No. 95-190 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1995

ANNABELLEGLENN,

Plaintiff and Respondent,
v.

Defendants andAppellants.

APPEALFROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark, TheHonorable Dorothy McCarter, Judge presiding.

COUNSELOFRECORD:

For Appellant: Norman H. Grosfield, Utick &Grosfield, Helena, Montana For Respondent: GuyW.Rogers, Brown, Gerbase, Cebull, Fulton, Harman &Ross, Billings, Montana

Submitted onBriefs: September 13, 1995
Filed: Decided: November 21, 1995Justice Terry N. Trieweiler delivered the opinion of the Court.

The plaintiff, Annabelle Glenn, filed a complaint and application for preliminary and permanent injunction in the District Court for the First Judicial District in Lewis and Clark County in order to compel defendants, the Grosfields, to remove a fence they had erected across aroadway which provided access to Glenn's property. The District Court held that Glenn and the Grosfields hadmutually consented to the relocation of the original prescriptive easement andgranted apermanent injunction forbidding blockage of the newroadway. Grosfields appeal that decision. We
reverse the order andjudgment of the District Court. Thedispositive issue onappeal is whether the District Court erred when it held that the location of the existing prescriptive easement could be changed based on the "tacit" consent of the defendants. FACTUALBACKGROUND Annabelle Glenn is the owner of approximately one and one-quarter acres of real property located near Lincoln, Montana. Glenn's property is part of alarger five-acre tract of land owned by her and her relatives, the Dunlaps, and the Dolsons. The five-acre tract hasbeenused byGlenn andher relatives primarily
as recreational property. The Grosfields own land which surrounds the land owned by Glenn andher relatives. Glenn, her neighbors, or her predecessors hadgained access to their property for nearly 100years byuse of

2adirt road which crossed the land ownedby Dunlaps, Dolsons, and

Grosfields. Grosfields concede that Glenn and her neighbors established a prescriptive easement across this "old road" for
access to their property. In 1986, Glenn fenced her parcel of land. In 1992 and 1993, Dolsons and Dunlaps fenced their land. Sothat it would not benecessary to install cattle guards or gates in their fences, Glenn, Dolsons, and Dunlaps quit using a portion of the old road andbegan using anewroad which avoided Dolsons' property and traversed a greater portion of Grosfields' property. Glenn and her neighbors began using the new road without specifically asking permission to use the portion of the road located on Grosfields' property. All the property owners, including the Grosfields, used the newroad for approximately two years, until September 1994, when the Grosfields placed abarbed wire fence across the portion of the road located on their property. AbeGrosfield testified at trial that he fenced the road on his property for his cattle ranch. Hefurther testified that he
never intended to relocate the road easement and that heused the
newroad because Glenn andher neighbors fenced off the old road. Grosfield also testified that at one time he graveled a small portion of the newroad for his ownuse.The District Court found that although Grosfields did not

express an intent, either oral or written, that the easement be permanently relocated, neither did they expressly object to the easement relocation. Thecourt found, therefore, that Grosfields gave their "tacit" consent for relocation of the easement. OnNovember 15, after ahearing, the District Court granted a preliminary injunction which required Grosfields to remove the fence they haderected. OnMarch 24, after atrial onthe merits, the District Court held that Glenn andthe Grosfields hadmutually consented to the relocation of the original prescriptive easement and granted an injunction which forbade blockage of the new roadway. DISCUSSION Did the District Court err whenit held that the location of the existing prescriptive easement could be changed based on the "tacit" consent of the defendants? Thestandard of review for adistrict court's findings of fact is whether they are clearly erroneous. Rule 52(a), M.R.Civ.P.; Brownv.Tinfinger (1990), 245 Mont. 373, 377, 801 P.2d 607, 609. Conclusions of law are reviewed to determine whether the court's interpretation andapplication of the law is correct. Jim’sExcavating Serv.,Inc.v.HKMAssocs. (1994), 265Mont. 494, 501, 878 P.2d 248, 252. Grosfields contend that the District Court erred whenit found that they consented to relocation of the easement and when it concluded that the "new road" constitutes an easement by
4prescription. Weneed not discuss the former contention because

the latter claim is dispositive. Section 70-20-101, MCA,provides: No estate or interest in real property, other than an estate at will or for aterm not exceeding 1year canbe created, granted, assigned, surrendered, or declared otherwise than by operation of law or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering, ordeclaring it or by his lawful agent thereunto authorized by writing. An easement is a nonpossessory interest in land, and therefore, it cannot becreated, granted, or transferred except by operation of law, byaninstrument in writing, or byprescription. WildRiverAdventuresv. BoardofTrustees (1991), 248Mont. 397, 400, 812 P.2d 344, 346; seeakoPrenticev.McKay (lPOP), 38Mont. 114, 118, 98P. 1081, 1083. Easements byprescription are created by operation of law. Woodsv.Houle (1988), 235Mont. 158, 160-62, 766 P.2d 250, 252.

Toestablish aneasement byprescription, the party claiming an easement "must show open, notorious, exclusive, adverse, continuous anduninterrupted use of the easement claimed for the full statutory period. The statutory period is five years." Unruhv. Tash (Mont. 1995), 896 P.2d 433, 435, 52St. Rep. 425, 427 (quoting PublicLandsAccessAss’n,Inc.v.Boone&CrockettClubFound.,Inc. (1993), 259 Mont. 279, 283, 856 P.2d 525, 527). All elements must be proven because "one whohas legal title should not be forced to give upwhat is rightfully his without the opportunity to knowthat his title is in jeopardy andthat hecanfight for it." Unruh, 896 P.2d at 436 (quoting PublicLandsAccess, 856 P.2d at 527). Eventhough
5all elements are necessary to establish aprescriptive easement,

this Court has stated that if the period of time in question is less than the statutorily prescribed five years, it is "immaterial" whether the defendant's Use was adverse or permissive--no prescriptive easement can be perfected without passage of the required five years. Brown, 801 P.2d at 609-10. In this case, the parties agree that the "new road" wasused for only two years. Therefore, wehold that Glenn is unable to establish an interest in a "newroad" byprescriptive easement. Glenn contends, based onour decision in Scottv. Weinheimer (1962), 140 Mont. 554, 562, 374 P.2d 91, 96, that the location of a prescriptive easement can be changed by mutual consent of the parties, and presumably without the necessity of a written easement. Reliance on Scott is misplaced. Scott involved an action to enforce aprescriptive easement across the adjoining land of the plaintiffs' neighbors which had been used by the plaintiffs and their predecessors for 45years. During the 45-year period, the defendants changed the location of the road andcontended that the change invalidated the easement sought bythe plaintiffs. Scott, 374 P.2d at 93. This Court held that "[tlhe plaintiffs' right in the easement,
as modified, became fixed after ten years acquiescence by both parties." Scott, 374 P.2d at 96. In soholding, the Court reasoned that while the plaintiffs did not expressly agree to the change, they acquiesced in the change and used the changed road for a 6period exceeding the statutory requirement for establishing a

prescriptive easement. (At that time, use for ten years was required.) Scott, 374 P.2d at 96. Tothe extent that Scott suggests that aprescriptive easement can be relocated byverbal or tacit consent, it is overruled. In Scott, the plaintiffs metthe ten-year statutory requirement. Glenn did not meet Montana's five-year statutory requirement. For these reasons, wehold that the District Court erred when it concluded that the location of the plaintiff's prescriptive easement could be changed by Grosfields' tacit consent without an instrument in writing which evidenced an intent to do so and without satisfying the requirements for an easement by prescription. We remand to the District Court for entry of judgment for the defendants.

Ju tide Weconcur

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