                            No.    90-085
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1990


EDWARD A. CUMMINGS and CAROLE J. CUMMINGS,
      Plaintiffs and Respondents,
-vs-
JOSEPH CANTON, a/k/a JOE CANTON; JIM CANTON; WILLIAM G. SCHILLER,
SR. ; CLARA SCHILLER, SR. ; CLARA SCHILLER; RUFFATTO LAND & CATTLE
CO., a Montana corp.; LORETTA C. RUFFATTO; TIMOTHY WATSON; WAYNE
A. HERMAN; METROPOLITAN LIFE INSURANCE COMPANY, a corporation;
RAVALLI COUNTY; JOHN FOLEY ; and all other persons ; unknown,
claiming or who might claim any right, title, estate or interest
in or lien or encumbrance upon the property described in the
complaint adverse to plaintiffs' ownership or any cloud upon
plaintiffst title thereto, whether such claim or possible claim be
present or contingent,
      Defendants and Appellant.                  FT* ?,D i
                                                              1 t' i990

                                                 CLERK OF S U i R E r r l E COURT
                                                     STATE OF M'Ji?lTAIAA
APPEAL FROM:   District Court of the Fourth Judicial District,
               In and for the County of Ravalli,
               The Honorable Jack L. Green, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Richard R. Buley, Tipp, Frizzell      &   Buley, Missoula,
               Montana
          For Respondent:
               John T. Spangler, Cummings Law Firm, Missoula,
               Montana


                                            Submitted:       June 15, 1990
                                              Decided:       August 17, 1990
Filed:
Justice John C. Sheehy delivered the Opinion of the Court.


     The plaintiffs, Edward and Carole Cummings (Cummings), filed
a quiet title action in Fourth Judicial District Court, Ravalli
County.   The defendants answered the quiet title complaint by
claiming a prescriptive easement over Cummingsl land. The District
Court granted Cummingsl quiet title claim, and denied defendants1
prescriptive easement claim.       Now the defendants appeal the
District Court's denial of their prescriptive easement claim.   We
affirm.
     Did the District Court err in denying defendants1 prescriptive
easement claim?
     Cummings own in fee simple the following described property
in Ravalli County, Montana:
     The South half of the Northeast quarter (SaNEt) of Section 9,
the South half (Si) of Section 9, the North half of the Northwest
quarter (NaNWJ) of Section 9, and the Southeast quarter of the
Northwest quarter (SEjNWt) of Section 9, all in Township 9 North,
Range 20 West, P.M.M., Ravalli County Montana.
     Defendants, Joseph Canton and Jim Canton have an ownership
interest in land in two parcels.   One parcel is north of Cummingsl
property and the other is south.    The defendants have access to
both of their parcels of land through county roads, however, it
would be more convenient for the defendants to travel between their
two parcels of land by using abandoned County Road No. 22, which
crosses Cummingsl property.
     The Cantons own a ranch known as the llHome Place,11which is
located in Sections 10 and 15, Township 9 North, Range 20 West,
P.M.M.,    Ravalli County, Montana.    The Cummingsl property lies
adjacent to the Home Place on the west.     The Cantons also own 80
acres in Section 4, Township 9 North, Range 20 West, P.M.M. Ravalli
County, Montana. This parcel is known as the I1UpperEightyf1 the
                                                           or
"Eighty Acres."     It is not contiguous to the Home Place.      The
Eighty Acres lies approximately one and one-half miles northwest
of the Home Place.
     The Cantons have sold portions of the Eighty Acres to fellow
defendants, William G. Schiller, Sr., Clara Schiller and Timothy
Watson.    The sale included a transfer to them of all easements
appurtenant to the property.
     County Roadway No. 22, commonly called Bass Creek Loop Road
is the shortest route between the Home Place and the Eighty Acres.
County Road No. 22 travels generally north-south for approximately
one-half mile through the eastern edge of Cummingsl property, then
runs east-west one-half mile along the north border of Cummingsl
property to the location of the old Bass School.   From the school,
the road then turns to run north-south along the western edge of
the Eighty Acres.    One mile north of the school, the road turns to
run east-west and connects with Highway 93 on the east.
     In November, 1987, the Ravalli County Commissioners held
public hearings on a petition to abandon County Road No. 22.
Later, on January 15, 1988, the Ravalli County Commissioners
abandoned a portion of County Road No. 22 by adopting Resolution
No. 440.    The portion of County Road No. 22, which was abandoned
by Resolution No. 440, includes all of that portion of road which
in the past crossed the Cummingsl property.
        Shortly after Ravalli County abandoned County Road No. 22,
conflict arose between the Cummings and the Cantons over use of the
abandoned portion of County Road No. 22, where it crossed Cummings

property.    The abandoned road provided a short cut for the Cantons
traveling between the Home Place and the Eighty Acres. The Cantons
in the past used the road to transport cattle and equipment between
their properties.
     Since January 15, 1988, Cantons1 use of the road has been
without the permission of the Cummings who have attempted to
prevent anyone from using the portion of the abandoned road which
crosses the Cummingsl property.         The Cummings have requested the
Cantons to ask permission before using the road through the
Cummingsl property.      The Cantons have refused.
     The Cummings filed their quiet title action on September 14,
1988.     Defendants claim their previous use of the road created a
prescriptive easement.       The District Court disagreed with the
defendants, and granted Cummingsl quiet title claim.
     Whether    the District    Court    erred   in   denying   defendants!

prescriptive easement claim?

     To establish       a prescriptive easement, the owner of the
purported    dominant    tenement   must   establish    open,   notorious,
exclusive, adverse, continuous and unmolested use of the servient
tenement for the full statutory period of five years required to
acquire title by adverse possession.         Riddock v. City of Helena

(1984), 212 Mont. 390, 396, 687 P.2d 1386, 1389; Garret v. Jackson
(1979), 183 Mont. 505, 508, 600 P.2d 1177, 1179.           In order to
determine if the defendants meet the above elements, we must first
determine if the abandoned section of County Road No. 22 was
previously a public road.     As shown below, the defendants cannot
establish a prescriptive easement by traveling on a public road.
The public nature of the road prevents its use from being either
adverse or exclusive.
     The principal contention of appellants is that the road
abandoned by the county and the road over Cummings' property for
which a prescriptive easement is claimed are not the same roads.
     The evidence at trial overwhelmingly supports the District
Court's finding that the abandoned portion of County Road No. 22
crossing   Cummings'    property   was   previously   a   public   road.
Defendant Joe Canton testified at trial that the road was a public
road and that the County maintained the road. When asked about his
recollection of the road use during his 69 years of living near the
south end of County Road No. 22, Canton stated the following:

     Q.   (By Mr. Cummings) Okay. So when you were in the
     first grade you lived here. A. Yes.

     Q. Okay. The way you got from--and when you were in the
     first grade, did you attend the first grade at this
     location? A. Correct.

     Q. Okay. Is it true that the way you got from your home
     to get to school in the first grade was you went up Shear
     Brook Lane and up Bass Creek Loop to the Bass Creek
     School? A. Correct.

     Q. Okay. Is is true that there was also a county mail
     route along this route? A. Correct.
      Q. Okay. Is it also true that from the time you can
      remember when you were just starting the first grade that
      this Bass Creek Loop Road was a very, very old road? A.
      Yes.

      Q.  Is it also true that as long as you can remember the
      county has maintained that road? A. Yes.


      Q. Is it also correct that all the people, the members
      of the public, used this section, this three-eighths mile
      of Bass Creek Loop to get up to the Bass Creek School and
      back? A. Correct.

      Q. Okay.    That's from as long as you can remember.   A.
      Yes.

      Q.  As a matter of fact your understanding was at all
      times from when you were little that this was a county
      (road) where it crossed my ground. A. Correct.
      Joe Canton's testimony reveals that historically County Road
No. 22 was used as a public road, and maintained by Ravalli County.
'.
 I   . .   If the road had been used and traveled by the public
generally as a highway, and is treated and kept in repair as such
by the local authorities whose duty it is to open and keep in
repair public roads, proof of those facts 'furnishes a legal
presumption that such road is a public highway.    State v. Auchard
(1898), 22 Mont. 14, 17, 55 P. 361, 362, overruled on other
grounds, Reid v. Park County (Mont. 1991) 627 P.2d 1210, 1213. The
defendants have failed to show the road over which they claim an
easement was not a public road.     The evidence at trial revealed
that the public freely traveled on the road. Furthermore, the road
was shown on county maps as County Road No. 22, Bass Creek Loop
Road.      The defendants in their answer to Cummings' complaint
admitted the abandoned portion of County Road No. 22 was previously
a public road.
        Again, in order for a prescriptive easement to be acquired
there must be open, notorious, exclusive, adverse, continuous, and
unmolested use.     Riddock, 687 P.2d at 1389; Garnet, 600 P.2d at
1179.    A public road is one which all people have a right to use.
A defendant cannot establish a prescriptive easement by traveling
on a public road.       The open and public nature of the road
forestalls its use from being adverse or exclusive.       Thus, the
defendants have failed to meet the elements of a prescriptive
easement.    Accordingly, we affirm the District Court.

                                      ~           4
                                                  Justice     .       w
