contract for deed. 

Appellant Ben Williams is the owner of three parcels of real 

property which are east of both the Dutter and Medhus proper ties. 

Foothills Road, a public highway, passes close to the 

western boundary of the Dutter property. Near the southern 

boundary of the Dutter property a dirt and gravel road 

leaves Foothills Road and goes up the mountainside across 

the Dutter property. This roadway leaves the Dutter property and enters the Medhus property and forms a "Y" on the 

Medhus property. The District Court found, apparently for 

the sake of completeness, that all of the appellants had an 

easement along that roadway from the Foothills Road to the 

boundary of the Dutter property. An easement over this 

section of road was not asked for in appellants' complaint. 

The northern brand of the "Y" continues across the Medhus 
property and reenters the Dutter property for 300 feet 

whereupon it reenters the Medhus property and continues 

easterly and up the mountainside onto the Williams property. 

The District Court found that none of the appellants had an 

easement across this 300 foot road on the Dutter property. 

The following diagram approximates the position of the 

property of the parties and road in dispute (marked "disputed 

road" on the diagram): 

- - -- - -- - - - - - - 

\ 

\ 

\ 

i 

MEDHUS Property 

granted easement. 
The use of the 300 foot road marked "disputed road" on 

the diagram is the center of controversy in this case. 

Appellants do not contest the portion of the judgment ordering them to move their fence, and respondents do not challenge the finding of an easement of the other section of the 

road. The Trablik property marked on the diagram is not involved in the current dispute. 

The road was built in 1933 by the Koenig brothers, 

loggers working east of the Dutter and Medhus properties. 

Before constructing and using the road, the loggers got 

permission from Clarence Haines, then the owner of the 

Dutter property. The District Court found that since the 

19301s, the disputed road has seldom been used. The court 

found that neighbors used the road for cutting firewood or 

Christmas trees and members of the general public used the 

road to go up Mill Creek to hunt, hike and gather huckleberries. The bridge over Mill Creek leading to the road 

washed out for a period of time and was replaced in the 

1970's. Dutter bulldozed the road shut in 1978, leading to 

the instigation of this suit. 

This appeal raises the following issues for our consideration : 

1. Did the District Court err in finding that appellants did not establish a prescriptive easement across the 

disputed road? 

2. Did the District Court err in finding that appellants did not establish an easement of record across the 

disputed road? 

3. Did the ~istrict Court err in not entering findings, conclusions and a judgment on appellants1 trespass 

claim? 
4. Did the District Court err in awarding costs to the 

respondents? 

To establish the existence of a prescriptive easement, 

the party claiming the easement must show open, notorious, 

exclusive, adverse, continuous and uninterrupted use of the 

easement claimed for the statutory period. Garrett v. 

Jackson (1979), - Mont. -1 - P.2d - , 36 St.Rep. 

1769, 1771; Hayden v. Snowden (1978), Mont. - , 576 P.2d 

1115, 1117, 35 St.Rep. 367, 369; Taylor v. Petranek (1977), 

Mont. , 568 P.2d 120, 122, 34 St.Rep. 905, 909; 

Harland v. Anderson (1976), 169 Mont. 447, 451, 548 P.2d 

613, 615. The controversy in this case turns on whether 

appellants showed the use of the disputed road by them and 

their predecessors in interest was adverse rather than 

permissive. If appellants failed to show adverse use, they 

have not established all the elements necessary to perfect 

an easement by prescription and the District Court ruling on 

this issue must be upheld. 

In Taylor, we said: 

"Although a use permissive in its inception may 

ripen into a prescriptive right, it cannot do so 

unless there is a later distinct and positive 

assertion of a right hostile to the owner, which 

must be brought to the attention of the owner, 

and the use continued for the full prescriptive 

period. (Citations omitted.)" 568 P.2d at 123. 

In Wilson v. Chestnut (1974), 164 Mont. 484, 491, 525 

P.2d 24, 27, we approvingly quoted 2 Thompson on Real Property (1961 Replacement), Easements, 8345, as follows: 

I1 I . . . If the user began by the permission of 

the owner, it will not ripen into an adverse 

or hostile right until notice of such adverse 

user is brought home to the owner and the user 

continued thereafter for the statutory period.'" 

See also White v. Kamps (1946), 119 Mont. 102, 171 P.2d 343. 
Here, the testimony shows the use of the disputed road 

was originally permissive. Clarence Haines gave the Koenig 

brothers permission to build and use the road. Since the 

use of the road was permissive at its inception, to find a 

prescriptive easement here we must find in the record a 

distinct and positive assertion of a right to use the disputed road hostile to the owners by those claiming the 

easement. The record must also show the right was brought 

to the attention of the owners and continued use of the 

easement for the full statutory period. 

Looking to the record, we find occasional use of the 

road by hunters, hikers and neighbors cutting Christmas 

trees and gathering firewood. We have previously held this 

type of use insufficient to raise a presumption of adverse 

use. Taylor v. Petranek, supra, 568 P.2d at 123; Harland v. 

Anderson, supra, 169 Mont. at 451-452. Being insufficient 

to initially establish adverse use, this type of use does 

not represent the distinct and positive assertion of a 

hostile right brought home to the owner of the purportedly 

servient tenement necessary to transform originally permissive use into adverse use. Under these facts, the use of 

the road began permissively and continued to be permissive 

until Dutter blocked the road in 1978. Appellants, therefore, did not establish the existence of a prescriptive 

easement across the Dutter property. 

The second issue raised by this appeal concerns the 

language in the deeds used to convey the Dutter propertyThe language in the deeds reads, "Subject, however to an 

easement for road purposes now existing over and across the 

herein described premises." 
The majority rule is that an easement cannot be created 

in favor of a stranger to the deed. Wilson v. Chestnut, 

supra, 164 Mont. at 492; see also Annot., 88 ALR2d 1199, 

1201-1202 (1963). In the proper case, however, we will 

depart from that rule to give effect to the grantor's intent. 

State of Montana, By and Through the Montana State Fish and 

Game Commission v. Cronin (1978), Mont. , 587 P.2d 

395, 399, 35 St.Rep. 1798, 1802; Wilson, 164 Mont. at 492. 

The question thus becomes one of determining the intent of 

the grantors in including the above language in the deeds. 

Before the creation of an easement in a stranger to a 

conveyance will be recognized, the intent of the grantor to 

create the easement must be clearly shown. Cushman v. Davis 

(1978), 145 Cal.Rep. 791, 793, 80 Cal.App.3d 731. If it 

appears it is as likely the purpose of the clause in the 

deed was to protect the grantor's warranty of title as to 

reserve an easement, we will not depart from the majority 

rule and find an easement. Wilson, 164 Mont. at 492. To 

determine the intent of the grantor in situations similar to 

the case at bar, courts have considered the express language 

of the deed, Wilson, 164 Mont. at 492; testimony by grantors 

stating their intent, Willard v. First Church of Christ, 

Scientist, Pacifica (1972), 102 Cal.Rep. 739, 498 P.2d 987, 

989; the fact that the grantor received less value for the 

property conveyed because of the existence of an easement, 

Mott v. Stanlake (1975), 65 Mich.App. 440, 234 N.W.2d 667, 

668, and Willard, 498 P.2d at 989-990; and, the sufficiency 

of the description of the location of the easement and 

whether or not the reservation names a dominant tenement, 

State of Montana, By and Through the State Fish and Game 

Commission v. Cronin, supra, 587 P.2d at 399. 
Considering these factors here, we find the language 

contained in the deed almost identical to the language in 

~ilson, where we held no easement had been reserved. Further, 

respondent Deutsch stated he knew the deed contained the language and had discussed it with appellant Bill Reddig, but 

that he did not know the implications of the language. Deutsch 

said he did know there was a road up to the home on the Dutter 

property that nobody other than the owners should be using. 

This testimony indicates that in executing the documents 

that passed equitable title to the property, Deutsch did not 

intend to create an easement. There is no testimony on the 

record showing any of the grantors of the Dutter property 

received less than full value for the land because of the 

existence of an easement. Finally, although the language 

of the deed does locate the easement, it fails to name a 

dominant tenement. Considering these factors together, here, 

as in Wilson, it is as likely the grantors intended to protect their warranty of title as to reserve an easement. Thus, 

the deeds do not establish an easement of record. 

The third issue raised by this appeal involves the 

failure of the District Court to enter findings, conclusions 

or a judgment concerning Count IV of appellants' complaint. 

This count alleges Dutter trespassed on the Medhus property 

while bulldozing the disputed road shut and damaged the 

property by removing gravel to build the Kelly bump that 

blocked the road. 

Appellants elicited testimony at the hearing on this 

case supporting the claim. The trial judge did not, however, 

enter findings, conclusions or judgment concerning the matter* 

The District Court should have made findings concerning this 

issue and entered a judgment accordingly. Claver v, Rosen- 
quist (1972), 160 Mont. 4, 13, 499 P.2d 1235, 1240. We therefore return the matter to the District Court with instructions 

to enter findings, conclusions and a judgment on this issue. 

In doing so, the court should hold whatever further proceedings, if any, it deems necessary. 

The final issue raised here deals with the award of 

costs to respondents. Sections 25-10-101 and 25-10-102, 

MCA, control the disposition of this question. Those sections require the awarding of costs to the plaintiffs or 

the defendants in cases of this nature upon a judgment in 

their favor. 

In this case, the judgment granted appellants an easement over a portion of respondents' property, but denied 

appellants any right to use the section of road over which 

the appellants prayed for an easement in their complaint. 

On remand, the District Court may find in favor of appellants 

or respondents on appellants' trespass claim. The judgment 

stated respondents should take nothing by their counterclaim but also ordered Medhus to move his fence. Respondents had requested the fence be moved as part of their 

counterclaim. 

The judgment thus found in favor of both parties to the 

law suit on different issues involved in the case. We have 

previously held that a plaintiff need not recover on all 

claims presented by a complaint to be entitled to costs 

under section 25-10-101, MCA. Jones v. Great Northern 

Railroad Company (1923), 68 Mont. 231, 242-245, 217 P. 673, 

677-678. We have also allowed a defendant to recover costs 

when only partially successful on a counterclaim but totally 

successful in defeating the plaintiff's claim. Spencer v. 

Mungus (1903), 28 Mont. 357, 359-360, 72 P. 663, 664. We 
have never squarely faced, however, the issue of awarding 

costs in a case where the plaintiff partially succeeds on 

the complaint and the defendant prevails as to a part of the 

counterclaim. In the only case presenting the question, the 

Court decided in favor of the defendant without discussion. 

Aronow v. Hill (1930), 87 Mont. 153, 163, 286 P. 140, 144. 

Montana adopted its cost statute from California. That 

state still has a similar statutory setup for awarding 

costs. Section 1032, Cal. Code Civ. Proc. In interpreting 

their cost statutes, the California courts have come to the 

same result reached in Aronow by determining which party 

prevailed on the main issue in controversy in a case. 

Whiting v. Squeglia (1924), 70 Cal.App. 108, 232 P. 986, 

990. In Whiting the plaintiffs filed a complaint and the 

defendant counterclaimed. The trial court entered a judgment granting the plaintiffs part of the relief they requested and the defendant part of his claim with costs to 

the defendant. Whiting, 232 P. at 987. On appeal, the 

award of costs was upheld under the costs statute based on 

the rationale that the defendant had prevailed on the main 

issue in controversy and, therefore, judgment had been 

entered in his favor. Whitinq, 232 P. at 990. 

Given the use of the main issue in controversy rule in 

California in interpreting cost statutes similar to those in 

Montana, we now adopt the rule in Montana for interpreting 

sections 25-10-101 and 25-10-102, MCA. If a plaintiff files 

a complaint in an action covered by section 25-10-101, MCA, 

and succeeds only partially, the plaintiff is entitled to 

costs. If an action is filed, the defendant counterclaims 

and succeeds in having the plaintiff's claim totally denied 

but only recovers a portion of the relief demanded in the 
counterclaim, the defendant should receive costs. If, 

however, a party initiates a law suit, the defendant counterclaims, and the judgment awards both parties part of the 

relief they seek, the party prevailing on the main issue in 

controversy in the case must be allowed costs. 

Applying this rule to the case at bar, we find the 

District Court correctly awarded costs to respondents. The 

main issue in controversy here was the existence of an 

easement across the disputed road. The closing of the road 

precipitated the law suit and most of the testimony at the 

trial concerned the existence of an easement over the road. 

Respondents prevailed on that issue. The cost statutes 

therefore entitled them to their costs of suit, including 

the cost of the survey necessary to determine boundary 

between the Medhus and Dutter properties. 

The judgment is affirmed in part but remanded to the 

District Court with instructions to enter a judgment on 

appellants' trespass claim. 

We concur: 

Cbref Justice 

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Justices