IN THE SUPREME COURT OF THE STATE OF MONTANA 

DAN C. RASMUSSEN, 

Plaintiff, Respondent 

-vsPHILLIP FOWLER, Defendant a 

and Cross-Appellant, 

nd Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable Edward McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James A. Haynes, Hamilton, Montana 

For Respondent: 

Ralph B. Kirscher, Worden, Thane & Haines, Missoula, 

Montana 

Filed: 

submitted: September 31, 1990 

~ecided: November 15, 1990 
Justice John C. Sheehy delivered the Opinion of the Court. 

Phillip Fowler appeals from the judgment of the District Court 

of the Fourth Judicial District, Ravalli County, holding Rasmussen 

to be entitled to access across Fowler's property by virtue of 

prescriptive right. We affirm the District Court. 

Fowler presents the following issues: 

1. Whether the District Court erred in determining a public 

easement exists on McFadgeon Road. 

2. Whether the District Court erred in determining Rasmussen 

has a prescriptive easement in the McFadgeon Road. 

The Rasmussen family purchased dryland farm property in 1955 

from Lawrence McFadgeon. In 1965, McFadgeon gave over his 200 acre 

state land agricultural lease to the Rasmussens. To gain access 

to the leased land, McFadgeon had crossed the land currently owned 

by Fowler for more than forty years. The road was commonly 

referred to as the McFadgeon Road by area landowners. 

Appellant Fowler purchased his property in 1975. The 

McFadgeon road runs across Fowler's property, passing between his 

house and barn. 

Dan Rasmussen acquired the farm from his parents in 1972. He 

has continuously resided and worked upon the farm from 1955 to the 

present, excepting three years of college. Rasmussen, as his 

father and Lawrence McFadgeon before him, used the road to reach 

his state leasehold. In that practice, Rasmussen has driven 

trucks, combines, rod weeders and other farm machinery over the 

road without seeking permission from Fowler or his predecessors. 

2 
At the time Fowler acquired his property, a problem arose 

through increased use of the road by people not associated with any 

farming or ranching interests in the area. A decision was made by 

Fowler, Rasmussen and Robert Bandy, who also used the road, to 

install a locking gate. Keys were distributed to all, including 

other families who used the road for access. All parties continued 

to use the road as they had in the past. 

In 1987, Fowler erected a new gate across the road with a 14- 

foot wide clearance. At that time, Rasmussen indicated to Fowler 

that he could not drive his combine through, as it needed at lest 

a 22- to 24-foot clearance. No change in the gate width was made. 

Fowler soon informed Rasmussen to cease using the road, and Fowler 

thereafter chained and locked the gate shut. 

Rasmussen subsequently filed a complaint and request for an 

injunction on August 17, 1987, i'n order to harvest his wheat crop 

on his leasehold. A hearing was held on August 27, 1987, and the 

District Court granted Rasmussen a preliminary injunction, ordering 

all locks and chains removed and interference to cease. 

On May 23, 1988, Fowler was ordered to remove any gates or 

posts encumbering Rasmussenls access. A hearing was held two days 

later, with Fowler appearing through counsel. The court advised 

counsel to instruct Fowler to remove the portion of the gate 

obstructing Rasmussenls farm equipment movement within three days. 

Trial was held on August 29, 1988. The court issued findings 

of fact and conclusions of law on November 4, 1988, and concluded 

that Rasmussen and his predecessors had established the following 
prescriptive rights in McFadgeon Road: 

1. A commercial easement in gross for the benefit of 

Rasmussen and his farmlands; 

2. An easement appurtenant to the state leased land for 

the limited benefit of agricultural lessees of the state 

land; and 

3. A public easement to the state land in accordance 

with historical use. 

The court ruled Rasmussen's easement to extend to all general 

farming and ranching purposes as exercised in the past, and that 

the use rights were conveyable by him to successors for the same 

purposes. The court further ordered all impediments removed and 

reconstruction of the gate to afford Rasmussen access with his 

equipment. Rasmussen was further granted right of reasonable 

maintenance and attorney fees, costs and punitive damages. 

Final judgment and order was entered on January 12, 1990. The 

court amended the earlier findings to establish that the McFadgeon 

Road followed a definite course, a necessary element for the 

existence of a prescriptive public easement. In addition, the 

court reserved the issue of punitive damages pending a violation 

of the order and judgment, and denied attorney fees. Fowler 

appeals from the judgment, and Rasmussen cross-appeals the denial 

of punitive damages and attorney fees. 

We address first and primarily the issue of a public 

prescriptive easement. It is well established that a prescriptive 

easement may be acquired by open, exclusive, notorious, continued 

and uninterrupted use for a period of five years. Section 70-19- 

401, MCA; Parker v. Elder (1988), 233 Mont. 75, 758 P.2d 292; Stamm 
v. Kehrer (1986), 222 Mont. 167, 720 P.2d 1194; Rathbun v. Robson 

(1983), 203 Mont. 319, 661 P.2d 850; Garrett v. Jackson (1979), 183 

Mont. 505, 600 P.2d 1177. 

The record in the instant case is replete with evidence of an 

adverse use of the McFadgeon Road rather than a permissive use. 

Testimony by current and past landowners using the road documented 

public use of the road going back over 50 years. During that 

period, various gates were installed along the road for the purpose 

of keeping cattle from roaming, not to deny access. Until Fowler 

locked his gate, no evidence of restricting public use was shown, 

save one. In that instance, Rasmussen's predecessor, Lawrence 

McFadgeon instituted a civil suit in 1949 to enjoin one George 

Schwab from closing off the road. The record discloses that the 

suit was dismissed and Schwab thereafter made it known the road was 

not to be closed. 

In Johnson v. McMillan (1989), 238 Mont. 393, 778 P.2d 395, 

a case very similar to the instant case, this Court reaffirmed the 

rule that a gate erected "not to stop people but cattle, is not 

enough standing alone to rebut the presumption established by such 

. . . long public use. 

Most of those testifying stated they used the road, without 

seeking permission, to gain access to their lands. Others 

testified that the county claimed the road for a period, and 

provided a grader to be used in its maintenance. This is on all 

fours with McClurg v. Flathead County Commissioners (1980), 188 

Mont. 20, 610 P.2d 1153, wherein the landowner attempted to close 
a road used by the public for over 33 years in a continuous, 

uninterrupted and adverse manner. This Court held that the 

public's continued adverse use, and the grading and maintaining of 

the road without the landowner's permission were sufficient to show 

adverse control. 

There is substantial evidence here to support a finding that 

public travelers pursued a definite, fixed course, continuously and 

uninterruptedly, over the road for at least 50 years. Fowler's 

evidence of permissive use is scant. Absent a demonstration of a 

clearly erroneous determination by the district court, we will 

affirm. Rule 52 (a), M.R.Civ. P. District courts sitting as finders 

of fact occupy the best position to determine if a use has been 

permissive or adverse. Lunceford v. Trenk (1974), 163 Mont. 504, 

518 P.2d 266. 

The District Court's finding of a public easement to the state 

land in accordance with historical use is sufficient to grant 

Rasmussen a continuing unimpeded right of way to his leasehold. 

Although it need not have further ruled, the District Court also 

found Rasmussen entitled to both an easement in gross and an 

easement appurtenant to his agricultural leasehold. Fowler 

contends error in both findings. 

It is sufficient to say that the District Court's conclusions 

have an adequate grounding in fact and law. Rasmussen presented 

substantial credible evidence of adverse use. Fowler failed to 

overcome the disputable presumption by contrary preponderant 

evidence. Rule 301(b)(2), M.R.Evid.; Parker v. Elder, supra. An 
easement in gross may be obtained by prescription. Restatement of 

Property, 5 454, supplement at 29. As for an easement appurtenant, 

Fowler maintains that the state land is the dominant tenement, and 

that Rasmussen, as a mere lessee, cannot be granted a prescriptive 

right. We agree that Rasmussen cannot be granted an easement 

appurtenant to the state land, but hold that the lower court 

rightly determined that there is such a right recognized in favor 

of the State as the owner through long historical use, and that 

Rasmussen, in his standing, as lessee, has the right of use of that 

easement for agricultural purposes. 

Rasmussen cross-appeals the denial of punitive damages and 

attorney fees originally awarded him. 

Rasmussen was granted entitlement to damages, punitive 

damages, and attorney fees by the District Court in its order of 

November 4, 1988. In the final judgment and order entered January 

12, 1990, Judge McLean denied the right to attorney fees awarded 

by his predecessor, Judge Wheelis. In addition, the District Court 

in its judgment reserved the imposition of punitive damages pending 

any violation of the final judgment and order. 

Section 27-1-221, MCA, states that ttreasonable punitive 

damages may be awarded where the defendant has been guilty of 

actual fraud or actual malice." Subsection (2) states that actual 

malice exists where the defendant "has knowledge of facts or 

intentionally disregards facts that create a high probability of 

injury to the plaintiffbb and proceeds to act in disregard or 

indifference to the high probability of injury. Fowler clearly did 
so here. Despite being told by his predecessor and others that the 

road was to remain open, and being told by Rasmussen that a new 

gate would unable him to harvest his leasehold crop, Fowler 

proceeded to block the McFadgeon Road. 

Our reading of the judgment granted by the District Court is 

that it granted injunctive relief to Rasmussen as well as nominal 

compensatory damages, and held open the possibility of punitive 

damages if Fowler violated the order and judgment. The District 

Court also denied attorney fees to Rasmussen, although such damages 

are sometimes awarded in cases involving injunctive orders. The 

reason for denial of punitive damages at the judgment stage are 

probably that the earlier order granted by the court served to keep 

the road open and unobstructed during the litigation. It does not 

appear the earlier order was disobeyed. The District Court does 

not appear to be clearly erroneous at this stage, so we affirm the 

District Court's order on punitive damages. We also affirm the 

decision of the District Court not to award attorney fees. The 

only statutory provision in which this Court has found reason to 

grant attorney fees is 5 27-19-406, MCA, and this statute refers 

only to parties who obtain a dissolution of an injunctive order. 

Northern Border Pipeline Co. v. State (1989), 237 Mont. 133, 772 

We Concur: 

Justice 6'