No. 12595 INTHE 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: ' 

## cfUL23ly@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 interferingwith plaintiff's use of the roadway. Defendant appeals. The road incontroversy islocated in Stillwater County, southwest of Dean, Montana. The access road leaves the county road and enters property owned by a Mr. Keller, referred to inthe transcript of proceedings as "The OrrPlace." 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 tonational forest land beyond plaintiff's property. No one measured the road, but estimates ran from Chestnut's estimate of thewidth atthe cattle guard to each party's property of seven feet to estimates of fourteen to twenty feet atother portions of the road. The district court found the road had been inexistence for

some fiftyyears; datingback 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 isand has been for at least ten years and formany years prior thereto a well defined and well marked road so as tobe clearly identifiable from aerial photographs and clearlymarked on a topographical map marked as Exhibit #2. Chestnut ispart owner with Iowa B. Spicer and Alena Chestnut of the lands the road incontroversy traverses. They purchased the property in 1959 and have raised cattleon 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 onMay 16, 1972 from StandwoodWilliams. The contractwas subject to a previous contractbetween Williams as buyer, and 

### E. D. Morehad, as seller,whichwas 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 suppliedby 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

accessway 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 increasedburden on the roadway Chestnut constructed a locked gate across the road. Shortly thereafterWilson obtained a temporary restraining order against Chestnut,preventing interferencewith Wilson and his invitees from traveling over and across the road. Chestnutwas ordered to remove the gate or other deviceblocking or interferingwith the use of the road. The matter was later set for trial before the district court, sitting without a jury, on Wilson's claimcf 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 ofWilson. On July 

### 25, 1973,Chestnut filed his proposed amendments and exceptions to the court's findings and judgment. Thesewere deemed denied because of lapse of time,pursuant to Rule 

### 59,M.R.Civ.P., and

onAugust 

### 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 issuesfor review which require considerationof the judgment in some detail. Inpertinent 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 roadwayundisputed 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 determinedby a higher court that this Court erred in its conclusion of lawNo. 

### 4,then in such event the Court concludes that the Plaintiff and the other individuals described in paragraph 

### 4have acquired an easementby necessity over and across the ~efendant'slands 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 propertywas acquired subject to the easements of the present roadwaywhich 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 inwhole or inpart are entitled to a 20 foot roadway across the Defendant's landsby way of condemnationusing 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 theperiod prescribed by Title 93 as sufficietlt to bar an action for the recovery of the property confers a title thereto,denominated a 

### titleby prescription,which is sufficientagainst all.

## " InTitle 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 landwasused under a claim of right, and adverse; i.e. sufficient to establish

a titleby prescription and toauthorize the presumption of a grant. Te Sellev. Storey, 133Mont. 1, 319 P.2d 218. The applicable principles to establish an easement by prescriptionwere set forth in Scott v. Weinheimer, 140 Mont. 554, 560, 374 P.2d 91and reiterated inLunceford v. Trenk, Mont

# .

II

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, 153Mont. 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 toacquire titleby adverse possession, theusewillbe presumed tobe under a claim of right and notby license of the owner. In order to overcome this presumption, thereby saving his title from the incumbrance of an easement, theburden isupon the owner to 1 show that theuse 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 tothe 4Kranch for a period of time sufficient tomeet the fiveyears required by statute. In addition, he presented evidence of occasional use by the general public. But, the mere use of the road incontroversy for the required time isnot sufficient to create a titleby prescription. Le Vasseur

v. Roullman, 93 Mont. 552, 20 P.2d 250. Chestnut argues thatWilson has failed to show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement for the full statutory period. He maintains theuse of the road for access to the 41C ranchwas by permission, thus lacking the required proof of adversity and hostility. To support this contention Chestnut refers tothe testimony of Stantirood Williams, ~ilson's predecessor ininterest tothe 

### 4K ranch:"Q. Well, what did Mr., the substance ofwhat Mr. Morehead told you? [Moreheadwastk obmer of the 4Kbefore Williams, and at the time the action was commenced the legal title holder of the property.] "A. Well, the substance ofwhat he, of my understanding fromhim,was that we were allowed use of the road by Chestnut,use of +heroad across chestnut's property by Chestnut. 

### Ineverwas given to understand that therewas anything in writing,but that therewas use of the road allowed to Morehead by Chestnut.II Although Morehead did not recall specifically tellingWilliams of this permission, Williams (whowas the equitable owner from 1968 to 1972when itwas transferred to Wilson) was clearlyunder the impression that use of the road was by permission of Chestnut. From the time Morehead purchased the 4Kranch in 1964until 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 thewinter 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 summermonths for operation of the dude ranch, according to witness Kratz,and Morehead who ran it fornineyears. Theywould

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 interruptedwhile Williams owned the property. Its use as a dude ranchwas abandoned in 1971and subsequently it

was leased for cattle grazing. 

### In 2 Thompson on Real Property (1961Replacement), Easements, $345,the general rule regarding the effect of permission upon prescription is aptly stated:

IISince prescription must be by adverse use, no use with permission of the owner can ripen into prescription. No easement by prescription canbe acquired where the privilege is used by the express or implied permission or license of the owner of the land

# * +c 

# *.

IIThemere 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, inaddition 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 doesnot preclude the use by the servient owner orby the public, it does require a use as of right and notby 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. Thuswhere the use of a way by a neighborwas by express or implied permission of the owner, itwas held that the continuoususe of the way by the neighborwas not adverse and did not ripen into a prescriptive right. 9: 

# ** "* % If theuser began by the permission of the owner, itwillnot 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 statutoryperiod." In the instant case,unlike Lunceford relied on by Wilson, the owner of the servient tenement, Chestnut,presented evidence sufficient to establish permissiveuse of the road in controversy. Second. Sincewe 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 themordwe 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, therewas testimony as to the possibility, never consummated,of the forest service providing some sort of access to ~ilson'sranch. 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 acquiredhis 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 conveyancesof record and easements for roads and ditches asnow 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 themajority rule in other jurisdictions that an easement cannotbe reserved in favor of a stranger to the deed. SeeAnnotation, 

### 88 ALR2d 1199. We are aware of the trend of caseswhich tend to avoid technical distinctions in order to give effect to the grantor's intent. For example: Thisted v. Country Club Tower Corp., 146Mont. 87,405 P.2d 432, Where it appears in a proper case,wewill nothesitate 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 foregoingreasons the judgment isreversed,