### No. 14693 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

MELROY L. MEDHUS, JR., BEN WILLIAMS, BILLY G. REDDIG and LYNNEA. 

### 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:

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## 1

# 1979Mr. 

### Justice John Conway Harrison delivered the Opinion of the Court. Appellants initiated thisaction inDistrictCourt, the Eleventh Judicial District, 

### the Honorable Robert C. 

### Sykes presiding, asking the court toenjoin respondents from obstructing appellants' use of a road that crossed respondents' property. Appellants sought toobtain a decree granting them an easement along the road. Appellants also sought damages for interference with the use of theroad, and appellantMedhus sought damages for trespass tohisproperty. Respondents filed a counterclaim against appellant Medhus for timber trespass and sought an order requiring Medhus tomove 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 sectionof the property. The court ordered appellants be allowed toremove

some personal property from the portion of the roadway across which no easement was found. However, the court entered no findings, conclusions orjudgment concerning appellants' trespass claim. 

### The court further found appellantMedhus had not committed timber trespass but had erected a fence on respondents' property. The court ordered the fence moved tothe correct boundary line. The District

### Court awarded costs of the suit torespondents, including the costof a boundary survey done atthe request of respondents. Appellants appeal thisjudgment.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 certainrealproperty located inFlathead 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 toan easement forroad purposes across the premises. The notice of purchasers' interest giving notice of the contractunder which the Dutters hold their equitable interest tothe property contains 

### similarlanguage. This property 

### willbe referred toas the "Dutter property." Appellant Melroy Medhus owns real property that 

### lies east of the Dutter property and above 

### it on 

### a mountainside. This property 

### willbe referred to

### as the "Medhus property." Appellants Billy G. Reddig and Lynne A. Reddig 

### are buying 

### a portion of theMedhus 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 prop

### er

### ties. Foothills Road, 

### a public highway, passes close tothe western boundary of the Dutter property. Near the southern boundary of the Dutter property 

### a dirtand gravel road leaves Foothills Road and goes up the mountainside across the Dutter property. This roadway leaves the Dutter property and enters theMedhus property and forms a "Y" on the Medhus property. The DistrictCourt found, apparently for the sake of completeness, that allof 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 inappellants' complaint. The northern brand of the "Y" continues across the Medhus

### property and reenters the Dutter property for 300 feet whereupon it reenters theMedhus property and continues easterly and up themountainside onto theWilliams property. The District

### Court found thatnone of the appellantshad an easement across this 300 footroad on the Dutter property. The following diagram approximates the position of the property of the parties and road indispute (marked "disputed road" on the diagram):

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

\

\ \i



## MEDHUS Property 

## granted 

## easement.The use of the 300 footroad 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 tomove 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 isnot involved inthe current dispute. The road was built in 1933by 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 DistrictCourt 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 togo up MillCreek tohunt, hike and gather huckleberries. The bridge over MillCreek leading tothe road washed out for 

### a period of time and was replaced inthe 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 DistrictCourt 

### err infinding that appellantsdid not establish

### a prescriptive easement across the disputed road? 2. Did the DistrictCourt 

### err infinding that appellantsdid not establish an easement of record across the disputed road? 3. Did the 

### ~istrict Court 

### err innot entering findings, conclusions and a judgment on appellants1 trespass claim?

### 4. Did the DistrictCourt 

### err inawarding costs tothe respondents? To establish the existence of a prescriptive easement, the party claiming the easementmust show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the statutoryperiod. Garrettv. 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), 169Mont. 447, 451, 548 P.2d 613, 615. The controversy inthis case turns on whether appellants showed the use of the disputed road by them and their predecessors ininterestwas adverse rather than permissive. If appellants failed to show adverse use, they have not established all the elements necessary toperfect

an easement by prescription and the DistrictCourt ruling on this issuemust 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 laterdistinctand positive assertion of a righthostile to the owner, which must be brought to the attention of the owner, and the use continued for the fullprescriptive period. (Citationsomitted.)" 568 P.2d at123. InWilson v. Chestnut (1974), 164 Mont. 484, 491, 525 P.2d 24, 27, we approvingly quoted 2Thompson on Real Property (1961Replacement), Easements, 8345, as follows:

I1I

# .. . If the user began by the permission of the owner, it

### willnot ripen into an adverse orhostileright until notice of such adverse user isbrought home tothe owner and the user continued thereafter for the statutory period.'" See alsoWhite v. Kamps (1946), 119 Mont. 102, 171P.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 easementhere 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 statutoryperiod. Looking to the record,we find occasionaluse 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, 169Mont. 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 rightbrought home to the owner of the purportedly servient tenementnecessary 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 infavor of a stranger to the deed. Wilson v. Chestnut, supra, 164 Mont. at492; see alsoAnnot., 88 ALR2d 1199, 1201-1202 (1963). In the proper case, however, 

### we will depart from that rule togive effecttothe grantor's intent. State of Montana, By and Through the Montana StateFish and Game Commission v. Cronin (1978), Mont. 

## , 587 P.2d 395, 399, 35 St.Rep. 1798, 1802; Wilson, 164 Mont. at492. The question thus becomes one of determining the intentof the grantors inincluding the above language in the deeds. Before the creation of an easement in

### a stranger to a conveyance 

### willbe recognized, the intent of the grantor to create the easementmust be clearly shown. Cushman v. Davis (1978), 145Cal.Rep. 791, 793, 80 Cal.App.3d 731. If 

### it appears 

### it 

### isaslikely the purpose of the clause inthe deed was toprotect the grantor's warranty of 

### title 

### as to

reserve an easement, 

### wewillnot depart from the majority rule and find an easement. Wilson, 164 Mont. 

### at492. To determine the intentof the grantor in situations 

### similar to the case 

### atbar, courts have considered the express language of the deed, Wilson, 164Mont. 

### at492; 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 factthat 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 at989-990; and, the sufficiency of the description of the location of the easement and whether or not the reservation names a dominant tenement, Stateof Montana, By and Through the StateFish and Game Commission v. Cronin, supra, 587 

### P.2d at399.

### 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 itwith 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), 160Mont. 

### 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 torespondents. Sections 25-10-101 and 25-10-102, MCA, control the disposition of this question. Those sections require the awarding of costs tothe plaintiffs or the defendants incases 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 touse the section of road over which the appellants prayed for an easement in their complaint. On remand, the DistrictCourt may find infavor of appellants

orrespondents on appellants' trespass claim. The judgment stated respondents should take nothing by their counterclaim but alsoordered Medhus tomove his fence. Respondents had requested the fence be moved aspart of their counterclaim. The judgment thus found in favor of both parties 

### to the 

### lawsuiton different issues involved inthe 

### case. We have previously held that a plaintiff need not recover on all claims presented by a complaint tobe 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. Wehave also allowed a defendant torecover costs when only partially successful on a counterclaim but totally successful indefeating the plaintiff's claim. Spencer v. Mungus (1903), 28 Mont. 357, 359-360, 72 P. 663, 664. Wehave never squarely faced, however, the issue of awarding costs ina case where the plaintiff partially succeeds on the complaint and the defendant prevails astoa part of the counterclaim. In the only case presenting the question, the Court decided infavor of the defendant without discussion. Aronow v. Hill (1930), 87 Mont. 153, 163, 286 P. 140, 

### 144. Montana adopted itscost 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 tothe



### sameresultreached inAronow by determining which party prevailed on themain issue incontroversy in

### a 

### case. Whiting v. Squeglia (1924), 70 Cal.App. 108, 232 P. 986, 990. InWhiting theplaintiffs filed a complaint and the defendant counterclaimed. The trial court entered a judgment granting the plaintiffs partof the relief they 

### requested and the defendant partof his 

### claimwith costs to the defendant. Whiting, 232 P. at987. On appeal, the award of costs

### was upheld under the costs statutebased on the rationale that the defendant had prevailed on the main issue incontroversy and, therefore, judgment had been entered inhis favor. Whitinq, 232 P. 

### at990. Given the use of the main issue incontroversy rule in California ininterpreting cost statutes 

### similar tothose in Montana, 

### we now adopt the rule inMontana for interpreting sections 25-10-101 and 25-10-102, MCA. If a plaintiff files

a complaint inan 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 inhaving the plaintiff's claim totally denied but only recovers 

### a portion of the relief demanded inthe

### counterclaim, the defendant should receive costs. If, however, a party initiates

### a 

### law suit, the defendant counterclaims, and thejudgment awards both parties part of the relief they seek, the partyprevailing on themain issue in controversy inthe 

### case must be allowed costs. Applying thisrule tothecase atbar, 

### we find the District

### Court correctly awarded costs torespondents. The main issue incontroversy here was the existence of an easement across thedisputed road. The closingof the road precipitated the 

### lawsuitand most of the testimony atthe trialconcerned the existenceof an easement over the road. Respondents prevailed on that issue. The cost statutes therefore entitledthem totheir costsof suit, including the costof the survey necessary todetermine boundary between theMedhus and Dutter properties. The judgment is

### affirmed inpart but remanded tothe District

### Courtwith instructions toenter a judgment on appellants' trespass claim.

We 

### concur:

Cbref Justice 

# i$&Z&+

Justices