03/04/2025
DA 24-0231
Case Number: DA 24-0231
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 43
DAVID L. MURPHY PROPERTIES, LLC and JOHN SCHAFFER,
Plaintiffs and Appellants,
v.
PAINTED ROCKS CLIFF, LLC, and LAKE COUNTY, a political
subdivision of the State of Montana, by and through the
LAKE COUNTY BOARD OF COMMISSIONERS:
BILL BARRON, GALE DECKER AND STEVE STANLEY,
Defendants and Appellees.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DV-22-143
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Michael P. Talia, Jackson, Murdo & Grant, P.C., Helena, Montana
For Appellee Painted Rocks Cliff, LLC:
Jeffrey M. Roth, Jeffrey R. Kuchel, Crowley Fleck PLLP, Missoula,
Montana
For Appellees Lake County and Board of County Commissioners:
James W. Raymond, Chief Civil Deputy, Lake County Courthouse, Polson,
Montana
Submitted on Briefs: December 11, 2024
Decided: March 4, 2025
Filed:
q.,-.6.--,f
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 David L. Murphy Properties, LLC and John Schaffer appeal the Twentieth Judicial
District Court’s rulings that a dock on Flathead Lake constructed by adjacent landowner
Painted Rocks Cliff, LLC does not violate the Lakeshore Protection Act; that the Plaintiffs
could not establish a prescriptive easement to access a cove intersecting the properties; and
that Painted Rocks’ dock is not a nuisance. We address the following restated issues:
1. Did the District Court correctly dismiss Murphy Properties’ Lakeshore
Protection Act claims against Painted Rocks and Lake County?
2. Did the District Court correctly grant Painted Rocks summary judgment on
Murphy Properties’ prescriptive easement and nuisance claims?
¶2 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 David L. Murphy Properties, LLC and Painted Rocks Cliff, LLC own adjoining
properties with shoreline frontage on Flathead Lake. John Schaffer is Murphy Properties’
sole member and owner (collectively, Murphy Properties). An inlet, or cove, defines the
southern corner of the Painted Rocks property. Painted Rocks owns most of the cove,
including the entry point, and Murphy Properties owns its easternmost edge. Murphy
Properties—whose property includes 372 feet of lakeshore frontage outside the cove—has
a dock on this innermost part of the cove. The water level in the cove varies seasonally
depending on water levels in Flathead Lake, generally filling in June, then partially or
completely emptying in the fall and winter. The following illustration, from a survey of
the properties, appears in the record:
2
ted Rocks
Painted Rocks' PamParcel
Dock
Murphy
Properties ,
Murphy
Flathead Properties
Lake Parcel
Flathead Lake
¶4 In January 2022, Painted Rocks applied for a permit to construct a dock on its
property. Lake County planning staff conducted a site visit and found that, aside from a
canopy that the County did not approve, “[t]he proposed project complie[d] with the
general construction requirements affecting all permits and the design standards of the
Lake County Lakeshore Protection Regulations.” The Lake County Board of
Commissioners issued Painted Rocks a construction permit for its dock in March 2022.
¶5 Soon after Lake County issued the permit, Schaffer e-mailed the Lake County
Planning Department, raising concerns with the dock’s placement. He wrote that its
location would prevent him, his family, and other recreationists from accessing the cove in
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violation of the Lake County Lakeshore Protection Regulations. The Planning Department
responded that
there was no evidence to suggest that the issuance of a [permit for a] dock,
which was legally conforming, was out of compliance with the Lake County
regulations. The Planning Department cannot withhold the ability for a
landowner to construct a lakeshore improvement when it meets all regulation
standards without just cause. The dock meets the 25-foot riparian boundaries
to neighboring properties and the 60-foot from high-water mark length
regulation, along with breakwater requirements and impervious surface and
therefore does not interfere with navigation or recreation.
Painted Rocks constructed its dock approximately in the center of its property, about 200
feet northwest of Murphy Properties’ parcel.
¶6 Murphy Properties sued Painted Rocks and Lake County, alleging three counts:
(1) violation of the Lakeshore Protection Act, (2) nuisance, and (3) declaratory judgment
for a prescriptive easement over Painted Rocks’ property. Murphy Properties brought all
claims against Painted Rocks and only the Lakeshore Protection Act claim against Lake
County. The County moved to dismiss Murphy Properties’ claim under M. R. Civ.
P. 12(b)(6). The District Court granted Lake County’s motion. Painted Rocks filed a
motion for summary judgment on all claims that the District Court also granted. Murphy
Properties appeals the District Court’s ruling on both motions.
STANDARDS OF REVIEW
¶7 Construing the factual allegations of a complaint in the light most favorable to the
plaintiff, we review de novo a district court’s ruling on a M. R. Civ. P. 12(b)(6) motion to
dismiss. Marshall v. Safeco Ins. Co., 2018 MT 45, ¶ 6,
390 Mont. 358,
413 P.3d 828
(citation omitted). “A district court should not dismiss a complaint for failure to state a
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claim unless it appears beyond doubt the plaintiff can prove no set of facts in support of
his claim that would entitle him to relief.” Marshall, ¶ 6 (citation omitted).
¶8 We review summary judgment rulings de novo, applying the criteria of
M. R. Civ. P. 56. Pub. Lands Access Ass’n v. Bd. of Cnty. Comm’rs of Madison Cnty.,
2014 MT 10, ¶ 15,
373 Mont. 277,
321 P.3d 38 (citation omitted). “Summary judgment is
appropriate when the moving party demonstrates both the absence of any genuine issues
of material fact and entitlement to judgment as a matter of law.” RN & DB, LLC v. Stewart,
2015 MT 327, ¶ 13,
381 Mont. 429,
362 P.3d 61 (citing M. R. Civ. P. 56(c)(3)) (citation
omitted). Because the parties here do not argue a dispute of any material issues of fact, we
review the District Court’s conclusions and applications of law for correctness. Larson v.
State,
2019 MT 28, ¶ 16,
394 Mont. 167,
434 P.3d 241 (citation omitted).
¶9 District courts reviewing a Lakeshore Protection Act claim determine only whether
a local governing body acted arbitrarily, capriciously, or unlawfully. Cmty. Ass’n for N.
Shore Conservation, Inc. v. Flathead Cnty.,
2019 MT 147, ¶ 28,
396 Mont. 194,
445 P.3d
1195 [CANSC] (citing § 75-7-215, MCA). We apply the same criteria when reviewing a
district court’s summary judgment ruling on a Lakeshore Protection Act claim. CANSC,
¶ 28 (citation omitted). “In reviewing a local governing body’s decisions under the
arbitrary and capricious standard, we may not reverse its decision ‘merely because the
record contains inconsistent evidence or evidence which might support a different result.’”
CANSC, ¶ 28 (quoting Kiely Constr. LLC v. City of Red Lodge,
2002 MT 241, ¶ 69,
312
Mont. 52,
57 P.3d 836). “[A] local governing body’s decision is arbitrary and capricious
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if it appears, based on the existing record, to be random, unreasonable, or seemingly
unmotivated.” CANSC, ¶ 28 (citation omitted).
DISCUSSION
¶10 1. Did the District Court correctly dismiss Murphy Properties’ Lakeshore
Protection Act claims against Painted Rocks and Lake County?
¶11 Through the Lakeshore Protection Act (“the Act”), the Legislature required all
governing bodies with jurisdiction over a statutorily defined lake to adopt regulations that
establish “criteria for issuance or denial of permits for work in lakes.” Section 75-7-207(1),
MCA. Pursuant to the Act, Lake County adopted such regulations, called the Lake County
Lakeshore Protection Regulations (“the Regulations”). Under § 75-7-204(1), MCA, a
person must obtain a permit before beginning “any work that will alter or diminish the
course, current, or cross-sectional area of a lake or its lakeshore.” The Act requires a permit
for constructing a dock. Section 75-7-204(2), MCA. Lake County’s Regulations establish
similar requirements. See Lake County, Mont. Lakeshore Protection Regulations
§§ 3-1(A), 3-4(A) (Jan. 1, 2022).
¶12 The Act requires that local lakeshore protection regulations favor issuance of a
permit if—during either construction or use—the project will not:
(1) materially diminish water quality;
(2) materially diminish habitat for fish or wildlife;
(3) interfere with navigation or other lawful recreation;
(4) create a public nuisance; or
(5) create a visual impact discordant with natural scenic values, as determined by
the local governing body, where such values form the predominant landscape
elements.
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Section 75-7-208, MCA (titled, “Factors favoring issuance of permit”). Largely tracking
the statutory language, the Regulations prohibit any proposed action that, “during either its
construction or its utilization,” will cause any of the statute’s listed effects. Lake County
Lakeshore Protection Regulations § 5-1(A).
¶13 A district court may hear and decide challenges from an “interested person for an
order to restore a lake to its previous condition or to enjoin further work in a lake.” Section
75-7-215(1), MCA. An interested person also may petition the court “for review of a final
action of a governing body upon an application for a permit.” Section 75-7-215(2), MCA.
¶14 Murphy Properties based its Lakeshore Protection Act claim on Painted Rocks’
alleged interference “with navigation or other lawful recreation” under § 75-7-208(3),
MCA. The dock, Murphy Properties claimed, also violated the permit’s mandate that
Painted Rocks “shall ensure that all measures necessary are undertaken to ensure that the
proposed activities occur within the owner’s property boundaries . . . and do not negatively
impact easements or adjacent properties.”
¶15 Because the Act does not define “navigation” or “lawful recreation,” see § 75-7-202,
MCA, the District Court considered Montana’s public trust doctrine— as delineated in the
Constitution, case law, and statute—in determining that Murphy Properties had not
established its claims. The District Court concluded that Murphy Properties failed to
establish that Painted Rocks’ dock infringed on its right to navigation for recreational use
of the cove’s surface waters under the facts it alleged.
¶16 The Montana Constitution guarantees that “any surface waters that are capable of
recreational use may be so used by the public without regard to streambed ownership or
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navigability for nonrecreational purposes.” Mont. Coal. for Stream Access, Inc. v. Curran,
210 Mont. 38, 53,
682 P.2d 163, 171 (1984); see Mont. Const. art. IX, § 3(3) (“All surface,
underground, flood, and atmospheric waters within the boundaries of the state are the
property of the state for the use of its people and are subject to appropriation for beneficial
uses as provided by law.”); § 70-1-202, MCA (The State owns “all land below the water
of a navigable lake or stream.”). The public trust doctrine ensures that “[t]he public has
the right to use the waters and the bed and banks up to the ordinary high water mark.”
Mont. Coal. for Stream Access, Inc. v. Hildreth,
211 Mont. 29, 35-36,
684 P.2d 1088, 1091
(1984) (citation omitted). Adjoining landowners continue to own fee title in the land
despite the public’s right to use the bed and banks up to the high water mark. Galt v. State,
225 Mont. 142, 147,
731 P.2d 912, 915 (1987); see § 70-16-201, MCA (landowner whose
property borders a navigable lake or stream “takes to the edge of the lake or stream at
low-water mark”). The public’s recreational use right does not include an “attendant right
that such use be as convenient, productive, and comfortable as possible.” Galt,
225 Mont.
at 147,
731 P.2d at 915.
¶17 Murphy Properties argues that the District Court erred in dismissing its Lakeshore
Protection Act claim because Painted Rocks’ dock prevents Schaffer from accessing the
Murphy Properties parcel “consistent with [his] historical uses.” Murphy Properties
contends that this violates the Act and the Regulations’ requirement that lakeshore
development not interfere with navigation or other lawful recreation. See § 75-7-208(3),
MCA; Lake County Lakeshore Protection Regulations § 5-1(A). Murphy Properties
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further asserts that the dock violates the permit provision ensuring that lakeshore projects
will not negatively impact adjoining landowners.
¶18 Lake County responds that § 75-7-208, MCA—the statute on which Murphy
Properties bases its Lakeshore Protection Act claim—requires local regulations to “favor
issuance” if the project will not interfere with navigation or other lawful regulation, among
other factors. See § 75-7-208, MCA (emphasis added). This statute, the County asserts,
does not mandate that a local governing body must deny a permit because a proposed
project will impact one of the enumerated factors. Rather, the Act gives preference to
issuing a permit when a proposed project does not cause the effects listed in § 75-7-208,
MCA. Lake County also notes that Murphy Properties’ Lakeshore Protection Act claim
rests on Schaffer’s inability to drive his eighteen-foot ski boat into the cove as he did
historically. Montana has not, however, adopted a “pleasure-boat test” to find navigability
for recreational use. Hildreth, 211 Mont. at 35,
684 P.2d at 1091. Thus, Lake County
contends that Murphy Properties’ Lakeshore Protection Act claim must fail.
¶19 Painted Rocks asserts that Flathead Lake’s water level and the size of Schaffer’s
boat, not the new dock, constrain Murphy Properties’ access to the cove. Painted Rocks
points to Schaffer’s admission during his deposition that seasonal water levels limit his
ability to drive into the cove with a boat. Painted Rocks notes that natural features limit
access to the cove, as Murphy Properties acknowledged in its complaint that “[e]ntry to,
and egress from, the cove . . . in a boat requires the navigation of submerged rocks.”
Schaffer further conceded that Painted Rocks’ dock does not prevent him and his guests
from accessing the cove in a kayak, tube, or paddleboard. Despite the new dock, Schaffer
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can lift and push his boats with outboard motors into the cove. Ultimately, Schaffer said
that Painted Rocks’ dock prevents him from accessing the cove only with his eighteen-foot
Glastron boat that has an inboard/outboard motor. Painted Rocks maintains that because
Schaffer still can access the cove in other watercraft, the dock does not interfere with his
public recreational use right. Schaffer’s contention that he has a right to drive his large ski
boat into the cove, Painted Rocks insists, falls outside the parameters of the public trust
doctrine, which does not guarantee that access must be as “convenient, productive, and
comfortable as possible.” Galt, 225 Mont. at 147,
731 P.2d at 915.
¶20 Section 75-7-208, MCA, does not mandate denial of a permit when a project has
any of the listed effects. It instead makes clear that permits are “favor[ed]” when a
proposed project will not lead to those enumerated results. See § 75-7-208, MCA. Even
if Painted Rocks’ dock alters Murphy Properties’ historical uses of the cove, the statute did
not require Lake County to deny the permit on this basis alone.
¶21 Absent contrary statutory definitions, we agree that “navigation” and “lawful
recreation” on Montana waters are determined by the Constitution’s declaration that
surface waters are the “property of the state for the use of its people,” Mont. Const. art. IX,
§ 3(3), and informed by the public trust doctrine. The summary judgment record
establishes without dispute that Schaffer and his family remain able to access the cove with
a kayak, tube, paddleboard, and even boats with outboard motors. Montana’s public trust
doctrine contains no guarantee that—in addition to these other modes of transport—
Schaffer has a right to conveniently and comfortably drive his eighteen-foot ski boat into
the cove. See Galt,
225 Mont. at 147,
731 P.2d at 915. As Painted Rocks points out, we
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have specifically declined to adopt a “pleasure-boat” test to determine navigability for
recreational use. Hildreth, 211 Mont. at 35,
684 P.2d at 1091. That Schaffer no longer can
drive a large boat into the cove does not answer the question whether the cove is
“navigable” within the meaning of the public trust doctrine. See Hildreth,
211 Mont. at 35,
684 P.2d at 1091. Schaffer’s recreational use right remains uninfringed if the only
demonstrable impact from Painted Rocks’ dock is that he is unable to enter the cove with
his eighteen-foot-long ski boat.
¶22 Murphy Properties’ Regulations argument rests on the Regulations’ requirement
that “[t]he proposed action shall not” cause any of the effects enumerated in § 75-7-208,
MCA—implying that, given such an impact, a permit shall not issue. Lake County
Lakeshore Protection Regulations § 5-1(A) (emphasis added). Even with the Regulations’
more stringent requirement, the question is whether the new dock “interfere[s] with
navigation or other lawful recreation.” Section 75-7-208(3), MCA. As explained above,
Schaffer has no public recreational use right to drive his large ski boat into the cove. See
Hildreth,
211 Mont. at 35,
684 P.2d at 1091; Galt,
225 Mont. at 147,
731 P.2d at 915.
Whether under the Act or the Regulations, Murphy Properties did not establish its claim
that Painted Rocks’ dock unlawfully interferes with its navigational or recreational use
right to the cove.
¶23 The District Court did not err when it concluded that Murphy Properties could prove
no set of facts in support of its Lakeshore Protection Act claim against Lake County. See
Marshall, ¶ 6 (citation omitted). The record contains sufficient evidence to support a
conclusion that the dock did not negatively impact Murphy Properties’ use of the cove,
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even if Schaffer presented contrary evidence. Murphy Properties has not demonstrated
that the Lake County Board of Commissioners acted arbitrarily or capriciously when it
granted the permit for Painted Rocks’ dock. See CANSC, ¶ 28 (citation omitted). Likewise,
the District Court correctly concluded that Painted Rocks was entitled to judgment as a
matter of law on Murphy Properties’ Lakeshore Protection Act claim. See RN & DB, LLC,
¶ 13 (citations omitted); Larson, ¶ 16.
¶24 2. Did the District Court correctly grant Painted Rocks summary judgment on
Murphy Properties’ prescriptive easement and nuisance claims?
¶25 “Prescriptive easements are based on the notion that if one uses the property of
another for a certain period without permission and the owner fails to prevent such use, the
prolonged usage should be treated as conclusive evidence that the use is by right.” Meine
v. Hren Ranches, Inc., 2015 MT 21, ¶ 24,
378 Mont. 100,
342 P.3d 22 (quoting Jon W.
Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land § 5:1, 5-2 (2014)).
The party seeking to establish a prescriptive easement must demonstrate, “by clear and
convincing evidence, open, notorious, exclusive, adverse, continuous, and uninterrupted
use of the claimed easement for the full statutory period of five years.” Meine, ¶ 37 (citing
§ 70-19-401, MCA) (citations omitted). “[F]ailure to establish any one element for
prescription is dispositive of the claim.” Public Land/Water Access Ass’n, Inc. v. Robbins,
2021 MT 75, ¶ 42 n.14,
403 Mont. 491,
483 P.3d 1102.
¶26 In Cummings v. Canton, the Cantons claimed that they had a prescriptive easement
to use an abandoned public road over the plaintiffs’ land in Ravalli County. Cummings v.
Canton,
244 Mont. 132, 133-34,
796 P.2d 574, 574-75 (1990). We held that the open and
12
public nature of the road prevented the Cantons from establishing the adverse or exclusive
elements of a prescriptive easement claim. Cummings, 244 Mont. at 136,
796 P.2d at 576.
Exclusive use, for purposes of a prescriptive easement claim, means “that the right of the
easement claimant must rest upon its own foundation[] and not depend upon a like right in
any other person.” Bonnie M. Combs-DeMaio Living Trust v. Kilby Butte Colony, Inc.,
Corp.,
2005 MT 71, ¶ 14,
326 Mont. 334,
109 P.3d 252 (citation omitted).
¶27 The District Court concluded that Murphy Properties could not establish the adverse
use element of its prescriptive easement claim. The court reasoned that Murphy Properties
had an existing right to use the waters of the cove under the public trust doctrine. Because
the doctrine prevented Painted Rocks from excluding Schaffer—or any member of the
public—the court ruled that Murphy Properties’ use was not adverse.
¶28 Murphy Properties argues that it seeks a private prescriptive easement and therefore
the law concerning public prescriptive easements does not apply. Murphy Properties
asserts that its use of the cove is distinct from that of the general public because it uses the
cove in conjunction with a residence. Its use also is distinct, Murphy Properties argues,
because Schaffer’s family dredged the inlet to the cove, which “exceed[s] the scope of the
public trust easement.” Murphy Properties further insists that the “District Court’s ruling
that Murphy Properties could not acquire a prescriptive right because Painted Rocks could
not exclude [Schaffer] from that area . . . is contradicted by the fact that Painted Rocks is
actually excluding [Schaffer] and his family from that area.”
¶29 Citing Bonnie M. Combs-DeMaio Living Trust, Painted Rocks contends that
Murphy Properties’ infrequent dredging of the lakebed was insufficient to create a
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prescriptive easement. See Combs-DeMaio Living Trust, ¶¶ 15-16 (affirming district
court’s ruling that using a road once a week to go to school insufficient to establish a
prescriptive easement). Painted Rocks also argues that—like the party seeking a
prescriptive easement over a formerly public road in Cummings—Murphy Properties used
the cove pursuant to a public right, rendering its use neither adverse nor exclusive. See
Cummings, 244 Mont. at 136,
796 P.2d at 576.
¶30 Notwithstanding its claim to a prescriptive easement to the underlying lakebed
property, Murphy Properties’ use of the land is not at issue. It sued to secure unimpeded
access to the waters of the cove. Murphy Properties’ use of the cove for boat access arises
under a publicly held right—the public trust doctrine. See Hildreth,
211 Mont. at 35-36,
684 P.2d at 1091 (citation omitted). Inherently, a claim for prescriptive easement over
waters that all members of the public may use is not exclusive because the general public
has the same right. See Combs-DeMaio Living Trust, ¶ 14 (citation omitted). A party
claiming a prescriptive easement must satisfy every element of the claim. See Robbins,
¶ 42 n.14. Because Murphy Properties could not, under any set of facts, establish an
exclusive use of the seasonal waters of the cove, the District Court correctly concluded that
Painted Rocks could not establish a prescriptive easement. Nor do the undisputed facts
support Murphy Properties’ assertion that Painted Rocks actually is excluding Schaffer and
his family from the cove when they may continue to access it freely in kayaks,
paddleboards, and boats with outboard motors. The failure of exclusive use being
dispositive, we do not reach the parties’ remaining prescriptive easement arguments.
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¶31 Murphy Properties also alleged a nuisance claim against Painted Rocks. Section
27-30-101(1), MCA, defines nuisance as
[a]nything that is injurious to health, indecent or offensive to the senses, or
an obstruction to the free use of property, so as to interfere with the
comfortable enjoyment of life or property, or that unlawfully obstructs the
free passage or use, in the customary manner, of any navigable lake . . . is a
nuisance.
Projects “done or maintained under the express authority of a statute” cannot be deemed a
public or private nuisance, § 27-30-101(2), MCA, “unless the plaintiff can show: (1) that
the defendant completely exceeded its statutory authority, resulting in a nuisance; or
(2) that the defendant was negligent in carrying out its statutory authority, resulting in a
qualified nuisance.” Barnes v. City of Thompson Falls, 1999 MT 77, ¶ 26,
294 Mont. 76,
979 P.2d 1275.
¶32 Murphy Properties argues that Painted Rocks’ dock is an absolute nuisance because
its permit violated the Act. Murphy Properties asserts that its claim is not one of “qualified
nuisance, requiring allegations of negligence,” but “that the permit under which the dock
was built violates the Act, creating an absolute nuisance.” Its nuisance claim, Murphy
Properties writes, “depends on whether the permit violates the Act.” Because we hold that
issuance of the permit did not violate the Act, and Murphy Properties’ asserted claim
depends on such a violation, we affirm the District Court’s ruling that Painted Rocks was
entitled to judgment as a matter of law.
CONCLUSION
¶33 We affirm the District Court’s rulings in favor of Lake County and Painted Rocks
on all claims. Lake County complied with the requirements of the Lakeshore Protection
15
Act when it issued the permit. Painted Rocks’ dock does not interfere with navigation or
lawful recreation because Murphy Properties does not have a right to access the cove in its
eighteen-foot ski boat when access remains otherwise unimpeded. Murphy Properties
cannot establish a prescriptive easement because it could not, as a matter of law, prove
exclusive use of the surface waters of the cove. The District Court correctly denied the
nuisance claim because, as pleaded, it depended on Murphy Properties’ Lakeshore
Protection Act claim. The judgment in favor of both defendants is affirmed.
/S/ BETH BAKER
We Concur:
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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