GLENN v GROSFIELD
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No. 95-190 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1995 ANNABELLE GLENN, Plaintiff and Respondent, v. Defendants APPEAL FROM: and Appellants. District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Dorothy McCarter, Judge presiding. COUNSEL OF RECORD: For Appellant: Norman H. Grosfield, Helena, Montana Utick & Grosfield, For Respondent: Guy W. Rogers, Brown, Gerbase, Cebull, Harman & Ross, Billings, Montana Submitted on Briefs: Decided: Filed: Fulton, September 13, 1995 November 21, 1995 Justice Terry The N. Trieweiler for District Court County fence Annabelle plaintiff, application preliminary for in order they Glenn's reverse erred when it easement and judgment issue held could a permanent Grosfields of the new roadway. The dispositive that that appeal is whether the location based to remove a to and the of the original that forbidding decision. We Court. the District of the existing on the access Glenn injunction of the District on appeal be changed held the and Clark provided to the relocation easement andgranted the order which and in in Lewis the Grosfields, Court consented complaint injunction District a roadway The District of the Court. a permanent Judicial across had mutually blockage filed to compel defendants, had erected prescriptive the opinion Glenn, and the First property. Grosfields delivered "tacit" Court prescriptive consent of the one and defendants. FACTUAL BACKGROUND Annabelle one-quarter Glenn acres is of real the owner property property is part of a larger by and her relatives, the five-acre tract as recreational near Lincoln, five-acre Dunlaps, and tract the Montana. of land owned Dolsons. has been used by Glenn and her relatives The primarily property. The Grosfields own land Glenn and her relatives. had gained approximately located Glenn's her of access to their Glenn, which surrounds her neighbors, property 2 for nearly the land owned by or her predecessors 100 years by use of a dirt road which crossed Grosfields. owned by Dunlaps, concede Grosfields established the land that a prescriptive access to their Glenn fenced and Dunlaps So that gates in portion it her parcel her this neighbors "old fenced their of land. road" for fences, of the old property Glenn, road In 1992 and 1993, land. would not be necessary their Dolsons' across and and property. In 1986, Dolsons easement Glenn Dolsons, to install Dolsons, guards and Dunlaps quit a new road which and began using and traversed cattle a greater portion or using a avoided of Grosfields' property. Glenn and her specifically located asking on including wire September across to using use property. the Grosfields, fence began permission Grosfields' until years, neighbors the the All portion the used the new road for 1994, the when the Grosfields portion of the new road road of property without the road owners, approximately placed located two a barbed on their property. Abe Grosfield his property never for intended portion also his cattle to relocate new road because Grosfield testified at trial ranch. that He further testified that for his at fenced one time own use. the off road on that testified the road easement and that Glenn and her neighbors of the new road he fenced he he used the the old he graveled a road. small The District express Court an intent, permanently found either relocated, easement "tacit" oral for On November 15, after preliminary fence injunction they consented and Court an found, the expressly to the Grosfields Court Grosfields to a trial of the original which be of the easement. granted remove the had mutually prescriptive forbade a on the merits, Glenn and the Grosfields injunction not easement that the District required did object therefore, On March 24, after to the relocation granted they a hearing, held that Grosfields that relocation which had erected. the District did The court consent although or written, neither relocation. gave their that easement blockage of the new roadway. DISCUSSION Did the District the existing "tacit" prescriptive consent whether they Brown v. Tinfinger err when it easement of review are for clearly (1990), 245 Mont. interpretation and application Serv.,Inc.v. HKMAssocs. they concluded (1994), contend consented that that the location of be changed based on the a district the to 377, findings 52(a), whether 494, the District of road" 4 501, constitutes 607, the 609. court's Jim s Excavating 878 P.2d 248, Court erred the of fact M.R.Civ.P.; 801 P.2d of the law is correct. relocation "new Rule to determine 265 Mont. that court's 373, of law are reviewed that could erroneous. Conclusions Grosfields held of the defendants? The standard is Court easement an when it 252. found and when it easement by We need not prescription. the latter claim Section discuss the former contention is dispositive. 70-20-101, MCA, provides: No estate or interest in real property, estate at will or for a term not exceeding surrendered, created, granted, assigned, otherwise than by operation of law or a other instrument in writing, subscribed creating, granting, assigning, surrendering, it or by his lawful agent thereunto writing. An easement it therefore, operation is cannot of law, WildRiverAdventuresv. 344, 346; nonpossessory a be created, by an instrument (lPOP), seeakoPrenticev.McKay Woodsv.Houle (1988), 235 Mont. land, 38 Mont. 160-62, except and by or by prescription. 248 Mont. are created 158, in or transferred in writing, (1991), BoardofTrustees other than an 1 year can be or declared conveyance or by the party or declaring authorized by interest granted, Easements by prescription 1083. because 397, 400, 812 P.2d 114, 118, 98 P. 1081, by operation 766 P.2d 250, of law. 252. To establish an easement by prescription, the party claiming an easement "must show open, notorious, exclusive, adverse, continuous and uninterrupted use of The the easement claimed for the full statutory period. statutory period is five years." Unruhv. Tash (Mont. (quoting give his 279, because 283, 856 P.2d 525, "one who has legal up what is rightfully title 896 P.2d 433, 435, 52 St. Rep. 425, Public Lands Access Ass n, Inc. v. Boone & Crockett Club Found., Inc. 259 Mont. proven 1995), is in jeopardy P.2d at 436 (quoting title his without and that 527). All should 5 not the opportunity he can fight PublicLandsAccess, elements for 427 (19 93 ) , must be forced be to to know that it." 856 P.2d at 527). Unruh, 896 Even though all elements this Court less than the statutorily whether are necessary has stated the only five years. case, prescriptive parties, easement Reliance to enforce predecessors defendants agree the we hold that P.2d which is is "immaterial" permissive--no passage 91, "new road" Glenn of the 96, that by mutual the of consent of of a involved the adjoining During (1962), location necessity Scott to easement. the had been used by the changed the location unable in Scottv. Weinheimer the 45 years. was used is by prescriptive easement across for change invalidated that on Scott is misplaced. neighbors question P.2d at 609-10. 801 without a prescriptive their without easement, in or can be changed presumably easement. plaintiffs' adverse based on our decision 374 time it in a "new road" 562, and of years, be perfected Therefore, Glenn contends, 554, five was the parties an interest 140 Mont. can a prescriptive the period Use Brown, two years. establish if prescribed easement In this for that defendant's prescriptive required to establish the written an action land of the plaintiffs 45-year a and period, of the road and contended the the Scott, the easement sought by the plaintiffs. that 374 P.2d at 93. This Court as modified, held that became fixed Scott, that while the plaintiffs they acquiesced in the plaintiffs' after P.2d at 96. parties." 374 "[tlhe ten right years In so holding, did not expressly change and used 6 the in the easement, acquiescence by both the Court reasoned agree to the changed road change, for a period exceeding prescriptive Scott, In requirement that time, P.2d at 96. 374 the plaintiffs use establishing for To the extent ten that years Scott by verbal a was suggests or tacit is overruled. Scott, for can be relocated easement it Glenn did concluded could instrument in the statutory we hold that location the of Court plaintiff's writing an intent the evidenced requirements to the consent for District an Court the defendants. Ju We concur 7 tide erred when prescriptive tacit which requirement. requirement. the District We remand for five-year statutory be changed by Grosfields' satisfying prescription. judgment reasons, that easement without met the ten-year not meet Montana's For these it (At a prescriptive consent, statutory easement. required.) that the to without an do so and easement by for of entry
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