Pedersen Trust v. Ziehl, 2013 MT 306

A dock on the Swan River originally fronted Lot 6; a 2000 boundary survey shifted lines so most of the dock sat on Lot 7A while a southwestern corner remained on Lot 6A. The Bysshes (then owners of Lot 6A) told buyer Paul Nicodemus the retained corner was Lot 6A’s but could be shared permissively.
Nicodemus occasionally used the dock while he owned Lot 7A. In October 2002 Gayle Pedersen purchased Lot 6A and made improvements to her property; she did not use the dock or see regular dock use thereafter.
In August 2004 the Ziehls bought Lot 7A, began using the dock in 2005, and reconstructed it in 2006; the rebuilt dock extended 2.6 by 3.69 feet onto Pedersen’s Lot 6A.
Pedersen objected during reconstruction and later sued (March 2009) to eject the Ziehls, quiet title to the intruding portion, and remove the encroachment. The Ziehls counterclaimed for a prescriptive easement.
The District Court found Nicodemus’ use was permissive and, even if the Ziehls’ use became adverse on purchase in 2004, five years had not run before suit. The Montana Supreme Court affirmed.

Issue	Plaintiff's Argument (Pedersen)	Defendant's Argument (Ziehls)	Held
Whether use of the dock was adverse for the statutory prescriptive period	Pedersen: Bysshes’ original permission continued; Nicodemus’ use remained permissive and no adverse claim existed for five years before suit	Ziehls: Permission ended when Pedersen bought Lot 6A in 2002; Nicodemus’ (and later Ziehls’) use from 2002 onward was adverse, satisfying the five-year period	The court held use was permissive during Nicodemus’ ownership; even if adversity began on Ziehls’ 2004 purchase, five years had not elapsed by March 2009, so no prescriptive easement was established

Heller v. Gremaux, 53 P.3d 1259 (Mont. 2002) (elements required to establish prescriptive easement)
Combs-Demaio Living Trust v. Kilby Butte Colony, Inc., 109 P.3d 252 (Mont. 2005) (presumption of adversity shifts burden to owner to prove permission)
Rettig v. Kallevig, 936 P.2d 807 (Mont. 1997) (permissive use presumed to continue; periodic express permission not required)
Han Farms, Inc. v. Molitor, 70 P.3d 1238 (Mont. 2003) (court previously held predecessor’s permission did not prove current owner’s permission — overruled here in part)
Keebler v. Harding, 807 P.2d 1354 (Mont. 1991) (historical uses and custom inform permissive-use analysis)
Morrison v. Higbee, 668 P.2d 1025 (Mont. 1983) (permissive use must be transformed by distinct, positive hostile assertion to ripen into prescriptive right)
Rathbun v. Robson, 661 P.2d 850 (Mont. 1983) (neighborly accommodation supports permissive use finding)
Cope v. Cope, 493 P.2d 336 (Mont. 1972) (various acts and circumstances determine whether use was adverse or permissive)
Formicove, Inc. v. Burlington Northern, Inc., 673 P.2d 469 (Mont. 1983) (stare decisis does not require following an obviously incorrect prior decision)