98-078
No. 98-078
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 123N
MICHAEL BAKER and KORI BAKER,
husband and wife,
Defendants and Appellants,
v.
ROBERT IVEY and JOYCE IVEY,
husband and wife,
Plaintiffs and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Katherine R. Curtis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Marshall Murray, Kalispell, Montana
For Respondent:
Dean Knapton, Kalispell, Montana
Submitted on Briefs: April 30, 1998
Decided: May 15, 1998
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
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¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996
Internal Operating Rules, the following decision shall not be cited as precedent
but shall be filed as a public document with the Clerk of the Supreme Court
and shall be reported by case title, Supreme Court cause number and result to
the State Reporter Publishing Company and to West Group in the quarterly
table of noncitable cases issued by this Court.
¶2 This is an appeal by Michael and Kori Baker (Bakers) from the District
Court's July 1, 1997 Findings of Fact, Conclusions of Law and Order and the
"deemed" denial of Bakers' Rules 52(b) and 59(g), M.R.Civ.P., motion to
amend the court's Conclusion of Law No. 4. We reverse and remand for
further proceedings consistent with this opinion.
Background
¶3 Robert and Joyce Ivey (Iveys) sued Bakers in an action seeking a
declaratory judgment, an injunction and damages. Iveys claimed that Bakers
were unlawfully driving over and parking and storing vehicles on a 60-foot
strip of land owned by Iveys. Iveys also claimed that Bakers were unlawfully
gaining access to Bakers' property by way of a 12-foot paved roadway. This
paved roadway was off, but near, a 12-foot easement originally established in
1962 by Bakers' predecessors in interest, Hindmans, for access to the property
now owned by Bakers. Iveys further claimed that Bakers were wrongfully
driving and parking vehicles and allowing others to park off the original 12-foot
easement.
Finally, Iveys claimed that Bakers wrongfully interfered with
Iveys' attempts to construct a fence adjacent to and to gate the roadway.
Bakers answered and counter-claimed denying that Iveys were entitled to any
relief. On the theory of prescriptive use, Bakers also sought to have the court
grant them use of the paved roadway along with the use of an extended area
abutting the roadway.
¶4 The case was tried to the Eleventh Judicial District Court on December
21, 1995, and subsequent to the parties' testimony and to their presentation of
oral and written evidence, the court viewed the disputed properties. In due
course the court entered detailed findings of fact, conclusions of law and an
order.
¶5 In summary, the court ruled in favor of Iveys to the extent of denying
Bakers any right to use the 60-foot strip. The court also ruled against Iveys
and in favor of Bakers to the extent that the court decreed that Bakers are
entitled to prescriptive use of the paved 12-foot roadway for ingress and egress
in accordance with the original easement uses established in favor of their
property in 1962.
¶6 However, in its Conclusion of Law No. 4, the District Court determined
that:
[Bakers'] use of property along the easement in excess of the
granted easement has not been shown to be sufficiently
continuous and adverse, and not the result of neighborly
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accommodation, to establish a prescriptive right to use that
portion of [Iveys'] property.
Bakers moved to amend this conclusion to read:
[Bakers'] use of the property along the easement in excess of the
granted easement and over the paved road and the extended area
up to 32 feet in width at the Ivey/Baker property line, and
narrowing at 50 feet to 14 and one-half feet in width, has been
shown to be sufficiently continuous and adverse to establish a
prescriptive right to use that portion of [Iveys'] property.
The trial court did not timely rule on this motion. Accordingly, it was deemed
denied. Rules 52(d) and 59(g), M.R.Civ.P. Bakers timely appealed.
Issue
¶7 As their sole issue on appeal, Bakers argue that the District Court's
Conclusion of Law No. 4 was legally incorrect given the evidence introduced
in support of their counter-claim.
Standard of Review
¶8 We review a district court's findings of fact to determine whether they
are clearly erroneous. A district court's findings are not clearly erroneous if
they are supported by substantial evidence; if the trial court did not
misapprehend the effect of the evidence; and if our review of the record leaves
us without a definite and firm conviction that a mistake was committed. We
review a district court's conclusions of law to determine whether the court's
interpretation of the law is correct. Public Lands Access v. Boone &;Crockett
(1993), 259 Mont. 279, 283,
856 P.2d 525, 527 (citations omitted).
Discussion
¶9 In Public Lands Access, we set out the general rule governing the
establishment of easements by prescription or adverse use.
To establish an easement by prescription, the party
claiming an easement "must show open, notorious, exclusive,
adverse, continuous and uninterrupted use of the easement
claimed for the full statutory period [which is ] five years." The
burden is on the party seeking to establish the prescriptive
easement. "All elements must be proved in a case such as this
because 'one who has legal title should not be forced to give up
what is rightfully his without the opportunity to know that his
title is in jeopardy and that he can fight for it.'"
"To be adverse, the use of the alleged easement must be
exercised under a claim of right and not as a mere privilege or
license revocable at the pleasure of the owner of the land; such
claim must be known to, and acquiesced in by, the owner of the
land." "If the owner shows permissive use, no easement can be
acquired since the theory of prescriptive easement is based on
adverse use."
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Public Lands Access, 259 Mont. at 283-84,
856 P.2d at 527 (internal citations
omitted).
¶10 Moreover,
[a] use of a neighbor's land based upon mere neighborly
accommodation or courtesy is not adverse and cannot ripen into
a prescriptive easement. Thus where the use of a way by a
neighbor [is] by express or implied permission of the owner, .
. . the continuous use of the way by the neighbor [is] not adverse
and [does] not ripen into a prescriptive right.
Public Lands Access, 259 Mont. at 284,
856 P.2d at 528 (quoting Wilson v.
Chestnut (1974),
164 Mont. 484, 491,
525 P.2d 24, 27). "Neighborly
accommodation is a form of permissive use which, by custom, does not require
permission at every passing." Lemont Land Corp. v. Rogers (1994),
269
Mont. 180, 186,
887 P.2d 724, 728 (citing Public Lands Access,
259 Mont.
at 284,
856 P.2d at 528).
¶11 Finally, "the proper burden of proof in prescriptive easement claims is
that each element of a prescriptive easement must be proven by the claimant
by clear and convincing evidence." Wareing v. Schreckendgust (1996),
280
Mont. 196, 206,
930 P.2d 37, 43 (citing Kostbade v. Metier (1967),
150 Mont.
139, 143,
432 P.2d 382, 385; Warnack v. Coneen Family Trust (1994),
266
Mont. 203, 216,
879 P.2d 715, 723).
¶12 Keeping in mind our standard of review and these governing principles
of the law of prescriptive easements, we turn to the record. At trial, Michael
Baker testified generally and offered other evidence that because of the grade
of the 12-foot roadway, winter driving conditions would at times necessitate
persons who are using the paved roadway to drive off the roadway itself and
onto the adjacent property. Such conditions would also sometimes require
parking off the roadway proper. Mr. Baker stated that he had regularly used
more than the 12-foot roadway for driving and parking in this fashion since he
purchased his property in March 1988--i.e., for a time in excess of the
statutory period of five years. Specifically, he testified to usage of 32 feet of
width at the common boundary line between the Baker and Ivey property
where the paved road crosses the boundary line, narrowing within 50 feet to
14« feet and thereafter narrowing even more. Mr. Baker stated that, excepting
one conversation about persons parking by Bakers' well head, neither he nor
his wife, whom he married in 1994, ever had any discussion with either Mr.
or Mrs. Ivey regarding permissive or other use of the road or with regard to
any other related issue. Mr. Baker testified that when Mr. Ivey attempted to
fence off the roadway in October 1994, he removed a portion of the fence and
a couple of fence posts to keep the roadway open. Moreover, Mr. Baker stated
that when Mr. Ivey blocked the roadway with a pickup and horse trailer, he
called the sheriff. Mr. Baker disputed his using the paved roadway or property
in excess of the easement by permission or merely because of neighborly
accommodation.
¶13 This testimony and evidence offered by Bakers was virtually unrefuted
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by Iveys. Mr. Ivey testified that they (Iveys and their guests) and Bakers'
predecessors, Hindmans, would occasionally drive and park off the paved 12-foot
roadway. Mr. Ivey's testimony implies that such usage was permissive
or by neighborly accommodation, although he did not testify as to any details
leading to that conclusion. Iveys offered no testimony of any discussions or
conversations granting Bakers permission to use either the paved roadway or
property off the roadway. Furthermore, whatever neighborly accommodation
may have existed between Iveys and Hindmans, there is no evidence that this
continued after Bakers purchased the property. In fact, the only testimony of
neighborly accommodation was that offered by Mr. Baker, and that pertained
to his providing some general upkeep and lookout services over Iveys' property
in their frequent absence. It had nothing to do with the roadway usage.
¶14 Moreover, while Iveys contend that they were unaware that Bakers
were claiming prescriptive rights, Mr. Ivey did testify that he was aware that
Bakers were "abusing" the easement occasionally over a period of several
years. Furthermore, this latter testimony, must also be viewed in the context
that Bakers were year-round residents of their property and Iveys were only
occasional residents of their property--sometimes in the summer and virtually
never in the winter or overnight. If Iveys were unaware of the extent of
Bakers' prescriptive uses of and claims to the property off the paved roadway,
this lack of knowledge is likely a function of their own infrequent use of their
property, rather than from any actual lack of open, notorious, exclusive,
adverse, continuous and uninterrupted use by Bakers.
¶15 We agree with the observation of Bakers in their opening brief on
appeal. The main focus of Iveys' case was to establish the location of Bakers'
easement to be over a route different from that of the paved roadway.
Permission and restricted use issues were neither effectively raised in Iveys'
case in chief nor rebutted by Iveys in Bakers' case. Bakers met their burden
of establishing prescriptive rights to the area in excess of the 12-foot paved
roadway as described in their proposed Conclusion of Law No. 4, by clear and
convincing evidence. Iveys failed in their burden to establish the use of such
area by either permission or neighborly accommodation.
¶16 Therefore, having reviewed the entire record of this case, we conclude
that the District Court's findings of fact as regards Bakers' entitlement to use
the 12-foot paved roadway are not clearly erroneous and that its conclusions
of law are, likewise, correct. However, the substantial evidence which
supports Bakers' prescriptive entitlement to use the 12-foot paved roadway
also supports their right to use the property in excess of the easement
described in their proposed Conclusion of Law No. 4. As to the latter, we hold
that the trial court misapprehended the effect of the evidence adduced by the
Bakers (which was unrefuted by the Iveys) and that the court's Conclusion of
Law No. 4 is, therefore, incorrect.
¶17 Accordingly, as to the District Court's Conclusion of Law No. 4, we
reverse and remand for entry of an order amending this conclusion to accord
with Bakers' proposed Conclusion of Law No. 4 and for entry of an
appropriate amended judgment in Bakers' favor.
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¶18 Reversed and remanded for further proceedings consistent with this
opinion.
/S/ JAMES C. NELSON
We Concur:
/S/ J. A. TURNAGE
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ KARLA M. GRAY
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