                                                                                              01/03/2017


                                          DA 16-0192
                                                                                          Case Number: DA 16-0192

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 2N



PAT CAHILL, RONNIE D. CURTIS and CRAIG
M. CURTIS, RANDIE CURTIS, DONNA M.
SARGENT, MARK G. GOLDHAHN, MONICA
R. GOLDHAHN, LONNY R. ANDREASEN,
TERRY JENDRO and SHANNON JENDRO,

              Plaintiffs and Appellees,

         v.

PAPA’S CABIN, LLC



APPEAL FROM:            District Court of the Third Judicial District,
                        In and For the County of Powell, Cause No. DV 14-22
                        Honorable Ray Dayton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        R.J. “Jim” Sewell, Jr., Craig D. Charlton, Scott H. Clement, Smith Law
                        Firm, P.C., Helena, Montana

                For Appellee:

                        Marcel A. Quinn, Hammer, Quinn & Shaw, PLLC, Kalispell, Montana



                                                    Submitted on Briefs: November 10, 2016

                                                               Decided: January 3, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Papa’s Cabin, LLC, appeals the Third Judicial District Court’s order granting

summary judgment on Appellees’ claim that they possessed a prescriptive easement on a

road crossing Papa’s Cabin’s property.1 We affirm.

¶3     The Evanses—parents of one of the Claimants, Pat Cahill—owned land that now

constitutes all of Claimants’ respective properties. In order to access their property, the

Evanses constructed a roadway in 1954 across the property of their neighbors, the

Parkers—the property now owned by Papa’s Cabin.            The Evanses did not ask the

Parkers’ permission before they built the road.

¶4     The Evanses lived and operated a sawmill business on their property from 1954 to

the 1970s. Their family, friends, and customers used the road almost daily during that

time. The road sat in close proximity to the Parkers’ cabin. The first time the Evanses

met the Parkers was after they built and had started using the road; they later agreed to

the Parkers’ request to move the road farther from the cabin.




1
   Appellees are Pat Cahill, Ronnie Curtis, Craig Curtis, Randie Curtis, Donna Sargent, Mark
Goldhahn, Monica Goldhahn, Lonny Andreasen, Terry Jendro, and Shannon Jendro. We refer to
them collectively as “Claimants.”


                                             2
¶5     In August 2013, Papa’s Cabin locked a gate on its property to prevent Claimants

from using the road. Cahill then filed a petition for a permanent prescriptive easement.

Cahill’s claim was consolidated with claims of the remaining Appellees over Papa’s

Cabin’s objection.

¶6     The District Court granted summary judgment to Claimants. It concluded that no

genuine issue of fact existed as to whether Claimants’ use of the road was open,

notorious, exclusive, continuous, or uninterrupted and that Papa’s Cabin had failed to

present facts showing that Claimants’ use of the road was permissive. Finally, the court

found that the original scope of the prescriptive easement encompassed both residential

and commercial use and that the easement’s current residential use did not exceed its

original scope.

¶7     On appeal, Papa’s Cabin contends that Claimants bore the burden of

demonstrating that their use of the road was adverse and that they failed to satisfy that

burden.    Alternatively, Papa’s Cabin argues that even if it bore the burden of

demonstrating that Claimants’ use of the road was permissive, it presented sufficient

evidence to raise a genuine issue of material fact on this question. Lastly, Papa’s Cabin

asserts that the District Court erred by expanding the scope of the original easement and

by permitting joinder of the parties and consolidation of their actions for trial.

¶8     We review de novo a district court’s ruling on summary judgment, applying the

criteria of M. R. Civ. P. 56(c)(3). Citizens for a Better Flathead v. Bd. of Cnty. Comm’rs,

2016 MT 256, ¶ 10, 385 Mont. 156, 381 P.3d 555. Summary judgment is proper only

when no genuine issues of material fact exist and the moving party is entitled to judgment


                                              3
as a matter of law. Harrington v. Crystal Bar, Inc., 2013 MT 209, ¶ 9, 371 Mont. 165,

306 P.3d 342. Once the moving party meets its initial evidentiary burden demonstrating

facts to support its entitlement to judgment as a matter of law, the burden shifts to the

non-moving party to present substantial evidence, as opposed to mere denial, speculation,

or conclusory statements, raising a genuine issue of material fact. Ternes v. State Farm

Fire & Cas. Co., 2011 MT 156, ¶ 27, 361 Mont. 129, 257 P.3d 352. We review a district

court’s determination of judgment as a matter of law for correctness. Roe v. City of

Missoula, 2009 MT 417, ¶ 14, 354 Mont. 1, 221 P.3d 1200.

¶9    A party seeking to establish a prescriptive easement must show “open, notorious,

exclusive, adverse, continuous[,] and uninterrupted use of the claimed easement” for a

period of five years. Lemont Land Corp. v. Rogers, 269 Mont. 180, 183, 887 P.2d 724,

726 (1994). It is well established that a presumption of adverse use arises once the

claimant establishes the other five elements; the burden then shifts to the landowner

opposing the prescriptive easement to prove that the use was permissive rather than

adverse. Lemont, 269 Mont. at 185, 887 P.2d at 727-28; Brown & Brown of MT, Inc. v.

Raty, 2012 MT 264, ¶ 19, 367 Mont. 67, 289 P.3d 156; Albert v. Hastetter, 2002 MT

123, ¶ 20, 310 Mont. 82, 48 P.3d 749; Larsen v. Richardson, 2011 MT 195, ¶ 57, 361

Mont. 344, 260 P.3d 103; Glantz v. Gabel, 66 Mont. 134, 141, 212 P. 858, 860 (1923).

“[I]f the owner of the servient estate shows that use was permissive,” the claimant cannot

acquire a prescriptive easement. Leisz v. Avista Corp., 2007 MT 347, ¶ 17, 340 Mont.

294, 174 P.3d 481.




                                            4
¶10   The District Court reviewed undisputed evidence that the Parkers were aware of

the Evanses’ use of the road, that the Evanses’ use of the road did not depend on anyone

else’s use of the road, and that the Evanses and their successors used the road

continuously and without interruption from 1954 until 2013. Based on these undisputed

facts, the court concluded correctly that Claimants demonstrated open, notorious,

continuous, uninterrupted, and exclusive use of the road for well over five years. See

Lemont, 269 Mont. at 183, 887 P.2d at 726. The court then properly shifted the burden to

Papa’s Cabin to show that a genuine issue of material fact existed as to whether

Claimants used the road with permission. See Lemont, 269 Mont. at 185, 887 P.2d at

727-28. Papa’s Cabin failed to meet its burden because it did not present evidence that

the Evanses’ use of the road was permissive between 1954 and 1959—the five-year

period in which the District Court determined that the prescriptive easement was

established. See Lemont, 269 Mont. at 183, 887 P.2d at 726.

¶11   The only evidence that Papa’s Cabin presented that did not clearly pertain to the

1960s or later—deposition testimony from Pat Cahill that her parents, the Evanses, asked

the Parkers for a written easement at one time after the road was built—is inadmissible

hearsay. The conversation that Cahill described constitutes an out-of-court statement

offered “to prove the truth of the matter asserted”—that the Evanses sought a written

easement.   M. R. Evid. 801(c).    Claimants moved to exclude this statement from

consideration on summary judgment. The District Court was not required to consider the

testimony in its summary judgment ruling. See N. Cheyenne Tribe v. Roman Catholic

Church, 2013 MT 24, ¶ 21, 368 Mont. 330, 296 P.3d 450 (“District courts need consider


                                           5
only admissible evidence when determining whether to grant a motion for summary

judgment.”).

¶12    We are unpersuaded by Papa’s Cabin’s argument that Cahill’s testimony was not

hearsay because it qualifies as an admission by a party-opponent under M. R. Evid.

801(d)(2)(A). That testimony was not an admission by a party-opponent, because the

Evanses are not a party to this action.

¶13    The admissible evidence before the District Court undisputedly established that

the Evanses acquired a prescriptive easement by 1959. In reviewing this evidence, the

court correctly determined that Claimants satisfied their burden and that Papa’s Cabin did

not satisfy its burden. See Roe, ¶ 14; Ternes, ¶ 27.

¶14    Finally, the District Court rightly found that Claimants’ use of the road did not

exceed the easement’s original scope. We have held, in the context of a prescriptive

easement, that the “right of the owner of the dominant estate is governed by the character

and extent of the use during the period requisite to acquire it.” Brown & Brown of MT,

Inc. v. Raty, 2013 MT 338, ¶ 13, 372 Mont. 463, 313 P.3d 179 (Brown II). When the

Evanses acquired the prescriptive easement in the 1950s, the “character and extent of the

use” included both residential and commercial use. Brown II, ¶ 13. Claimants presented

evidence that they now use the road primarily for residential purposes and not for

commercial purposes. They satisfied their burden of establishing that their use of the

easement did not exceed the easement’s original scope. See Ternes, ¶ 27. Papa’s Cabin

failed to meet its burden of presenting evidence that Claimants exceeded the residential




                                             6
and commercial scope of the easement. See Ternes, ¶ 27. As such, the court’s ruling on

summary judgment was proper. See Harrington, ¶ 9.

¶15    Because we affirm the District Court’s award of summary judgment to Claimants,

we do not address Papa’s Cabin’s assertion that the court erred in permitting joinder of

the Appellees and consolidation of their actions for trial.

¶16    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. This

appeal presents no constitutional issues, no issues of first impression, and does not

establish new precedent or modify existing precedent.         The District Court’s order

granting summary judgment to Claimants is affirmed.



                                                  /S/ BETH BAKER

We Concur:

/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




                                              7
