*1
RATHBUN,
Appellant,
LOWELL A.
Plaintiff
George
ROBSON,
GARY G.
L.
A.
Eleanor
Carlson
Respondents.
Carlson,
al.,
et
Defendants
No. 82-222.
Submitted
Briefs Feb.
1983.
April
Decided
Jon A. and Oldenburg, Bill- P. Fitzgerald Skaggs; Fitzgerald, & William Lynaugh, respondents. and ings, defendants of the opinion delivered the MR. JUSTICE HARRISON Court. of the Fourteenth
This from District Court case comes com- County Plaintiff District, of Musselshell. Judicial him be declaring judgment seeking this action menced by de- owned property across the holder of easement Court, court, two ease- and in this At the trial fendants. by prescription, presented; easement ment theories were held against The Court by District necessity. easement and to de- instances. we asked Additionally, in both plaintiff by and adoption, in verbatim court erred cide whether the fact findings of the defendant’s photographic reproduction, and conclusion of law.
Appellant owner a tract of as the land described east Vi of the west Vi section 34. The map attached appellant’s property shows and the claimed easement route. Appellant has held an interest land since when mother, Rathbun, Mrs. his him ownership transferred his time, brother. Since that appellant has become the sole owner. There are two routes to property; a western access route over appellant easement, which claims an an eastern steep route which is seasonally impassable. Use of requires either route property by one to cross owned at least one respondents. words, appellant’s other property is land-locked. purchased land was initially from County Musselshell
in 1934 by T.D. Cox. The purchase by Cox included the 34; however, west of the west section in 1942 that Vi Vi portion by was sold eventually Cox and was transferred to respondents Jerry Carlson and Kathleen It is Beslanowitch. over this portion that claims an easement *3 necessity.
From 1934 to 1946 Cox lived on section 34. 1930’s the he conducted farming logging operations. and During these years he used the frequently. western access route In 1946 Rathbun, he sold the to appellant’s land Mrs. mother. She owned the During land until 1957. years these eleven land was vacant. Her property visits to the were character- ized the court as sporadic and intermittent. Appellant has never lived property. on the Much 1957, appellant time since He has resided out-of-state. visited land on average year, of once or twice there were in years which he would make visit. These visits were made to “check property.” Appellant owns nonadjoining other in vicinity land which is for leased agricultural in purposes, however, sec- concerning the land tion appellant neither nor land his lessee have used the any productive for use.
This dispute 1970’s estate arose late when real property. agent appellant The to behalf of went view the appellant’s agent include an ease- learned that title did not appellant testimony to ment. The indicates that wished respondents parcels. sell the did subdivide and feelings agree proposed with this land use and made their any respondent’s position known. The was that access permissive, there could be no ac- across their land was respondents any However, tes- also cess to subdivision. put pro- other the land to tified that wished agricultural logging mining uses, such as or or ductive purposes, they would allow access. by prescription burden
To establish
easement
party
moving
He
his
show several elements.
is on the
openly,
predecessors
route
in
must have used the
interest
continuously
notoriously, exclusively, adversely,
and unin
statutory
terrupted
period.
v.
Scott Weinheimer
the full
(1962),
moving party
P.2d 91. Once the
140 Mont.
presumed
elements,
these
adverse use
establishes
per
use
burden is then on the owner to show that the
was
(1969),
129, 454
153 Mont.
missive. O’Connor Brodie
The District Court concluded permis present has been 1934 to the time access route from any presumption sive, use was effec adverse therefore tively agree. rebutted. We begin permissive use to indicate
There was evidence
concerning
ning
local
testified
1934. Several witnesses
concerning
days
homesteading
began in
customs that
*4
There existed
understand
access across another’s land.
ing among
required
permission
not
was
landowners that
neighbor’s
every
person
land.
needed to cross his
time a
gates
the
closed
Permission was automatic
the individual
neighbor’s property.
respected his
“
*
‘* *
upon
A
land
neighbor’s
neigh
use of a
based
mere
courtesy
or
is
adverse
cannot
borly accommodation
not
into
where
use of
ripen
prescriptive
a
easement. Thus
the
a
way
implied
a
was
by
neighbor
by express
permission
owner,
way
it
held
was
that
the continuous use of
by
neighbor
into
ripen
was not adverse and did not
a
* * *.'"
Chestnut,
Wilson
prescriptive right
at
491,
Thompson
Property
525 P.2d at
on Real
(Citing
(1961)
Ewan v.
Easements,
345).
Replacement),
See
also
§
Stenberg 168 Mont.
Notwithstanding there was other evidence to began show that use of the western access and remained permissive. There were several instances control exer- by respondents predecessors; cised and their first oc- in 1934 curred when both forks of the at the western access Goulding by Appar- Creek Road were locked Robsons. ently, gates open got were left There and cattle loose. respon- were two other gates established and maintained dents. the map they designated g-1 g-2. On are at west Vi early Travis, 1960’s J. W. who then owned the post west of section 34 drove a into the middle of Vi g-2, with the traf- preventing intention of further vehicular Also, fic. Carlson with George padlocked g-1 1960’s Pie key. gate chain. retained the remained only present locked to the time. presence
Although
gates
alone will
defeat a
easement,
prescriptive
they
strong
indicating
evidence
Hayden
& Hill v. Snowden & Walters
permissive
use.
*5
324
169,
of local
custom, clearly support coupled gates, with the existence of the trial court’s conclusion that use of the western access always permissive. been necessity
Next, an easement appellant claims that 34. This over the west 1/2of the west 1/2of section exists recently Court has stated: necessity
“Generally, way a of is defined as follows: conveys parcel owner of land a thereof which ‘[w]here remaining lands highway except has no outlet to a over strangers, way a of neces grantor over the land of (Cita sity grantor.’ over lands of the remaining exists omitted.) necessity of is found when Similarly, way a tions portion conveying of lands retains the inner the owner balance, go he must for exit across which another 233, 649 v. McDowell 199 access.” Schmid 431, 433, 1313, 1316. St.Rep. P.2d 39 of argument part bases his the second Appellant definition; portion. In this retains an inner where the owner 1/2 appellant’s predecessor transferred the west of case of 1942, retaining portion, in the east Vz west 1/2 the inner must fail for the same reason Appellant’s the west Vz. claim Schmid; of neces allowing way for the reason discussed of way neces sity not exist. The land over which does In other sity public to a road. is claimed has no access necessity words, way of granted were even benefit; would be the west of the west Vzthere across Vz necessity, way of creation of a “the basic reason world, is the outside communication with namely, permit ” 433, Mont.238, at 39 Schmid, 649 P.2d 199 present.’ (1963), 217 (Citing St.Rep. Daywalt at 1317. Walker 899.) 669, Cal.Rptr. Cal.App.2d photo for the court’s Finally, appellant asserts error respon of adoption verbatim reproduction and graphic law. of fact and conclusions proposed findings dent’s test... ultimate disapprove practice, While we “[o]ur perti- sufficiently comprehensive they are is whether nent to the provide issues to decision, a basis for whether they supported by presented.” evidence Marriage Re (1981), Mont., Jensen 631 P.2d St.Rep. They clearly met the test.
The trial court is affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES GUL- BRANDSON and SHEEHY concur.
APPENDIX *6 concurring: SHEA, MR. JUSTICE merely join opinion majority to com- I but want reproducing issue, ment on the last that of the trial court’s prevailing proposed findings and conclusions of the pro- judicial party adopting as them its own. trial prac- engage trial is demeaned when the courts these cess given shows trial courts have little or tices. It that the making process thought to the other than to decide decision who wins. proud
Winning can, course, trial be that the counsel adopted proposed findings and court has verbatim their losing rea- their clients have a counsel and conclusions. But deciding expectation court, before sonable that the trial carefully parroting of case, their case. Verbatim considered nothing findings proposed do but de- conclusions can expectations. flate these