RAPPOLD v DUROCHER
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NO. 92-233 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993 EARL RAPPOLD and JOHN RAPPOLD, Plaintiffs and Appellants, -vROBERT E. DUROCHER, Defendant APPEAL FROM: and Respondent. District Court of the Ninth Judicial District, In and for the County of Teton, The Honorable R. D. McPhillips, Judge presiding. COUNSEL OF RECORD: For Appellant: John P. Loendorf For Gregory Helena, W. Duncan, Montana Harrison, Respondent: Walter Murfitt, iw? Poston, & Poston, 2 3 I$$3 S. Murfitt, Helena, Submitted Michael Montana; on Briefs: Decided: FilPft~:-:;.~~~,,~~~~;~~~,Ui,~, STATEOF M"NTA,"A S. Becker, Robert L. November March 23, Luxan & Woodahl, 12, 1992 1993 Justice R. C. McDonough delivered This Teton, is an appeal from the Ninth from a judgment a bench trial. The property This action homesteaders. by Art District, (Durocher) of County as a result whether all easement across Durocher's property. R.N. right to access Previously, Lear, in half from the Swift 1940 and 1941, of elements Appellants' from his property property the in 1935. traveling across and John Rappold. was original was patented was patented Dam road, Fay Lear, Durocher's of the property of the property Lindseth, is a prescriptive The east The west half appeal on concerns by one, was accessed Court. were proved. Rappolds' acquired Judicial the Respondent issue to establish (Rappolds) through for of the We affirm. essential necessary the opinion in 1923. The property tracts owned R.N. Lear never lived on the property. In 1965, property from livestock grazing. Lindseth, Fay Lear In their Mahlon 1969, R.N. Jack neighbors (Jack) and used the Jack Lear also in pertinent first they Lear crossed (Jack Lear's brother) and Deloris Lear relative (appellants' and Deloris Lear Sank, which was recorded Rappold Lear to borrowing A. D. the primarily for property of obtained an affidavit Art from money from the Federal Lindseth was signed Land by John and Fay Lear and read part: FAY F. LEAR, A. D. LINDSETH and JOHN RAPPOLD, being duly sworn, upon their oaths depose and say that own real estate in the vicinity of land owned by 2 the and John Rappold. The affidavit in 1978. father), property acquired MARLONJOHN LEAR, said land being located in Sections 3, Range 9 West, Teton 4, 5 and 9 of Township 27 North, County, Montana. That affiants have personal knowledge of the fact that the said MARLON JOHN LKAR and his predecessors in title and business visitors and guests of same have regularly, openly, and continuously used a trail from the Swift Dam road to gain access to this land, and that said access road has been used without objection, contest or obstruction by anyone for a period of over fifteen years from this date: said access road runs that the southeasterly through Sections 24, 25, 26, 34 and 35 of Township 28 North, Range 9 West in Pondera County, and through Section 3, Township 27 North, Range 9 West in Teton County, entering land owned by MAHMN JOHN LEAR on the east side of the NW1/2SW1/2 of Section 3, Township 27 North, Range 9 West. . . . In 1979, Jack and Deloris Lola Thoreson, who used the Jack Lear cattle Lear, Fay Lear's leased that when they leased the land until when the Thoresons April of 1988, Lear The Thoresons the property. 1982, R.N. and grazed to Jerry The property sold was the to Durocher. crossed father and by the contested (appellants' in 1938. from their father acquired father, The Rappolds to Additional trail the their bought in two purchases. purchased property First, purchased the through the John and the Lenor place "Gordon place" various property in 1949. deeds in 1980 John Rappold. filed traversed facts grandfather and grandfather) They subsequently The Rappolds title trail to Glen and livestock. The Rappolds' Karl the property son, to graze Jerry's by Jerry property sold same access had used to reach on the land until Lear will this land action on November 28, 1988 to quiet against be provided any interest as necessary opinion. 3 of Durocher. in the body of the l'Our standard is clear." of review Rule 52(a), of a district M.R.Civ.P., court's provides Findings of fact shall not be set aside erroneous, and due regard shall be opportunity of the trial court to credibility of the witnesses. . . . Keebler v. Harding In interpreting (1991), this rule, 247 Mont. findings in pertinent unless given judge of fact part: clearly to the of the 518, 522, 807 P.2d 1354, 1357. we have adopted the following three-part test: 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 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.n Interstate Production 820 P.2d 1285, 1287. To establish an easement continuous full v. Grover (Citations show and uninterrupted period. 807 P.2d at 1356. (1989), v. DeSaye (1991), 250 Mont. 237 Mont. 320, 323, the party claiming omitted.) an easement by prescription, "must statutory Keebler, Credit open, notorious, use of the The statutory (Citation 172, 175, exclusive, easement period omitted.) adverse, claimed is five See also; 772 P.2d 850, for years." Downing 852. "Open and notorious" is defined as 'Ia distinct and positive assertion of a right hostile to the rights of the owner and must be brought to the attention of the owner. I1 N'ContinuousqB means "it is necessary to have use made often enough to constitute notice of the claim to the potential servient owner.V' YJninterrupted@* means "use not interrupted by the act of the owner of the land or by voluntary abandonment by the party claiming the right." 4 the Downinq, means 772 P.2d that at independent of (citations claimants' the 852 right a like (1971) I 158 Mont. adverse, claim the the of the of the and acquiesced the definition had Rappolds' such for to to to gathering, get 339. must privilege way v. Finally, "[t]o be exercised be under claim of the be known a revocable such owner is Cope or license land; land." an easement the must Keebler, by at to, 807 P.2d trial prescription court to and concluded his at the that the through property property for sold property when they their property grazed their access easement an easement livestock fences stays. Rappolds' 336, 1988, repair overnight of Cope owned Durocher's used They right the We agree. 1979 to seasons. the another." of the of established The Thoresons in 493 P.2d elements, The Thoreson's from way use use omitted.) property. property the elements of of alleged owner (Citation Given to as a mere in by, 1356-1357. years, 392, and not pleasure Durocher 388, use of right right 'IAn Exclusive omitted). to their property picnics and continued to use the graze in various on and they They they consistently They enjoyment would to Mr. the Thoreson disputed trail testified because they the used the leased the Durocher. different go the to the property trail through disputed hunting, of ten trail Christmas tree property. that the Rappolds he had met 5 both it to Jerry They cattle. his after to during used snowmobiling, general property it, ways moved a trailer property. for the approximately knew they Karl and Dear to travelled John at different times from using his on the the The Rappolds Thoreson trail. trail. claimed Rappold provides signed evidence also open, notorious, affidavit title he had a right states that without visitors to this objection, fifteen affidavit Jack him to access over Lindseth use of uninterrupted used a trail contest is dated Lear's and guests land, years use occurred that Art and that October at of date. 18, 1969. least (Emphasis year The in regularly, Dam road to road has been used The affidavit a fifteen was oredecessors by anyone for . . .I' trail same have access or obstruction from this the from the Swift said and John and exclusive. VAHLON JOHN LEAR and his and continuously access by Fay Lear, continuous, and business openly, over prevented property. The 1969 affidavit gain never a period added.) The reflects period of prior this to that date. The trial court was not consistent . appears All to with confirm elements is the element use and that existence of by presumption Parker the burden use was permissive. falls Garrettv. the "affidavit . . a prescriptive easement.*' the testimony here. if all v. Elder omitted). of the affidavit have been shown through of contention 294 (citation established, the the language and the 1969 affidavit. demonstrated.1t 292, that permissive of prescription of the Thoresons established concluded The element However, other (1988), When the 6 II. . . adverse use is elements of the claim 233 Mont. 75, 78, 758 P.2d other upon the other Jackson of adversity elements party (1979), have been to show that 183 Mont. are the 505, 508, 600 P.2d 1177, In our notorious, the 1179. present case, exclusive, ownership in adversity that Jack the that demonstrating permissive. Rappolds Karl and his son, and Gary Thoreson testified given that he they concluded disinterested and members received of permission to show that "[d]ue judge the regard the 137, The they to use never the Glen more the of road the given witnesses. . Thomas 1106, of adversity that he did not limitations on using the road limitations for any use of 1110. is at any time he wanted 7 to nor court of a plaintiffs asked for or road." their own statements We observe the district Barnum that court to conflicts (1984), or 211 Mont. omitted.) present understand Glen Thoreson, that (Citations also Glen trial . and resolve v. was permission, never than opportunity use Glen the of property, was permissive. in testimony." 684 P.2d of use burden The than to nothing his Thoreson plaintiffs of of he had given sought credible family. their trail. more element testimony cross testimony credibility 143-144, that to "the use is inconsistencies permission provided presumption met testified that from The Rappolds the open, through predecessors' found their be Durocher's not party, third Thoreson, his and permission, were Gary Glen to at least have Rappold Thoreson shown overcome. Durocher Although been establishes must the that and This Rappolds has and uninterrupted Dear interest. We conclude use continuous of predecessors the in that Thoreson's there during make of Glen the the were year road. any nor any Also, he testified that when he sold the property to he had a right to use the trail Durocher that "written easement" legal right to go to his word of the sold the testified (1969 affidavit). real property that to access his property. was told when he purchased easement that this went with representation. Defendant adverse claim with Jack bear Finally, concluded exercised not as a license Thoreson permission that to "Glen Thoreson from Lear that information when Jack Glen he had to ask for The 1969 affidavit Thoreson of right, and the court This Durocher." affidavit the property it. the based on the that The trial upon he had a Thoreson. he did not feel based believed man who worked Glen he told Thoreson property estate Durocher there was an was the basis was passed along his use of the trail revocable for to as an at the Rappolds' pleasure. We conclude a prescriptive that the trial easement through substantial credible misapprehend the effect clearly erroneous. court's Rappolds' evidence, that of the evidence, AFFIRMED. judgment property the trial and that that Durocher is supported court the court did has by not was not / 8 March 23, 1993 CERTIFICATE OF SERVICE I hereby certify that the following order was sent by United States mail, prepaid, to the following named: Gregory W. Duncan &John P. Poston Harrison, Loendorf & Poston 2225 Eleventh Ave., Ste. 21 Helena, MT 59601 Michael S. Becker & Walter S. Murtitt Luxan & Murlitt P.O. Box 1144 Helena, MT 59624-1144 Robert L. Woodahl Attorney at Law P.O. Box 162 Choteau, MT 59422-0162 ED SMITH CLERK OF THE SUPREME COURT
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