No. 95-190 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

ANNABELLE GLENN, 

Plaintiff and Respondent, 

v. 

Defendants and Appellants. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Norman H. Grosfield, Utick & Grosfield, 

Helena, Montana 

For Respondent: 

Guy W. Rogers, Brown, Gerbase, Cebull, Fulton, 

Harman & Ross, Billings, Montana 

Submitted on Briefs: September 13, 1995 

Filed: 

Decided: November 21, 1995 
Justice 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 a roadway which provided access to 

Glenn's property. The District Court held that Glenn and the 

Grosfields had mutually consented to the relocation of the original 

prescriptive easement andgranted a permanent injunction forbidding 

blockage of the new roadway. Grosfields appeal that decision. We 

reverse the order and judgment of the District Court. 

The dispositive issue on appeal 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. 

FACTUAL BACKGROUND 

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 a larger five-acre tract of land owned 

by her and her relatives, the Dunlaps, and the Dolsons. The 

five-acre tract has been used by Glenn and her relatives primarily 

as recreational property. 

The Grosfields own land which surrounds the land owned by 

Glenn and her relatives. Glenn, her neighbors, or her predecessors 

had gained access to their property for nearly 100 years by use of 

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a dirt road which crossed the land owned by 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. 

So that it would not be necessary to install cattle guards or 

gates in their fences, Glenn, Dolsons, and Dunlaps quit using a 

portion of the old road and began using a new road 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 new road for approximately two 

years, until September 1994, when the Grosfields placed a barbed 

wire fence across the portion of the road located on their 

property. 

Abe Grosfield testified at trial that he fenced the road on 

his property for his cattle ranch. He further testified that he 

never intended to relocate the road easement and that he used the 

new road because Glenn and her neighbors fenced off the old road. 

Grosfield also testified that at one time he graveled a small 

portion of the new road for his own use. 
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. The court found, therefore, that Grosfields 

gave their "tacit" consent for relocation of the easement. 

On November 15, after a hearing, the District Court granted a 

preliminary injunction which required Grosfields to remove the 

fence they had erected. On March 24, after a trial on the merits, 

the District Court held that Glenn and the Grosfields had mutually 

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 when it held that the location of 

the existing prescriptive easement could be changed based on the 

"tacit" consent of the defendants? 

The standard of review for a district court's findings of fact 

is whether they are clearly erroneous. Rule 52(a), M.R.Civ.P.; 

Brown v. Tinfinger (1990), 245 Mont. 373, 377, 801 P.2d 607, 609. 

Conclusions of law are reviewed to determine whether the court's 

interpretation and application of the law is correct. Jim’s Excavating 

Serv.,Inc.v. HKMAssocs. (1994), 265 Mont. 494, 501, 878 P.2d 248, 252. 

Grosfields contend that the District Court erred when it found 

that they consented to relocation of the easement and when it 

concluded that the "new road" constitutes an easement by 

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prescription. We need 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 a term not exceeding 1 year can be 

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, or declaring 

it or by his lawful agent thereunto authorized by 

writing. 

An easement is a nonpossessory interest in land, and 

therefore, it cannot be created, granted, or transferred except by 

operation of law, by an instrument in writing, or by prescription. 

WildRiverAdventuresv. BoardofTrustees (1991), 248 Mont. 397, 400, 812 P.2d 

344, 346; seeakoPrenticev.McKay (lPOP), 38 Mont. 114, 118, 98 P. 1081, 

1083. Easements by prescription are created by operation of law. 

Woodsv.Houle (1988), 235 Mont. 158, 160-62, 766 P.2d 250, 252. 

To establish an easement by prescription, the party 

claiming an easement "must show open, notorious, 

exclusive, adverse, continuous and uninterrupted 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, 52 St. Rep. 425, 427 

(quoting Public Lands Access Ass’n, Inc. v. Boone & Crockett Club Found., Inc. (19 93 ) , 

259 Mont. 279, 283, 856 P.2d 525, 527). All elements must be 

proven because "one who has legal title should not be forced to 

give up what is rightfully his without the opportunity to know that 

his title is in jeopardy and that he can fight for it." Unruh, 896 

P.2d at 436 (quoting PublicLandsAccess, 856 P.2d at 527). Even though 

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all elements are necessary to establish a prescriptive 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" was used 

for only two years. Therefore, we hold that Glenn is unable to 

establish an interest in a "new road" by prescriptive easement. 

Glenn contends, based on our 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 a prescriptive easement across the adjoining land of the 

plaintiffs' neighbors which had been used by the plaintiffs and 

their predecessors for 45 years. During the 45-year period, the 

defendants changed the location of the road and contended that the 

change invalidated the easement sought by the 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 so holding, 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 

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period exceeding the statutory requirement for establishing a 

prescriptive easement. (At that time, use for ten years was 

required.) Scott, 374 P.2d at 96. To the extent that Scott suggests 

that a prescriptive easement can be relocated by verbal or tacit 

consent, it is overruled. 

In Scott, the plaintiffs met the ten-year statutory requirement. 

Glenn did not meet Montana's five-year statutory requirement. 

For these reasons, we hold 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 

We concur 

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