TANNER v DREAM ISLAND INC
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NO. 95-094 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996 JACK R. TANNER and PATRICIA L. TANNER, FREDERICK MCFARLAND, SHERRIE MCFARLAND, and THOMAS J. FARRELL, Plaintiffs, Respondents, Cross-Appellants, and v. DREAM ISLAND, INC., and JUANITA DALY, a Nevada Corporation, Defendants, Appellants, Cross-Respondents. APPEAL FROM: and District Court of the Twentieth Judicial In and for the County of .Lake~ ~-T, The Honorable Ed McLean, Judge presiding. District, COUNSEL OF RECORD: For Appellants: John M. Morrison, Helena, Montana For Meloy & Morrison, Manley Law Offices, Respondents: James A. Manley, Montana Poison, Submitted on Briefs: Decided: Filed: January 25, 1996 March 21, 1996 Justice Charles E. Defendants judgment, the jury's issue special of attorney The issues 1. issued during plaintiffs' the the use verdict effect of and enjoyment the found road and plaintiffs' and reverse District use on in Court's prevented of Daly the part. injunction, from Indian evidence obstructing Boulevard? credible substantial which easements as follows: which trial, Was there 2. jury is adopted cross-appeal part a Twentieth Court road Plaintiffs into by the obstructing in Court. incorporated disputed We affirm the The District from are of issued County. easements. on appeal What findings concerning fees. opinion injunction defendants the the jury Lake verdict enjoined of from Court, enjoyment delivered and permanent District permanently and appeal order, Judicial Erdmann easements to by grant, support the prescription, and necessity? 3. Did regarding Did the in this Court err in instructing the jury easements? District an equitable party District prescriptive 4. that the award Court of abuse attorney its fees discretion was not in concluding proper for either case? FACTS The parties Flathead Armo States Lake. Villa are landowners The properties townsite government adjoining near platted are part the town of the villa of of Big sites lake Lot Arm. in front 4, property Block 2, When the 1910 it of on the United reserved a forty-foot the boulevard lake shore. historically places area the for 1932 Realty Company owned Harry 4, like between others vehicular or boat Block conveyed 2, the island and title was foot the lots and lake, has In around some traffic. lot divided north half owners half. as a lawn The Eugenia Island) title from in to named Dream derives the houses. Plaintiffs' Mueller. Rochester for sites a nearby defendants' Boulevard has been used by adjacent cabin Lot Indian boulevard, used boulevard In to This been or also called Rochester and the derives from Rochester. Mueller (who south half Mueller indenture The and to reserved: [Al right-of-way for road purposes over and upon the premises herein conveyed, to Harry J. Mueller of Butte, Montana, and to his heirs and assigns, forever, over and upon any and all roads now laid out and heretofore traveled over upon and across said premises, or any portion thereof. The transfer identical of the easement south half reservation of Lot over 4 to Mueller and upon the contained land an conveyed to Rochester. In 1959 Juanita Daly and her late north half of 4 purchased the property) from 1964 Dalys the solely owned purchased the Mueller the the Kirks conveyed private south property. Lot who then the property of Lot The and owned the to In corporation. half husband, 4 from Youngs 3 Daly III, Island Dream (the Daly property. In Rochester Dream 1965 Ross the Marcus Island, and Delores Boetchers subdivided Inc., the a Young who then owned property into three smaller lots. predecessors and later In 1971 Jack to the These Daly conveyed property McFarland property (the purchased the McFarland (the properties him his purchased third as a tribal The except (the a small adjacent to and south of the Daly to C, D, E, Tanner Farrell Tanner 1974 to be held and the in and Farrell trust plaintiffs' The for at issue which property The McFarland Tanner southeast property property Tanner property. the The roads were found landowners Sid including Walker the bought road B as the old A to get to down the and property. both are lies property The of is the designated Farrell Tanner and as A, Al, in 1932 F, and G. No witnesses Red Tucker the property. of properties. others, McFarland south McFarland 1934 or 1935. of and to nearby of Daly lies two to In north of the property but States the Thomas property). lies adjacent adjacent B, adjacent United triangle north A2, to 1971 the property situated lies adjacent member. Daly for to sublot adjacent In Farrell homes. In 1981 Frederick property). lies summer the purchased sublot which by plaintiffs' for property). the sublot property purchased plaintiffs Tanner Tanner McFarland were to and Patricia Sherrie conveyed sublots who remembered remembered clearly Tanners' nearby road. road G on the that predecessors, in the 4 as the used mid-1930s He and other boulevard. property property remembers property county the the far back as Rochesters roads and A and G. and identified landowners He testified used road that the as well public, and G. as the Other testimony parties' predecessors, established that used prior roads residents A, B, used roads A, G, and E. Tanner Mrs. testified McFarland that testified he has used roads that A, B, F, and G and Farrell The Tanners A2, and G. the roads sought for using across other In roads that people's that which running across property for the season, Farrell to their cabin extended property source difficult in blocking of that they never believed to plaintiffs she uses road A permission. a letter existence to the plaintiffs 1932--roads A and G--but alleged her permission to use other indicated in her a fence down the south boundary Daly after the Daly erected plaintiffs a fence off 5 had left of her off their access property, made access from their around her property. cutting lake front The fence letter B, C, and D. to the water, and cut Tanners for in and to McFarlands' of water. their have used as they Daly objects use of roads 1992, nearly roads, A, Al, had an easement over her property to install fall they stated she admits her property. the The fence Although wrote In that parties use the attorney to rescind thereby property, to without were she intended and all property plaintiffs she intended roads Daly he has used roads testified her property, 1989 Daly's acknowledging those years was not necessary. road A across that and Farrells from D, E, and G. she and her husband have used roads testified twenty permission permission that over A, A2, to the as well as to the Tanners' boat house, dock, NO. 95-094 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996 JACK R. TANNER and PATRICIA L. TANNER, FREDERICK MCFARLAND, SHERRIE MCFARLAND, and THOMAS J. FARRELL, Plaintiffs, Respondents, Cross-Appellants, and v. DREAM ISLAND, INC., and JUANITA DALY, a Nevada Corporation, Defendants, Appellants, Cross-Respondents. APPEAL FROM: and District Court of the Twentieth Judicial In and for the County of ~La'ke. -:, The Honorable Ed McLean, Judge presiding. District, COUNSEL OF RECORD: For Appellants: John M. Morrison, Helena, Montana For Meloy & Morrison, Respondents: James A. Manley, Poison, Montana Manley Submitted Law Offices, on Briefs: Decided: Filed: January 25, 1996 March 21, 1996 Justice Charles E. Defendants judgment, the of attorney The issues on appeal 1. What issued during plaintiffs' the the use 2. jury is verdict County. from are effect of the which road easements and plaintiffs' and reverse District use on the in Court's prevented of Daly part. injunction, from Indian evidence obstructing Boulevard? credible substantial found adopted cross-appeal part a Twentieth Court road Plaintiffs into by the obstructing in Court. as follows: and enjoyment which the The District disputed We affirm trial, Was there issued concerning fees. of incorporated injunction easements. of opinion findings defendants the the jury Lake verdict enjoined enjoyment issue from Court, special permanently delivered and permanent District jury's and appeal order, Judicial Erdmann easements by grant, to support the prescription, and necessity? Did 3. regarding Did the in this Court err in instructing the jury easements? District an equitable party District prescriptive 4. that the award Court of abuse attorney its discretion fees in concluding was not proper of front for either case? FACTS The parties Flathead Armo States Lake. Villa are landowners The properties townsite government adjoining near platted are part the town of the villa 2 of Big sites lake Lot Arm. in 4, property Block 2, When the 1910 it of on the United reserved a forty-foot the boulevard lake shore. historically places area the for 1932 Realty Company owned sites 4, a nearby defendants' like between others vehicular or boat Block 2, the and title was foot and lake, the lots has In around some traffic. lot divided half named Dream Plaintiffs' title derives the owners as a lawn houses. north island Mueller. Rochester for conveyed Harry Boulevard has been used by adjacent cabin Lot Indian boulevard, used boulevard In to This been or also called from in to half. The Eugenia Island) Rochester and the derives from Rochester. Mueller (who south half Mueller indenture The and to reserved: [A] right-of-way for road purposes over and upon the premises herein conveyed, to Harry J. Mueller of Butte, Montana, and to his heirs and assigns, forever, over and upon any and all roads now laid out and heretofore traveled over upon and across said premises, or any portion thereof. The transfer identical of the easement south half reservation of Lot over 4 to Mueller and upon the contained land an conveyed to Rochester. In 1959 Juanita Daly and her late north half of 4 purchased the property) from 1964 Dalys the solely Kirks conveyed owned private purchased the the Mueller the south property. Lot who then the property of Lot The and owned the to In corporation. half husband, 4 from Youngs 3 Daly III, Island Dream (the Daly property. In Rochester Dream 1965 Ross the Marcus Island, and Delores Boetchers subdivided Inc., the a Young who then owned property into three smaller lots. predecessors and later In 1971 Jack to the These Daly conveyed property McFarland property (the purchased the McFarland (the properties him his purchased third except to a small adjacent to and south of adjacent to lies the Daly of No witnesses Red Tucker the In to Tanner Farrell Tanner 1974 be held and in and Farrell trust for Sid found Walker the road B as the old A to get to the plaintiffs' The the at issue which property The McFarland Tanner southeast property Tanner property. property property. both the are lies property The of is designated Farrell Tanner and as A, Al, in 1932 and G. landowners bought down Daly The roads were including others, the and F, the property. to C, D, E, 1934 or 1935. States the Thomas to McFarland adjacent properties. nearby adjacent of of McFarland two Frederick to 1971 of south lies but adjacent adjacent north and property B, sublot property). United triangle north AZ, the property situated lies Farrell homes. In 1981 In lies summer the purchased property). (the for sublot which by plaintiffs' member. Daly for purchased property). the sublot property as a tribal The Tanner Tanner McFarland were to plaintiffs and Patricia Sherrie conveyed sublots who remembered remembered clearly Tanners' nearby road. road G on the that predecessors, in the 4 as the used mid-1930s He and other boulevard. property property remembers property county the the far back as Rochesters roads and landowners Be testified and A and G. identified used road that the public, as and G. A, well Other the testimony parties' Mrs. established testified McFarland B, that testified used that prior roads A, roads residents used he has that F, and G and Farrell A2, and G. The Tanners the roads sought for over A, used using A across road across other In that roads she roads that that intended across B, roads In fence Farrell their cabin her of the season, extended property source difficult nearly after the water. and cut The Tanners fence 5 A and to use her A for G--but other letter boundary had around of her front their left her off their property. access to boat the to the as well property, made access from road C, and D. cutting lake off south a fence water, believed plaintiffs in plaintiffs erected the B, never her property indicated down the and to McFarlands' of over the permission roads to they 1932--roads use of Daly they used to plaintiffs to in a fence have Al, permission. letter Daly roads A, she uses alleged her 1992, as that their a roads they objects she admits property. blocking fall Daly existence rescind for property The in the roads, and G. used stated had an easement to install thereby the wrote have that parties without attorney to use property, property were she intended property, her testified Although plaintiffs which running to D, E, he has used and all necessary. Daly's acknowledging those Daly people's 1989 years A2, husband that and Farrells from was not she and her testified twenty permission permission to predecessors, G, and E. Tanner A, as as Tanners' house, dock, and barbecue and chicken house. hired pit. wire When Mr. a crew boulevard. to The fence was constructed and the east Tanner returned remove the end was nailed section to the of the of to property fence iron the in which fence posts Tanners' boat May 1993, crossed he the In March District 1993 the Court seeking their claiming an injunction property a jury On June judgment and punitive partial 22, 1994, 1994, on compensatory and 31, On July Court and In an and available to During either trial Daly Boulevard. However, reasonableness or fence across the jury contaminated from who and alleged Daly filed Daly's 1994, as a matter a motion motion of and for The trial for Plaintiffs distress damages. to damages, fees. denied went summary compensatory emotional 30, summary claims on on for August 30 and order, the attorney fees were opinion law that party. District blocking road there maliciousness boulevard, Daly issued Court because or of granted partial of attorney punitive August the prohibiting Court for for damages concluded distress, a plaintiff 1994, issue Court punitive use requested District distress, claim District the Plaintiffs a motion 20, on the compensatory 1994. District the and and necessity. filed their in prescription obstructing the as of emotional judgment and a complaint emotional 1993 Farrell Daly withdrew judgment not join damages. subsequently July September issues summary from prescription, 13, on the grant compensatory, to by grant, filed and ingress. In motion easements by Daly egress determine damages. plaintiffs' easements their to and McFarlands to prohibit or trial punitive Tanners of the G which was Daly's District prejudiced still actions Court by an injunction sits an in did on Indian issue of the erecting the not want the of the knowledge injunction. The special over verdict road court form as a matter September order would of 12, plaintiffs the roads G. prescriptive In over damages in determined November 2, A, had verdict. This and cross-appeal during use the which trial, prevented and enjoyment Ownership of different of of parties, the Indian Indian that A2, roads over Farrell an easement the be its fence) a by and awarded. final On opinion, defendants' and had compensatory remove the B, and G. over awarded issued all motion upholding the for jury followed. 1 District Daly Court's from injunction, obstructing issued plaintiffs' Boulevard? Boulevard including as should and easement well to verdict of determined that (costs denying effect judgment A, Al, jury ISSUE the by the and on easement The Court the its found as damages District appeal G, $166.25 notwithstanding is of easements a prescriptive and G. injunction judgment roads jury road punitive the and permanent What jury's plaintiffs entered over the Al, of the had a prescriptive over no 1994, the issue The jury by grant addition, amount that that been decided for Court McFarland roads the verdict verdict. Tanner easement necessity the had already District jury and that E and order, the that and G, agreed include issue a special 1994, found court law. had an easement The jury the therefore that returned incorporating E, and G, even though The jury D, parties is individual a complex issue landowners, with Lake a number County, the Confederated government, not all allege that resolution of United ownership that instead interest. boulevard issue claimed G on the States Tribes, of the of road and Kootenai claiming ownership Plaintiffs use Salish government or, the complaint scope if Daly because of had no right either boulevard Daly did United States The plaintiffs in their was beyond that and the and stated this to the it own it, did action. exclusive belonged the was subject it to to easements. On the the jury, second day District of Court trial, and concluded out of the as a matter presence of law of the that: Until such time as [Daly] has acquired a right to [Indian Boulevard] or permission from a court of jurisdiction, after serving notice on the Tribe and on the United States Government, and bringing an action with them as parties, she's enjoined from obstructing [road G on the boulevard]. In its clarified November this 2, 1994, opinion and order, the District Court issue: As to road G, the Court has previously ruled, as a matter of law, that ownership of Indian Boulevard cannot be decided without naming the relevant native american tribes and the United States government. However, as between Plaintiffs and Defendants, the jury found that to the extent Defendants claim to have any interest in road G, there is an easement by grant across Indian Boulevard in favor of Plaintiffs which is enforceable against the Defendants' claimed interest. Thus, their successors in interest are Defendants and permanently enjoined by the Court from obstructing in any way Plaintiffs' use and enjoyment of road G, no matter whom is ultimately decided to be the owner of Indian Boulevard. Daly the does not boulevard, but appeal rather the issuance limits of the her 9 injunction appeal to concerning the easement determinations. easement issues purposely issued The its deliberation. G is easements jury of the during an injunction therefore trial addressed the before that pertaining the the jury was Court had District Indian of easements Boulevard. over the injunction moot, we conclude The road G during of the injunction and since over the boulevard renders above, the concerning the issuance us injunction As noted fact the issue Since not findings of as to road G moot. made unaware jury road issuance regarding renders that a review the of the to easements on road G is unnecessary. ISSUE 2 Was there verdict which substantial found credible road evidence easements to support by grant, the jury prescription, and necessity? We review substantial 477, Ass'n v. 485, still (1991), 743. Reserve Evidence 207, inherently the province 810 P.2d 1177, 10 1285, that 845 P.2d 201, at and credibility Whiting 1181. a a conclusion. 845 P.2d weak and conflicting Head, of the jury. evidence 188, 268 Credit 820 P.2d to support by (1994), Prod. 322-23, 256 Mont. the weight is supported Karman as that as adequate is exists, 320, (1993), v. it Interstate defined substantial. evidence 213, is Life which be considered are within 976 (citing 250 Mont. accept if Barthule evidence mind might Central conflicting Mont. evidence. Substantial reasonable to determine 886 P.2d 971, DeSaye 1287). Head v. verdict credible Mont. 735, a jury's v. State 743. given (1991), When determining may When to it 248 if substantial light evidence most exists, to the favorable this prevailing Court views the party. evidence Whitinq, in P.Zd 810 the at 1181. Easements The jury over roads the Mueller Daly found A, Al, A2, Realty argues without that on sufficient those the they fails refer to October 19, documents both 1932. would testimony. the ,1 t1 at D were the trial. recorded admitted into Daly were into Industries, Lake admitted evidence. authenticity Inc. (1995), that 271 not were Mont. on did not the to issue their land the that object on title foundational the deeds when the to the on appeal. face, of now be allowed object in records chain without on appeal deeds as plaintiffs' exhibits, evidence as failure (1995), admitted She cannot raising The that seal, from was roads reasons. stipulated The parties be two Lake County or notary her purchaser there in the no signatures precludes fide (2) from Mueller. above-mentioned The argues deeds' a bona were easements Daly the transfers and Harry and for Even though admitted was by grant 1932 deeds. 0CT, and indicate 1932 deed easements, that an easement Rochester she argument first exhibits (1) the on the Eugenia indicating in which to that of referenced question possessed and B, based appeal evidence Daly's plaintiffs Company knowledge bv Grant exhibits to issue refute at See Hando trial v. 146, 900 P.2d 186, 896 P.2d 406. Furthermore, Daly the roads across her when of 11 Bridger PPG 272 Mont. she was aware 281; bears property v. she and her husband knowledge of purchaser status. the With is no direct referred to in whose memory old. regarding the from that a youngster A was used road B was at to the at reach time the county 1989 letter to anyone evidence Sid B existed Walker Walker in the identified that Tucker that he used testified that the the boulevard Furthermore, road. the those find and testified down to that photographs and lake. to get old could time. the photograph the in A fide correct witnesses, roads well-traveled bona circumstantial Two elderly actual and B were aerial with had is A2, party or obtain in question. she A, Al, Neither far a 1937 aerial road Daly's attorney road A existed plaintiffs that and that 1932. The jury testimony road on deed. testified A as roads she now claim argument, was presented and were in that thus cannot second that roads mid-1930s admitted Daly's 1932 land, therefore jury the road the back Tucker, roads and evidence dated the Red to the However, and roads respect there purchased was road county merely boulevard. A in the to support the Al and to finding was evidence A2 both forks, Testimony mid-1930s jury's the different We conclude road. with Roads accordingly. A and are the presented are received road there was substantial 12 that G and that plaintiffs weighed actually of which reach that and a part lead the road of to road public B was the credible possessed the G used old evidence an easement by grant over portion of roads the A, jury's Al, A2, jury determined over easement roads prescriptive roads in the D and neighborly roads the and cannot ripen not however, belief that claim of the right burden easement statutory & Crockett Keebler must period of v. 259 Mont. Harding (1991), a was no use of a theory any of discussion regarding use of the is not adverse and erred in finding a McFarlands' used E and therefore road. D and of the the notorious, the years. Public Mont. 13 Tanners, under 1932 deeds and argue the easement Lands 856 P.Zd 518, a use was permissive. party claiming exclusive, use of 247 The they E adversely by prescription, 283, The the show that 279, favor. road of language open, (19931, there on was never E in roads to five relies jury use on the show plaintiffs' neighbors they using and uninterrupted continuous, full that an easement that the road was on Daly prescriptive easement. over were based To establish the by a prescriptive they that predecessors that testify establish that possessed argues there a prescriptive not Daly Daly courtesy easement did E. a McFarland established their concede prescriptive McFarlands road alleging that into affirm possessed that permissive. or argues Plaintiffs did not parties E and which accommodation between Tanner and over record E was therefore bv Prescription that D easement evidence and verdict. Easements The and B, 521, adverse, claimed Access 525, 807 for v. 527 P.2d the Boone (citing 1354, 1356). The burden is on the party elements must prescriptive easement and Lands Access, 856 P.2d at 527 (citing Mont. 172, 772 P.2d 850, 852). alleged as 175, easement a mere owner the P.2d acquiesced in at 527 If the since the Public owner theory implied (quoting 24, 856 319, Public at use, 322, 661 is 850, of the owner v. Public Chestnut (1974), 527 the (citing to Access, and 856 can be acquired on adverse was v. by not Access, 164 Mont. Robson stated the ripen 856 or way by into P.2d 484, use. express use of [does1 Lands of We have . . . continuous right."' and not Rathbun a neighbor and the of be known 852). by adverse at based a way not use right Lands (citing P.2d 237 pleasure no easement 527 (1989), 1357). easement at of must of [is] Wilson land. Public the 856 P.2d claim 807 P.2d P.2d Grover the use permission prescriptive the of prescriptive the neighbor of shows permissive Access, "'where Such Keebler, 203 Mont. (1983), owner (citing Access, 1356-57). by the Lands the at at the proved. a claim revocable Lands v. establish To be adverse under license Public land. 807 Keebler, that or to be Downing be exercised privilege of P.2d must all seeking 491, at a 528 525 P.2d 27). Roads garage D and E branch which there for he has used the that without permission years. of has been testified twenty off for The as long Tanners road at A and lead least roads fifty openly years. and as he has owned believed 14 they had to his the Tanners' Mr. Tanner continuously and property--over a right to use the roads based permission duty to of and 158, of of established of We have right1 roads I" [iln saving is permissive use in their a claim (1988), 235 reservation use of the roads. to work out was years. in The testified Q: Now, you gave anybody A: I never D and E under to at title support 252 to of from defendant 92 Mont. shifted overcome Daly her the use et al. 12 P.2d to present theory the Groshean, 239-40, of not to. 15 of encumbrance 273, evidence neighborly would agree, would you not, that you never permission to use Roads B, C, D, E, F or G? them a claim to show that (quoting 227, [the as follows: told the Tanners accommodation. Daly a therefore acquiesced roads of of Daly and use of its on the (1932), therefore deeds order Co. The burden no 1932 deed. v. 275). under under Houle roads. adverse Woods 766 P.2d Realty and a number was permissive."' Dillmont v. therefore were attempted the for of burden and roads Tanners' for by thereby the the agreement that presumption, Woods deeds of on their stated an easement, 1932 created based See the had unsuccessfully the deed The Tanners were using aware a presumption right 1932 252. the maintenance right the her. 250, of Daly the they to was also use Tanners' of aware and cooperative to Daly 766 P.2d and of was unnecessary. adversely was Tanners claim Daly 162, easements, aware language communicate Daly The the from right Mont. on of Q: Well, admitted of those A: . would you agree that, in your deposition, you that you never gave anyone permission to use any roads? Right . . . Q: You didn't, in fact, socialize with them, did you? A: No. Q: You didn't YOU? have much contact at all with them, did A: No. Q: You didn't ever do anything -- A: No. Q: -- that led them permission? them to believe that you were granting A: No. The jury concerning whether use the roads The jury The was presented in support of her theory that Court permissive stated accommodation Plaintiffs' use of the roads support the prescriptive that jury's on there and weighed the testimony permission "there the to plaintiffs of neighborly use had not that neighborly We conclude evidence or not Daly granted concluded District with part has of accommodation. been established. been anything Defendants of the jury's finding that McFarland but regarding in question." was substantial finding that credible the Tanners evidence verdict. possessed We further conclude a prescriptive 16 to possessed easement over roads D and E and therefore portion to that affirm a that the jury's easement over road E is that not supported portion by substantial of proceedings the in that jury's credible verdict and evidence. remand We reverse for further regard. Easements by Necessity The jury necessity determined over that roads A and Al. not have gone to the jury established 199 Mont. In Issue easement not as a matter 233, reach necessity Farrell possessed Daly argues and that of law, that an easement this no easements issue should by necessity citing Schmid v. of McDowell the plaintiffs by were (1982), 649 P.2d 431. 2 we held by grant over that all roads A, Al, the issue of whether over roads A2, and B. Farrell possessed We therefore possessed an need an easement A and Al. ISSUE 3 Did the District prescriptive Court err in instructing the jury regarding easements? The District Court instructed the jury as follows: land based on neighborly The use of a neighbor's accommodation or courtesy is not adverse and cannot ripen into a prescriptive easement. Thus, where the use of a right-of-way by a neighbor was 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. The mere use of a way for the required time is not sufficient to give rise to the presumption of a grant. Some circumstances or act, in addition to the use, tending to indicate that the use was not merely permissive, is required. To establish an easement by prescription, the burden is on the Plaintiffs to show several elements. Plaintiffs or their predecessors in interest must have used the route notoriously, exclusively, adversely, openly, 17 by continuously, period of five and uninterrupted years. for the full statutory Once the Plaintiffs establish these elements, adverse is presumed, and the burden is then on the Defendants show that the use was permissive. use to The Plaintiffs and their predecessors were under no duty to communicate by word of mouth to Defendants, or their predecessors in interest, that Plaintiffs were using the under a claim right and roadway of adversely to Defendants. Daly the argues jury that that the accommodation is Yet, easement. the jury that for defense applies on the both and in permissive use. on neighborly a prescriptive instructed remaining Daly elements claims neighborly that where accommodation should not that the presumption the apply. permission any event Daly was and still The plaintiffs had the argue harmless that error evidence even because of adverse implied permission burden if to the Daly showing neighborly is 111[ilf use establish instruction did not come accommodation use. The general tions, the established. instructed Court use sufficient or permissive District once use through express it with into counter plaintiffs improper, based ripen the presumed are permissive adverse hand, Court land and cannot is easement in forward use of District a neighbor's other adverse situations was of one hand the adverse is presumption The use not prescriptive the on the when rule viewed applicable to Flathead County the in Montana in their case, there is (1994), 268 Mont. that entirety, state no reversible 18 223, 235, the given the correct error."' 886 instruc- P.2d law Buhr 381, v. 388 (quoting Walden 1193). v. We have stated instructions instructions at 222, 207, 388 Lands given refused, we must consider entirety and evidence introduced their states were using the from the 1932 deed presumption. the City law embodies District an equitable in this In for malice Fey the with other trial."' Buhr -r (1993), 259 Mont. given the Daly the from failed abuse of attorney the our use. under District Court to Public has the Plaintiffs of The in Daly believed right adequately Court District case. that a claim to the holdings requirement adversely and by derived rebut on this this issue. 4 its fees discretion was not in proper concluding for that either party case? its summary District the award at Bozeman of permissive roads We affirm the connection applicable ISSUE Did in instruction was taken evidence they v. jury instruction to present or jury 211). the and Woods and it burden Story 202, that the 1190, certain (quoting correctly of 818 P.2d whether 856 P.2d substance 137, examining and the We conclude Court 132, 'I' [wlhen given that 250 Mont. properly were 886 P.2d (1991), in instructions jury State July 22, judgment Court claims, exception stated equity in 1994, on opinion the and order issue "should that may require order to of action." 19 Daly's compensatory Plaintiffs an award fully denying prevail of attorneys' compensate Plaintiffs motion damages, on fees the their under in this (1990), Mont. 245 District 308, Court's 800 P.2d grant of The longstanding contractual State (1994), v. 765, Bitney 774; P.2d 535 P.2d 687, that v. P.2d at for 574 470, to make Land 601, attorney fees. compensate forced We have of w a party to hire by stating: 445, v. (citing 843 129, 167 Mont. 82, legal P.2d 137, 100, 687 conclusion Court of Estate 868 (19901, 245 Revenue attorney equity powers. its Mont. 636 P.2d 43, which has Howell, may award 415, in plenary. 860; 595 360; Lindgren m. or malicious made an equitable of See Holmstrom P.2d bad faith fees award (1994), of 268 Mont. 1284. an exception who, an attorney subsequently 182 this 1280, 1n FOY we created under instances See Matter P.2d 574 430, of court 195 Mont. (1979), involved 885 whole (19811, certain Dept. a district party is Howell 603). instances in are 102, v. Hunter behavior 96, Inc. or 568, court's Steer, statutory 212 Mont. a district 803 P.2d State Furthermore, of P.2d (1984), the be awarded. (1975), exists injured v. Cady fees 474-75, v. Co. v. No. 44 affirm favor. absent 255 Mont. attorney an Stickney Ehly (citing In isolated 868 us to her that not 285, Dist. in is will (19921, Our review 696). Montana 275, School and urges judgment fees Inc. 1277; no basis Mont. Mont. Lindey's, 1273, in attorney 263 Goodover summary rule authority 1053, to the through no to write explained the "The Foy exception 21 general fault of and argue rule her own, a motion distinguishing has been in order to had to been dismiss. characteristics narrowly drawn and HOWeVer, District no Court facts under its is that would Fov " [tlhis Court the imposition exception, not allowed 30, concluded proper to and the Court present concluding justify as to The District might August which the fees in be awarded not argue claim for attorney Smith (1977), law that the fees. 448, Mont. 265, 680 erected the fence and events under Plaintiffs issue which contend under Foy and maintain its v. that attorney within the that resolution the 952, and discretionary of she should be jury, thus which Cate v. that motion v. Hargrave when lake Daly shore a sequence incur erred their Builders their 176 Mont. attorney fees. by analyzing 507, the 580 P.2d jury of 114, as part of damages. decision is would damages have gone to the a question issue in Court (1978), powers the set to inevitably compensatory involves access District of the the argue issue that party on Boz-Lew and would Anderson counters fees rely house, attorneys' misconstrued 389, the determination Daly they that Court them fees fees. P.2d denied and boat of to P.2d 209 dock, attorney with attorneys' neither fees District the case." 571 (1984), properties, this that Plaintiffs 174 Mont. of any compensatory include order has been presented attorney that and awarding in ordered of of would Plaintiffs party evidence opinion equitable either further as a matter 1994, of of of the equity District controlled 20 whether or and not to award therefore lies Daly argues v. Fowler Court. by Rasmussen is applicable only has been forced where the action is utterly without 843 P.2d at 776 (citing Resources (1982), We first statutory nor a contractual exceptions They were litigation through that "Goodover's will preclude P.2d at due determined plaintiffs to that did the jury's appropriator, Gate's Daly's obtained forced not appeal reliance award of attorney with a judicial determination by failing to maintain presents neither within defend own. fees. We stated involving malicious should is frivolous in Goodover litigation . Goodover, malicious conduct, be 843 action sought not not to initiate wholly in this a any of the an attorney Even though plaintiffs punitive the jury The awarded. finding. on fate who suffered interference to exception that 772). fees under Fey. damages of Natural The Fov exception rule. alleged punitive Plaintiffs' case as the plaintiff case. Dept. the award of attorney of their Nor does the to the present v. party Goodover, 648 P.2d 766, for an award of attorney's 775. damages not no fault position Wilson case does not fit to the general action. apply basis this or frivolous." present as here the plaintiffs applicable, legal ex rel. the which the prevailing merit 189, 202, that we conclude Furthermore, narrow State 199 Mont. note into is misplaced. fees to damages to Hargrave, Hargrave the dam and whether 22 a senior water a dam and headgate the dam and headgate. as to whether There we affirmed Cate filed due to suit was wasting Hargrave for water was exceeding his lawful appropriation attorney fees of water. We affirmed the jury's award of stating: The Hargraves as defendants were compelled to expend substantial sums of money to prove that which was obvious to them from the start: their valid senior right to thirteen cubic feet per second of McGregor Creek. w, 680 P.2d 957 (emphasis We distinguish the plaintiffs do not easement with Daly's we cannot to fall rights Hargrave's condone property the present case from Gate by noting were not forced nor were the associated added). in line they actions our holding leasehold a road suit property. requested prescriptive operated district court's denial while fence we around her is so reprehensible as a dry-land When the defendant a gate across Rasmussen filed We determined across of attorney wheat farm on erected the property, relief. existed action in Q.&. injunctive easement the here as those Finally, right. erecting used by Rasmussen to reach and legal as definitive such action In Rasmussen the plaintiff state water in that a frivolous claimed senior conclude with to defend that the road but affirmed Rasmussen, fees. that a the 800 P.2d at 1057. We have held will not reverse that the district Sage v. Rogers fees. 1042 (citing Mont. 496, discretion Joseph 505, is absent court's (19931, Russell 605 P.Zd whether an abuse of discretion the decision 257 Mont. Realty 1107, 1112). trial court 23 concerning 229, Co. v. this 242, acted attorney 048 P.2d 1034, Kenneally The test Court (1980), for arbitrarily abuse 185 of without employment reason of conscientious resulting Columbus conclude in (1995), that that for party this substantial 272 Mont. the District determining either judgment in this exceeded injustice. 486, Court an equitable or 488, did Gaustad 901 P.2d not abuse its award of attorney case. We affirm Justice 24 565, bounds v. of City of 567. discretion We in fees was not proper the District issue. We concur: the Court on
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