MOUNTAIN VIEW CEMETERY v GRANGER

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No. 13691 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 MOUNTAIN VIEW CEMETERY, A Corporation, Plaintiff and Appellant, DAVID GRANGER and MRS. DAVID GRANGER et al., Defendants and Respondents and Cross Appellants. Appeal from: District court of the Second Judicial District, Honorable Arnold Olsen, Judge presiding. Counsel of Record: For Appellant: Corette, Smith and Dean, Butte, Montana Kendrick Smith argued, Butte, Montana For Respondents: Henningsen, Purcell & Genzberaer, Butte, Montana Rex F. Henningsen argued, Butte, Montana Submitted: Decided : October 3, 1977 JPN : 1978 i: Filed: Clerk M r . J u s t i c e Daniel J . Shea d e l i v e r e d the Opinion of t h e Court. Mountain View Cemetery appeals from a judgment e n t e r e d i n t h e D i s t r i c t Court, S i l v e r Bow County, denying t h e Cemetery a roadway easement over t h e adjacent property of defendants Granger and denying an award of t r e b l e damages f o r t h e Grangers' c u t t i n g of two 60 f o o t blue spruce t r e e s on t h e Cemetery's property. The Grangers crossappeal from t h e D i s t r i c t C o u r t ' s f i n d i n g s t h a t t h e cemetery fence l i n e was t h e t r u e boundary l i n e between the p r o p e r t i e s and from t h e award of $4,000 damages f o r t h e wrongful c u t t i n g of t h e cemetery's t r e e s . The Cemetery, a corporation, brought a c t i o n March 21, 1975, a g a i n s t t h e Grangers t o e s t a b l i s h t h e Cemetery's r i g h t t o an easement by p r e s c r i p t i o n a c r o s s t h e southwest edge of Grangers' property near the c i t y of Butte. The Cemetery a l s o a l l e g e d damages of $12,000 f o r t h e c u t t i n g of t h e two t r e e s j u s t i n s i d e t h e Cemetery's fence l i n e . The Grangers answered and f i l e d a counterclaim a g a i n s t t h e Cemetery f o r encroachments upon Grangers' property. Grangers a l s o f i l e d a t h i r d p a r t y complaint a g a i n s t F.& S. Contracting Company and T i t l e Insurance Company of Minnesota f o r i n s u r i n g t i t l e f r e e of t h e encumbrance of t h e easement a l l e g e d by t h e Cemetery. The D i s t r i c t Court ordered a s e p a r a t e t r i a l on t h e t h i r d p a r t y complaint pending outcome of t h e Cemetery-Granger dispute. The Cemetery property i s adjacent t o and south of t h e Granger property. For approximately 45 years cemetery personnel, and v i s i t o r s t o t h e cemetery r e g u l a r l y used, without i n t e r f e r e n c e , a s t r i p of land approximately 25 f e e t wide by 247 f e e t long on t h e south border of t h e Granger's land a s a second roadway i n t o t h e cemetery. The road runs from west t o e a s t . The fence l i n e involved i s j u s t t o t h e south of t h e roadway. The blue spruce t r e e s were j u s t t o t h e south of t h e fence, a s was a garage and shed owned and used by t h e Cemetery. Over a period of 30 years t h e Cemetery corporation p r e s i d e n t , C a r r o l l Fabian, had b u i l t up t h e roadway 2 t o 3 f e e t , maintained t h e road a t a l l times, kept it plowed i n w i n t e r , and e r e c t e d a "slow" s i g n near t h e road t o d i r e c t t r a f f i c coming i n t o t h e roadway from Harrison Avenue, a major thoroughfare i n Butte which l e a d s south o u t of Butte. U n t i l t h e time of t h e controversy h e r e , t h e Granger land was open, unenclosed, and unimproved, although a t one time p a r t of t h e land was used f o r a sand p i t . The Grangers purchased t h e land a d j a c e n t t o t h e cemetery i n 1968. I n 1973 t h e Grangers n o t i f i e d t h e Cemetery by mail t o q u i t using t h e road. use t h e road. The Cemetery d i d n o t r e p l y and continued t o Before t h i s l e t t e r t h e r e had never been c o n t a c t between Cemetery personnel and t h e Grangers o r t h e i r predecessors i n i n t e r e s t concerning t h e use of t h e road. The ~ r a n g e r s ' land remained unfenced and unimproved u n t i l 1973, a t which time they began c o n s t r u c t i o n of a c a r d e a l e r s h i p on t h a t s i t e . The Cemetery continued t o use t h e roadway u n t i l t h e Grangers blocked t h e roadway by parking l a r g e trucks and automobiles i n i t . The blockage of the road r e s u l t e d i n t h i s a c t i o n f i l e d by t h e Cemetery a g a i n s t t h e Grangers seeking t o e s t a b l i s h t h e roadway a s an easement. The Cemetery a l s o a l l e g e d damages f o r wrongful c u t t i n g of 2 60-foot blue spruce t r e e s j u s t south of t h e a l l e g e d easement and i n s i d e t h e cemetery's fence l i n e . Eb~ding t h e outcome of l i t i g a t i o n t h e D i s t r i c t Court granted a temporary o r d e r allowing t h e Cemetery t o use a s t r i p 15 f e e t by 130 f e e t of t h e a r e a i n q u e s t i o n , f o r access pending t h e outcome of t h e t r i a l . The D i s t r i c t Court denied t h e easement, f i n d i n g t h a t a l l elements f o r a p r e s c r i p t i v e easement had been e s t a b l i s h e d e x c e p t f o r adverse o r h o s t i l e use. The c o u r t a l s o f i x e d t h e cemetery f e n c e l i n e a s t h e boundary l i n e between t h e a d j o i n i n g p r o p e r t i e s and a s s e s s e d damages of $2,000 each f o r t h e 2 b l u e s p r u c e t r e e s c u t by ~ r a n g e r s ' a g e n t s . The c o u r t d i d n o t award t r e b l e damages i n t h e amount of $12,000 a s r e q u e s t e d by t h e Cemetery f o r t h e c u t t i n g of t h e t r e e s . The Cemetery contends t h e t r i a l c o u r t should have g r a n t e d t h e easement and should have awarded $12,000 a s t r e b l e damages f o r t h e c u t t i n g of t h e t r e e s . I n t h e i r c r o s s a p p e a l t h e Grangers contend t h e t r i a l c o u r t e r r e d i n determining t h a t t h e cemetery fence l i n e i s t h e a c t u a l boundary l i n e between t h e a d j a c e n t properties. They f u r t h e r contend t h e $4,000 damages f o r c u t t i n g of t h e t r e e s was improper because two surveys demonstrate t h e t r e e s were a c t u a l l y on t h e ~ r a n g e r s ' p r o p e r t y . Cemetery w i t n e s s e s , i n c l u d i n g u n d e r t a k e r s and f l o r i s t s , a s w e l l a s t h e Cemetery owners, t e s t i f i e d t h e y had r e g u l a r l y used t h e road without s e e k i n g permission and w i t h o u t i n t e r f e r e n c e d u r i n g p e r i o d s of up t o 45 y e a r s . The c o r p o r a t i o n ' s p r e s i d e n t t e s t i f i e d t h a t on Memorial Day a l o n e , a s many a s 600 c a r s used t h e roadway i n t h e p a s t . Each day a t l e a s t t e n automobiles used t h e roadway t o go t o t h e cemetery. The Cemetery's evidence t h e r e was n e v e r permissive use was u n c o n t r a d i c t e d . Grangers contend i t i s n o t t h e i r duty t o prove t h e y o r t h e i r p r e d e c e s s o r s i n i n t e r e s t gave permission t o t h e Cemetery t o use t h e road. Over o b j e c t i o n , t h e Cemetery i n t r o d u c e d i n evidence a 1914 map d e p i c t i n g t h e boundaries of t h e cemetery p r o p e r t y t o be a s t h e c o u r t found them. I t i s n o t c l e a r whether n o r n o t t h e map was based on a previous survey. I n s u p p o r t of t h e map's accuracy a former S i l v e r Bow County s u r v e y o r t e s t i f i e d t h a t d u r i n g a l l t h e years he was i n o f f i c e , t h e county surveyor and h i s crews r e l i e d on t h e map a s t h e i r "Bible" when they were working i n t h e a r e a of t h e cemetery. Also, C a r r o l l Fabian, t h e Cemetery's corporation p r e s i d e n t , t e s t i f i e d t h a t using t h e map a s a guide, he had measured t o t h e fence l i n e and i t conformed t o t h e dimensions s t a t e d i n the-map. The Grangers introduced 2 independent surveys of t h e land involved, which e s t a b l i s h e d t h e cemetery fence was a c t u a l l y on t h e Grangers' property and t h a t t h e t r e e s south of t h e fence were a l s o on t h e Grangers' property. crepancy between t h e 2 surveys. There was a s l i g h t d i s - They agreed however, t h a t one of t h e t r e e s r e s t e d midway between t h e cemetery property and t h e Grangers' property. One of t h e surveys was made b e f o r e t h e t r e e s were c u t , i n conjunction with t h e purchase of t h e land by t h e Grangers, and t h e o t h e r was made a f t e r the t r e e s were c u t and a f t e r t h i s controversy s t a r t e d . The Grangers contend t h e c o u r t was bound t o accept t h e evidence and testimony o f f e r e d by t h e 2 surveys. Grangers f u r t h e r contend t h a t even i f i t i s u l t i m a t e l y determined t h e t r e e s were n o t on t h e i r property, n e v e r t h e l e s s , i n c u t t i n g t h e t r e e s they r e l i e d i n good f a i t h upon a survey which showed t h e t r e e s t o be on t h e i r property. Under s e c t i o n 93-2507, R;C.M. 1947, a p a r t y claiming t h e e x i s t e n c e of an easement by p r e s c r i p t i o n must show open, n o t o r i o u s , exclusive, adverse continuous and uninterrupted use of t h e easement claimed f o r t h e f u l l 5 years. (1977), Mont . v. Weinheimer,(l962), , 568 Taylor v. Petranek, P.2d 120, 34 St.Rep. 905,909; S c o t t 140 Mont. 554, 560, 374 P.2d 91; White v.> Kamps, (1946), 119 Mont. 102, 114, 1 7 1 P.2d 343. The controversy h e r e i s whether t h e use of t h e roadway was adverse o r permissive. - 5 - Montana has consistently followed the minority rule with regard to unimproved and unenclosed lands, which holds that open, visible, continous and uninterrupted use of another's land raises a presumption that the use was also adverse. Taylor v. Petranek, supra; Lunceford v. Trenk, (1974), 163 Mont. 504, 508, 518 P.2d 266; O'Connor v. Brodie, (1969), 153 Mont. 129, 139, 454 P.2d 920; Scott v. Weinheimer, supra; TeSelle v. Storey, (1957), 133 Mont. 1, 5, 319 P.2d 218; Glantz v. Gable, (1923), 66 Mont. 134, 141, 212 P. 858. In O'Connor this Court placed the burden upon the owner to show that the use was permissive in order to overcome this presumption. The District Court found the Cemetery's use was open, visible, continuous and uninterrupted, but was not adverse or hostile. It is plain the court did not apply the presumption that the use is presumed hostile where the other elements are established under section 93-2507. Accordingly, it was incumbent upon the Grangers to establish that the use was initially permissive, and they wholly failed in this burden. They pre- sented no evidence at all on this issue. They rely instead on the general rule that mere use of land for right of way raises a presumption of permissive use, and does not establish the element of adverse or hostile use which ripens into a prescriptive easement. See Anno. 46 ALR2d 1140. Grangers further con- tend laches bars the Cemetery's right to assert a prescriptive right. Even where the general rule is followed however, exceptions have been created where the circumstances of the claimant's use indicate something more than "mere use." Among these are circumstances where the owner is aware of and has not objected t o - t h e use and t h e claimant has never s o l i c i t e d permission, Flener v. Lawrence, (1920), 187 Ky. 384, 220 S.W. 1041; where t h e claimant has improved t h e land and t h e landowner has acquiesced i n t h e improvement, Gaut v. Farmer,(1963), 215 C.A.2d 278, 30 Cal.Rptr. 94,97; Akers v. Moore, (Ky. 1958), 309 S-W.2d 758; o r where t h e vacant land was s i t u a t e d i n an urban o r well# s e t t l e d a r e a , o r otherwise i n such a condition t h a t t h e owner knew o r should have known of t h e adverse u s e , C a s t i l l o v. Tabet Lumber Company, (1965), 75 N.M. 492, 406 P.2d 361, 363; Carlson v. Craig, (1953), 264 W i s . 632, 60 N.W.2d 395,398. It cannot be reasonably contended t h e Grangers and t h e i r predecessors i n i n t e r e s t d i d n o t know of t h e use. The t r i a l c o u r t found t h i s a s a f a c t and t h e Grangers do not c o n t e s t t h a t finding. Here, t h e Cemetery had b u i l t up t h e road t o a height of almost 3 f e e t over a 30 year period and had maintained t h e road f o r t h e t r a f f i c of t h e cemetery. The cemetery fence l i n e was t o t h e south of t h e road and any owner of t h e land involved would have been put on n o t i c e a s t o t h e use made by t h e cemetery. T r a f f i c on t h e road v a r i e d from a s many a s 600 on a Memorial Day t o a minimum of 10 on a l l o t h e r days. A "slowt' s i g n d i r e c t e d t r a f f i c on t h e road. This c e r t a i n l y was evidence of h o s t i l e i n t e n t . I n OIConnor v. Brodie, (1969), 153 Mont. 129,140, 454 P.2d 920, t h e Court s t a t e d t h e r e was a duty of a landowner t o be on i n q u i r y a s t o t h e p h y s i c a l evidence of use of h i s land by another, and t h a t l a c k of o b j e c t i o n by t h e landowner under c e r t a i n c i r cumstances "implies acquiescence and not a g r a n t of license." Here, t h e Grangers and t h e i r predecessors i n i n t e r e s t f a i l e d t o o b j e c t t o t h e use of t h e road and t h e a c t i v i t y on t h e road. Even t h e general r u l e a s contended f o r by t h e Grangers would n o t save them under t h e s e circumstances. The exceptions carved o u t of t h e g e n e r a l r u l e would a l s o d e f e a t t h e i r claim t h a t t h e use was i n i t i a l l y permissive. Neither do we f i n d any merit i n t h e Grangers' claim t h a t t h e Cemetery should be barred by laches from enforcing a p r e s c r i p t i v e easement. Over t h e e n t i r e 45 year period t h e Cemetery enjoyed t h e use of t h e land with complete acquiescence of t h e t r u e owners. I t was n o t u n t i l l a r g e t r u c k s and c a r s were parked on t h e roadway t h a t t h e Cemetery was prevented from enjoying t h e use of t h e road. By t h i s time t h e Cemetery had a l r e a d y acquired i t s easement although n o t y e t j u d i c i a l l y enforced. When Grangers bought t h e land, they bought i t s u b j e c t t o t h e easement. Section 67-1607, R.C.M. 1947. Accordingly, by operation of law t h e Grangers were put on n o t i c e of t h e easement when they purchased t h e land. This Court s t a t e d i n 0'Connor : *** P r e s c r i p t i v e t i t l e once e s t a b l i s h e d i s n o t d i v e s t e d by t h e subsequent t r a n s f e r of t h e s e r v i e n t e s t a t e . The defendants' l a c k of knowledge, i f any i s a matter which must be s e t t l e d between t h e defendants and t h e i r grantor." 153 Mont. 139. " *** The only c l e a r t h r e a t t o t h e enjoyment of t h i s roadway was when i t was blocked by trucks and c a r s . Laches a p p l i e s when a p a r t y has been n e g l i g e n t i n a s s e r t i n g h i s r i g h t , and "* * * where t h e r e has been a delay of such d u r a t i o n a s t o render enforcement of t h e a s s e r t e d r i g h t inequitable." Davis v. Steingruber, (1957), 131 Mont. 468, 470, 311 P.2d 784. The Grangers argue t h e i r property investment i s devalued because t h e Cemetery delayed bringing the a c t i o n u n t i l a f t e r a l a r g e investment had been made and c o n s t r u c t i o n s t a r t e d . However, we see no duty imposed on t h e Cemetery t o take a c t i o n d e c l a r i n g i t s easement u n t i l such time a s t h e Grangers threatened t h e a c t u a l enjoyment of t h e use of t h e road. The Cemetery had no duty t o seek j u d i c i a l enforcement of an easement u n t i l t h e easement's b e n e f i t s were i n jeopardy. W n o t e t h a t t h e only harm which r e s u l t s from upholding e t h e easement a r i s e s from t h e Grangers' p r e c i p i t o u s and premature commencement of c o n s t r u c t i o n without f i r s t s e t t l i n g t h e q u e s t i o n of t h e road, From p h y s i c a l evidence of t h e road i t s e l f , a s w e l l a s t h e i r own knowledge of t h e use of t h e road, they, and t h e i r predecessors i n i n t e r e s t , were on n o t i c e long before c o n s t r u c t i o n began t h a t t h e Cemetery was using t h e property i n d i s p u t e a s a roadway. Grangers cannot now claim t h a t laches b a r s t h e Cemetery's r i g h t t o enforce an easement upon t h a t land. The f i n a l i s s u e h e r e concerns t h e f a i l u r e of t h e c o u r t t o award t r e b l e damages f o r c u t t i n g t h e t r e e s . The D i s t r i c t Court found t h a t t h e cemetery fence l i n e was t h e t r u e boundary l i n e between t h e adjacent p r o p e r t i e s and awarded a c t u a l damages f o r t h e value of t h e t r e e s , $2,000 each. The Cemetery contends t h e t r i a l c o u r t was bound by s e c t i o n 17-503, R.C.M. award t r e b l e damages. 1947, t o The Grangers do n o t question t h e value of t h e t r e e s , but contend i n t h e i r crossappeal t h a t t h e t r i a l c o u r t was i n e r r o r i n f i x i n g t h e cemetery fence l i n e a s t h e t r u e boundary l i n e between t h e adjacent p r o p e r t i e s . They contend t h e t r u e boundary l i n e i s south of t h e fence l i n e and even a l i t t l e south of t h e a r e a where t h e t r e e s were growing. If c o r r e c t , then t h e fence and t h e t r e e s would be on t h e Grangers' property and they would n o t of course be l i a b l e f o r damages i n cutting the trees. W do n o t agree t h e t r i a l c o u r t was bound t o e s t a b l i s h t h e e boundaries a s shown by t h e Grangers' evidence. The Grangers r e l i e d on two independent surveys, one before t h i s controversy a r o s e , and t h e o t h e r i n preparation f o r t h i s controversy. Each survey e s t a b l i s h e d t h e t r u e boundary l i n e a s south of t h e fence l i n e and south o f t h e t r e e s . However, t h e t r i a l c o u r t was n o t bound t o accept t h e i r testimony. During i t s c a s e t h e Cemetery introduced over o b j e c t i o n , a 1914 map which s e t o u t t h e boundaries of t h e cemetery property. I t was n o t done i n conjunction with a survey nor apparently even i n r e l i a n c e on a survey. However, t h e Grangers do not contend on appeal t h a t i t was e r r o r t o admit t h i s evidence. The former S i l v e r Bow County surveyor t e s t i f i e d t h a t while he was i n o f f i c e he and h i s crews r e l i e d on t h i s map e x t e n s i v e l y a s e s t a b l i s h i n g t h e boundaries of t h e cemetery. The p r e s i d e n t of t h e Cemetery corporation t e s t i f i e d t o h i s own measurements which conformed t o t h e measurements depicted by t h e map. Neither do t h e Grangers contend i t was e r r o r t o admit t h i s testimony. The c o n f l i c t i n t h e testimony and t h e evidence c r e a t e d a question of f a c t f o r t h e t r i a l c o u r t and i t was, of course, w i t h i n t h e province of t h e t r i a l c o u r t t o r e s o l v e t h a t i s s u e a g a i n s t t h e Grangers a s long a s t h e r e was s u b s t a n t i a l evidence t o support i t . Taylor v. Petranek, (1977), 568 P.2d 120, 34 St.Rep. 905,909. Mont . 3 There was s u b s t a n t i a l evidence and accordingly, t h e t r i a l c o u r t was c o r r e c t i n determining t h a t t h e cemetery fence l i n e was t h e t r u e property l i n e between t h e adjoining properties. W do n o t agree with t h e Cemetery however, t h a t t h e t r i a l e court was bound t o award t r e b l e damages a g a i n s t t h e Grangers for cutting the t r e e s . R.C.M. The Cemetery r e l i e s on s e c t i o n 17-503, 1947, which provides: "For wrongful i n j u r i e s t o timber, t r e e s , o r underwood upon t h e land of another, o r removal t h e r e o f , the measure of damage i s t h r e e times such a sum a s would compensate f o r t h e a c t u a l detriment, except where t h e t r e s p a s s was casual and involuntary, o r committed under t h e b e l i e f t h a t t h e land belonged t o t h e t r e s p a s s e r , o r where t h e wood was taken by t h e a u t h o r i t y of highway o f f i c e r s f o r t h e purposes of a highway; i n which cases t h e damages a r e a sum equal t o t h e a c t u a l detriment. I t Under s e c t i o n 17-503 t r e b l e damages may be allowed except where t h e t r e s p a s s was "casual and involuntary, o r committed under t h e b e l i e f t h a t t h e land belonged t o t h e t r e s p a s s e r * * *." A t t r i a l i t was agreed t h a t t h i s s t a t u t e c o n t r o l l e d a s t o whether o r n o t the Cemetery was e n t i t l e d t o t r e b l e damages. I n e n t e r i n g i t s f i n d i n g s however, t h e t r i a l c o u r t r e l i e d on s e c t i o n 93-6103, R.C.M. 1947 (a s t a t u t e regarding t r e s p a s s t o property and c u t t i n g of t r e e s but n o t a p p l i c a b l e t o t h i s c a s e ) . Section 93-6103 has been i n t e r p r e t e d by t h i s Court t o r e q u i r e t h a t t r e b l e damages a r e only allowed where t r e e s were c u t malice, wantonness, o r e v i l design. with The t r i a l c o u r t found t h a t t h e r e was no malice, wantonness o r e v i l design, and accordingly, denied t r e b l e damages. Because t h e same f i n d i n g i s n o t required under s e c t i o n 17-503, t h e Cemetery a s s e r t s t h a t i t i s e n t i t l e d t o t r e b l e damages a s a matter of law. On t h e o t h e r hand, Grangers contend t h e t r i a l c o u r t ' s d e c i s i o n on t r e b l e damages should be upheld, even i f i t was given f o r t h e wrong reasons, because t h e r e was evidence t o support such a finding. They r e l y on a survey upon which they a c t e d i n c u t t i n g t h e t r e e s , f e e l i n g t h e t r e e s were on t h e i r The r u l e which t h e Grangers ask us t o invoke i s , one, under c e r t a i n circumstances a s a l u t a r y / I n r e Williams' E s t a t e , property. (1919, 52 Mont. 192, 156 P. 1087; E s t a t e of Maricich, 145 Mont. 146, 400 P.2d 873 (1965); b u t we do not agree i t should be followed i n t h i s case. The determination of whether t r e b l e damages should be awarded under s e c t i o n 17-503, i s a f a c t u a l question. W cannot e s t a t e a s a matter of law t h a t t r e b l e damages were required. Neither can we s t a t e t h a t under a l l circumstances one can avoid t r e b l e damages by r e l y i n g on a survey i n d i c a t i n g the t r e e s were on one's own property. The t r i a l c o u r t made no f i n d i n g s a s t o the whether/ t r e b l e damages provision of t h e s t a t u t e was excused under t h e f a c t s of t h i s case. W r e v e r s e t h e judgment of t h e D i s t r i c t Court and d i r e c t e t h a t judgment be entered g r a n t i n g an a p p r o p r i a t e easement t o t h e Cemetery, together with t h e a p p r o p r i a t e dimensions. W e v a c a t e t h e f i n d i n g s and conclusions of t h e t r i a l c o u r t on t h e i s s u e of t r e b l e damages and d i r e c t t h a t f i n d i n g s and conclus i o n s be entered guided by t h e provisions o f . s e c t i o n 17-503, R.C.M. 1947. This cause i s remanded t o t h e D i s t r i c t Court f o r f u r t h e r proceedings c o n s i s t e n t with t h i s opinion. W Concur: e - L h i e £ Justice r

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