IN THE SUPREME COURT OF THE STATE OF MONTANA

DAN C. RASMUSSEN, Plaintiff,Respondent-vsPHILLIP FOWLER, Defendant aand 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, 1990Justice John C. Sheehy delivered the Opinion of the Court. Phillip Fowler appeals fromthe judgmentof theDistrictCourt 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. Fowlerpresents 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 determiningRasmussen has a prescriptive easement in the McFadgeon Road. The Rasmussen family purchased dryland farm property in 1955 fromLawrenceMcFadgeon. 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 fromhis parents in 1972. He has continuouslyresided 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. 2At the time Fowler acquired his property, a problem arose through increaseduse of theroadbypeople not associated with any farming or ranching interests in the area. A decisionwas made by Fowler, Rasmussen and Robert Bandy, who also used the road, to install a locking gate. Keys were distributed to all, including other familieswho 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 roadwith 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 ceaseusing 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'norder to harvest his wheat crop

on his leasehold. A hearing was held on August 27, 1987, and the District CourtgrantedRasmussenapreliminary injunction,ordering all locks and chains removed and interference to cease. On May 23, 1988, Fowler was ordered to remove any gates or posts encumberingRasmussenls access. 

### A hearingwas held two days later, with Fowler appearing through counsel. The court advised counsel to instruct Fowler to remove the portion of the gate obstructingRasmussenlsfarm equipmentmovement within threedays. Trialwas held onAugust 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 followingprescriptive 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 ruledRasmussen'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 judgmentand order was entered on January 12, 1990. The court amended the earlier findings to establish that theMcFadgeon 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 iswell established that a prescriptive easementmay be acquired by open, exclusive, notorious, continued and uninterrupted use for a period of five years. Section 70-19- 401,MCA; Parkerv. Elder (1988), 233 Mont. 75,758 P.2d 292;Stammv. Kehrer (1986), 222 Mont. 167, 720 P.2d 1194;Rathbun v. Robson (1983), 203Mont. 319, 661P.2d 850;Garrettv. Jackson (1979),183 Mont. 505, 600 P.2d 1177. The record in the instant case is repletewith 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 installedalong theroad for thepurpose 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 suitwasdismissed and Schwab thereafter made itknown the roadwas not to be closed. In Johnson 

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

a casevery similarto 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 closea road used by the public for over 33 years in a continuous, uninterrupted and adverse manner. This Court held that the public's continued adverseuse, and the grading andmaintaining of theroadwithout the landowner'spermissionwere sufficientto show adverse control. There is substantial evidence here to support a finding that public travelerspursued adefinite, fixedcourse,continuouslyand 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. TheDistrictCourt's findingof apublic easementto 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 sufficientto 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. Aneasement in grossmay be obtained by prescription. Restatement of Property, 

### 5 454, supplementat 29. As foran easement appurtenant, Fowlermaintains that the state land is thedominant tenement,and that Rasmussen,as amere lessee, cannotbe 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, inhis standing,as lessee, has the right of use of that easement for agriculturalpurposes. 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 hispredecessor,JudgeWheelis. Inaddition,theDistrict Court in its judgmentreservedthe impositionof punitive damagespending any violation of the final judgment and order. Section 27-1-221, MCA, states that ttreasonablepunitive damages may be awarded where the defendant has been guilty of actual fraud or actualmalice." 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 indifferencetothehigh probability of injury. Fowler clearlydidsohere. Despite being toldby hispredecessor 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 alsodenied attorney feestoRasmussen, 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 ordergranted by the court served tokeep the road open and unobstructedduring the litigation. Itdoes not appear the earlier order was disobeyed. The District Court does not appear to be clearly erroneous at this stage, sowe 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 

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