No. 82-222 

IN THE SUPREME COURT OF THE STATE OF NONTANA 

1983 

LOWELL A. RATHBUN, 

Plaintiff and Appellant, 

GARY G. ROBSON, GEORGE A. CALRSON 

and ELEANOR L. CAXLSON, et al., 

Defendants and Respondents. 

Appeal from: District Court of the Fourteenth Judicial District, 

In and for the County of Musselshell, 

The Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Jon A. Oldenburg, Lewistown, Montana 

For Respondents: 

Lynaugh, Fitzgerald & Skaggs; William P. Fitzgerald, 

Eillings, Montana 

Submitted on Briefs: February 10, 1933 

Decided: April 7, 1983 

Filed: 4p~ 7 - 1385 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This case comes from the District Court of the Fourteenth 

Judicial District, County of Musselshell. Plaintiff commenced 

this action seeking a judgment declaring him to be the holder of 

an easement across property owned by defendants. At the trial 

court, and in this Court , two easement theories were presented; 

easement by prescription, and easement by necessity. The 

District Court held against plaintiff in both instances. 

Additionally, we are asked to decide whether the court erred in 

verbatim adoption, and by photographic reproduction, the 

defendant's findings of fact and conclusion of law. 

Appellant is the owner of a tract of land described as the 

east 1/2 of the west 1/2 of section 34. The attached map shows 

appellant s property and the claimed easement route. 

Appellant has held an interest in the land since 1957 when 

his mother, Mrs. Rathbun, transferred ownership to him and his 

brother. Since that time, appellant has become the sole owner. 

There are two routes to the property; a western access route over 

which appellant claims an easement, and an eastern route which is 

steep and seasonally impassable. Use of either route requires 

one to cross property owned by at least one of the respondents. 

In other words, appellant1 s property is land-locked . The land was initially purchased from Musselshell County in 

1934 by T.D. Cox. The purchase by Cox included the west Sr;! of the 

west of section 34; however, in 1942 that portion was sold by 

Cox and was eventually transferred to respondents Jerry Carlson 

and Kathleen Beslanowitch. It is over this portion that 

appellant claims an easement by necessity. 

From 1934 to 1946 Cox lived on section 34. In the 1930's he 

conducted farming and logging operations. During these years he 

used the western access route frequently. In 1946 he sold the 

land to Mrs. Rathbun, appellant's mother. She owned the land 

until 1957. During these eleven years the land was vacant. Her 
visits to the property were characterized by the court as sporadic and intermittent. 

Appellant has never lived on the property. Much of the time 

since 1957, appellant has resided out-of-state. He has visited 

the land on the average of once or twice a year, and there were 

years in which he would make no visit. These visits were made to 

"check the property." Appellant owns other nonadjoining land in 

the vicinity which is leased for agricultural purposes, however, 

concerning the land in section 34, neither appellant nor his 

lessee have used the land for any productive use. 

This dispute arose in the late 1970's when a real estate 

agent on behalf of appellant went to view the property. The 

agent learned that appellant's title did not include an easement. 

The testimony indicates that appellant wished to subdivide and 

sell the parcels. The respondents did not agree with this proposed land use and made their feelings known. The respondent's 

position was that any access across their land was permissive, 

and there could be no access to any subdivision. However, the 

respondents also testified that if appellant wished to put the 

land to other productive uses, such as logging or mining or 

agricultural purposes, they would allow access. 

To establish an easement by prescription the burden is on the 

moving party to show several elements. He or his predecessors in 

interest must have used the route openly, notoriously, exclusively, adversely, continuously and uninterrupted for the full 

statutory period. Scott v. Weinheimer (1962), 140 Mont. 554, 374 

P.2d 91. Once the moving party establishes these elements 

adverse use is presumed and the burden is then on the owner to 

show that the use was permissive. OIConnor v. Brodie (1969), 153 

Ga be / 

Mont. 129, 454 P.2d 920; Glantz v. Gab&?- (1923), 66 Mont. 134, 

212 P. 858. If the owner shows permissive use, no easement can 

be acquired since the theory of prescriptive easement is based on 

adverse use. Wilson v. Chestnut (1974), 164 Mont. 484, 525 P.2d 

24. 
The District Court concluded that use of the western access 

route from 1934 to the present time has been permissive, therefore any presumption of adverse use was effectively rebutted . We 

agree. 

There was evidence to indicate permissive use beginning in 

1934. Several witnesses testified concerning local customs that 

began in the homes teading days concerning access across another's 

land. There existed an understanding among landowners that permission was not required every time a person needed to cross his 

neighbor ' s land. Permission was automatic if the individual 

closed the gates and respected his neighbor's property. 

" '* * * 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 * * *Iu Wilson v. Chestnut, 164 

Mont. at 491, 525 P.2d at 27. (Citing 2 

Thompson on Real Property (1961 Replacement), 

Easements, 5345). See also Ewan v. Stenberg 

(1975), 168 Mont. 63, 541 P.2d 60. 

Evidence of this local custom, without more, was sufficient 

to establish permissive use. In Taylor v. Petranek (1977)r 173 

Mont. 433, 438, 568 P.2d 120, 123, this Court stated: 

"Here the record is replete with testimony 

from both plaintiff's and defendant's witnesses that the homesteaders who initially 

lived in the area developed common practice of 

allowing others to cross their lands to reach 

Suffolk. This evidence is sufficient to support a use permissive in its inception and not 

under a claim of right ." 

Notwithstanding local custom, there was other evidence to 

show that use of the western access began and remained permissive. There were several instances of control exercised by 

respondents and their predecessors ; the first occurred in 1934 

when both forks of the western access at the Goulding Creek Road 

were locked by the Robsons. Apparently, the gates were left open 

and cattle got loose. There were two other gates established and 

maintained by respondents. On the map they are designated as g-1 

and g-2. In the early 1960's J.W. Travis, who then owned the 
west 1/2 of the west 1/2 of section 34 drove a post into the middle 

of g-2, with the intention of preventing further vehicular 

traffic. Also, in the 1960's George Carlson padlocked g-1 with a 

chain. He retained the only key. The gate has remained locked 

to the present time. 

Although the presence of gd.tes alone will not defeat a 

prescriptive easement, they are s'trong evidence indicating permissive use. Hayden & Hill v. Snowden & Walters (1978), 176 

Mont. 16 576 P.2d 1115. The evidence of local custom, coupled 

with the existence of gates, clearly support the trial court's 

conclusion that use of the western access has always been permissive. 

Next, appellant claims that an easement by necessity exists 

over the west 42 of the west a of section 34. This Court has 

recently stated: 

"Generally, a way of necessity is defined as 

follows: ' [wlhere an owner of land conveys a 

parcel thereof which has no outlet to a highway except over the remaining lands of the 

grantor or over the land of strangers, a way 

of necessity exists over the remaining lands 

of the grantor.' (citations omitted ) 

Similarly, a way of necessity is found when 

the owner of lands retains the inner portion 

conveying to another the balance, across which 

he must go for exit and access." Schmid v. 

McDowell (1982), Mont . , 649 

P.2d 431, 433, 39-3t;~ep. 131~--13i6; ---.- 

Appellant bases his argument on the second part of the 

definition; where the owner retains an inner portion. In this 

case appellant's predecessor transferred the west 1/2 of the west 1/2 

in 1942, retaining the inner portion, the east % of the west %. 

Appellant's claim must fail for the same reason discussed in 

Schmid; the reason for allowing a way of necessity does not 

exist. The land over which the way of necessity is claimed has 

no access to a public road. In other words, even if appellant 

were granted a way of necessity across the west % of the west % 

there would be no benefit; "the basic reason for the creation of 

a way of necessity, namely, to permit communication with the outside world, is not present ."' -. Schmid - , - - -. - Mont. at - 649 
P.2d at 433, 39 St.Rep. at 1317. (Citing Daywalt v. Walker 

Finally, appellant asserts error for the court s photographic 

reproduction and verbatim adoption of the respondent's proposed 

findings of fact and conclusions of law. While we disapprove of 

the practice, " [olur ultimate test . . . is whether they are 

sufficiently comprehensive and pertinent to the issues to provide 

a basis for decision, and whether they are supported by the evidence presented." In Re Marriage of Jensen (1981)' - - Mont . 

I ---- I 631 P.2d 700, 703, 38 St.Rep. 1109, 1113. They 

clearly met the test. 

The trial court is affirmed. 

We concur: 
Mr. Justice Daniel J. Shea, concurring: 

I join the opinion of the majority but merely want to 

comment on the last issue, that of the trial court's 

reproducing the proposed findings and conclusions of the 

prevailing party and adopting them as its own. The judicial 

trial process is demeaned when the trial courts engage in 

these practices. It shows that the trial courts have given 

little or no thought to the decision making process other 

than to decide who wins. 

Winning counsel can, of course, be proud that the trial 

court has adopted verbatim their proposed findings and 

conclusions. But losing counsel and their clients have a 

reasonable expectation that the trial court, before deciding 

the case, carefully considered their case. Verbatim 

parroting of proposed findings and conclusions can do nothing 

but deflate these expectations.