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,
PAPA'S CABIN, LLC
Submitted on Briefs: November 10, 2016
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
Appellant: R.J. "Jim" Sewell, Jr., Craig D.
Charlton, Scott H. Clement, Smith Law Firm, P.C., Helena,
Appellee: Marcel A. Quinn, Hammer, Quinn & Shaw, PLLC,
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
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. We affirm.
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.
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.
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.
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
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.
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 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.
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 ...