AMERIMONT INC v GANNETT
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No. 96-034 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996 AMERIMONT, INC., A MONTANA CORPORATION, CALVIN SMITH and ALICE K. SMITH, Plaintiffs and Appellants, v. DAVID E. GANNETT and MONTANA LAND RELIANCE, Defendants APPEAL FROM: and Respondents. District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Thomas A. Olson, Judge presiding. COUNSEL OF RECORD: For Appellants: Karl Knuchel, Attorney Livingston, Montana For at Law, Respondents: James J. Missoula, Masar, Knight Montana Submitted & Masar, on Briefs: Decided: July 18, 1996 September 30, 1996 Charles Justice E. Amerimont, Alice K. Inc., Smith District does not have Gannett and delivered a Montana appeal Judicial which Erdmann from Court, holds Montana judgment Gallatin entered the Court. the over Smith by the decreeing Reliance, a conservation of and Calvin County, easement Land opinion corporation, the a prescriptive the the Eighteenth that Amerimont property of David a non-profit easement on the E. corporation, Gannett's whether and property. District We affirm. The issue concluding over on appeal Amerimont that Gannett's is does not possess Court erred a prescriptive in easement property. FACTS Amerimont purchased the Smiths and the legal and the NE% of Township in 1993. obtained Range the ground in land is of of of to title the property to the town of S'XSEX of 25, all Section back to 1887 when by homesteading title to Robert the property to In 1975 Hugh Smith deeded one-half the in sold Oyler and when Hugh Smith remaining one-half transferred their 2 of the interest George a portion conveyed Smith, 26 situated from Calvin from Manhattan sections Oyler Smiths dates property 1924 George inherited the Section different Robert 1949 the County 3 East. purchasing father. 1993, the Gallatin near In Smith's Smith lies and individuals. and chain title in 35 and all Section 2 North, located The property description Amerimont's Oyler property Hugh of private Oyler, Smith, Calvin interest in died in the Calvin 1990, property. to In Amerimont July by conveying fee on the title to Section respective In 1992 portions Gannett Township 2 North, of dates title property in in after property Elwyn Ver Wolf in to to 1930 Fairbank in is predecessors in by crossing is by Gannett's approximately heavily grassed Smiths' the road to area. access to the property of the properties for a pickup The roadway and they the and their agricultural was not on their roadway 3 Reliance. in Section of dirt land is deed a conservation land truck to Philip a warranty one-half and recreational disputed to Amerimont the land Land of predecessors homestead and the south the the by warranty conveyed on a two-track of sold executed Montana the repurchased interest Montana. the chain property property his by a tract accessed width the on the then in to C. W. Zelie Sales year 36 who homesteaded the Fairbank property the property 1987. of deed Section property and conveyed State for Gannett's foreclosed Wolf separated interest the sold to the Sales 1939 property are owned in that entire SE% of Enoch taxes. who later The properties which conveyed Freeman in 1992, on the easement and Enoch County and Ver the County. County pay 1964. 1979, to Gallatin Gallatin to in Keith Gannett Annie Gallatin Freeman deed to failed from 3 East, a contract 26 and 35. title The Saleses in Zelie Sections acquired back and 1928, of Range 1922. 25 and executing and only 25 The road traverses access periodically and to gain purposes. shown its Section road. and 36, below. a to the used access A map In seeking 1994, to Gannett's without Amerimont establish that the District law, and have a they The case property. a jury and the on January Court entered prescriptive 1996, was tried its the District Gannett and the Montana findings of fact and conclusions Land against of over Court 4 and law. District the Court 14, 1995, of Smiths do not On property. judgment incorporating This across conclusions Gannett's Reliance, of the fact, entered Gannett easement On December 1995. Amerimont easement 2, suit before findings that January filed had a prescriptive 19 and 20, concluding order, Smiths appeal in its favor earlier followed. of STANDARD OF REVIEW This Court determine reviews whether they are 269 Mont. (1995), 320, 324, three-part test erroneous. First, to the are supported findings are supported the trial court if evidence has not a finding is support a and Interstate P.2d the v. erroneous review of the conviction Credit the v. to of if if the the evidence. effect the of may still find is leaves the Court a mistake has been (1991), the determine there DeSaye a clearly see we will Court although record that Ass'n and adopted Second, effect to Knight are record evidence, when, the We have evidence. exists v. findings the substantial evidence a district court's Union 680, review fact the that evidence with to the committed. 250 Mont. 320, 323, 1287. We review whether will of Dairies 906. the has misapprehended firm 1285, whether been misapprehended, Prod. 820 P.2d 904, by substantial clearly it, definite County by findings erroneous. 888 P.2d Court substantial Third, court's clearly determine findings if a district court's conclusions interpretation Reserve Coal of Co. the of law (1995), law is correct. 271 Mont. to 459, determine Carbon 469, 898 686. DISCUSSION Did not the possess District a prescriptive To establish the easement continuous, Court err show and uninterrupted concluding easement an easement must in over that Gannett's by prescription, notorious, open, use of 5 the the Amerimont property? party exclusive, easement does claimed claiming adverse, for the full statutory 275 (1996), Lands period Mont. Access P.2d 525, P.2d 1354, the P.2d since the Tanner, 527; Rathbun 852). Where implied right. is not Public Chestnut Amerimont Smiths been for the historic a claim to establish and its full on the party 648 (citing Robson (1983), right 856 175, 772 P.2d no easement is 203 Mont. a way by of the owner, continuous and does Access, 164 Mont. 856 at 484, use that 491, of the that claim to the against predecessors' his period. roadway by the and not 528 by privilege 6 express the way by the that Amerimont Wilson v. 27). by the and that Gannett Oylers was use by the should have predecessors Amerimont were claims and uninterrupted maintains and the license. or a prescriptive 24, ownership. or 850, by (citing and their Smiths at of use was continuous time P.2d is easement Smiths use. 661 P.2d roadway a degree 852). on adverse into 525 P.2d a prescriptive and notorious the ripen 527; 850, 322, use P.2d at 856 a neighbor not P.2d Access, 319, of Tanner, can be acquired based Lands use adverse be proved. Access, 172, use, seeking must Public statutory use of of is at on notice a hostile its 807 to establish placed that 521, easement argues was open making 518, 237 Mont. Lands (1974), sufficient 247 Mont. Lands permission neighbor (1991), Harding Public the Public v. of prescriptive v. (citing 856 shows permissive 913 P.2d 647-48 Inc. 283, (1989), theory Island, 279, (citing owner Dream 259 Mont. elements Grover the 641, and all 648 v. (1993), The burden v. If 913 P.2d easement at Downing Tanner & Crockett Keebler 1356). years. 424, Boone prescriptive 913 five 414, v. 527; of Oylers that the was under Amerimont that claims requirements of a of then to Gannett a neighborly adverse to that gates the rebut and restrict public keep Amerimont and that the or its the Gannett were predecessors the in creating the a burden use was permissive did not bring use. installed and that preliminary Amerimont, of adverse road access to that presumption across thus According to establish the the easement, use. accommodation evidence established prescriptive presumption shifted it gates control were interest forth Amerimont to from or any argues livestock never meant accessing to their property. Gannett that their argues use of on Greenwalt 421, that of a right neither he nor use of now be forced the use Smith use the road. Smith's assent that such to the in up what is know argues because ask to interest According that to and open Gannett's a position ownership is he cannot ever in failed with having jeopardy. to prove Fairbank, when he needed an arrangement and control inconsistent on notice that was gate that attention, predecessor, the such argues placed title his and positive without Amerimont to Gannett, to 885 P.Zd claims his his that a key were rightfully Gannett for 508, owner's Gannett prove relies Gannett the to Gannett 267 Mont. owner. assertion was hostile. to also uninterrupted and to give (19941, to predecessors roadway failed have made a distinct must an Smiths and notorious. Kehler hostile opportunity Gannett required his the v. such and the was open Amerimont bringing had road Trust without that the Amerimont Family to argue assertion that to indicates of the roadway a claim for a prescriptive easement. predecessors' use character ranchers strong of to the the use and farmers According among of that the and Gannett, accommodation with respect began that as area Gannett had always commitment close a and argues been good to working engendered Amerimont permissive changed. a the landowners maintains road never in ties social Gannett helping practice to the use of roads across the that the Court found relationships of neighborly one another's as follows: The court finds that the close working and social relationships among neighbors engendered a custom and accommodation" with respect to practice of 'Ineighborly use of the road across the Gannett property. . The court predecessors express or this action. finds have implied that plaintiffs and their 'crdssed the Gannett property with permission at all times material to Cal Smith testified Gannett and his predecessors generally locked a gate at the beginning of the road at all times pertinent to this action. [Tlhe court finds that this widespread practice of giving out keys to friends and neighbors reflects the custom and practice of neighborly accommodation in the area . . Defendant Gannett and Keith Fairbank did not give keys to They required Smiths to obtain the gate to the Smiths. permission to cross the Gannett property every time he The practice of locking wanted to visit his property. gates and restricting access to the Gannett property is use of the road across the evidence that plaintiffs' Gannett property has always been and continues to be permissive. 8 with another. property The District its that friends one and social and Even if Mr. Smith and his father, Hugh Smith, intended to establish a right to cross the Gannett property by prescription, the evidence before the court does not show that they placed Gannett or his predecessors on notice of such hostile or adverse claim. George Oyler's acquainted with permission" to Saleses ask moved Gannett's Enos Oyler, testified predecessors use the property. away, the new owners and Oyler that that "everybody the gate got that stated locked he was the after and "you had to permission." Marguerite Section 36 across the along they Fulker, when occasions to she hunt beautifully. Smith Freemans, and used the checked occasion, Fulker Philip into with Elwyn that that he Wolf Ver Freeman she had quarter and neighbors worked in take the of sheep area got 1oa.n you anything others with cattle. Smith Saleses, season. cattle, move the the haying when moving helped southeast II [tl hey'd during each testified together." that worked the everything corrals Wolf landowner, stated testified and Ver go mushrooms and we did Freemans' on to She indicated . Cal a neighboring had property. had in grandson, Smiths' and cattle on The the Smiths and Ver at Wolf least to another one ranch Harrison. Cal concerning Smith also testified conversations And then I Q: with, "Yes," and your answer that you explain what with respect to Mr. Sales telling in review he had with of Sales, his earlier Freeman, deposition and Ver Wolf: apparently asked a question that starts then I would like you to -- having read begins at line 16, I would like to have you said in response to that question your conversations with Sales. What is you there? Would you read that? 9 we asked A: He said, 'Ah, been doing it get along. And Q: neighborly I a long Sales about [it]. You people have that's the way we That['sl And your back to answer is -- [the] "Yes." And do you Q: about neighborly A: we asked no problem. Like I said, ago, asked, "Okay. accommodation?" I said, A: time hell, there's for years.' recall we talked accommodation, during do you that not? deposition I recall. . And we 1re talking again, Q: predecessors in interest, Sales, said the same things to you? about the three Freeman, Ver Wolf, all A: Yeah, property. Q: "You don't A: That's that's right, the way to need to ask. that's the Just the go right way you on in get there." there. . To avoid you having to go through the whole answer, Q: 1'm going to have you begin reading at line 6. And the "We went when we -- when you sentence that starts with, had to go or when you wanted to go --.'I Would you read that and then complete the sentence? "We went when you had to go or when you wanted to A: winter or whatever. it be summer, Nobody go, whether said boo, you can't go. It was a gentlemen's agreement, I'll put it that way." And then I said, "Well, more than gentlemen, could Q: accommodation? it be described as being a neighborly And It's what one good neighbor would do to another?" your answer is -A: "I would hope so, It's just that there there." or however was never 10 you any want to problem say it. getting ~a1 Smith testified the when open gate Fairbank bought indicated that our for that, the first the "I on the most Fairbank testified absolute right Gannett right Smiths' "he to cross borrow testified to time gate school. did not give he learned and told needing access a key He stated there was "I'll Smith that failed the to went the gate . . on." key give fairly he maintained no one the told early a locked him property that property He indicated gate after Calvin and indicated that. Smith there had were times as follows the road concerning across his his knowledge of property: did you make of Mr. not that was the case? Smith with He mentioned -- he, Cal, told me that . "If we A: do sell in two different pieces of property --'I, he had always had permission to go across the Sales' road quarter section and that's the way he referred to the ground as the "Sales Road quarter section" -- A: an a key. Now, what inquiry Q: respect to whether or Now, I'd like "permission" a M[wle Yes Q: word for him And up to this point in time, as you've just Q: testified, all the information that was made available to use of that that the Smiths' quarter YOU indicated section was permissive? A: was anyway." when he purchased Smith a problem leave to when me a key." and when Gannett part, that would high remembered that testified the when Smith in " [fline" own lock he first place, indicated Fairbank put the said Smith Smith key, he was locked when Gannett you. It that to stop you Yes -- 11 there. You've used the the Is Q: that A: That's permission -the exact word he used. to go across that property." "I have always had Okay. Yesterday Mr. Smith testified that he told Q: you that is was an "absolute right" that he had to go across that property. Do you recall him using the words "absolute right"? A: No, he did Do Q: indicate A: Calvin not. you recall a use that him using any words was other than permissive? would No. Smith himself stated that: It's always been my understanding there when we bought the property. to tell anybody Our review findings are the of the supported misapprehend with that the effect definite and record that the easement was That we didn't have indicates that by substantial of the firm the evidence. evidence, conviction nor ~that District Court's The court is this did Court a mistake not left has been committed In ordering prescriptive concluded that easement Amerimont over and Gannett's the property, Smiths the do not have District Court that: Plaintiffs have failed that their use of the was open and notorious. Plaintiffs road was property. to carry their burden of showing road across the Gannett property have also failed "uninterrupted" Plaintiffs have also failed of the road was adverse. to show that their use of the by the owners of the Gannett to 12 establish that their use a The first the use be notorious" to element open and rights of owner. 852). In predecessors Gannett the owner use of his owners as the a by the to The claimant that must enough to servient potential by abandonment 727 the owner road Gannett's and of property not provide claiming 772 P.2d keys to locked their accommodation. in 1987, the the at 8521. may have been continuous, predecessors supplied matter party of gate neighbors, However, Fairbank Smiths the with changed a key. 13 the road While Rather, the was being simply as that as or was not the a use not voluntary 887 P.2d present at case uninterrupted. beginning the of the Smiths, bought on the the is to by the and which claim in when Fairbank locks put is Lemont, at the of continuous land right. it have use" including the extensive the "uninterrupted of the is of and Downinq, the the rights use notice to and notorious. use "continuous" constitute their assertion property the at the the was open act by the use of defined nor should their that P.2d that that owner, interrupted (citing use prove 772 the to Smiths to get their also We have often on notice and of Smiths hostile and the ground prove uninterrupted. the that hostile attention assertion Oylers to a right Downinq, a right is "open and positive Amerimont's access the (citing neither that of to made a distinct servient insufficient made case, made. primary brought right defined assertion 726-27 predecessors road of and at interest was being the P.2d present in or owner 887 the We have and positive the Lemont, a prescriptive notorious. as a distinct the used in establishing Smiths road as a Gannett's gate and did had to ask for the Calvin key to Smith keys to the must use (or not a to use the an arrangement the Smiths allege which road. and Gannett Such necessary. at of for clearly they at at had to courtesy repeatedly held to property opportunity to (1995), 885 P.2d at 424; 271 Mont. Downinq, Here, Amerimont roadway pursuant P.2d and its of 728. of alleged the title is predecessors to the permission 14 in 896 P.2d at be claimant use for neighborly at See be forced jeopardy. 433, a This Greenwalt, we have to adverse into 528. Furthermore, not 772 P.2d the land. will ripen 856 P.Zd doctrine. at 250, the use mere cannot should his 246, and Access, this notice know that owners upon adverse a landowner without such 727. based Lands 887 land; the and uninterrupted at be or by which not must privilege adverse reaffirmed that of instances, 887 P.2d Public Lemont, owner in by the land is use as a mere the continuous, Lemont, easement the same evidence the neighbor's 425; not of most notorious, consistently P.2d In "adverse" and pleasure from easement. has right 727. a prescriptive be to and acquiesced a or prescriptive Tash the period. use establishing To of claim open, accommodation the Fairbank adverse. proven) statutory A v. be be known establishes the both in 887 P.2d proven title he asked right revocable Lemont, 885 needed of under license Court they requirement the exercised claim when road. that the as any claim the gate that gate The final is the admitted interrupted use open give claim up and See Unruh 436; Greenwalt, 852. had the privileged and neighborly use of accommodation extended by Gannett routinely helped parties and practice each their having neighbors with farm was used ability to ask for each did to attend to, all gates after or implied express neighborly a Gannett property We the possess of the the The roadway landowner surrounding of as recreational the use and and landowners. road across the adverse. hold law when it that the concluded a prescriptive easement District that Court Amerimont over Gannett's Justice We concur: Y---d Justice abuse the property long passage. Affirmed. Chief custom as to predecessors' was not therefore interpreted its this area and another's not each the work time, permission accommodation and Amerimont's one permission of ranch that cross business by the and understood and closed privileges, do not other the to had Residents predecessors. predecessors included without as and his ,L /l/i correctly and the Smiths property.
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