Rettig v. KallevigRettig v. Kallevig
Lead Opinion
delivered the Opinion of the Court.
Appellants William H. Rettig and Patricia A. Rettig (Rettigs) appeal from the findings of fact, conclusions of law, and judgment entered by the Thirteenth Judicial District Court, Carbon County, determining that Rettigs had not established a prescriptive easement over real property owned by Steve P. Kallevig and Gayle L. Kallevig (Kallevigs).
We affirm.
We review whether the District Court erred in concluding that Rettigs did not establish a prescriptive easement over Kallevigs’ property because Rettigs’ use was permissive.
BACKGROUND
Rettigs and Kallevigs own adjoining parcels of real property in Carbon County, Montana. Rettigs purchased their parcel (the Rettig property) in 1983 from Jim Englert, and became neighbors with Kallevigs in 1994when Kallevigs purchased their parcel (the Kallevig property) from Mrs. Kallevig’s father, Edward DeRudder. Englert and DeRudder were neighbors for nearly fifteen years, and their history is an important part of this case.
The western border of the Kallevig property abuts a paved highway that runs in a north-south direction, passing through the nearby towns of Fromberg and Bridger. The Rettig property is to the east of the Kallevig property and does not abut the highway. Traditionally, the Rettig property was connected to the paved highway by one of two routes: via the Skunk Creek Road, a county road that runs along the northern border of the Rettig property, and via the Temple Road, a track across the Rettig property that eventually connects with the Skunk Creek Road.
In the early 1960s, DeRudder dug a silage pit on his property (later, the Kallevig property) and built a road connecting the silage pit and the paved highway. DeRudder erected a fence and gate at the junction of the silage pit road and the paved highway. With DeRudder’s express permission, Englert extended the road from the silage pit in an easterly direction over DeRudder’s property to his, Englert’s, property (later, the Rettig property). Englert graveled the road and installed a drainage pipe. After the road was constructed, Englert moved his mailbox from the junction of the highway and Skunk Creek Road to the junction of the highway and the silage pit road. DeRudder did not object to these actions.
This silage pit road provided Englert a more convenient access to the paved highway than did the Skunk Creek Road or the Temple Road. DeRudder allowed Englert to use the silage pit road, subject to his clearly expressed authority to revoke the permission should certain circumstances arise which would prompt him to do so. Englert understood that his use of the silage pit road was permissive.
In the early 1980s, Englert informed DeRudder of his intention of selling his property. DeRudder advised Englert that all prospective buyers be instructed that the use of the silage pit road was not a right but a privilege, based on DeRudder’s grant of permission.
Englert testified that when Rettigs, as prospective buyers, came to inspect the property, he informed them of the permissive nature of the use of the silage pit road. Rettigs denied that this statement was made. Englert explained during his testimony at trial that Rettigs asserted their belief that they could establish a right to use the road, and that this statement was made in response to his warning that the use of the road was permissive. Areal estate agent, Bill Huyser, testified that he was present during this conversation, that he heard the statements described by Englert, and that he himself informed Rettigs that the use of the
Rettigs purchased the property in 1983 and immediately began using the silage pit road as the primary access to their property. Rettigs often saw DeRudder as they drove the road, and they usually exchanged smiles and waves in passing. Rettigs were never informed directly by DeRudder that their use of the road was permissive.
While DeRudder maintained the section of the road from the highway to the silage pit, Rettigs maintained the section of the road from the silage pit to their property. Rettigs’ graveled the road, replaced the drainage pipe previously installed by Englert with a culvert, and put in a cattle guard. On particularly snowy days when the silage pit road was impassable without four-wheel drive, Rettigs parked their car on the road. Rettigs also placed their mailbox at the junction of the highway and the silage pit road. DeRudder did not object to any of these actions.
In 1985, Rettigs plowed under the Temple Road, placed a sprinkler system on the property, and converted the plowed under road to agricultural use. However, Rettigs did not remove the entry gates, the entry arch, or the road apron where their property joined the Skunk Creek Road. DeRudder testified that he had no knowledge that Rettigs had plowed under the Temple Road.
In 1994, DeRudder sold his property to his daughter and son-in-law, Kallevigs. Kallevigs informed Rettigs that they could no longer use the silage pit road, and in January, 1995, closed and locked a gate across the roadway at the point at which it connects to the paved highway. Rettigs filed suit seeking a judgment declaring that they held a prescriptive easement across Kallevigs’ property. After a non-juiy trial, the court entered judgment for Kallevigs, concludingthat aprescriptive easement had not been established and that use of the silage pit road was merely permissive. Rettigs appeal from this judgment.
STANDARDS OF REVIEW
In the recent case of Rafanelli v. Dale (1996),
We review a district court’s findings of fact to determine whether they are clearly erroneous, giving “due regard... to the opportunity of the trial court to judge of the credibility of the witnesses.” Rule 52(a), M.R.Civ.P. In determining whether a court’s findings of fact are clearly erroneous, we apply a three-part 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 evidence has not been misapprehended, the Court may still find that “[A] finding is ‘clearly erroneous’when, although there is evidence to support it, a review of the record leaves the [CJourt with the definite and firm conviction that a mistake has been committed.”
Interstate Prod. Credit Ass’n v. DeSaye (1991),250 Mont. 320 , 323,820 P.2d 1285 , 1287 (citations omitted). We review conclusions of law to determine whether the district court’s interpretation of the law is correct. Public Lands Access Ass’n, Inc. v. Boone and Crockett Club Found., Inc. (1993),259 Mont. 279 , 283,856 P.2d 525 , 527.
Rafanelli,
[fit is within the province of the trier of fact to weigh the evidence and assess the credibility of witnesses and we will not second-guess those determinations. Moreover, we will uphold a district court’s findings when there is substantial evidence to support them even when there is also evidence supporting contrary findings.
Rafanelli,
Did the District Court err in concluding that Rettigs did not establish a prescriptive easement over Kallevigs’ property because Rettigs’ use was permissive?
A prescriptive easement is created by operation of law in Montana. Swandal Ranch Co. v. Hunt (1996),
That Rettigs’ use of the silage pit road was open, notorious, exclusive, continuous and uninterrupted is not disputed; prior to Kallevigs erecting the locked gate in 1995, Rettigs had used, with DeRudder’s knowledge, the silage pit road for some eleven years. However, the District Court concluded that Rettigs’ use of the silage pit road was permissive and therefore had not ripened into a prescriptive easement. Rettigs attack this conclusion on several grounds.
First, Rettigs claim that the court’s conclusion was erroneous because DeRudder never informed them that their use of the road was permissive. Second, Rettigs claim that the court’s conclusion was erroneous because, assuming Englert and Huyser informed them of the permissive use of the road (which Rettigs deny), the only way such information would have the effect of a grant of permission from DeRudder himself would be if DeRudder had issued written authority to Englert and Huyser to grant permission on his behalf. See § 28-2-903(l)(d), MCA (contract involving interest in real property must be in writing). There was no evidence that such a relationship was created. Third, Rettigs claim the court’s conclusion was erroneous because Englert’s permissive use of the road was not automatically transferred to Rettigs upon their purchase of Englert’s property. Rather, Rettigs argue that the nature of their use of the road must be evaluated upon its own merits, and that such an evaluation clearly reveals that their use was adverse to DeRudder’s ownership for the statutory period.
Kallevigs contend, essentially, that the fact that DeRudder did not directly, or, indirectly through Englert or Huyser, grant Rettigs permission to use the road is not dispositive here. Similarly, Kallevigs contend that Rettigs’ “transferred permission” argument is inapplicable. Rather, Kallevigs argue that the initial, undisputedly permissive nature of the road continued uninterrupted until that permission was revoked in 1995. In that respect, Kallevigs argue that the permissive nature of the use of the road was not dependent on DeRudder affirmatively granting Rettigs permission to use the road. Moreover, Kallevigs contend that DeRudder was neither prompted nor required to take any action to uphold the permissive nature of the use of the road, because Rettigs did not use the road in a substantially different manner than did Englert before them. The court’s findings and conclusions reflect Kallevigs’ argument, and are supported by substantial credible evidence.
The trial testimony of Englert and DeRudder clearly establishes that the use of the silage pit road was permissive from the moment construction of the road was completed. The record also shows that Englert, in building, maintaining, and using the road, graveled the road, installed a drainage pipe, moved his mailbox to the junction of the silage pit road and the paved highway, and used the road as his principal access to his residence. These activities manifested the use of the road permitted by DeRudder.
When Rettigs purchased the property, they used the silage pit road in much the same manner as did Englert. They used the road as their primary access to their residence. They replaced the drainage pipe with a culvert. They graveled the road. They placed their mailbox at the junction of the silage pit road and the paved highway. 'While Rettigs in some specific ways used the
In addition, transferred permission is not involved here; rather, the permissive use initially contemplated by DeRudder and Englert continued without substantial change, modification, or hesitation until 1995. Rettigs correctly assert that this Corut has held that permissive use is not transferable. Luoma v. Donohoe (1978),
Rettigs contend, however, that the permissive use originally contemplated by DeRudder did not extend to them because they were never informed by DeRudder, either directly or indirectly, that the use of the silage pit road was permissive. This contention is without merit. First, periodic, express grants of permission are not required to maintain the permissive character of the use of a road. “[I]f a use begins as a permissive use it is presumed to continue as such.” White v. Kamps (1946),
Our review of the record leaves us with the firm conviction that the District Court’s findings of fact are supported by evidence and are not clearly erroneous, and that the
Affirmed.
Dissenting Opinion
dissenting.
I respectfully dissent from the Court’s opinion in this case. I would hold that the Rettigs’ use of the road was adverse; that the Kallevigs failed in their burden to establish permissive use; and, thus, that the Rettigs did have a prescriptive easement over the Kallevigs’property.
As the Court’s opinion correctly states, a claim to an easement by prescription may be defeated by the landowner demonstrating that the claimant’s use was with the landowner’s permission. Rathbun v. Robson (1983),
Contrary to this assertion, a substantial change did occur in that Englert sold his property to the Rettigs in 1983. Although Englert’s use of the road was with the express permission of DeRudder, the testimony at trial showed that the Rettigs and DeRudder never discussed the use of the road that crossed DeRudder’s property. Englert and Huyser testified that when the Rettigs, as prospective buyers, came to inspect Englert’s property, they informed the Rettigs that the easement was permissive. This, however, did not make the Rettigs’use of the road permissive. As we have already stated, Englert could not give someone else the right to permissively use DeRudder’s property; permission is not transferrable. Luoma,
Regardless of Englert’s use of the roadway being permissive, such use could not, as a matter of law, nor was it in this case, as a matter of fact, transferred to the Rettigs. Rather, the Rettigs’ claim of prescriptive use of the roadway must stand or fall on its own. We must look strictly at the conduct between the Rettigs and DeRudder to determine whether the Rettigs established a prescriptive use or whether that claim was defeated by DeRudder’s grant of permission.
In this regard, it is undisputed that DeRudder did not expressly grant or deny permission for the Rettigs to use the roadway. Rather, DeRudder, at the most, merely acquiesced in the Rettigs’ use of the road. “Implied acquiescence is not the same as permission.” Cremer v. Cremer Rodeo Land and Livestock Co. (1981),
Moreover, if Englert’s testimony was credible, as the District Court found and as Kallevigs argue, then as early as 1983, when the Rettigs negotiated for the purchase of their property, Englert put DeRudder on notice that the Rettigs claimed a prescriptive use of the road. Once that happened, DeRudder
The Rettigs were under no duty to communicate to DeRudder that they were using the road under a claim of right, adverse to DeRudder. Warnack v. Coneen Family Trust (1996),
[Allthough the plaintiffs bear the burden of establishing that their claim is known to and acquiesced in by the owner, they need not specifically notify the servient landowners that they are using the easement under a claim of right.
Warnack,
The Court holds, again without citing any supporting authority, that a landowner may determine “that any owner of a particular parcel of property be allowed to use a roadway over his property; the identity of the permitted user may change without running afoul of the rule regarding non-transferability of permissive use.” This statement is in direct contradiction to the rule that permissive use is not transferrable and is incorrect.
Moreover, the Court states that “periodic, express grants of permission are not required to maintain the permissive character of the use of a road.” For this proposition the Court cites White v. Kamps (1946),
The record establishes that the Rettigs proved all of the elements of a prescriptive easement. In fact, the Court’s opinion concedes that “Rettigs’ use of the silage pit road was open, notorious, exclusive, continuous and uninterrupted ... with DeRudder’s knowledge ... for some eleven years.” What is not proven, however, is that DeRudder ever defeated the Rettigs’ claim of prescription by showing that he had granted them permissive use of the road over his property. While the Kallevigs may have proved permissive use as between DeRudder and Englert, that permissive use, as a matter of law, did not transfer to the Rettigs, and the Kallevigs wholly failed in their burden to show any permissive use as between the Rettigs and DeRudder. Accordingly, I would hold that the District Court erred in finding that the Rettigs did not have a prescriptive easement over the road on the Kallevigs’ property.
I would reverse.