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Brown & Brown of Mt, Inc v. Keith Raty and Colleen Raty

November 20, 2012

BROWN & BROWN OF MT, INC., A CORPORATION, PLAINTIFF, APPELLEE, AND CROSS-APPELLANT,
v.
KEITH RATY AND COLLEEN RATY, DEFENDANTS AND APPELLANTS.



APPEAL FROM: District Court of the Twelfth Judicial District, In and For the County of Hill, Cause No. DV-08-190 Honorable Daniel A. Boucher, Presiding Judge

The opinion of the court was delivered by: Patricia Cotter

November 20 2012

Submitted on Briefs: September 12, 2012

Filed:

Clerk

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Brown & Brown of MT, Inc. (Brown) commenced an action in the Twelfth Judicial District Court, Hill County, seeking a preliminary injunction preventing neighbors Keith and Colleen Raty from crossing Brown's land, or in the alternative, a declaratory judgment stating that the Ratys do not have a prescriptive easement. The Ratys appeal the decision of the District Court granting a prescriptive easement in their favor but limiting the width of the prescriptive easement to twenty feet. Brown cross-appeals, arguing that the District Court erred in granting summary judgment because genuine issues of material fact exist concerning whether the Ratys' use was permissive, whether the prescriptive easement included residential and recreational uses, and the width of the prescriptive easement. We affirm in part, reverse in part, and remand for modification of the Final Judgment.

ISSUES

¶2 A restatement of the issues raised by both parties on appeal is:

¶3 1. Did the District Court err in granting summary judgment on the existence of a prescriptive easement because material issues of fact exist with respect to whether the claimants' use of the trail was adverse or permissive?

¶4 2. Did the District Court err in granting summary judgment on the existence of a prescriptive easement that included residential and recreational uses?

¶5 3. Did the District Court err in limiting the width of the prescriptive easement to twenty feet for the purpose of trailing cattle?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 The Ratys own two parcels of land in Hill County known as the Upper Setty Ranch and Lower Setty Ranch. A primitive roadway connecting these two properties passes through land owned by Brown, the state of Montana, and Rita and Richard Grabofsky. Traveling the road from Lower to Upper Setty Ranch, the road first enters property owned by the Grabofskys, then crosses State land, and finally enters property owned by Brown. The Brown parcel is known as Greenfield. Brown is a closely held corporation managed by Earl Brown, Sr. and Allison Florance. The dispute between the parties arises from the Ratys' use of the road as it passes through Greenfield.

¶7 The parties presented evidence and testimony concerning the history of the road in question. The subject road existed even prior to an initial survey of the area by the U.S. government in 1896. Ova and Lacrettia Setty were the original homestead owners of the Upper and Lower Setty Ranches. Steve Boyce, Colleen Raty's grandfather, bought these parcels from the Settys in 1948. The original homestead owners reserved a one-acre life estate on the Upper Setty Ranch which was used as a residence until 1980. The Upper Setty Ranch contains a cabin that continues to be used occasionally by the Ratys. Colleen Raty's father, Robert Boyce, purchased the Upper and Lower Setty Ranches in 1963. In 1997, the Ratys purchased the Lower Setty Ranch and a portion of the Upper Setty Ranch from Robert Boyce. The Ratys purchased the remaining portion of the Upper Setty Ranch from Robert Boyce in 2004.

ΒΆ8 The subject road was used by the Ratys and their predecessors in interest primarily for trailing cattle between the Upper and Lower Setty Ranches. Robert Boyce testified by affidavit and deposition to the various agricultural, residential, and recreational uses of the subject roadway since 1948. These uses included trailing herds of livestock, horseback riding, walking, driving agricultural and construction equipment, hauling materials to repair or build fences, spraying weeds, maintaining and developing water sources, hauling firewood, riding snowmobiles, accessing residences, hunting, and fishing. Robert Boyce considered his use of the roadway a matter of right and never asked Brown for permission. Keith Raty offered his personal knowledge of the use of the road since 1987. Keith Raty's testimony reiterated that the historical uses described by Robert Boyce continued when the ...


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