Pedersen Trust v. Ziehl
372 Mont. 223
Mont.2013Background
- This dispute centers on a dock extending onto Pederson's riverfront property in Bigfork, Montana.
- Boundary adjustments in 2000 reallocated dock portions between Lot 6A and Lot 7A, creating shared permissive use.
- Pederson bought Lot 6A in 2002; Nicodemus previously used the dock with Bysshe permission.
- Ziehls acquired Lot 7A in 2004 and began using and upgrading the dock in 2005–2006.
- District Court found no prescriptive easement due to permissive use continuing and lack of five-year adverse use by 2009, and ordered removal of the encroaching dock portion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court correctly held no prescriptive easement due to permissive use. | Ziehls contend Nicodemus' use was adverse for the period. | Pederson argues by continuing permissive use, adversity was not established. | No prescriptive easement; permissive use defeats adversity. |
Key Cases Cited
- Heller v. Gremaux, 2002 MT 199 (Mont. 2002) (open, notorious, exclusive, continuous use requires adversity for prescriptive rights; permission defeats adversity)
- Rettig v. Kallevig, 282 Mont. 189 (Mont. 1997) (permissive use is presumed to continue; transfer of permissive use is not automatic)
- Morrison v. Higbee, 204 Mont. 515 (Mont. 1983) (distinct, positive assertion of right needed to transform permissive use into adverse use)
- Molitor, 2003 MT 153 (Mont. 2003) (overruled to the extent it held permission cannot carry over upon sale; analysis depends on initial agreement and circumstances)
- Cope v. Cope, 158 Mont. 388 (Mont. 1971) (examines factors to determine whether use is adverse or permissive)