IN THE SUPREME COURT OF THE STATE OF MONTANA 

AMERIMONT, INC., A MONTANA CORPORATION, 

CALVIN SMITH and ALICE E. SMITH, 

Plaintiffs and Appellants, 

M. M. ANDERSON, a/k/a MICHAEL ANDERSON, 

and NORMA JEAN ANDERSON, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Karl Knuchel, Attorney at Law, 

Livingston, Montana 

For Respondents: 

Thomas M, White, Sedivy, Bennett & White, 

Bozeman, Montana 

Submitted on Briefs: July 18, 1996 

Decided: September 30, 1996 
Justice Charles E. Erdmann delivered the opinion of the Court. 

Amerimont, Inc., a Montana corporation, and Calvin Smith and 

Alice K. Smith appeal from the judgment entered by the Eighteenth 

Judicial District Court, Gallatin County, decreeing that Amerimont 

does not have a prescriptive easement over the property of M. M. 

Anderson and Norma Jean Anderson. We affirm. 

The issue on appeal is whether the District Court erred in 

concluding that Amerimont does not possess a prescriptive easement 

over the Andersons' property. 

FACTS 

Amerimont purchased property located in Gallatin County from 

the Smiths in 1993. The property lies near the town of Manhattan 

and the legal description of the land is the SKSEX of Section 26 

and the NE% of Section 35 and all of Section 25, all situated in 

Township 2 North, Range 3 East. 

Amerimont's chain of title dates back to 1887 when George 

Oyler obtained title to the property by homesteading a portion of 

the ground and purchasing different sections from private 

individuals. In 1924 George Oyler conveyed title to Robert Oyler 

and in 1949 Robert Oyler sold the property to Hugh Smith, Calvin 

Smith's father. In 1975 Hugh Smith deeded one-half interest in the 

property to Calvin Smith and when Hugh Smith died in 1990, Calvin 

Smith inherited the remaining one-half of the property. In July 

1993, the Smiths transferred their interest to Amerimont by 
conveying fee title to Section 25 and executing a contract for deed 

on the respective portions of Sections 26 and 35. 

In 1975 the Andersons acquired Section 29 in Township 2 North, 

Range 4 East, among other parcels, by warranty deed from Mabel 

Geraldine McElwee, n/k/a Mabel Geraldine McElwee Vergeront. 

Section 29 is situated one mile directly east of Amerimont's 

Section 25 and the two Sections are separated by Section 30, which 

is owned by the State of Montana and leased to the Andersons. The 

Andersons' predecessors in interest are Orie and Mabel Geraldine 

McElwee who purchased the property in 1944. When Orie McElwee died 

in 1973, Mabel Geraldine McElwee obtained sole ownership of the 

land. 

When the Andersons purchased Section 29, there was a dirt road 

that entered Section 29 at a point near their home. The roadway 

branches off from the Spaulding Bridge Road and runs in an 

east-west direction across the extreme southern boundaries of 

Sections 29 and 30, eventually leading to the Smiths' residence on 

Section 25. The roadway is barricaded by a series of gates which 

have remained closed and at times locked by the Andersons and the 

McElwees. The road is used for agricultural, recreational, and 

residential purposes. A map of the properties and the disputed 

roadway is shown below. 
In 1994, Amerimont and the Smiths filed suit against the 

Andersons seeking to establish they had a prescriptive easement 

across the Andersons' property. The case was tried before the 

District Court without a jury on January 17 and 18, 1995. On 

December 18, 1995, the District Court entered its findings of fact, 

conclusions of law, and order, concluding that Amerimont and the 

Smiths do not have a prescriptive easement over the roadway passing 

through Section 29, but instead have permissive use of the road. 

On January 18, 1996, the District Court entered judgment in favor 

of the Andersons, incorporating its earlier findings of fact and 

conclusions of law. This appeal followed. 

4 
STANDARD OF REVIEW 

This Court reviews a district court's findings of fact to 

determine whether they are clearly erroneous. Daines v. Knight 

(1995), 269 Mont. 320, 324, 888 P.2d 904, 906. We have adopted a 

three part test to determine whether the findings are clearly 

erroneous. First, the Court will review the record to see if the 

findings are supported by substantial evidence. Second, if the 

findings are supported by substantial evidence, we will determine 

if the trial court has misapprehended the effect of the evidence. 

Third, if substantial evidence exists and the effect of the 

evidence has not been misapprehended, the Court may still find that 

a finding is clearly erroneous when, although there is evidence to 

support it, a review of the record leaves the Court with the 

definite and firm conviction that a mistake has been committed. 

Interstate Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 

820 P.2d 1285, 1287. 

We review a district court's conclusions of law to determine 

whether the court's interpretation of the law is correct. Carbon 

County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 

P.2d 680, 686. 

DISCUSSION 

Did the District Court err in concluding that Amerimont does 

not possess a prescriptive easement over the Andersons' property? 

To establish an easement by prescription, the party claiming 

the easement must show open, notorious, exclusive, adverse, 

5 
continuous, and uninterrupted use of the easement claimed for the 

full statutory period of five years. Tanner v. Dream Island, Inc. 

(l996), 275 Mont. 414, 424, 913 P.2d 641, 647-48 (citing Public 

Lands Access v. Boone & Crockett (1993), 259 Mont. 279, 283, 856 

P.2d 525, 527; Keebler v. Harding (1991), 247 Mont. 518, 521, 807 

P.2d 1354, 1356). The burden is on the party seeking to establish 

the prescriptive easement and all elements must be proved. Tanner, 

913 P.2d at 648 (citing Public Lands Access, 856 P.2d at 527; 

Downing v. Grover (1989), 237 Mont. 172, 175, 772 P.2d 850, 852). 

To be adverse, the use of the alleged easement must be exercised 

under a claim of right and not as a mere privilege or license 

revocable at the pleasure of the owner of the land; such claim must 

be known to and acquiesced in by the owners of the land. Lemont 

Land Corp. v. Rogers (1994), 269 Mont. 180, 185, 887 P.2d 724, 727. 

If the owner shows permissive use, no easement can be acquired 

since the theory of prescriptive easement is based on adverse use. 

Tanner, 913 P.2d at 648 (citing Public Lands Access, 856 P. 2d at 

527; Rathbun v. Robson (1983), 203 Mont. 319, 322, 661 P.2d 850, 

852). Where the use of a way by a neighbor is by express or 

implied permission of the owner, continuous use of the way by the 

neighbor is not adverse and does not ripen into a prescriptive 

right. Public Lands Access, 856 P.2d at 528 (citing Wilson v. 

Chestnut (1974), 164 Mont. 484, 491, 525 P.2d 24, 27). 

Amerimont claims that the historic use of the roadway was 

sufficient to establish an easement by prescription over the 

6 
Andersons' property. Amerimont argues that the Oyler family began 

using the road in 1887 to reach the homestead on Section 25 and 

that use of the road continued uninterrupted into the time that the 

Smiths obtained ownership of the land. Amerimont argues that the 

use of the road was open and notorious to such a degree that the 

Andersons should have been placed on notice that the Smiths were 

making a hostile claim against their ownership. 

Amerimont claims that the Smiths and the Oylers used the road 

under a claim of right and that this claim was clearly known by the 

Andersons and their predecessors in interest who did nothing to 

prevent the continued use from 1887 to 1993. Thus, according to 

Amerimont, the road was used adversely and not as a mere privilege 

or license revocable at the pleasure of the Andersons or their 

predecessors in interest. Amerimont acknowledges the existence of 

gates across the road, but claims that the gates were installed 

primarily for livestock control and secondarily, to control public 

access. Amerimont claims that the gates were never meant to keep 

Amerimont, the Smiths, or the Oylers from accessing their property. 

The Andersons argue that from 1946 to 1993 neither they nor 

the McElwees had a dispute with any neighboring ranchers or 

property owners, including the Smiths, concerning use of the 

roadway across their land. The Andersons claim that use of the 

road by the Smiths and their predecessors was always permissive and 

therefore never adverse and/or hostile. The Andersons argue that 

since 1944 they and the McElwees constantly exercised their right 

7 
to control access passing over Section 29 to neighboring 

landowners, including the Smiths and the Oylers. The Andersons 

note that they and the McElwees always closed the series of gates 

passing over the route and locked the gates on a monthly, if not 

weekly basis. According to the Andersons, Arnerimont and the Smiths 

failed to prove the elements necessary to establish a prescriptive 

easement 

The District Court found as follows: 

There is abundant evidence by reputable witnesses that 

homesteaders who initially lived in this area where 

Amerimont's land is located, particularly the Oyler 

family, developed the common practice or common rule of 

allowing or utilizing a neighbor's permissive use to 

reach land by crossing over each other's land provided 

the neighbor closed all gates and didn't injure the land. 

The record indicates that the Oyler family had friendly 

and amiable relations [with] all the neighbors in the 

area particularly Orie and Mabel Geraldine McElwee. 

Further, the record is clear that Hugh Smith had 

particularly good neighborly relations with Mike Anderson 

from 1975 until Mr. Smith's death in 1990. Mike 

Anderson's testimony regarding his assistance provided to 

Hugh Smith in opening gates as Mr. Smith would pass 

through the Anderson property is evidence of "neighborly 

accommodation". 

Because of this long standing friendship among 

neighboring property owners, including plaintiffs' 

predecessors in interest, the use of the road crossing 

the Anderson property was never adverse and/or hostile. 

Use of the road was always permissive. 

The Andersons and their immediate predecessors in 

interest, the McElwees, have exercised complete dominion 

over the route passing through Sec. 29 since 1946. They 

have required as a condition of use that all gates be 

closed. They locked the gate from the county road on a 

monthly if not weekly basis. 
There is no evidence that Amerimont and its predecessors 

in interest to Sec. 25 ever possessed a key or 

combination to the gates controlling access to Sec. 29 

which have been frequently locked since at least 1944. 

The District Court concluded that: 

Amerimont and the Smiths have the permissive use of the 

roadway passing over Sec. 29. Amerimont and the Smiths 

do not have an easement by prescription over the roadway 

passing through Sec. 29. 

Our review of the record indicates that use of the roadway was 

allowed as a neighborly accommodation and by permission of the 

Andersons and their predecessors in interest. George Oyler's 

grandson, Enos Oyler, testified that he knew the McElwees and had 

used the roadway going across Section 29. He stated that he worked 

for a man named Omen whose family was "friends or neighbors" with 

the McElwees and they had given Omen and his work crew permission 

to cross the road. 

Mrs. Vergeront [Mabel Geraldine McElweel testified in her 

deposition as follows: 

Q. Mrs. Vergeront, I'd like to ask you some more 

general questions regarding the customs of your neighbors 

in allowing each other to use property and cross over 

property. Can you explain what your understanding was 

with respect to other neighboring landowners in utilizing 

their property or when they utilized your property? 

A. Permission was always asked. 

Q. Now, was permission required every time a neighbor 

wanted to go across another neighbor's property? 

A. It was forus. 
Q. So anytime somebody wanted to use Section 29 they 

had to specifically ask you each time? 

A. Yes. 

Q. Was there ever times when you found somebody going 

across the road on Section 29 that had not asked for 

permission? 

A. Occasionally 

Q. And what happened when you discovered somebody had 

used or was attempting to use this road without your 

permission? 

A. We always found out what their purpose was on our 

place and why they hadn't asked permission and explained 

to them that permission was always required. 

Q. Now, you indicated earlier here that you locked the 

gate and closed the gate to protect your property. 

A. Yes. 

Q. What on your property was there to protect? 

A. Well, the wear and tear on the land for one thing, 

our crops for another thing, keeping track of our cattle. 

And we also had a rock quarry that we mined pictured 

flagstone. And we had to protect that because -- one of 

[the] reasons for the locks on the gate was that people 

would come, if we weren't home, and go -- they knew where 

the rock quarry was and they would take rock. And that 

was part of our income. 

Q. So are you certain that every time you left the 

property for an extended period of time you would lock 

the gate? 

A. Yes 

Norma Jean Anderson testified that she "absolutelyu made a 

conscious effort to keep people from traveling over the property. 

She indicated that she and her husband had a congenial relationship 

with Hugh Smith and that in the late 1970s or early 1980s they 
began interacting with Calvin Smith instead of his father. Mrs. 

Anderson testified that Calvin Smith would call in advance to use 

the roadway across Section 29 and that in her opinion, the calls 

were to "ask us if it was okay." She indicated that " [ylou could 

call [the arrangement] permission" and noted that if she knew in 

advance that Smith was coming, she would go down and unlock the 

gates--or if they were unlocked, she would say "[slure, go ahead. 

The gate's open." 

Michael Anderson testified as follows: 

Q: After you began ownership in Section 29 in 1975, 

what was your practice with respect to allowing other 

people to use this roadway? 

A: Everyone that -- anyone that wanted to use it at any 

time had to have permission. 

Q: And did you ever deny permission? 

A: Yes. 

Q: With respect to neighbors in the area, did you 

establish a pattern of their use that implied a 

permission? 

A: Well, the neighbors always called and sometimes they 

were denied. If we had the sprinkler pipe out -- I mean, 

you can't drive over the sprinkler pipe. And so, I 

wouldn't say even a neighbor that might have had an 

implied permission if they wanted to use it, they were 

certainly always entitled to that but they weren't 

entitled to drive over the sprinkler pipe and we didn't 

shut off the sprinkler for them. 

Q: When you say, "entitled", what do you mean by that? 

In your -- 

A: By virtue of our grant of permission they would -- 

and sometimes if they needed to go where we were 
sprinkling, we would outline one of the roads where they 

could maybe loop around the field or avoid the sprinkler 

pipe in some fashion. 

Q: Backing up. When you purchased the property, did 

you find the gates locked? 

A: Yes. 

Q: Did you acquire the keys to the locks on those gates 

when you purchased the property? 

A: Yes, I did. 

Q: Since that time, have you continued to lock those 

gates on a regular basis? 

A: Yes. 

The record indicates that the Andersons and their predecessors 

in interest have exercised complete dominion and control over the 

roadway passing near their home in Section 29. The evidence 

indicates that gates over the roadway were used to control not only 

livestock, but also to restrict access to the property and to 

protect the property from theft. Any individuals, including the 

Smiths and their predecessors in interest, who used the road did so 

at the express or implied permission of the Andersons and their 

predecessors in interest. In Greenwalt Family Trust v. Kehler 

(1994), 267 Mont. 508, 885 P.2d 421, we stated that where there is 

a community understanding or a local custom of allowing neighbors 

to cross the edges of neighboring fields, it is considered 

permission. Greenwalt, 885 P.2d at 425. I11 the present case, such 

a pattern of neighborly accommodation persisted for years and we 
therefore determine that use of the roadway by Amerimont and the 

Smiths was not adverse and cannot ripen into a prescriptive 

easement. 

We hold that the District Court's findings of fact are 

supported by substantial evidence and are not otherwise clearly 

erroneous. The District Court correctly interpreted the law when 

it concluded that Amerimont and the Smiths do not possess a 

prescriptive easement over the Andersons' property. 

Affirmed. 

a= Justice 

We concur: 
I hereby certify that the following certified order was sent by tates mail, 

following named: 

Karl Knuchel 

prepaid, to the 

COURT