No. 95440

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

V. MARK RAFANELLI,

Plaintiff and Appellant,

v.

HAL J. DALE, VIRGINIA LEE GABIG,

and PAULETTE DALE-HUTCHEON,

Defendants and Respondents.

APPEAL FROM: District Court of the Fifth Judicial District,

In and for the County of Madison,

The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

John S. Warren; Davis, Warren & Hritsco

Dillon, Montana

For Respondents:

Loren Tucker; Tucker Law Firm,

Virginia City, Montana

Filed:

Submitted on Briefs: May 2, 1996

Decided: August 9, 1996
Justice Karla M. Gray delivered the Opinion of the Court.

V. Mark Rafanelli (Rafanelli) appeals from a judgment of the

Fifth Judicial District Court, Madison County, that Hal Dale and

his daughters, Virginia Lee Gabig and Paulette Dale-Hutcheon, (the

Dales) have an easement by prescription across a portion of his

property. We affirm.

The following issues are raised on appeal:

1 . Did the District Court err in concluding that the Dales

had acquired a prescriptive easement?

2 . Did the District Court err in not concluding that the

Dales' prescriptive easement had been extinguished?

3 . Did the District Court abuse its discretion in admitting

Exhibit 29 into evidence?

The Dales are the owners of approximately 43 acres of land

located in Beall Canyon, Madison County, Montana. The Dales'

property is bordered on the north, west, and south by the Whiterock

Ranch, currently owned by Rafanelli (see diagram). The east side

of the Dales' property abuts Forest Service land. The only means

of accessing the Beall Canyon property is across land belonging to

the Whiterock Ranch.

Hal Dale purchased the Beall Canyon acreage in partnership

with his brother, Claude Dale, in 1971. The previous owners were

Julian Strawn and his heirs Pearl Strawn, Alice Pasley and Frances

Salveson (the Strawns).

Claude Dale died on October 3, 1990. Pursuant to a provision

contained in Hal and Claude Dale's partnership agreement, Hal and

his two daughters jointly purchased Claude's one-half interest in

2
the property from Claude's widow in February of 1992.

The Whiterock Ranch was purchased by Knight Carson and his

family (the Carsons) in 1972. The Carsons sold the ranch to June

and Ronald Thomas (the Thomases) in December of 1986, and the

Thomases subsequently sold the ranch to Rafanelli in 1991.

Three routes across the Whiterock Ranch provide access to

Beall Canyon. Route A leads south and east to the main buildings

of the Whiterock Ranch, then west nearly to Beall Creek and

southeast, roughly parallel to the creek, to the Dales' property in

Beall Canyon. Route B travels south from the Waterloo town dump

along the west side of Section 2, Township 2 South, Range 5 West,

MPM; turns east through a gate onto the Whiterock Ranch; crosses

Beall Pasture and Beall Creek; and then follows the creek into the

canyon. Route C begins at the Waterloo town dump, travels east,

then southeast to Beall Creek and along the creek into Beall

Canyon. The Dales have used all three access routes across

Whiterock Ranch since purchasing the Beall Canyon property in 1971.

In 1992, Rafanelli brought an action to quiet title to the

Whiterock Ranch property in which he requested the District Court

to declare that the Dales had no right, title, or interest in any

easement across Whiterock Ranch. The Dales counterclaimed,

asserting that they had acquired prescriptive easements over Routes

A and B. After a bench trial, the District Court concluded that

the Dales had an easement by prescription over access Route B and

entered judgment accordingly. Rafanelli appeals.

3
STANDARDS OF REVIEW

We review a district court's findings of fact to determine

whether they are clearly erroneous, giving "due regard . to the

opportunity of the trial court to judge of the credibility of the

witnesses." Rule 52(a), M.R.Civ.P. In determining whether a

court's findings of fact are clearly erroneous, we apply a threepart test:

First, the Court will review the record to see if the

findings are supported by substantial evidence. Second,

if the findings are supported by substantial evidence we

will determine if the trial court has misapprehended the

effect of evidence. Third, if substantial evidence

exists and the effect of the evidence has not been

misapprehended, the Court may still find that ” [Al

finding is 'clearly erroneous' when, although there is

evidence to support it, a review of the record leaves the

[Clourt with the definite and firm conviction that a

mistake has been committed."

Interstate Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323,

820 P.2d 1285, 1287 (citations omitted). We review conclusions of

law to determine whether the district court's interpretation of the

law is correct. Public Lands Access Ass'n, Inc. v. Boone and

Crockett Club Found., Inc. (1993), 259 Mont. 279, 283, 856 P.2d

525, 527.

DISCUSSION

1 . Did the District Court err in concluding that the

Dales had acquired a prescriptive easement across

Whiterock Ranch?

Rafanelli contends that the preponderance of the evidence in

the record does not support the District Court's findings that the

Dales had established adverse and uninterrupted use of Route B. He

also argues 'that substantial credible evidence before the District

4
Court proved that the use of Route B was permissive, rather than

adverse, or was on the basis of neighborly accommodation. We note

at the outset that Rafanelli's arguments ignore our standard of

review of a district court's findings of fact. It is within the

province of the trier of fact to weigh the evidence and assess the

credibility of witnesses and we will not second-guess those

determinations. Double AA Corp. v. Newland & Co. (1995), 273 Mont.

406, 494, 905 P.Zd 138, 142. Moreover, we will uphold a district

court's findings when there is substantial evidence to support them

even when there is also evidence supporting contrary findings.

Wiesner v. BBD Partnership (1993), 256 Mont. 158, 161, 845 P.2d

120, 122.

The District Court found that the Dales' predecessors used

various routes across Whiterock Ranch without permission for many

years. However, the bulk of its findings related to the Dales' own

use of the access routes after they purchased the Beall Canyon

property in 1971 and, with regard to this period, the court

specifically found that the Dales' use of Route B met the elements

necessary to establish a prescriptive easement. Given that

Rafanelli challenges findings relating to only two of the elements,

We scrutinize the record to determine whether it contains

sufficient evidence to support the court's findings that the Dales'

use of Route B after their purchase of the Beall Canyon property in

1971 was adverse and uninterrupted.

A prescriptive easement is created by operation of law in

Montana. Swandal Ranch Co. v. Hunt (Mont. 19961, 915 P.2d 840,

5
843, 53 St.Rep. 361, 362. The party claiming the easement bears

the burden of establishing "open, notorious, exclusive, adverse,

continuous and uninterrupted use of the easement claimed for the

. statutory [five-year] period." Public Lands, 856 P.2d at 527

(quoting Keebler v. Harding (1991), 247 Mont. 518, 521, 807 P.2d

1354, 1356) In order to show that the use of a claimed easement

is adverse, a claimant must prove that the use is "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." Rappold v.

Durocher (19931, 257 Mont. 329, 332, 849 P.2d 1017, 1019 (citation

omitted).

When Knight Carson and his family purchased the Whiterock

Ranch in 1972, he noticed the Dales using Route A--the road leading

past the main ranch buildings--to reach Beall Canyon. Carson

consulted his attorney, who sent a letter to Hal Dale on September

27, 1972. The letter informed Dale that the Whiterock Ranch

corporation stockholders had no desire to grant any easements

across ranch property and that any future agreements regarding

access would require approval by the stockholders. The letter also

related that a portion of Route A would be plowed under to create

a section of irrigated crop land.

The Dales' attorney responded by letter dated October 16,

1972, stating that

[t]he Dales do not wish to force their way through

anyone's property if a road has not been established and

even if it has, if another route of access can be used,

then they certainly will comply with the wishes of your

6
client.

The letter indicated the Dales' belief they had the right, and were

affirmatively asserting that right, to cross the Whiterock Ranch by

specifically referencing, and attaching a copy of, a document

referred to as the Holbert affidavit.

The Holbert affidavit was executed in 1967 by Howard S.

Holbert, A. W. Purvis, and Otto C. Nolte, all of whom were

acquaintances of the Strawn family, and was recorded with the

Madison County Clerk and Recorder. The affidavit identifies the

Beall Canyon property and states that the Strawns had used a

certain road to access the property for more than twenty years.

The Holbert affidavit neither clearly describes the location of the

road it references nor indicates that the Strawns were claiming a

right Over that access adverse to any landowner. Hal Dale

testified that, when he and his brother purchased the Beall Canyon

property, they believed that they had a right to access their

property across the ranch based on this affidavit and comments made

to them by the Strawn family.

After the exchange of letters in 1972, the Dales continued to

use both Route A and Route B to access the Beall Canyon property;

they did not contact the Whiterock Ranch shareholders to make

arrangements or ask permission to use either road. The Carsons

eventually plowed up a portion of the Route A road in late 1972

and, thereafter, the Dales primarily used Route B to access Beall

Canyon, although a ranch lane still provided access through the

area of the ranch buildings.

7
In July of 1973, the Carsons sent the Dales' attorney another

letter regarding the Dales' accessing Beall.Canyon via the ranch

and complaining of the amount of traffic through the ranch. The

letter informed the Dales that any unauthorized traffic across

Whiterock Ranch property would be considered trespass and that the

Carsons were putting "no trespassing" signs up at all points of

access to the ranch. Additionally, the Carsons intended to place,

and eventually did place, an advertisement in the local newspaper

notifying the general public of the closure of all roads across the

ranch property. The letter stated that the Dales would need to

make specific arrangements with Knight Carson or his attorney for

access to Beall Canyon across Whiterock Ranch. If such

arrangements were not made, the Carsons would consider any use of

roads across the ranch by the Dales or anyone else a trespass. The

Dales continued to cross ranch property on Route B to reach Beall

Canyon, did not contact the Carsons to make arrangements to do so,

and completely ignored the posted "no trespassing" signs. This use

by the Dales continued until the trial on Rafanelli's quiet title

action.

The Dales' continuous use of Route B to reach Beall Canyon,

their ignoring two requests from the Carsons that they obtain

permission to use the road, and the failure of the Carsons to

obstruct or interrupt such use by the Dales, are evidence of a use

hostile and adverse to the Carsons' ownership. It is clear that

the Carsons knew of the Dales' use of Route B and that they

acquiesced in such use. Although the Carsons requested that the
Dales receive permission before using the road, they did nothing

affirmati+e to enforce that request or otherwise stop the Dales

from crossing Whiterock Ranch. The Dales notified the Carsons of

their claim that they had a right to cross Whiterock Ranch in their

October 16, 1972, letter to the Carsons and reinforced that claim

by continuing to use Route B without asking for permission.

Additionally, the Dales' use of Route B continued thereafter

throughout the entire time that the Carsons, the Thomases, and

Rafanelli owned Whiterock Ranch, a period approximately four times

longer than the statutory five years needed to establish a

prescriptive easement.

We conclude, therefore, that substantial evidence supports the

District Court's finding that the Dales had established the

elements of a prescriptive easement, including the adverse and

uninterrupted use elements.

PERMISSIVE USE

Rafanelli advances a variety of arguments in support of his

position that the Dales' use of Route B was permissive rather than

adverse and that the District Court erred in finding otherwise. We

address each of his arguments in turn.

Rafanelli argues that the Carsons granted express permission

to the Dales to improve and use Route B when the Carsons plowed up

part of Route A in 1972 and, as a result, the Dales' use of Route

B cannot be adverse. The record reflects that, at some point in

1973, the Dales improved Route B by grading the road. Knight

Carson stated that the Dales did so with his permission pursuant to

9
a meeting between himself and Claude Dale. Carson testified that,

during the meeting with Claude, he granted permission to the Dales

to improve and use Route B, in place of Route A, as long as the

Dales paid for all maintenance of the road and installed a locked

gate at the point where the road entered the Whiterock Ranch.

Carson's son, Christopher, provided similar testimony.

Hal Dale claimed to have no knowledge of such a conversation

between Claude and the Carsons. He testified that, even if a

conversation had occurred, his brother would not have asked for

permission to improve Route B because the Dales had always believed

they had the right to use all of the various access routes to Beall

Canyon across the Whiterock Ranch. According to Hal, the Dales

simply decided they wanted to improve the Route B access and went

ahead with the project without consulting the Carsons.

Sometime in 1974, the Dales installed a bridge over Beall

Creek at the point where Route B crossed it because a flood had

washed out the ford where the Dales usually were able to drive

across the creek. Again, the Carsons claimed that Claude Dale met

with them to ask their permission to build the bridge, while Hal

Dale asserted that permission was not requested.

The District Court found the Dales' testimony that Claude did

not request permission to use and improve Route B to be more

credible than the Carsons' testimony that they granted permission

and, as a result, rejected the Carsons' version of the meetings.

The court determined that Claude Dale, being "an experienced mining

entrepreneur," would not have requested permission to use an access

10
route which his family and their predecessors already had been

using under a claim of right for many years. Credibility

determinations are within the province of the trier of fact and

"[wle will not second guess the district court's determination

regarding the strength and weight of conflicting testimony."

Double AA Cori)., 905 P.2d at 142.

Moreover, the undisputed fact that the Dales paid all the

costs of improving, building and maintaining Route B, the bridge,

and the gate at the entrance to the Whiterock Ranch further

supports the District Court's finding that the Dales' use of the

road was not permissive. Regular maintenance of a road by the

party asserting a prescriptive easement is evidence of adverse,

rather than permissive, use. Swandal Ranch Co., 915 P.2d at 844.

Although Rafanelli points to evidence of record which might

support a finding that the Dales' use of Route B was permissive, we

do not review findings to determine whether evidence supports

contrary findings. Wiesner, 845 P.2d at 122. As discussed above,

substantial credible evidence of record supports the District

Court's finding that the Dales' use of Route B was adverse rather

than permissive

Rafanelli also contends that the Dales admitted the permissive

nature of their access. This contention is based on negotiations

between himself and Hal Dale in 1991 regarding Rafanelli's desire

to purchase Claude Dale's partnership interest in the Beall Canyon

property.

When Rafanelli began dealing with the Thomases in late 1990

1 1
about purchasing the Whiterock Ranch, he became aware of the Dales'

use of roads across the ranch to access their Beall Canyon

property. Rafanelli testified that he knew of the Dales' use of

the roads and requested a title company to investigate whether

there was any record of an easement granted to the Dales. The

title search revealed the Holbert affidavit but did not locate any

record of an easement being granted to the Dales. When Rafanelli

realized that the Dales had no deeded easement to cross Whiterock

Ranch, he approached Hal Dale to discuss the possibility of

purchasing Claude Dale's interest in the Beall Canyon property.

Rafanelli regarded this proposed partnership as a solution to what

he considered a problem with the Dales' access; if Rafanelli were

a partial owner of the Beall Canyon property, any potential

disputes over the access would be resolved without Rafanelli being

required to grant or recognize an easement across Whiterock Ranch

for access to the canyon. Rafanelli felt that the acquisition by

the Dales of an easement over Whiterock Ranch would have a negative

impact on the value of the ranch.

Rafanelli and Hal Dale arranged for an appraisal of the Beall

Canyon property during their negotiations. In a letter to Hal Dale

dated February 13, 1991, the appraiser noted that there was no

deeded access to the Beall Canyon property and that access had

always been with permission of the owners of Whiterock Ranch; in

his opinion, however, there was a good chance of establishing a

prescriptive easement. Rafanelli's attempted purchase of Claude

Dale's partnership interest in the Beall Canyon property was never

12
completed.

Rafanelli argues that, because Hal Dale neither objected to

the appraiser's characterization of the access as permissive nor

made corrections to that statement in the appraisal, he impliedly

admitted that access was permissive. Rafanelli also asserts, in

this regard, that the mere fact of the negotiations between himself

and Hal Dale evidences the Dales' knowledge that access was

permissive. He argues that Hal Dale would not have entered into

the negotiations if he thought there was a clear right to access

the Beall Canyon property via Whiterock Ranch and that the

negotiations were conducted in order to solve the problem of the

access.

The District Court found that Hal Dale's actions regarding the

appraisal letter and the purchase negotiations with Rafanelli were

not inconsistent with a claim of a prescriptive easement. Rather,

the court determined that Hal merely was attempting to solidify his

right to use the access without going through the time and expense

of litigation to establish a prescriptive easement. "[Tlhis Court

may not substitute its judgment for that of a district court in

making a finding based to a large extent on credibility and weight

of the evidence." In re Marriage of Boyer (1995), 274 Mont. 282,

288, 908 P.2d 665, 668. We conclude that the District Court's

finding that the Dales did not admit that the access was permissive

was supported by substantial evidence.

Rafanelli's final argument regarding permissive use is that

the evidence on which the District Court relied in finding that the

13
use was adverse rather than permissive was patently incredible.

Specifically, Rafanelli contends that the District Court erred in

relying on Hal Dale's testimony because that testimony was

inconsistent with his earlier deposition testimony and because Hal

admittedly fabricated a scene for purposes of taking a photograph

which was later admitted into evidence.

The District Court observed that Hal Dale's credibility was

questionable because of his somewhat contradictory conduct over the

years, but stated that it did not doubt his honesty or sincerity.

The court specifically found that Hal's overall behavior through

the years was not inconsistent with his assertion that the Dales'

use of the access to the Beall Canyon property was adverse to the

owners of the Whiterock Ranch.

We give due regard to the opportunity of the trial court in a

nonjury trial to determine the credibility of witnesses and to

resolve inconsistencies in the testimony. Rappold, 849 P.2d at

1020. We do so because the trial court is in a better position

than this Court to observe the demeanor, and assess the

credibility, of witnesses. Double AA Corp., 905 P.2d at 142.

Additionally, even if a portion of a witness' testimony is shown to

be false or unreliable, the trier of fact need not discount the

entirety of that witness' testimony. Kis v. Pifer (1978), 179

Mont. 344, 350, 588 P.2d 514, 517-18.

Here, the District Court carefully considered Hal Dale's

testimony and actions and, having had the opportunity to observe

his demeanor, accepted his testimony regarding the adverse nature

14
of the Dales' use of Route B to access their Beall Canyon property.

We conclude that the District Court did not err in relying on the

testimony of Hal Dale.

NEIGHBORLY ACCOMMODATION

Rafanelli next advances two arguments relating to his position

that the Dales' use of Route B was not adverse because it was based

On neighborly accommodation. It is well-settled that a

prescriptive easement cannot be established where use of a

neighbor's land is based on neighborly accommodation or courtesy

because such use is not adverse to the owner of the land. Public

Lands, 856 P.2d at 528.

Rafanelli contends that the statements in the Carsons' 1972

and 1973 letters show that the Carsons allowed the Dales to use the

access on a neighborly accommodation basis. We disagree. The

letters clearly state that access would be permitted only if the

Dales sought permission from, and made arrangements with, the

Carsons to use the roads. To the extent the letters relate to the

question of neighborly accommodation, they are evidence tending to

show that the Dales' access WJ.S not by way of neighborly

accommodation, because neighborly accommodation does not require

permission at every passing. See Lemont Land Corp. v. Rogers

(19941, 269 Mont. 180, 186, 887 P.Zd 724, 728.

Rafanelli also contends, in this regard, that the District

Court misinterpreted June Thomas' testimony insofar as it related

to adverse use or neighborly accommodation when it found that she

felt the Dales had a right to access Beall Canyon across Whiterock

15
Ranch and that the Thomases did not attempt to control the Dales'

access. June Thomas testified by deposition that when she and her

husband purchased the Whiterock Ranch in late 1986, the Dales were

primarily using Route B to reach Beall Canyon. She also testified

that she and her husband never tried to restrict the Dales' use of

the access road and, although she thought the Thomases could

control where the access was, she believed the Dales had the right

to cross the ranch to reach their Beall Canyon property.

Although the District Court did not specifically find that

June Thomas' testimony either supported or did not support its

finding that the Dales use of Route B was adverse, the court made

note of those portions of her testimony indicating that she and her

husband thought the Dales had the right to cross Whiterock Ranch to

reach Beall Canyon and that the Thomases did nothing to control the

Dales' access. Rafanelli contends that June Thomas' testimony was

consistent with his theory that use of the road was by neighborly

accommodation and that the District Court erred when it failed to

find that her testimony supported that theory.

The District Court found that the Dales' use of Route B had

been adverse to the Carsons' ownership, rather than permissive,

since 1972. Therefore, the Dales had established the statutory

five-year period of adverse use well before the Thomases purchased

Whiterock Ranch in 1986. As a result, it is not relevant whether

the Thomases thought the Dales' use of Route B was by permission,

by neighborly accommodation or by right.

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THE HOLBERT AFFIDAVIT AND PRE-1971 USE

Rafanelli next argues that the District Court erred in relying

on the Holbert affidavit as evidence of a claim of right to access

to Beall Canyon across Whiterock Ranch. The District Court found

that the affidavit should have put any post-1967 owners of the

Whiterock Ranch on constructive notice that an adverse claim of

access across the ranch to Beall Canyon was being asserted.

Although Rafanelli did not object to the admission of the affidavit

into evidence, he challenges the court's finding regarding its

significance, arguing that the affidavit itself cannot, and does

not, establish the elements of prescription. While Rafanelli is

correct in this regard, the District Court did not determine that

the affidavit proved the elements of prescription. Rather, the

court used the affidavit as one piece of evidence supporting the

Dales' assertion of a claim of right to use the access routes.

When establishing a prescriptive easement, the element of

adversity is proven by showing that the use of the easement was

exercised under a claim of right. Rawold, 849 P.2d at 1019. A

claim of right to an easement "must be known to, and acquiesced in

by, the owner of the land." Rawold, 849 P.2d at 1019.

Although the Holbert affidavit does not speak specifically in

terms of a claimed right to access Beall Canyon across Whiterock

Ranch property, the Dales relied on the affidavit in asserting

their claim of right to use the access roads after they purchased

the Beall Canyon property in 1971. The October 16, 1972, letter

from the Dales' attorney to the Carsons notified the Carsons of the

17
existence of the Holbert affidavit and made it known to the Carsons

that the Dales claimed a right to the access. The Carsons

thereafter acquiesced in that claim of right when, although

requesting the Dales to arrange for permission to use the access,

they took no affirmative action to stop the Dales from crossing

Whiterock Ranch.

The District Court stated that the recorded Holbert affidavit

was constructive notice to all post-1967 owners of Whiterock Ranch

that a claim of right to access Beall Canyon via the ranch was

being asserted. The Dales gave the Carsons actual notice that they

were asserting a claim of access across the ranch by sending the

Carsons a copy of the affidavit. The District Court neither found

nor implied that the Holbert affidavit supported any element of a

prescriptive easement other than a claim of right to use the access

road in question.

Rafanelli also advances a variety of arguments asserting that

the District Court erred in finding that pre-1971 use of the access

routes by the Dales' predecessors was adverse. We determined above

that the District Court's finding that the Dales established that

their use of Route B had been adverse to the Carsons' ownership of

Whiterock Ranch since 1972 is supported by substantial credible

evidence. Because the Dales proved that their use of the road had

been adverse from 1972 forward, it is not necessary to determine

whether pre-1971 use of the roads by the Dales' predecessors was

adverse. Thus, we decline to address Rafanelli's arguments

regarding pre-1971 use of the access routes.

18
INTERRUPTED USE

Although the majority of Rafanelli's arguments are directed

toward whether the District Court erred in finding that the Dales'

use was not permissive, he also makes vague assertions that the

Dales did not prove the element of uninterrupted use. This

assertion is apparently based on the Carsons' act of plowing up a

portion of Route A in 1972 and allegedly giving the Dales

permission to use Route B thereafter.

The District Court found that the Dales ceased to use Route A

after 1972, and, as a result, the court did not grant the Dales a

prescriptive easement over that road. Thus, any act of the Carsons

which may have interrupted the Dales' use of Route A is not

relevant to whether the Dales established an easement by

prescription over Route B.

In addition, the District Court rejected Rafanelli's position,

advanced through the Carsons' testimony, that Claude Dale sought--

and the Carsons gave--permission to use Route B in 1972. Indeed,

as discussed above, the District Court found that the Dales had

been using Route B without permission and adversely at least since

the Carsons purchased Whiterock Ranch in 1972 and substantial

credible evidence supports those findings. Moreover, there is no

evidence of record reflecting any post-1972 act by the Carsons, the

Thomases, or Rafanelli himself which interrupted the Dales' adverse

use of Route B to access their Beall Canyon property until

Rafanelli locked the gate at the entrance to the ranch in October

of 1991. Even then, however, the Dales simply cut the lock off the

19
gate and continued to use the road. Moreover, Rafanelli's act of

locking the gate occurred long after the running of the statutory

five-year period for establishing a prescriptive easement. We

conclude that the District Court's finding that the Dales

established uninterrupted use of Route B for the statutory fiveyear period is supported by substantial credible evidence.

In summary, the Dales and Rafanelli presented substantial and

conflicting evidence in this case, primarily about the adverse

versus permissive nature of the use of Route B across the Whiterock

Ranch to access the Dales' Beall Canyon property. 'I [Al district

court sitting as a fact finder, is in the best position to

determine whether use was permissive or adverse." Swandal Ranch

CO., 315 P.2d at 845 (citation omitted). We conclude that the

District Court's findings of fact that the Dal,es had established

the elements of a prescriptive easement over Route B across the

Whiterock Ranch to access their Beall Canyon property are supported

by substantial evidence and are not otherwise clearly erroneous.

We hold, therefore, that the court did not err in concluding that

the Dales had acquired a prescriptive easement over Route B.

2. Did the District Court err in not concluding that the

Dales' prescriptive easement had been extinguished?

Rafanelli argues that, even if a prescriptive easement existed

at one time over either Route A or Route B, that easement was

extinguished when the Carsons plowed up a portion of Route A in

1972 and gave the Dales permission to use Route B instead. A

servitude may be extinguished by the destruction of the servient

tenement or an act by the owner of the servitude, or with his

20
consent, which is incompatible with the nature of the servitude.

Section 70-17-111, MCA.

We have held, on the basis of that statute, that if a

prescriptive easement exists, subsequent acts

inconsistent with the claim by prescription, support the

conclusion that the prescriptive easement has been

extinguished.

Public Lands, 856 P.2d at 531-32.

The District Court found that the Dales had stopped using

Route A in 1972 and, therefore, no easement was established over

that road. Because the District Court did not grant the Dales a

prescriptive easement over Route A and the Dales did not appeal

that determination, it is not necessary to address whether any

easement over Route A was extinguished by the Carsons' act of

plowing up a portion of that road.

Rafanelli relies on Public Lands for the proposition that

acquiescence in a change of the use of an easement extinguishes

that easement and argues that, by allowing the Carsons to move the

access from Route A to Route B, the Dales acquiesced in a change of

use which extinguished any prior easement. In Public Lands, we

concluded that, if an easement had existed, it would have been

extinguished by the land owner's act of blocking the road and

creating a walk-in only policy. Public Lands, 856 P.2d at 532.

Such a change in use, when cooperated with and adhered to by the

owner of the easement, is inconsistent with a claim of a

prescriptive easement and works to extinguish it. Public Lands,

856 P.2d at 532.

Rafanelli's reliance on Public Lands is misplaced. The Dales

21
did not acquiesce in any change in their use of Route B. The

record reflects that the Dales had used Route B regularly since

purchasing the Beall Canyon property in 1971 and continued that use

after the Carsons purchased Whiterock Ranch in 1972. The

obliteration of Route A did not affect or alter the Dales'

continued use of Route B and the District Court found that,

contrary to their assertions, the Carsons did not "permit" the

Dales to relocate the access from Route A to Route B. Thus, the

act of plowing under a portion of Route A did not create a change

in the Dales' use of Route B similar to the change in use which

occurred in Public Lands. The only change that transpired here was

that the Dales rarely, if ever, used Route A from that time on.

Moreover, even if there had been an act by the Carsons during

1972 which was inconsistent with the Dales' claim of a prescriptive

easement, the Dales' continued adverse use of Route B for more than

five years after that time would have created a new prescriptive

easement over Route B. See Glenn v. Grosfield (1995), 274 Mont.

192, 196, 906 P.2d 201, 204. We held in Glenn that, if a change in

location or modification of the use of an easement occurs and the

owner of the previous easement uses the modified easement in the

same manner for the statutory five-year period, a new prescriptive

easement over the modified route is established. Glenn, 906 P.2d

at 204. The District Court found that the Dales' use of Route B

was adverse to the Carsons and the subsequent owners of Whiterock

Ranch since 1972. Thus, even if a previous easement over that

route had been extinguished, the Dales would have acquired a new

22
prescriptive easement after five years of adverse use. Glenn, 906

P.Zd at 204.

We hold that the Dales' prescriptive easement over Route B was

not extinguished by the Carsons' plowing up of Route A in 1972 and

that the District Court was correct in not concluding that the

easement was extinguished.

3 . Did the District Court abuse its discretion in

admitting Exhibit 29 into evidence?

Exhibit 29 consisted of three hand-written pages of notes

dated August 8, 1973, allegedly written by Claude Dale during or

immediately after a telephone conversation he had with his brother

Hal. The notes refer to comments Claude made to Hal regarding

access to their Beall Canyon property.

As foundation for the exhibit, Hal Dale testified that the

notes were in Claude's handwriting, that Claude was in the habit of

always making notes of his telephone conversations, and that Hal

had found the notes with other possessions that Claude had brought

with him when he moved to the Beall Canyon property after retiring

from his work with a mining corporation. The Dales offered Exhibit

29 under the business records exception, as well as other

exceptions, to the hearsay rule. Rafanelli objected to the exhibit

on the grounds that it was hearsay, that the Dales had failed to

properly authenticate it, and that it did not qualify under any of

the exceptions to the hearsay rule.

The District Court admitted Exhibit 29 under Rule 803 (6),

M.R.Evid., the business records exception to the hearsay rule. It

quoted the notes in its findings of fact and relied on them as part

23
of the evidence showing that Claude Dale did not request permission

from the Carsons to improve and use Route B or to build the bridge

over Beall Creek. The court also found that the notes were

indicative of adverse use by the Dales.

A district court has broad discretion in determining whether

evidence is relevant and admissible. We will not reverse such a

determination unless the court has abused that discretion.

Galbreath v. Golden Sunlight Mines, Inc. (1995), 270 Mont. 19, 22,

890 P.2d 382, 384.

Under Rule 803(6), a document "kept in the course of a

regularly conducted business activity" may be admitted into

evidence, even though it is hearsay, when it is "the regular

practice of that business activity" to create the document.

Although Hal Dale testified that Claude made notes of all of his

telephone conversations, the record does not reflect that Exhibit

29 was made by Claude in the course of any business activity;

indeed, a review of the notes establishes that they were in the

nature of a memorandum made for personal use. While district

courts have broad discretion in admitting evidence, the record

before us is totally lacking in foundation for admission of Exhibit

29 as a business record under Rule 803(6), M.R.Evid. Thus, the

District Court abused its discretion in admitting Claude Dale's

notes under the business records exception to the hearsay rule.

The Dales also argued, however, that Exhibit 29 was admissible

under the so-called state of mind exception to the hearsay rule.

We recently have discussed state of mind evidence, distinguishing

24
between hearsay state of mind evidence, admissible only under an

exception to the hearsay rule, and nonhearsay state of mind

evidence. In State v. Losson (1993), 262 Mont. 342, 348, 865 P.2d

255, 259, we determined that whether such evidence is hearsay or

not depends on whether the statement is direct evidence proving the

declarant's state of mind or only circumstantial evidence of the

declarant's state of mind.

If the evidence circumstantially proves the

declarant's state of mind, then the evidence is not

offered to prove the truth of the matter asserted and the

evidence is not hearsay.

.

Alternatively, when the evidence directly proves the

declarant's state of mind, the evidence is introduced to

prove the truth of the matter asserted and is hearsay.

Losson, 865 P.2d at 259. For example, if a person said 'IX

threatened to kill me," the statement is circumstantial evidence of

that person's state of mind regarding X to the extent it is used

only to show that the person was afraid of X and not to prove that

X actually threatened the person. As such, the statement is not

hearsay as defined in Rule 801(c), M.R.Evid., and it is generally

admissible if relevant. See Rule 402, M.R.Evid. Conversely, if

the person said "I hate X," the statement directly shows the

person's feelings about X and is offered to prove that the person

hates X. In that case, the statement is hearsay under Rule 801(c),

M.R.Evid., and is admissible only if it comes within an exception

to the hearsay rule.

The District court ' s finding of fact #14 contains the

following quote from Claude Dale's notes of his telephone

25
conversation with Hal on August 8, 1973, in which he advised Hal:

establish a road that we want to use and go ahead with

its use. I advised Hal to make no commitment to Carson.

Go up established road--cut lock or fence if necessary.

Carson has changed road thru [sic] farm and is trying to

get it established that this new road is a private road.

This not so--just because he changed it. county

maintenance on the ranch road fives [sic] better access

to us than any other. I think, anyway, don't commit us

to anything and keep all avenues open til [sic] we move

there.

The District Court used Claude Dale's notes in support of its

finding that Claude did not request permission from the Carsons to

use Route B. In other words, the court's finding was that the

notes reflected Claude's state of mind that the Dales had the right

to use the access roads regardless of what the Carsons did or said

about such use. Thus, to the extent that the District Court

admitted Claude's statements to show that his state of mind was

such that he would not have asked permission from the Carsons to

use Route B, the statements are not hearsay. The statements were

not offered to prove that Claude told Hal to cut the lock or fence;

nor were they offered to prove that the Carsons changed the road or

that Claude Dale told Hal not to commit to anything about the

access. The statements circumstantially indicated Claude's state

of mind both about the Carsons and about the Dales' right to use

the road, and they were offered to show that Claude did not seek

permission from the Carsons to use Route B in exchange for

maintaining the road and installing a locked gate. To this extent,

Exhibit 29 is not hearsay under Losson

Rafanelli's objection to Exhibit 29 was limited to the hearsay

nature of the evidence and its lack of admissibility under any
exception to the hearsay rule. Having determined that the exhibit

was not hearsay to the extent it was offered to show Claude's state

of mind regarding the Dales' right to use Route B, we conclude that

the District Court did not abuse its discretion in admitting

Exhibit 29 for that purpose.

The District court also found that Claude's notes were

"persuasive evidence of adverse use not permissive." In making

this finding, the court went beyond using the notes as

circumstantial evidence of Claude's state of mind regarding the

Dales' right to use Route B and used Claude's statements, such as

that he had told Hal to "establish a road that we want to use and

go ahead with its use" and to "cut lock or fence if necessary," as

directly showing that the Dales' use of the access was hostile and

adverse to the Carsons. In doing so, the court accepted the

contents of the statements as being true and, for that purpose, the

notes are hearsay. Therefore, the notes are inadmissible unless

they come within an exception to the hearsay rule. As noted above,

the Dales argued that the notes were admissible under the "state of

mind" exception contained in Rule 803(3), M.R.Evid.

Under Rule 803(3), M.R.Evid., a statement is not excluded by

the hearsay rule if it is

[a] statement of the declarant's then-existing state of

mind, emotion, sensation, or physical condition (such as

intent, plan, motive, design, mental feeling, pain and

bodily health), but not including a statement of memory

or belief to prove the fact remembered or believed.

In LOSSOIl, we concluded that a declarant's statements to a Nava

Reserve officer that he thought his wife was going to kill him and

27
that he was afraid of her were hearsay because they were introduced

as direct evidence to prove that the declarant was afraid of his

wife. We concluded, however, that the statements met the Rule

803(3), M.R.Evid., exception to the hearsay rule because they were

offered to show the declarant's state of mind at the time he sought

to reenlist in the Navy. Losson, 865 P.2d at 259.

In the present case, the notes do not come within the Rule

803(3) state of mind exception to hearsay because the court

interpreted the statements to be evidence of adversity, rather than

an explanation of or reason behind any of Claude's actions. In

order to fall under the state of mind exception to the hearsay

rule, the statements must be used to show "the declarant's thenexisting state of mind, emotion, sensation, or physical condition

II Rule 803(3), M.R.Evid. In Losson, the hearsay statement

met the Rule 803(3) exception because it explained the reason

behind the declarant's subsequent actions. Here, the court did not

connect Claude's statements to a state of mind reason for any of

Claude's actions. Rather than finding that Claude told Hal to do

certain things or that Claude himself did certain things because

Claude thought their use of Route B was adverse to the Carsons, the

court simply found that the statements themselves evidenced adverse

use. We conclude that the District Court abused its discretion in

admitting Claude Dale's notes as direct evidence that the Dales'

use of Route B was adverse rather than permissive.

The question remains, however, whether the District Court's

error in admitting Exhibit 29 for this purpose was reversible
error. "No civil case shall be reversed by reason of error which

would have no significant impact upon the result. Where there is

no showing of substantial injustice, the error is harmless and may

not be used to defeat the judgment." Paternity of W.L. (1995), 270

Mont. 484, 489-90, 893 P.Zd 332, 336 (citations omitted).

Rafanelli attempted to show at trial that the access across

Whiterock Ranch had always been on a permissive basis and,

therefore, that the Dales could not prove the adverse use element

necessary to establish a prescriptive easement. The District Court

found Rafanelli's evidence that the Carsons had granted the Dales

permission to use Route B less credible than the Dales' evidence

that they did not request permission.

The evidence that the Dales had disregarded the Carsons' two

letters requesting the Dales to arrange for permission to cross the

ranch, that the Carsons took no affirmative action to stop the

Dales' use of the access, and that the Dales had improved and

maintained Route B, is substantial evidence supporting the court's

finding of adverse use. The further finding that Claude's notes

were evidence of adverse USfZ was merely cumulative and not

necessary to the District Court's determination that the Dales' use

of Route B was adverse rather than permissive. Thus, the court's

finding that Claude Dale's hearsay notes were direct evidence of

adverse use did not have a significant impact on the result that

the court reached and did not cause substantial injustice to

Rafanelli.

We conclude that the District Court's abuse of discretion in

29
admitting Exhibit 29 as direct evidence of adverse use was harmless

and did not constitute reversible error.

Affirmed.

We concur:

30
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