LUNCEFORD v TRENK
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No. 12533 I N THE SUPREME C U T O THE STATE OF M N A A OR F OTN 1973 ERNEST F. LUNCEFORD and JESSIE E. LUNCEFORD, P l a i n t i f f s and Respondents, DAVID L. TRENK, PAUL TRENK, HELEN TRENK and CLYDE SCHRECKENDGUST, Defendants and A p p e l l a n t s . Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t , Honorable E. Gardner Brownlee, Judge p r e s i d i n g . Counsel of Record: For A p p e l l a n t s : Tipp , Hoven and B r a u l t , Missoula , Montana Raymond P. Tipp argued, Missoula, Montana For Respondents: Boone, Karlberg and Haddon, Missoula, Montana Sam E. Haddon argued, Missoula, Montana C u r t i s C. Cook, Hamilton, Montana December 5 , 1973 Submitted: :I\ ,,2 3 3.4 Decided :1) F i l e d :O-'- 2 ;y 4 f Mr, Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from a judgment for plaintiffs entered upon findings of fact and conclusions of law by the district court of Ravalli County. The judgment declared plaintiffs to be owners of an easement by prescription for the use of a roadway across defendants' lands; declared the roadway to be a public roadway; and enjoined defendants from interfering with plaintiffs' use of the roadway. Defendants appeal. The road in controversy is located in Ravalli County, west of Florence, Montana. Plaintiffs Ernest F. Lunceford and Jessie E. Lunceford own land located at the end of the road that comes off of Highway 93. Defendants own parcels of land to the east and southeast of plaintiffs' property. The road enters on an easterly part of defendant Clyde ~chreckendgust'sproperty, proceeds approximately one-fourth mile across his property; it then enters on defendants Arthur J. Olsen and Florence Olsen's land; then onto defendants Paul Trenk and Helen ~renk'sland. It passes through ~renks'farmyard between their house and barns; then through Trenk land onto the Lunceford land for approximately onefourth mile ending in the Lunceford farmyard.. The road is described as a one lane rocky road which has been in existence for some fifty years. comodate horse drawn vehicles. It was first established to ac- Later it was improved for passenger cars and school buses, Defendant Clyde Schreckendgust has lived the longest on the property in question, He has been there continuously since 1938. In 1947 he sold a part of the land crossed by the road to defendants Trenk. In April 1951 plaintiffs Lunceford moved onto their property, first leasing it from a Mrs. Kelly for two years and then purchasing it in 1953. During some twenty years of use there have been gates and cattle guards on both the Trenk and Schreckendgust property which were installed and maintained only by defendants. Schreckendgust once b i l l e d p l a i n t i f f s f o r h a l f t h e c o s t of i n s t a l l i n g one c a t t l e guard, but p l a i n t i f f s refused t o pay a l l e g i n g i f they paid f o r one they might have t o pay f o r o t h e r s i n s t a l l e d l a t e r . Trenks and Schreckendgust b u i l t a snowblower which was used t o keep t h e road open i n t h e w i n t e r , although t h e Luncefords maintained t h a t they plowed t h e road i n t h e winter. O s e v e r a l occasions over t h e n twenty years p l a i n t i f f s and defendants paid a county o p e r a t o r with county equipment t o do maintenance work on t h e road, The road i s n o t a p a r t of t h e county records system though over t h e years i t has been used by d i t c h r i d e r s checking headgates l o c a t e d west of t h e Lunceford property; by fishermen and h u n t e r s ; by f o r e s t s e r v i c e people; and by people v i s i t i n g t h e various homes along t h e road. Defendants maintain t h a t t h e road has always been a p r i v a t e road and they should n o t be penalized because of t h e i r implied cons e n t t o t h e use of t h e road t o accomodate t h e Luncefords and be good neighbors. Defendants argue they maintained t h e road; posted s i g n s which have been destroyed by p a r t i e s unknown; denied permission t o a timber h a u l e r who t r i e d t o haul logs o f f t h e Lunceford property; have over t h e y e a r s asked persons using t h e road t o d r i v e c a r e f u l l y ; and, during t h e twenty year period, denied t h e telephone company an easement t o put i n a telephone t o p l a i n t i f f s . Due t o an i n c r e a s e i n t r a f f i c on t h e road by a l l types of v e h i c l e s , t h e p a r t i e s had s e v e r a l meetings t o t r y and r e l o c a t e t h e road so a s not t o inconvenience defendants, however nothing came from those meetings, to plaintiffs. O Labor Day 1972, t h e road was c l o s e d n Reasons given by defendants f o r t h i s a c t i o n were: Increase i n t r a f f i c which i n t u r n caused dumping of garbage along t h e road; t h e t h e f t of b a t t e r i e s and a u t o engines; t h e c u t t i n g o f various fences; t h e breaking down of c a t t l e guards; and, t h e i n c r e a s e of nuisance f a c t o r s c r e a t e d by people coming upon t h e property. Too, i n 1971 e i t h e r t h e Lunceford property was up f o r s a l e o r rumored f o r s a l e and defendants were a f r a i d t h e property would be subdivided thereby i n c r e a s i n g considerably t h e t r a f f i c and i t s r e s u l t i n g problems. Defendants do not appeal the court's finding that the public had established a prescriptive right to use the road, so that question is moot here. While defendants set forth two issues on appeal, we find only one substantive issue: Are the trial court's findings that plaintiffs are the owners of an easement by prescription for use of a roadway across defendants' land supported by substantial credible evidence? Criteria for reviewing the trial court 'S findings 2a, cases tried without a jury are set forth in Rule 5 ( ) M.R.Civ.P., which provides in pertinent part: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." The applicable principles to establish an easement by prescription were set forth by this Court in Scott v. Weinheimer, 140 Mont. 554, 560, 374 P.2d 91: II To establish the existence of an easement by prescription, the party so claiming must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period. Scott v. Jardine Gold, Min. & Mill Co., 79 Mont. 485, 257 P. 406. By 'continuous and uninterrupted' use is meant use not interrupted by the act of the owner of the land or by voluntary abandonment by the party claiming the right. * * * It is to be noted that it is not necessary that the use should have been continuous in the person asserting the right. It will be sufficient if such use has been continuous in him and those under whom he claims. [Citing case] "If there has been the use of an alleged easement for ten years (or five years subsequent to the 1953 amendment referred to above), unexplained, it will be presumed to be under a claim of right, and adverse, and will be sufficient to establish a title by prescription and to authorize the presumption of a grant. Te Selle v. Storey, 133 Mont. 1, 319 P.2d 218." Later cases citing Scott have considered these principles. In Kostbade v. Metier, 150 Mont. 139, 142, 432 P.2d 382, Justice Castles speaking for the Court said: II That the public may acquire the right by prescription to pass over private land is undisputed and such is the law in Montana. To establish the existence of a public road by prescription it must be shown that the public followed a definite course continuously and uninterruptedly for the prescribed statutory period together with an assumption of control adverse to the owner. [Citing cases. 1'' The Court in O'Connor v. Brodie, 153 Mont. 129, 137, 454 P.2d 920, noted: "'Where the claimant has shown an open, visible, continuous, and unmolested use of the land of another for the period of time sufficient to acquire title by adverse possession, the use will be presumed to be under a claim of right, and not by license of the owner. In order to overcome this presumption, thereby saving his title from the incumbrance of an easement, the burden is upon the owner to show that the use was permissive. I Glantz v. Gabel, 66 Mont. 134, 141, 212 P. 858, 860. " Defendants contend that the presumption of adverse occupancy was overcome by the evidence of permissive use or license. The main thrust of defendants' argument is that because the owners of the servient estate did not object to plaintiffs' use and permitted plaintiffs or their predecessors to enter upon their land a license by defendants' predecessors is to be inferred. Rebuttable presumptions are overcome by other evidence, direct or indirect. Section 93-1301-5, R.C.M. 1947. The evidence to which defendants defer amounts to inferences of acquiescence. White v. Kamps, 119 Mont. 102, 171 P.2d 343. Here, the presumption of claim of right and adverse use is clearly shown by the evidence. Mrs. Kelly, who sold to the plaintiffs in 1953, testified as to her use and the use by the public from 1944 to 1952; Albert Martin, whose family owned the Trenk property from 1920 to the late 19301s, told of using the road during that period and of its use by the public; Art Hayden, a Stevensville drayman, testified as to its use during the 1920's and 1930's; Robert Allen, a forest service officer, testified as to the use of the road during the 1920's and 19301s, as did Morris Slaght, a ranch hand. of the road from 1952. Robert Allen also testified as to the use This testimony indicated that the use was not permissive, that no request for permission to use the road was asked nor given to a vast majority of the users. Plaintiffs assumed they had a right to use the road and used it. Defendants were aware of the use and until 1972 made no effort to restrain the use as to plaintiffs. The trial court found evidence of use by the public for over fifty years; that such use was without permission of the landowners; and that the public was never denied use by the owners. Here, as in Scott, a presumption in favor of the use was established and that presumption was not overcome by defendants' testimony. The judgment of the district court is affirmed. /' / Chief ~ustice ................................ Justices. M. J u s t i c e Wesley C a s t l e s s p e c i a l l y concurring: r I concur, but on a d i f f e r e n t b a s i s than t h a t s e t f o r t h i n t h e majority opinion. Here, s i n c e no i s s u e of t h e public r i g h t t o use t h e road i s r a i s e d , t h e only question i s a s t o t h e locking of p l a i n t i f f s ' g a t e and i n t e r f e r e n c e with p l a i n t i f f s a s members of t h e public. I n o t h e r words, defendants' f a i l u r e t o make exceptions t o t h e f i n d i n g s of t h e t r i a l c o u r t a s t o t h e public use and r e s u l t a n t public p r e s c r i p t i v e r i g h t and t h e f a i l u r e t o appeal t h a t p a r t of t h e judgment r e a l l y renders t h e e n t i r e appeal moot. I recognize t h a t t h e n o t i c e of appeal i s g e n e r a l i n n a t u r e b u t nowhere i n a p p e l l a n t s t b r i e f i s any i s s u e r a i s e d except a s t o t h e p r i v a t e easement.
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