NO. 85-628 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

FRANCES H. STAMM, 

Plaintiff and Respondent, 

vs. 

PATRICIA ANN KEARNS KEHRER, 

the ESTATE OF IVA LEA ORR, a 

protected person; EVELYN ORR 

DORAN, et al., 

Defendants and Appellants. 

Appeal from: District Court of the Fifth Judicial District 

In and for the County of Beaverhead 

Counsel of Record: 

For Appellants: 

Schulz, Davis and Warren, Dillon, Montana 

John Warren, Dillon, Montana 

For Respondent: 

Max A. Hansen, Dillon, Montana 

-- 

Submitted on briefs: May 9, 1986 

Decided: June 19, 1986 

Filed: JUM L :I 1986 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Defendants appeal the judgment of the Fifth Judicial 

District Court, Beaverhead County, declaring plaintiff to be 

the owner of a prescriptive easement and granting injunctive 

relief. We affirm. 

Plaintiff Frances Stamm and defendant Patricia Kehrer 

are neighbors in Dillon, Montana. Mrs. Stamm resides at 22 

East Orr Street and Mrs. Kehrer resides at 44 East Orr 

Street. The two lots are separated by an alley which serves 

as a driveway for Mrs. Stamm and for tenants of a duplex 

located on the corner of Mrs. Kehrer's property. In 1982, 

Mrs. Kehrer commenced erecting a picket fence around her 

entire lot with a gate where the ally entered onto Orr Street 

and a gate in front of Mrs. Stamm's garage. Although the 

alley is on Mrs. Kehrer's property and the fence is located 

on the boundary of her lot, Mrs. Stamm filed suit claiming a 

prescriptive easement and requesting the portion of the fence 

interfering with her use of the alley be removed as a 

nuisance. 

Mrs. Stamm moved into her present residence in 1925 with 

her husband. In about 1929, Mr. Stamm had a garage built on 

the rear end of their lot, accessible by means of the alley. 

The adjacent lot was owned by the Orr family until 1981, when 

it was sold to Mrs. Kehrer. The Orrs and the Stamms were on 

friendly terms throughout the time they were neighbors. 

The Stamms used the alley daily for access to their 

garage, and regularly drove from the alley onto their lawn to 

wash their car or unload groceries by the back door. The 

portion of Stamms' lot behind the garage was used for parking 

when they had visitors. The alley was also frequently used 
by the public until the late 1950's when a cottonwood tree 

fell and blocked the way. 

The Stamms never asked permission of the Orrs to use the 

area in question. Although the property boundary was about 8 

feet west of the alley on the Stamms' side, the Stamms 

maintained the lawn and shrubbery on the subject parcel of 

land. Additionally, the Stamms filled in potholes, sprinkled 

during the summer to keep the dust down, and occasionally 

hauled in gravel for surface material. 

In 1975, the Orrs commenced construction of a snow fence 

around the rear portion of the Orr property with the 

intention of permanently closing the south end of the alley. 

When the workmen attempted to string the fence along the 

property boundary between the alley and the rear portion of 

Stammsl lot, Mrs. Stamm objected. (Mr. Stamm died in 1974.) 

After discussing the matter, the snowfence was halted 20 feet 

south of Mrs. Stammls garage so she would have continued 

access to the portion of her lot behind the garage. There 

was no snow fence erected north of her garage on the parcel 

of land between the alley and Mrs. Stamm's property line. 

In 1981, the Orrs sold their property to Mrs. Kehrer. 

In 1982, Mrs. Kehrer removed the snow fence and began 

construction of a 6 foot high picket fence around the 

entirety of her lot. Over Mrs. Stamm's objection, the fence 

was built along the boundary of her property with a gate to 

allow access to her garage and a gate at the alley's entrance 

onto Orr Street. The fence closed off Mrs. Stamm's access to 

the portion of her lot behind the garage, and prevented her 

from driving across her lawn to unload groceries at her back 

door. 

Mrs. Stamm filed suit alleging a prescriptive easement 

and requesting the fence be removed for obstructing the 
enjoyment and use of her property. A temporary restraining 

order was subsequently issued enjoining Mrs. Kehrer from 

continuing construction of the fence and requiring removal of 

the portions of the fence which obstructed Mrs. Stamm's 

access to her lot. 

A bench trial was held on April 26, 1985. The District 

Court found that Mrs. Stamm and her predecessors in interest 

have openly, notoriously, adversely, exclusively, and 

continuously used the alley for a period of 60 years; that 

Mrs. Kehrer failed to rebut the presumption of adverse use by 

any showing that the use was permissive; that Mrs. Stamm was 

the owner of a prescriptive easement for ingress and egress 

to her property and Mrs. Kehrer was barred from obstructing 

such use. Mrs. Kehrer appeals the judgment and raises the 

following issues: 

1) Whether the District Court's decision declaring Mrs. 

Stamm to be the owner of a prescriptively acquired easement 

is clearly erroneous? 

2) Assuming but not conceding that Mrs. Stamm owns an 

easement by prescription, do a fence and gates unreasonably 

interfere with Mrs. Stamm's access or constitute a nuisance? 

To establish a prescriptive easement, the claimant must 

show "open, notorious, exclusive, adverse, continuous and or 

interrupted use of the easement claimed for the full 

statutory period." Scott v. Weinheimer, 140 Mont. 554, 560, 

374 P.2d 91. The statutory period in Montana is 5 years 

pursuant to S 70-19-401. Once the claimant establishes these 

elements adverse use is presumed and the burden of proof 

shifts to the owner to show that the use was permissive. 

Rathbun v. Robson (Mont. 1983), 661 P.2d 850, 40 St.Rep. 475. 

In the present case, the District Court concluded that 

Mrs. Kehrer failed to rebut the presumption of adversity by 
any showing that Mrs. Stamm's use of the alley was 

permissive. On appeal, Mrs. Kehrer contends there is 

substantial evidence showing permissive use, and the District 

Court finding of a prescriptive easement is clearly 

erroneous. 

At trial, testimony revealed that Mr. Stamm made an 

offer in 1951 to buy from the Orrs the tract of land between 

the alley and the Stamms' property boundary. In 1975, Iva 

Lea Orr's attorney allegedly sent a letter to Mrs. Stamm 

assuring her continued use of the alley but stating that such 

use was permissive. Mrs. Stamm testified she never received 

the letter, and District Judge Davis, who was her attorney at 

the time, testified that Mrs. Stamm had likely not received 

the letter or she would have gone to his office to discuss 

it. 

Under Rule 52 (a) , M.R.Civ.P. the trial court's findings 

shall not be set aside unless clearly erroneous. While Mrs. 

Kehrer did produce some evidence showing permissive use, we 

cannot say as a matter of law that the District Court erred 

in finding Mrs. Kehrer failed to rebut the presumption of 

adverse use. There is substantial credible evidence 

supporting the finding of a prescriptive easement. Mrs. 

Stamrn prevented the erection of a snow fence 10 years ago 

over the area now in dispute, she has taken care of the lawn 

on her side of the alley for 60 years, and she has maintained 

the alley for the same period. 

The next issue we address is whether the fence 

constitutes a nuisance and interferes with Mrs. Stamm's 

access to her property. We agree with the District Court 

that the fence interferes with access to Mrs. Stamm's 

property and is a private nuisance. In the recent case of 

Flynn v. Siren (Mont. 1986), 711 P.2d 1371, 43 St.Rep. 10, 
this Court held that easement interference had occurred where 

the placing of gates and locked chains across a right of way 

obstructed passage of farm machinery and turned away 

potential business clients. Although Flynn involved a 

reserved easement, the general rule for easement interference 

as set forth in Flynn is applicable to the case at bar. 

The owner of a reserved easement may use it to the 

full use of the right retained. The owner of the 

servient tenement may make use of the land in any 

lawful manner that he chooses, which use is not 

inconsistent with and does not interfere with the 

use and right reserved to the dominant tenement or 

estate. 

Mrs. Kehrer contends no easement interference has 

occurred because the gates have never been locked and only on 

rare occasions have they been closed. We do not agree. Mrs. 

Stamm seeks to maintain access to her lawn, not just her 

garage, and the fence precludes such access. Further, Mrs. 

Stamm is an 84 year-old woman, and she testified that the 

gates were very difficult for her to maneuver. 

Nuisance is defined in S 27-30-101, MCA, in pertinent 

part as "Anything which is . . . an obstruction to the free 

use of property, so as to interfere with the comfortable 

enjoyment of life or property . . . " The evidence in the 

record reveals Mrs. Stamm1s previous uses of her property 

would be restricted by the placement of a fence along the 

property boundary and the gates are an obstruction to her use 

of the alley. 

The District Court is affirmed. 

We Concur: