No. 14878 

IN THE SUPRl3ME COURT OF THE STATE OF MONTANA 

1980 

MARION C. McCLURG, and LOIS K. McCLURG, 

husband and wife, 

Plaintiffs and Appellants, 

FLATHEAD COUNTY COMMISSIONERS and 

CLIFFORD VINJE, Road Supervisor, 

Defendants and Respondents. 

Appeal from: District Court of the Eleventh Judicial District, 

Honorable James M. Salansky, Judge presiding. 

Counsel of Record: 

For Appellants: 

M. Keith McClurg, Bigfork, Montana 

Por Respondents: 

Ted 0. Lympus, County Attorney, Kalispell, Montana 

Submitted on briefs: January 22, 1980 

., .- ,- Filed: , a -d ., J 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Plaintiffs appeal the orders of the Flathead County 

District Court setting aside the entry of default against 

the defendant County and granting summary judgment to the 

County. Plaintiffs contend that the default should not have 

been set because the County had no justifiable excuse in 

failing to timely file an answer, and that the facts do not 

support a finding that the public possessed a prescriptive 

easement over that portion of Echo Lake Road which crosses 

the plaintiffs ' 

Echo Lake Road is located in Big Fork, Montana, and has 

been used by members of the public for over 33 years. In April 

1951, when the plaintiffs, Marion and Lois McClurg, bought their 

property, the road was a narrow, ungraded trail. Over the 

years, the Flathead County Road Department has widened and graded 

the road. Other maintenance has included placing gravel on the 

road, and in winter sanding and plowing. 

The plaintiffs have never placed barriers on the road 

or attempted to block the public's access to it. However, 

in recent years they have become increasingly annoyed by car 

owners whose vehicles have become immobilized on the snowy 

hill adjacent to their home. On September 2, 1976, the 

plaintiffs filed a complaint seeking a declaratory judgment 

that the County had a duty to erect signs, barricades, and 

gates in order to prevent the public from crossing plaintiffs' 

property. 

Other than filing a motion to dismiss, the County did not 

oppose the plaintiff's complaint. While their motion was still 

pending, the County received an extension of time to file an 

answer. During this time, the County consulted with plaintiffs 
and advised them to address their grievance to county administrators. In December 1976, the plaintiffs filed a petition 

to abandon the road with the county commissioners. On 

February 3, 1977, prior to the county's action on the petition, 

the plaintiffs had the clerk of court enter a default against 

the County. Approximately three weeks later, the County 

denied the plaintiffs' petition and filed an answer to the 

complaint. 

On May 16, 1977, the County filed a motion to set aside 

the entry of default. The court granted the motion on April 

13, 1978. The plaintiffs appealed this order but in an 

opinion filed on December 21, 1978, we concluded that court's 

order was not a final judgment and dismissed the appeal. 

After the issuance of the remittitur, both parties filed 

motions for summary judgment. The County also filed the 

depositions of Marion and Lois McClurg and the affidavit of 

Road Superintendent, Clifford Vinje. On August 22, 1979, 

the court filed an order which denied the plaintiffs' 

motion and granted the defendant's motion for summary judgment. 

The court's judgment provided that the public had acquired a 

prescriptive easement for use of the road on the plaintiffs' 

property and that the plaintiffs should receive nothing by 

reason of their complaint against the County. The defendant 

appeals this judgment and the court's order setting aside 

entry of default. 

The party seeking to set aside an entry of default must 

establish good cause for the default and the existence of a 

meritorious defense to the action. See, Donlan v. Thompson 

Falls C & M Co., et al. (1910), 42 Mont. 257, 112 P. 445; 

Gomes v. Williams (10th Cir. 1970), 420 F.2d 1364, 1366; 6 

Moore's Federal Practice $55.10 [2] , p. 55-?37. See also, 

Rule 55(c), M.R.Civ.P. The plaintiff contends it was error 

,for the District Court to set aside the default because the 

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County had no justifiable excuse for failing to file a 

timely answer and the County's answer did not cure the 

default. 

A District Court's discretion to set aside entry of 

default should be liberally exercised to promote trial on 

the merits, and an order setting aside default will be 

reversed only in exceptional cases. See Holen v. Phelps 

(19571, 131 Mont. 146, 308 P.2d 624. This is not, as the 

plaintiffs suggest, a case where the party attempted to cure 

a default by simply filing an answer. See Johnson v. Matelich 

(1973), 163 Mont. 329, 336, 517 P.2d 731. Here the County 

filed an affidavit stating that the plaintiffs prior to 

obtaining an entry of default, filed a petition for abandonment 

of the road and led the County to believe that further 

judicial action would be forestalled until completion of 

administrative proceedings on the petition. The County's 

affidavit was sufficient to support the court's finding that 

the delay was not totally inexcusable. 

The County also made a showing that a defense to the 

plaintiffs' action was available. Before making its 

motion to set aside entry of default, the County filed an 

answer in which it alleged the public possessed a prescriptive 

easement over the plaintiffs' property. The existence of an 

easement was supported by the plaintiffs' complaint which 

alleged that the public had continually harassed the plaintiffs 

during the winter months when cars became immobilized on 

plaintiffs' road. There was no abuse of discretion in 

permitting the case to proceed to trial. 

The plaintiffs' next contention is that the public used 

the road with the plaintiffs' consent and thus did not 

acquire a prescriptive easement. But there is undisputed 

evidence here to support each of the elements required for 

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establishing a prescriptive easement, and summary judgment 

for the County was proper. 

The public acquires the right of prescription to use a 

road passing through private property when its use of the 

road is continuous and uninterrupted across a definite 

course for the prescribed statutory period with the exercise 

of control adverse to the owner. See Kostbade v. Metier 

(1967), 150 Mont. 139, 432 P.2d 382. Since 1953, the statutory 

period for adverse possession has been 5 years. See section 

70-19-404, MCA. It is not disputed that the public has used 

the road to cross plaintiffs' property for over 25 years. 

The public's use of the road has been continuous and uninterrupted. 

The road has always been open and unimpeded by any barrier. 

It has not changed course since the plaintiffs' purchase of 

the land in 1951. 

The plaintiffs' assertion of error concerns only the 

last element for establishing a prescriptive easement, the 

exercise of control adverse to the owner. Adverse control 

is presumed when all other elements have been proved. See 

Garrett v. Jackson (1979), Mont . , 600 P.2d 1177, 

36 St.Rep. 1769; Kostbade v. Metier (1967), 150 Mont. 139, 

145, 432 P.2d 382. The undisputed facts support rather than 

rebut this presumption. Plaintiff Marion McClurg admitted in 

his deposition that most members of the public never asked 

for permission. In 1962, the County did talk with McClurg 

about widening the road. On the other hand, grading, laying 

gravel and other maintenance of the road has been performed 

without the plaintiffs' permission. There are no disputed 

facts material to the motion for summary judgment and the 

order granting summary judgment to the County was proper. 

The plaintiffs argue that the public's acquisition of 

a prescriptive easement without compensation to the plaintiffs 

is an unconstitutional taking of private property. In this 
connection, they maintain that taking of private property for 

a public roadway is not permissible when an alternate route 

is available. In effect, the plaintiffs have argued that 

the public cannot acquire a prescriptive easement. Such a 

contention is contrary to well established precedent. See 

Kostbade, supra. We see no reason to establish additional 

requirements for acquiring a public easement. 

The judgment is affirmed. 

Justice 

We Concur: 

Chief Justice