No. 12595 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

ROBERT H. WILSON, 

Plaintiff and Respondent, 

CLOYD W. CHESTNUT, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellant : 

Gough, Booth, Shanahan and Johnson, Helena, Montana 

Ward A. Shanahan argued, Helena, Montana 

For Respondent : 

Anderson, Symmes, Forbes, Peete and Brown, Billings, 

Montana 

Weymouth D. Symmes argued, Billings, Montana 

Filed : 

JIjL 2 1911) 

Submitted: April 26, 1974 

Decided: ' cfUL 2 3 ly@ 
PER CURIAM: 

This is an appeal from a judgment for plaintiff entered 

upon findings of fact and conclusions of law by the district court 

of Stillwater County. The judgment declared plaintiff the owner 

of an easement by prescription for the use of a roadway across 

defendant's land and enjoined defendant from interfering with 

plaintiff's use of the roadway. Defendant appeals. 

The road in controversy is located in Stillwater County, 

southwest of Dean, Montana. The access road leaves the county road 

and enters property owned by a Mr. Keller, referred to in the transcript of proceedings as "The Orr Place." The road then enters 

onto defendant Cloyd W, Chestnut's land; proceeds approximately 

one-fourth mile across his property; then enters on plaintiff Robert 

H. Wilson's land terminating at some ranch buildings. Thereafter at 

least two trails lead to national forest land beyond plaintiff's 

property. 

No one measured the road, but estimates ran from Chestnut's 

estimate of the width at the cattle guard to each party's property 

of seven feet to estimates of fourteen to twenty feet at other 

portions of the road. 

The district court found the road had been in existence for 

some fifty years; dating back to 1920 when patents were issued to 

former owners of the lands now owned by the opposing parties. This 

road is, and has been since the patents were first issued, the only 

road and the only means of access to and from ~ilson's property. 

The district court also found the road is and has been for at least 

ten years and for many years prior thereto a well defined and well 

marked road so as to be clearly identifiable from aerial photographs 

and clearly marked on a topographical map marked as Exhibit #2. 

Chestnut is part owner with Iowa B. Spicer and Alena Chestnut 

of the lands the road in controversy traverses. They purchased the 

property in 1959 and have raised cattle on the land since that time, 
Wilson is the equitable owner of real property located adjacent 

to and southwest of Chestnut's land under a contract for deed. The 

property was purchased on May 16, 1972 from Standwood Williams. The 

contract was subject to a previous contract between Williams as 

buyer, and E. D. Morehad, as seller, which was dated 1968. 

The district court found that in the late 1920's and early 

1930's a lodge capable of entertaining several hundred people was 

constructed on the premises now owned by Wilson. This property 

was then known as the "4~" and had been operated as a dude or guest 

ranch. From time to time throughout the years, entertainment and food 

were supplied by the owners of the 4K ranch for groups such as the 

Jaycees, and all used the disputed roadway to gain access to the 4K 

ranch. Moreover, witnesses testified the roadway was never closed 

by gates, and was occasionally used by the general public as an 

access way into the national forest protected only by cattle guards 

at the boundary line of each owner's property. 

Shortly after Wilson purchased the 4K ranch he began an advertising campaign introducing a real estate development on the renamed Island Lake Ranch. Realizing the distinct possibility of an 

increased burden on the roadway Chestnut constructed a locked gate 

across the road. Shortly thereafter Wilson obtained a temporary 

restraining order against Chestnut, preventing interference with 

Wilson and his invitees from traveling over and across the road. 

Chestnut was ordered to remove the gate or other device blocking or 

interfering with the use of the road. The matter was later set 

for trial before the district court, sitting without a jury, on 

Wilson's claim cf a "prescriptive right1' to use the road across 

Chestnut's property. 

Following trial the district court entered findings of fact, 

conclusions of law, and judgment followed on July 11, 1973, in favor 

of Wilson. On July 25, 1973, Chestnut filed his proposed amendments 

and exceptions to the court's findings and judgment. These were deemed 

denied because of lapse of time, pursuant to Rule 59, M.R.Civ.P., and 

on August 10, 1973, Chestnut filed notice of appeal to this Court. 
The district court then entered an order staying execution and 

preserving the status quo existing in June 1972, pending disposition 

of the appeal. 

On appeal Chestnut presents several issues for review which 

require consideration of the judgment in some detail. In pertinent 

part the judgment reads: 

"4. The Plaintiff and his successors in interest 

and the plaintiff's guests and invitees, as well as the 

Plaintiff's successors in interest, have acquired a prescriptive right to use the roadway undisputed which is 

20 feet in width, extending from the easterly boundary 

line of the Defendant's lands to the boundary line of the 

plaintiff's lands. 

"5. That in the event it should be determined by a 

higher court that this Court erred in its conclusion of 

law No. 4, then in such event the Court concludes that the 

Plaintiff and the other individuals described in paragraph 4 have acquired an easement by necessity over and 

across the ~efendant's lands 20 feet in width and extending 

from the easterly boundary of the Defendant's lands to the 

lands owned by the Plaintiff. 

"6. That in any event, under the deed to the Defendant 

and to his predecessors in interest their property was acquired subject to the easements of the present roadway which 

is the subject of dispute in this action for the use of the 

public generally. 

"7. In the event all of the foregoing conclusions 

of law are reversed by the Supreme Court of the State of 

Montana, the Court concludes that the Plaintiff and his 

successors in interest in whole or in part are entitled 

to a 20 foot roadway across the Defendant's lands by way 

of condemnation using the existing roadway and subject to 

whatever compensation to the Defendant that the Court 

might subsequently find, " 

The form of the judgment presents three issues: 

First. Did the district court err in concluding that Wilson 

had established a prescriptive easement across Chestnut's land? 

The applicable statute to the issue in controversy is section 

67-1203, R.C.11. 1947, which provides: 

"Occupancy for the period prescribed by Title 93 

as sufficietlt to bar an action for the recovery of 

the property confers a title thereto, denominated a 

title by prescription, which is sufficient against 

all. " 

In Title 93, referred to in section 67-1203, are sections 93-2501 

to 93-2516, inclusive, which prescribe five years as the period of 

limitations required to establish a presumption that the land was 
used under a claim of right, and adverse; i.e. sufficient to establish 

a title by prescription and to authorize the presumption of a grant. 

Te Selle v. Storey, 133 Mont. 1, 319 P.2d 218. 

The applicable principles to establish an easement by prescription were set forth in Scott v. Weinheimer, 140 Mont. 554, 

560, 374 P.2d 91 and reiterated in Lunceford v. Trenk, Mon t . 

I I To establish the existence of an easement by 

prescription, the party so claiming must show 

open, notorious, exclusive, adverse, continuous 

and uninterrupted use of the easement claimed 

for the full statutory period." 

This Court in conno nor v. Brodie, 153 Mont. 129, 137, 454 

P.2d 920, commented: 

"'Where the claimant has shown an open, visible, 

continuous, and unmolested use of the land of 

another for the period of time sufficient to acquire title by adverse possession, the use will be 

presumed to be under a claim of right and not by 

license of the owner. In order to overcome this 

presumption, thereby saving his title from the incumbrance of an easement, the burden is upon the owner to 

1 show that the use was permissive. Glanz v. Gabel, 66 

Mont. 134, 141, 212 P. 858, 860." 

Wilson introduced evidence of the road's use by his predecessors to gain access to the 4K ranch for a period of time 

sufficient to meet the five years required by statute. In addition, he presented evidence of occasional use by the general public. 

But, the mere use of the road in controversy for the required 

time is not sufficient to create a title by prescription. Le Vasseur 

v. Roullman, 93 Mont. 552, 20 P.2d 250. 

Chestnut argues that Wilson has failed to show open, notorious, 

exclusive, adverse, continuous and uninterrupted use of the easement for the full statutory period. He maintains the use of the road 

for access to the 41C ranch was by permission, thus lacking the required proof of adversity and hostility. To support this contention 

Chestnut refers to the testimony of Stantirood Williams, ~ilson's 

predecessor in interest to the 4K ranch: 
"Q. Well, what did Mr., the substance of what Mr. 

Morehead told you? [Morehead wastk obmer of the 

4K before Williams, and at the time the action 

was commenced the legal title holder of the property.] 

"A. Well, the substance of what he, of my understanding from him, was that we were allowed use of the 

road by Chestnut, use of +he road across chestnut's 

property by Chestnut. I never was given to understand 

that there was anything in writing, but that there was 

use of the road allowed to Morehead by Chestnut. I I 

Although Morehead did not recall specifically telling Williams of 

this permission, Williams (who was the equitable owner from 1968 

to 1972 when it was transferred to Wilson) was clearly under the 

impression that use of the road was by permission of Chestnut. 

From the time Morehead purchased the 4K ranch in 1964 until 

he sold it to Williams in 1968, Morehead testified to cordial, 

neighborly relations between himself and Chestnut. Chestnut visited 

the 4K for dinner as a guest at various times. During the winter 

Morehead lived on the property; Chestnut helped him and his family 

get in and out of the property by a different route because the 

existing road was impassable. 

The use of the road by Wilson's predecessors was limited to 

the summer months for operation of the dude ranch, according to 

witness Kratz, and Morehead who ran it for nine years. They would 

11 get over there about May 15 to start cleaning it up" and by Labor 

day it was pretty well over. Testimony also shows that any previous 

use was clearly interrupted while Williams owned the property. 

Its use as a dude ranch was abandoned in 1971 and subsequently it 

was leased for cattle grazing. 

In 2 Thompson on Real Property (1961 Replacement), Easements, 

$345, the general rule regarding the effect of permission upon 

prescription is aptly stated: 

I I Since prescription must be by adverse use, no use 

with permission of the owner can ripen into prescription. No easement by prescription can be acquired 

where the privilege is used by the express or implied 

permission or license of the owner of the land * +c *. I I The mere use of a way for the required time is generally not sufficient to give rise to the presumption of 

a grant, and generally some circumstances or act, in 
addition to the use, tending to indicate that the 

use was not merely permissive, is required. When 

the use of a way has begun by permission it is presumed so to continue as respects the question of 

prescription. Although the acquisition of a way by 

prescription does not preclude the use by the servient 

owner or by the public, it does require a use as of 

right and not by favor or permission, and no prescriptive 

right arises if the use originated in amity and continued in recognition of the owner's title. If the use 

of a way over one's land be shown to be permissive only, 

no right to use it is conferred though the use may have 

continued for a century, or any length of time. Such 

permission may be withdrawn at any time, however long continued. i'i ik 9: 

If* * *A use of a neighbor's land based upon mere neighborly accommodation or courtesy is not adverse and cannot ripen into a prescriptive easement. Thus where the 

use of a way by a neighbor was by express or implied permission of the owner, it was held that the continuous use 

of the way by the neighbor was not adverse and did not 

ripen into a prescriptive right. 9: * * 

"* % If the user began by the permission of the owner, 

itwill not ripen into an adverse or hostile right until 

notice of such adverse user is brought home to the ovmer 

and the user continued thereafter for the statutory period." 

In the instant case, unlike Lunceford relied on by Wilson, 

the owner of the servient tenement, Chestnut, presented evidence 

sufficient to establish permissive use of the road in controversy. 

Second. Since we have determined the district court erred 

in determining that Wilson had a prescriptive easement across 

Chestnut's land, did the district court further err in determining 

that Wilson was entitled to either an easement by necessity, or to 

acquisition of the roadway by condemnation proceedings? 

On the mord we hold that it did. Even a cursory reading of 

the record shows a failure of proof to support either contention. 

Such evidence as there is tends to the contrary. Wilson obtained 

a 60 foot easement from one Horton, a neighbor of Chestnut, which runs 

to within 100 feet of the county road. At that point a steep embankment presents a problem, so that an additional easement from 

Keller would be necessary to reach the county road. In addition, 

there was testimony as to the possibility, never consummated, of 

the forest service providing some sort of access to ~ilson's ranch. 

Suffice it to say the foregoing, coupled with the lack of any evidence as to necessity, is not sufficient to support a judgment for an 

easement by necessity, i.e. condemnation proceedings. 
Third. Did the district court err in determining that 

Chestnut acquired his property subject to an easement for a roadway 

across his property for the use of the public? 

We hold that it did. Chestnut's deed contains the following 

reservation: 

It Subject to the reservations contained in the United 

States patent, prior conveyances of record and easements for roads and ditches as now established and 

located upon or across said premises.'' 

It is elementary that if the "reservations" did in fact grant to 

the public an easement across Chestnut's land, he took subject to 

it. Did the clause in the deed reserve to the public such an easement? We think not. It is the majority rule in other jurisdictions 

that an easement cannot be reserved in favor of a stranger to the 

deed. See Annotation, 88 ALR2d 1199. We are aware of the trend 

of cases which tend to avoid technical distinctions in order to give 

effect to the grantor's intent. For example: Thisted v. Country 

Club Tower Corp., 146 Mont. 87, 405 P.2d 432, Where it appears 

in a proper case, we will not hesitate to do so. But here there 

is nothing to suggest that a departure from the established rule 

is indicated. For aught that appears in the record, it is as 

likely the purpose of the clause in Chestnut's deed was to protect 

the grantor's warranty of title, as to reserve an easement to the 

public. 

For the foregoing reasons the judgment is reversed,