Brown & Brown of MT, Inc. v. Raty
289 P.3d 156
Mont.2012Background
- Brown & Brown of MT, Inc. sought a preliminary injunction or declaratory judgment to restrict or deny a prescriptive easement through Greenfield (Brown’s property) by the Ratys.
- The subject road connects Upper and Lower Setty Ranches and passes through Brown’s Greenfield parcel and state land.
- Historical and ongoing use by the Ratys and predecessors (trailing cattle, vehicle purposes, recreation, cabin access) preceded Brown’s assertions of ownership control.
- Brown argued the Ratys’ use was permissive or neighborly accommodation, not adverse, and sought to limit or deny the easement.
- The District Court granted summary judgment in favor of the Ratys on the existence of a prescriptive easement and later limited its width to 20 feet; the Final Judgment was entered in 2011, and this appeal followed.
- The Montana Supreme Court affirmed the prescriptive easement’s existence, reversed the 20-foot width limit for trailing cattle, and remanded for modification of the Final Judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred by granting summary judgment on prescriptive easement given disputed permissive/adverse use facts. | Brown contends use was permissive/neighborly accommodation. | Ratys contend use was adverse and continuous, meeting elements. | No error; use deemed adverse; summary judgment affirmed on existence. |
| Whether the prescriptive easement includes residential and recreational uses. | Brown argues no residential/recreational use was proven. | Ratys showed cabin access and related activities during prescriptive period. | Easement includes residential and recreational uses; remanded to limit to historical uses. |
| Whether the width of the prescriptive easement should be limited to 20 feet for cattle trailing. | Brown argues 20 feet appropriate; Ratys contend broader width implied. | Cattle width varied; no strict 20-foot constraint historically. | Reversed; width not limited to 20 feet; remanded to reflect best efforts to keep cattle near road. |
Key Cases Cited
- Schmid v. Pastor, 2009 MT 280 ( MT 2009) (elements: open, notorious, exclusive, adverse, continuous use; burden-shifting presumption of adverseness)
- Knutson v. Schroeder, 343 Mont. 81, 183 P.3d 881 (2008 MT) (adverse use presumption and permissive rebuttal)
- Leisz v. Avista Corp., 340 Mont. 294, 174 P.3d 481 (2007 MT) (permits assess open/continuous use; implied acquiescence not permission)
- Wareing v. Schreckendgust, 280 Mont. 196, 930 P.2d 37 (1996 MT) (notifies neighbor about use does not equal permission; neighborly accommodation separate)
- Cremer v. Cremer Rodeo Land & Livestock Co., 192 Mont. 208, 627 P.2d 1201 (1981 MT) (acquiescence vs. permission distinction clarified)
- Public Lands Access Ass’n v. Boone & Crockett Club Found., 259 Mont. 279, 856 P.2d 525 (1993 MT) (gates evidence weighed in permissive-use considerations)
- Meadow Lake Estates Homeowners Ass’n v. Shoemaker, 2008 MT 41, 341 Mont. 345, 178 P.3d 81 (2008 MT) (continuous use does not require constant use; regular access)
- Clark v. Heirs & Devisees of Dwyer, 2007 MT 237, 339 Mont. 197, 170 P.3d 927 (2007 MT) (reasonable necessary use limits when not defined by grant)