### No. 82-222 

### INTHE SUPREME COURTOF THE STATEOF NONTANA 1983

LOWELLA. RATHBUN, Plaintiff andAppellant,

GARY G. ROBSON,GEORGEA. 

### CALRSON and ELEANOR L. CAXLSON,et al., Defendants and Respondents.

Appeal from: District Court of the Fourteenth Judicial District, In and for the County ofMusselshell, TheHonorableNatAllen,Judgepresiding.
Counsel of Record: For

### Appellant: JonA. 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

# -1385Mr. 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. Atthe 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 findingsof fact and conclusionof 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 1957when his mother, Mrs. Rathbun, transferred ownership to him and his brother. Since that time, appellant has become the 

### sole owner. There are

### tworoutes to theproperty; a western accessrouteover which appellantclaimsan easement, and an easternroutewhich is steep and seasonally impassable. Use of either route requires
one to cross property owned by atleast one of the respondents. In other words, appellant1 s property is land-locked

# . The land was initiallypurchased from Musselshell County in 1934by T.D. Cox. The purchase by Cox included the

### west 

### Sr;! of the 

### west of section 34; however, in 1942that portion was sold by Cox and was eventually transferred to respondents Jerry Carlson and Kathleen Beslanowitch. It is over this portion that appellantclaims an easement by necessity. From 1934 to 1946Cox 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. Hervisits to the property 

### were characterized by the court as sporadicand 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 therewere years inwhich he would make no visit. These visits

### were made to "check the property." Appellant owns othernonadjoining land in the vicinitywhich is leased for agricultural purposes, however, concerning the land in section 34, neither appellant nor his 

### lesseehave used the land forany 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 thatappellant's titledid not include an easement. The testimony indicates that appellant wished 

### to subdivide and sell the parcels. The respondents did not agree with thisproposed 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 agriculturalpurposes, theywould 

### allow access. To establishan easement by prescriptionthe burden 

### is on the moving party 

### to show several elements. He orhispredecessors in interest must have used the route openly, notoriously, exclusively, adversely, continuously and uninterrupted for the full statutoryperiod. Scottv. Weinheimer (1962), 140Mont. 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 waspermissive. OIConnorv. Brodie (1969), 153 

### Gabe

## / 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 theoryof prescriptive easement 

### is based on adverse use. Wilson v. Chestnut (1974), 164Mont. 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, thereforeany presumption of adverse use was effectivelyrebutted

# . We agree. There 

### was evidence to indicate permissive use beginning in 1934. Several witnesses testified concerning local customs that began inthe homesteading days concerning access 

### across another's land. There existed an understanding among landowners thatpermission 

### 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 prescriptiveeasement. Thus where the use of away 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 

## * * *IuWilson 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), 168Mont. 63, 541P.2d 60. Evidence of this local custom, without 

### more, was sufficient toestablish permissive use. In Taylor v. Petranek (1977)r 173 Mont. 433, 438, 568 P.2d 120, 123, thisCourt stated: "Here the record is replete with testimony from both plaintiff's and defendant's witnesses that the homesteaders who initially lived inthe areadeveloped 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 forksof the western 

### access at theGoulding Creek Road


### were locked by the Robsons. Apparently, the gates

### were leftopen and cattle got

### loose. There were two othergatesestablished and maintained by respondents. On themap they 

### are designated asg-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, inthe 1960'sGeorge Carlsonpadlocked g-1 witha chain. He retained the onlykey. The gate has remained locked 

### tothe 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 creationof


### a way of necessity, namely, topermit communication with the outsideworld, is not present

### ."'

-. Schmid -

## , -- -.

### - Mont. 

### at- 649P.2d at 433, 39 St.Rep. at 1317. (Citing Daywalt v. Walker
Finally, appellant 

### asserts error forthe 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 sufficientlycomprehensive and pertinent to the issues toprovide

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

### metthe test. The trialcourt is affirmed.

We concur:

### Mr. JusticeDaniel 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 whowins. 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 ofproposed findingsand conclusionscan do nothing but deflate these expectations.