PUBLIC LANDS ACCESS ASS N v BOONE
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NO. 92-262 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993 PUBLIC LANDS ACCESS ASSOCIATION, INC., LEWIS EUGENE HAWKES, WALTER J. SILLS, ALBERT C. GEIGER, AND'HERMAN J. EARLES, Plaintiffs and Respondents, -vBOONE AND CROCKETT CLUB FOUNDATION, INC., AND THE STATE OF MONTANA, DEPARTMENT OF FISH, WILDLIFE AND PARKS Defendants and Appellants. BOONE AND CROCKETT CLUB FOUNDATION, INC., Third-Party Plaintiff and Appellant, -vTETON COUNTY, MONTANA, Third-Party 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: Gregory Strope, For W. Duncan, John Harrison, Loendorf P. Poston & Poston, Respondent: F. Woodside Wright, Reynolds, Wright, Helena, Montana: Russell County Attorney, Choteau Montana For and Phillip W. Helena, Montana Motl, Sherwood & R. Andrews, Teton Amicus: an B. ntana Newman, University Submitted of Montana, on Briefs: Decided: Missoula, May 20, 1993 July 1993 8, Justice James C. Nelson This County, is an appeal order public filed I. a bench District trial, which Court, declared Teton that a over the road in and remand. the issues Did the prescriptive Judicial of the Court. easement had been established We reverse We restate the Opinion from a Ninth after prescriptive dispute. delivered on appeal District easement Court had as follows: err been in declaring established that over a public the road in question? II. If there extinguished by the actions III. in Did the District question of Clarence err road easement, was it Evilsizer? in concluding due to the that the road application of the Inc. (PLAA) is a statute"? Respondent non-profit Public Montana Lands Access Association, corporation lands for multiple members of Montana: using prescriptive Court was a county "curative public was a public the purposes. general are past users dedicated public; to maintaining The individual are residents access respondents of are State of and are desirous of the road in dispute: the to of the road in the future. Appellant, a non-profit disputed purposes Boone and Crockett corporation. road is located and is working Club Foundation BCC purchased as a ranch in University approximately research ten miles 2 land scientific coordination of Montana conducting is located for the with (BCC), upon which the and educational Amicus at the ranch. west of Dupuyer, is also Curiae The land Montana. The controversy starting "in surrounds Section intersection with a 18 of Township county road: fashion across through Section Section of fashion Lot 3; then Section across Johnson's point then Township through in turning 27 North, portion 23 to U.S. Johnson's eastern to be a county (disputed road) disputed portion which to hunting power to close because it the west the disputed of spring claimed there existed by the actions easement, but an action as the road, portion by of the The track which Creek Canyon. "right prior PIAA disputed for all road Crossing. traffic traffic as dividing agreed Johnson's a public there of the landowners PLA?+ brought the . . .I' BCC asserted if and then an area of an unimproved to vehicle prescriptive a southerly lands serves road to vehicular route However, 3 of known crosses Fork of Dupuyer the Lot it of this road. Service a quarter across in in to as the of the road consists season through the northwest and the disputed lies entering The road is referred portion road direction 1; continuing 23; and then Crossing to the mouth of the North BCC closes Lot Forest and Road, in a northwesterly direction Lot 3 of Section Crossing. the of as Range 8 West at the Range 9 West: in a southerly Section described a southwesterly Lot 1 and Lot 2 into Canyon between parties over 18; is proceeding the mouth of Dupuyer Canyon.t' Dupuyer-Dupuyer leads 13, 14 to enter direction into Section which 27 North, then 14 in the northernmost westerly road BCC's part of the year prescriptive easement that there ever was, it was no public was extinguished in the 1970s and 1980s. against BCC to force its discontinuation to of the vehicular National held traffic Forest in the March of Ninth over disputed the the provided provides and to open the This of review Rule pertinent disputed basis to in order BCC's ranch. Court its in the was a public for 52(a), trial was and use of the prescriptive to In 1991. barring public's had been converted appeal the of and order general road access A bench September memorandum with there which statute. by in that road The standard is filed interfering ruling curative beyond District court BCC from road, land Judicial the disputed policy on a year-round Service 1992, enjoining walk-in easement a county road findings of by by BCC followed. a district court's Rule M.R.Civ.P. 52(a), fact M.R.Civ.P., 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 of the credibility of the witnesses . . . In interpreting three-part this rule, we have adopted the following 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 "[A] finding is find that '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 820 P.2d Production 1285, "[O]ur . is whether 1287. standard the Credit v. DeSaye (Citations of tribunal's review (1991), 250 Mont. 320, 323, omitted.) relating interpretation 4 to conclusions of the law of is law correct." . . Steer Inc. v. 803 P.2d Department 601, easement full an easement "must continuous v. show omitted.) 172, 772 P.2d "All the has and that license must be at Keebler, land." permissive use, prescriptive (19831, of P.2d is 319, in a public dispute. PUBLIC that there prescriptive It at contends of be the 852. the 5 since is at in 852. must be or land: owner such of owner the the shows theory Rathbun v. (Citation evidence was established use is of Robson omitted.) EASEMENT substantial easement title the the use." 'one privilege the "If acquired PRESCRIPTIVE was not his of by, 852. what easement owner in 850, up as a mere on adverse 661 P.2d that not 1356-1357. can based 322, I. that and to at 772 P.2d alleged acquiesced easement easement BCC argues right and give Downinq, the pleasure 807 203 Mont. of to, no it'" seeking because to know that for use to 1356. 237 Mont. P.2d as this forced 1354, party 772 the years." (1989), on the such for five 807 P.2d Downinq, be claiming adverse, is Grover is not the known v. opportunity the a claim 521, a case he can fight revocable claim the adverse, under 518, in party claimed period easement. without easement The burden should jeopardy exercised 852. title his the Downing be proved rightfully be 474-475, exclusive, statutory See also; 850, of 247 Mont. must legal "TO The prescriptive elements who use (1991), (Citation establish 470, the notorious, open, period. Harding 175, 245 Mont. by prescription, and uninterrupted statutory Keebler (1990), 603. To establish an of Revenue of the road to conclude over was not the road adverse but rather Troop due to neighborly bought addition, the rise to the level testified road has these to road Fred located. In for used of establish before is been types to access activities a public who has been residing "like testified, someone guess land to to it to in for do not prescriptive a law your in to land, when the the in those your that area if since past was the question get by closing that area before, land say get you maintained said road I stated might in the accommodation the else's you in the neighborly including area, Duncan the and that who has resided that else's which the necessary Bruner, Ken Duncan, I that and courtesy We agree. Paul cross upon activities easement. that ranch BCC asserts recreational accommodation for earlier land, you if there to cross and so on and so When asked accommodation, Duncan replied, "Yes, neighbor's land based use of accommodation prescriptive a or courtesy is Thus easement. was by express or implied the continuous use did not into ripen (1974) I 164 Mont. This case is of not if forth." the whole kind of neighborly mere neighborly where way by the similar 491, use of neighbor the 24, Rathbun 6 cannot area ripen into a a way by a neighbor owner, it was held was not adverse Wilson right." 525 P.2d to the upon and of the a prescriptive 484, a adverse permission the was it, certainly." "A it cross ranch, llopen.'* was if to somebody gates owned the Bruner was a --well, was legal Conners in you had to why it the both travel days. that had and 35 years, rule days 1913, v. that and Chestnut 27. case, cited above, where the Court since concluded 1934. that Rathbun, the use of the way had been permissive Rathbun 661 P.2d at 852. stated that: [sleveral witnesses testified concerning local customs that began in the homesteading days concerning access across another's land. There existed an understanding among landowners that permission 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. Rathbun, time 661 P.2d at 852. is generally a grant, the not sufficient and generally use, tending permissive, "The mere use of a way for to indicate only regarding a few years accommodation Delbert Conner Breding, at the replied, Boy Scouts and the Girl them the all recreational Delbert permission that Breding to merely Their testimony indicates and daughter from Great Scouts there road Falls from different my folks of use of on the ranch neighborly owned the was a open to the public. the use of the because for resided basis. however, testified "Well, time, place round ranch wife about not not adverse the Bredings, the road was always came from, was custom when the Conner family Delbert's when asked use permissive, on a year Breding that the in addition describe as the local understanding owner, stay or act, of 525 P.2d at 27. Two of the witnesses, their ranch. that to the presumption Wilson, Even PLAA's witnesses for rise some circumstances is required." the road. to give the required the general Arcelia Conner and where ranch the users and from Conrad. areas, figured it it The was open to was a good young people." also to use the road. testified Mr. to Breding 7 a specific testified request that the for road was not graded to reach given the an oil drilling permission Perry all until sites. by the Nelson, they were years evidence passing BCC 93, that established because recreational uses the picnicking Sills, road at public the but of road left a road and them has been to be opened as for and closed been considered the v. to Bara public (1934), the example, were do to 96 Mont. been rise primarily to the as pass 302, camping gain access of stated to that a presumption of the and sightreasons fishing use has of adverse for level their hunting, occasional not that fishing, of was testified type raise has Bredings and Geiger "[T]his easement not the purposes to road uses Earles to prescriptive of these the grounds. use." and been held Keebler 1358. Donald but and for to be insufficient 807 P.2d was Geiger, license Maynard use For was accessed using company has always of a mere a the possession. Nelson, order 95. argues seeing. in and Albert gates, passage land, oil traversed obstructions the way." 30 P.2d for over it road. Earles the the the the when they that or other designated 307, road fact support the adverse went in over Herman through by gates strong Sills, improved that improve that "The parties to they found. by the Conners testified gates, barred company He testified Walter PLAA witnesses, encountered drilling Hauge, a drilling he was an infrequent contractor, visitor. and hunted in 1962 and 1963. 1964 flood to see how the flood testified He hunted 8 the the PLAA twice there He made infrequent had affected for in 1961 after the visits land. He was on the road had already area, in 1976 but been he turned he was going of asking the for work at not their Mr. a drill to a walk-in reached the on the the trial states that the court mentions the only of the program parking testified company land was use of road that for its the take if care owner so he consent with enforcement the to cooperation The with commercial trapping the road by used his law use. to BCC's for on Forest cannot The However, owners road 31 enforcement related the fact purposes. previous cattle of his and/or cattle Service become use land. a component possession. personnel the were landowners. and local unwanted program's use adverse of and Parks' the own purposes federal keep Wildlife walk-in or law enforcement or by permission agreement drilling, of of stockmen, used entering finding as some commercial Evilsizer his before and order, by as well for permission lot that would from a multitude road to graze claim In addition, the the livestock landowner a non-owner's for stockmen he had a permit Use by the Fish, used Clarence lessees. for memorandum road testimony because of court's wood gatherers officials, their a landowner the Hauge also site, work access property. In have to bother for When he and left. permission would lot established. around to parking Mr. government trespassers personnel on the off were regulations Evilsizer for his on the road at the had an access for property. premises but they were was limited to Robert Sills law Also, to enforce working in landowners. use of the and outdoor road guiding. 9 oil and gas trapped in the area in establish State 1975 and 1976, a public Fish prescriptive and Game warden, outfitter's Forest but license Service related license testify an outfitter Moreover, program's Finally, the only the road was that the lot the supported by that burden to establish over the permissive that he only year 1975. he parked in the permissible. permission they or did of the entered not last the long possession. court's evidence the existence Dupuyer-Dupuyer to the and gas companies' before the trial substantial oil road the was the These uses were either We conclude which asked property. adverse for in the area, area use and improve enough to establish area companies to a new so Mathews could regarding landowners he issued from the landowners. license did hunt testimony to a former Mathews stated permission using parking Mathews, in 1975, down below. a yearly when the outfitter walk-in use of is insufficient who asked about driving written The outfitting is Allen that to an individual would have to get specific period easement. and then hunting about such findings and that PLAA failed of a public Canyon Road west of fact prescriptive are not in its easement of Johnson's Crossing. DeSave, 820 P.2d at 1287. II. EXTINGUISHMENT OF A PUBLIC PRESCRIPTIVE EASEMENT Although BCC asserts easement, it contends easement, it was extinguished Conners, particularly Ken Duncan, that that there even if Clarence there is no public prescriptive was a public prescriptive by the conduct Evilsizer. when asked by Mr. 10 Poston, of owners after the We agree. attorney for BCC, how other owners, Evilsizer Q. A. Q. A. Q. A. Q- A. Q. A. Troop, and States treated the ranch the property, from responded F. Hedrick from testified testified 1967 through owned by Clarence that 1972. Evilsizer he allowed that he lived At this and leased people time, by Mr. to traverse as follows: on the Mr. Hedrick also Hedrick. testified were erected to the cattle and locked out of there." control Hedrick also the road even if he told them they there, try stated In his from Troop, "to affidavit, stated Clarence not, Hedrick and hunt that and "to on the gates keep the some people Evilsizer, that: 11 but if was he caught used run them off." he would could that subject the property the road the land by oermission. people Conners), Okay, how did Troop treat the property, the use of the road? He let hunters in with permission. But he required permission? Yes, he did. What about Evilsizer and his lessee? Well, his lessee was there to start with, before Evilsizer moved there, and he was really strict with it. You usually didn't get on his place, and I think he testified the other day that a lot of them left. I think they all left. Do you know whether or not the gates were locked, when he was there? In certain areas, they were. NOW, how did Mr. States treat the property, when he got there, about letting people on the road? Well, I had to cross some of States' land to get to this area I leased, this Ahmon place I'm talking about, and I have, since 1973, and if I didn't ask permission form States to cross that land, I would probably, within a half day, I would get a phone call and he would ask if I crossed that land, and I assume he knew every tire tread track that ever crossed his place. Everett property (who purchased who bought the them ranch "[f]rom approximately 1966 to 1978 I owned what is now known as the Boone and Crockett Club TRM Ranch. . . During my ownership of the ranch, the road in question was always treated as a private road with appropriate signs being placed at beyond Johnson's crossing and with all persons not given specific permission to use the road, which occurred on rare occasions, being asked to and required to get off the property. Most problems of trespass occurred during the hunting season. Mr. situated Dean States, subsequent who owned to Clarence the land upon Evilsizer, which stated the in his road is affidavit, that: From approximately 1978 to 1987, my family and I owned and operated what is now known as the Boone and Crockett Club TRM Ranch located at Dupuyer Montana. During our ownership and operation of the ranch, we believed that the road in question in this lawsuit, which has been dubbed the Dupuyer Creek Road, from Johnson Crossing west, was a private road, and we treated it as such with appropriate signs being placed at and beyond Johnson Crossing. Anyone using the ranch for hunting, recreation, or any other purpose was requested to get permission. Anyone caught on the ranch without permission was promptly ejected from the ranch. It was understood by all that permission was necessary if they wanted to use the ranch; and if they were caught on the ranch without permission, they would be ejected. Therefore, I rarely had to eject anyone from the ranch. In through approximately traffic. supervisor, Robert and Commissioners, Evilsizer the 1972, to was persuaded men assured him then Commissioners would problems with trespassers At about agreement to this provide time a the two Forest contact closed National Chairperson discuss by the that Evilsizer Richmond, Bud Olsen, went Mr. Service the of the Sheriff the or the to deal on Evilsizer's Evilsizer County Evilsizer. blockage Teton with and County further land. FWP approached to Service Teton with remove staff road Forest blockage men to the access to the 12 road for people to work out an who wanted to hunt on the begun in the Department private Forest allow by people concerns 1970s would land foot uncontrolled "walk-in" beyond this any other allow personnel point" materials signs and "Written to in area their were State. traffic their The through landowners of parking who would land but had then traverse involved which said for also in land. programs Area, this FWPprovided a landowner's responsible like The Do not drive Required." recreational and the road on Forest "Parking Permission land area was installed National which would facilitate access the the landowners program with for and could access the use. a special to of a FWP program vehicle use vehicle horseback provided around permits make recreational in the lot Department to vehicle case, was part controlling would park or This landowners in issuing In Evilsizer's visitors land. with assist to over Service permission users. for enforcing agreement. Mr. Evilsizer explained the walk-in program in his affidavit: In approximately 1973, I entered into an agreement with the Fish and Game Department of the State of Montana to set up a walk-in hunting area. This agreement allowed hunters to park and camp at a location near the fence line running north and south in the SW l/4 SE l/4 of Section 14. The fence is not on the property line. The hunters were then allowed to proceed strictly on foot or on horseback from there to the west and south onto and access, if they so desired, the rest of my property which lay between that fence and the forest boundary. The parking area was signed with signs provided by the Fish and Game Department. This permissive arrangement seemed to be accepted by everybody and to my knowledge there were very few if any violations of the agreement. I have no knowledge of anyone driving beyond the parking area without permission. 13 FWP the The walk-in ranch. In his agreement affidavit, continued when Dean States purchased the he stated: [W]hile I owned and operated the ranch, I maintained the walk-in area which had been previously been [sic] established by Clarence Evilsizer and the Montana Fish and Game Department while Clarence Evilsizer owned the property. Through an agreement with the Department of Fish, Wildlife and Parks, they also helped me police the area. It is my belief they issued citations to anyone using the area without permission and ejected them from- the property. During the time we owned the ranch, no lawsuits were initiated against us demanding the road in question, which was blocked, be open to the public or any other individuals. At the time I owned the ranch, there were five gates going from Johnson Crossing into the forest service land. Generally, anyone using the property followed the custom in the area and left the gates open if they found them open and closed if they found them closed. Anyone not doing so was asked to leave the ranch if I caught them. If I did not catch them and knew who did it, I would deny them access thereafter. This agreement by BCC. If has continued In 1986, BCC entered a public Evilsizer's of the walk-in of a hostile public] Dutter (1979), Section extinguished tenement agreement had been 70-17-ill(3) 'I.. .(3) by the and maintenance (1977), to the the full 437, of this by the owner of the servitude 14 right hostile attention of or with to the period. that a owner Medhus 672. servitude any act his 433, of the 603 P.2d 669, MCA, provides performance assertion 173 Mont. prescriptive 442-443, FWP. established, and positive must be brought 184 Mont. with a "distinct The assertion for of the area v. Petranek Taylor and the use must continue v. a written easement program evidenced right...." [the the ownership of the road and the creation 438, 568 P.2d 120, 123. owner into prescriptive blocking through upon assent is either which is incompatible basis with of that subsequent support v. In those right. v. use after Morrison, the the 668 P.2d by prescription, 204 Mont. 172, that has 515, inconsistent such of the 1027-1028; been 668 P.2d 772 P.2d or to on the exists, easement 237 Mont. hostile at claim (1983), establishment an act held, easement prescriptive Higbee we found the We have a prescriptive (1989), two cases [.I" with that Grover included permissive if inconsistent Morrison Downing or exercise that conclusion extinguished. others, nature statute, acts the 1025; its 850. acts, among acquiescence claimed Downina. in a prescriptive 772 P.2d at 852- 853. Clarence Evilsizer's blocking of the road which established reverse adverse possession local government, as well as the public the walk-in policy years. Clarence walk-in program 1988 when general PLAA which in the cooperated early brought public in against BCC. to the program inconsistent public easement. may have In addition, opportunity to Johnson's Crossing acquired in establish the Evilsizer's by adhering prescriptive walk-in 1988, road the road. 15 to until users and adverse Compliance claim the of with a public easement the had the west of was lost. county commissioners Dupuyer-Dupuyer as a county The any prescriptive the of reverse the and 17 continued program. with Accordingly, in establishment program in state approximately and the acquiesced was for the act and adhered action an the cooperated 1970s prescription walk-in because had been in existence Evilsizer was a hostile At Canyon the February Road 1988 meeting of the Board denied a petition the road of Commissioners, in to open dispute. the three Teton and establish The county for County Commissioners public commissioners use and access stated that: [A]t this time recreational activities would seem to be the greater use. So it is the recommendation of the inspection team to deny the road petition at this time. Also, due to litigation involved in aguiring [sic] right of way aguistion [sic] thru [sic] the Boone & Crockett Club to the National Forest Service Boundary. The decision to deny the a county road that the disputed In conclusion, that prior was to of to the Dean Troop block the which would early met the it and by the practice would that inconsistent for even if there extinguished acts more of access than the 16 full recreation. public access lessee by and permission. Evilsizer to cooperation government to access to The public, the road thereafter, policy. was a public by reverse road of purposes his landowner. walk-in the by Clarence allow to the for there neighborly he allowed of and local that of forms public area, Evilsizer, state with road as proposition Conners, an attempt was clearly program the Clarence established We conclude easement, from the because other 197Os, be agreeable in the road and the BCC ranch road accessed land the a program acquiesced walk-in the the the and disputed supports of used permission. the road establish ownership users continued in evidence picnicking bought with States Finally, road. a private travellers fishing, road county Further, hunting, When Fred by the Troop's that accommodation. to substantial Fred a policy the is road establish acquiescence confirms petition users in statutory prescriptive adverse acquiescing period. possession in the III. BCC argues curative county that statute road. THE CURATIVE STATUTE the trial converted court erred the public The "curative" in declaring prescriptive statute at issue that easement the into a reads: All highways, roads, lanes, streets, alleys, courts, places and bridges laid out or erected by the public or now traveled or used by the public, or if laid out or erected by others, dedicated or abandoned to the public, or made such by the partition of real property, are public highways. Section 32-103, concluded RCM 1947. (repealed in 1959). The trial court that: The record taken as a whole fails to show that the disputed road was laid out or erected by the public, dedicated or abandoned to the public or made such by the partition of real property.... Since the trial a county public road court virtue by or dedicated partition, then of the road is used the public," only a public as Because we have concluded easement, a public then the curative prescriptive "curative" that opinion. the road could laid out a public that there statute to be that in the disputed easement available road would or erected the by or made such by a establish it that the was "traveled or prescriptive easement. was no public could not become prescriptive not be applied to create in dispute. road nor does it is not encumbered by a public qualify as a county road under statute. REVERSEDAND REMANDEDfor this being choice road out of the road We hold the its that or abandoned to the public, disputed by concluded entry of an order consistent with We Concur: 18 July 8, 1993 CERTIFICATE OF SERVICE I herebycertify that the following order was sentby United States mall, prepaid,to the following named: GregoryW. DuncanandPhillip W. Strope Harrison, Loendorf& Poston,P.C. 2225EleventhAvenue,Suite21 Helena,MT 59601 F. Woodside Wright Reynolds, Motl, Sherwood Wright & 405 North Last Chance Gulch Helena,MT 59601 RussellR. Andrews TetonCountyAttorney P. 0. Box 899 Choteau,MT 59422 JoanB. Newman Attorney at Law The Universityof Montana Missoula,MT 59812 ED SMITH CLERK OF THE SUPREMECOURT
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