          IN THE SUPREME COURT OF THE STATE OF MONTANA




AMERIMONT, INC., A MONTANA CORPORATION,
CALVIN SMITH and ALICE E. SMITH,
          Plaintiffs and Appellants,


M. M. ANDERSON, a/k/a MICHAEL ANDERSON,
and NORMA JEAN ANDERSON,
          Defendants and Respondents.



APPEAL FROM:   District Court of the Eighteenth Judicial District,
               In and for the County of Gallatin,
               The Honorable Thomas A. Olson, Judge presiding.


COUNSEL OF RECORD:
          For Appellants:
               Karl Knuchel, Attorney at Law,
               Livingston, Montana
          For Respondents:
               Thomas M , White, Sedivy, Bennett   &   White,
               Bozeman, Montana


                              Submitted on Briefs:       July 18, 1996
                                          Decided:      September 30, 1996
Justice Charles E. Erdmann delivered the opinion of the Court.
      Amerimont, Inc., a Montana corporation, and Calvin Smith and
Alice K. Smith appeal from the judgment entered by the Eighteenth
Judicial District Court, Gallatin County, decreeing that Amerimont
does not have a prescriptive easement over the property of M. M.
Anderson and Norma Jean Anderson. We affirm.
      The issue on appeal is whether the District Court erred in
concluding that Amerimont does not possess a prescriptive easement
over the Andersons' property.
                                  FACTS
      Amerimont purchased property located in Gallatin County from
the Smiths in 1993. The property lies near the town of Manhattan
and the legal description of the land is the SKSEX of Section 26
and the NE% of Section 35 and all of Section 25, all situated in
Township 2 North, Range 3 East.
      Amerimont's chain of title dates back to 1887 when George
Oyler obtained title to the property by homesteading a portion of
the   ground   and   purchasing   different   sections   from   private
individuals.   In 1924 George Oyler conveyed title to Robert Oyler
and in 1949 Robert Oyler sold the property to Hugh Smith, Calvin
Smith's father. In 1975 Hugh Smith deeded one-half interest in the
property to Calvin Smith and when Hugh Smith died in 1990, Calvin
Smith inherited the remaining one-half of the property.         In July
1993, the Smiths transferred their interest to Amerimont by
conveying fee title to Section 25 and executing a contract for deed
on the respective portions of Sections 26 and 35.
     In 1975 the Andersons acquired Section 29 in Township 2 North,
Range 4 East, among other parcels, by warranty deed from Mabel
Geraldine   McElwee,   n/k/a   Mabel   Geraldine   McElwee    Vergeront.
Section 29 is situated one mile directly east of Amerimont's
Section 25 and the two Sections are separated by Section 30, which
is owned by the State of Montana and leased to the Andersons. The
Andersons' predecessors in interest are Orie and Mabel Geraldine
McElwee who purchased the property in 1944. When Orie McElwee died
in 1973, Mabel Geraldine McElwee obtained sole ownership of the
land.
     When the Andersons purchased Section 29, there was a dirt road
that entered Section 29 at a point near their home.          The roadway
branches off    from the Spaulding Bridge Road and runs in an
east-west direction across the extreme southern boundaries of
Sections 29 and 30, eventually leading to the Smiths' residence on
Section 25.    The roadway is barricaded by a series of gates which
have remained closed and at times locked by the Andersons and the
McElwees.     The road is used for agricultural, recreational, and
residential purposes.     A map of the properties and the disputed
roadway is shown below.
     In 1994, Amerimont and the Smiths filed suit against the
Andersons seeking to establish they had a prescriptive easement
across the Andersons' property.     The case was tried before the
District Court without a jury on January 17 and 18, 1995.       On
December 18, 1995, the District Court entered its findings of fact,
conclusions of law, and order, concluding that Amerimont and the
Smiths do not have a prescriptive easement over the roadway passing
through Section 29, but instead have permissive use of the road.
On January 18, 1996, the District Court entered judgment in favor
of the Andersons, incorporating its earlier findings of fact and
conclusions of law.   This appeal followed.
                                4
                         STANDARD OF REVIEW
      This Court reviews a district court's findings of fact to
determine whether they are clearly erroneous.     Daines v. Knight
(1995), 269 Mont. 320, 324, 888 P.2d 904, 906. We have adopted a
three part test to determine whether the findings are clearly
erroneous.   First, the Court will review the record to see if the
findings are supported by substantial evidence.     Second, if the
findings are supported by substantial evidence, we will determine
if the trial court has misapprehended the effect of the evidence.
Third, if substantial evidence exists and the effect of the
evidence has not been misapprehended, the Court may still find that
a finding is clearly erroneous when, although there is evidence to
support it, a review of the record leaves the Court with the
definite and firm conviction that a mistake has been committed.
Interstate Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323,
820 P.2d 1285, 1287.
      We review a district court's conclusions of law to determine
whether the court's interpretation of the law is correct.   Carbon
County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898
P.2d 680, 686.
                             DISCUSSION
      Did the District Court err in concluding that Amerimont does
not possess a prescriptive easement over the Andersons' property?
      To establish an easement by prescription, the party claiming
the   easement must    show open, notorious, exclusive, adverse,
                                 5
continuous, and uninterrupted use of the easement claimed for the

full statutory period of five years. Tanner v. Dream Island, Inc.
(l996), 275 Mont. 414, 424, 913 P.2d 641, 647-48 (citing Public

Lands Access v. Boone & Crockett (1993), 259 Mont. 279, 283, 856

P.2d 525, 527; Keebler v . Harding (1991), 247 Mont. 518, 521, 807

P.2d 1354, 1356). The burden is on the party seeking to establish

the prescriptive easement and all elements must be proved. Tanner,

913 P.2d at 648 (citing Public Lands Access, 856 P.2d at 527;

Downing v. Grover (1989), 237 Mont. 172, 175, 772 P.2d 850, 852).

To be adverse, the use of the alleged easement must be exercised

under a claim of right and not as a mere privilege or license

revocable at the pleasure of the owner of the land; such claim must

be known to and acquiesced in by the owners of the land.    Lemont
Land Corp. v. Rogers (1994), 269 Mont. 180, 185, 887 P.2d 724, 727.

     If the owner shows permissive use, no easement can be acquired
since the theory of prescriptive easement is based on adverse use.

Tanner, 913 P.2d at 648 (citing Public Lands Access, 856 P.2d at

527; Rathbun v. Robson (1983), 203 Mont. 319, 322, 661 P.2d 850,

852).    Where the use of a way by a neighbor is by express or

implied permission of the owner, continuous use of the way by the

neighbor is not adverse and does not ripen into a prescriptive

right.   Public Lands Access, 856 P.2d at 528 (citing Wilson v.

Chestnut (1974), 164 Mont. 484, 491, 525 P.2d 24, 27).

     Amerimont claims that the historic use of the roadway was

sufficient to establish an easement by prescription over the
                                 6
Andersons' property. Amerimont argues that the Oyler family began
using the road in 1887 to reach the homestead on Section    25   and
that use of the road continued uninterrupted into the time that the
Smiths obtained ownership of the land. Amerimont argues that the
use of the road was open and notorious to such a degree that the
Andersons should have been placed on notice that the Smiths were
making a hostile claim against their ownership.
     Amerimont claims that the Smiths and the Oylers used the road
under a claim of right and that this claim was clearly known by the
Andersons and their predecessors in interest who did nothing to
prevent the continued use from 1887 to 1993.    Thus, according to
Amerimont, the road was used adversely and not as a mere privilege
or license revocable at the pleasure of the Andersons or their
predecessors in interest. Amerimont acknowledges the existence of
gates across the road, but claims that the gates were installed
primarily for livestock control and secondarily, to control public
access. Amerimont claims that the gates were never meant to keep
Amerimont, the Smiths, or the Oylers from accessing their property.
     The Andersons argue that from 1946 to 1993 neither they nor
the McElwees had a dispute with any neighboring ranchers or
property owners, including the Smiths, concerning use of the
roadway across their land.   The Andersons claim that use of the
road by the Smiths and their predecessors was always permissive and
therefore never adverse and/or hostile. The Andersons argue that
since 1944 they and the McElwees constantly exercised their right
                                 7
to   control   access   passing   over   Section   29   to   neighboring
landowners, including the Smiths and the Oylers.         The Andersons
note that they and the McElwees always closed the series of gates
passing over the route and locked the gates on a monthly, if not
weekly basis. According to the Andersons, Arnerimont and the Smiths
failed to prove the elements necessary to establish a prescriptive
easement
     The District Court found as follows:
     There is abundant evidence by reputable witnesses that
     homesteaders who initially lived in this area where
     Amerimont's land is located, particularly the Oyler
     family, developed the common practice or common rule of
     allowing or utilizing a neighbor's permissive use to
     reach land by crossing over each other's land provided
     the neighbor closed all gates and didn't injure the land.
     The record indicates that the Oyler family had friendly
     and amiable relations [with] all the neighbors in the
     area particularly Orie and Mabel Geraldine McElwee.
     Further, the record is clear that Hugh Smith had
     particularly good neighborly relations with Mike Anderson
     from 1975 until Mr. Smith's death in 1990.           Mike
     Anderson's testimony regarding his assistance provided to
     Hugh Smith in opening gates as Mr. Smith would pass
     through the Anderson property is evidence of "neighborly
     accommodation".
     Because of this long standing friendship among
     neighboring property owners, including plaintiffs'
     predecessors in interest, the use of the road crossing
     the Anderson property was never adverse and/or hostile.
     Use of the road was always permissive.
     The Andersons and their immediate predecessors in
     interest, the McElwees, have exercised complete dominion
     over the route passing through Sec. 29 since 1946. They
     have required as a condition of use that all gates be
     closed. They locked the gate from the county road on a
     monthly if not weekly basis.
     There is no evidence that Amerimont and its predecessors
     in interest to Sec. 25 ever possessed a key or
     combination to the gates controlling access to Sec. 29
     which have been frequently locked since at least 1944.

The District Court concluded that:
     Amerimont and the Smiths have the permissive use of the
     roadway passing over Sec. 29. Amerimont and the Smiths
     do not have an easement by prescription over the roadway
     passing through Sec. 29.
     Our review of the record indicates that use of the roadway was
allowed as a neighborly accommodation and by permission of the
Andersons and their predecessors in interest.       George Oyler's
grandson, Enos Oyler, testified that he knew the McElwees and had
used the roadway going across Section 29. He stated that he worked
for a man named Omen whose family was "friends or neighbors" with
the McElwees and they had given Omen and his work crew permission
to cross the road.
     Mrs. Vergeront   [Mabel Geraldine McElweel   testified in her
deposition as follows:
     Q.   Mrs. Vergeront, I'd like to ask you some more
     general questions regarding the customs of your neighbors
     in allowing each other to use property and cross over
     property. Can you explain what your understanding was
     with respect to other neighboring landowners in utilizing
     their property or when they utilized your property?
     A.   Permission was always asked.
     Q.   Now, was permission required every time a neighbor
     wanted to go across another neighbor's property?
     A.   It was forus.
     Q.   So anytime somebody wanted to use Section 29 they
     had to specifically ask you each time?
     A.   Yes.
     Q.   Was there ever times when you found somebody going
     across the road on Section 29 that had not asked for
     permission?
     A.   Occasionally
     Q.   And what happened when you discovered somebody had
     used or was attempting to use this road without your
     permission?
     A.   We always found out what their purpose was on our
     place and why they hadn't asked permission and explained
     to them that permission was always required.
     Q.   Now, you indicated earlier here that you locked the
     gate and closed the gate to protect your property.
     A.   Yes.
     Q.   What on your property was there to protect?
     A.    Well, the wear and tear on the land for one thing,
     our crops for another thing, keeping track of our cattle.
     And we also had a rock quarry that we mined pictured
     flagstone. And we had to protect that because - - one of
      [the] reasons for the locks on the gate was that people
     would come, if we weren't home, and go - - they knew where
     the rock quarry was and they would take rock. And that
     was part of our income.
     Q.   So are you certain that every time you left the
     property for an extended period of time you would lock
     the gate?
     A.   Yes
     Norma Jean Anderson testified that she "absolutelyu made a
conscious effort to keep people from traveling over the property.
She indicated that she and her husband had a congenial relationship
with Hugh Smith and that in the late 1970s or early 1980s they
began interacting with Calvin Smith instead of his father.       Mrs.
Anderson testified that Calvin Smith would call in advance to use
the roadway across Section 29 and that in her opinion, the calls
were to "ask us if it was okay." She indicated that   "   [ylou could
call [the arrangement] permission" and noted that if she knew in

advance that Smith was coming, she would go down and unlock the
gates--or if they were unlocked, she would say "[slure, go ahead.
The gate's open."
    Michael Anderson testified as follows:
    Q:   After you began ownership in Section 29 in 1975,
    what was your practice with respect to allowing other
    people to use this roadway?
    A:   Everyone that - - anyone that wanted to use it at any
    time had to have permission.
     Q:    And did you ever deny permission?
    A:     Yes.
     Q:   With respect to neighbors in the area, did you
     establish a pattern of their use that implied a
     permission?
    A:   Well, the neighbors always called and sometimes they
    were denied. If we had the sprinkler pipe out - - I mean,
    you can't drive over the sprinkler pipe. And so, I
    wouldn't say even a neighbor that might have had an
    implied permission if they wanted to use it, they were
    certainly always entitled to that but they weren't
    entitled to drive over the sprinkler pipe and we didn't
    shut off the sprinkler for them.
     Q:   When you say, "entitled",what do you mean by that?
     In your - -


     A:    By virtue of our grant of permission they would - -
     and   sometimes if they needed to go where we were
      sprinkling, we would outline one of the roads where they
      could maybe loop around the field or avoid the sprinkler
      pipe in some fashion.



      Q:   Backing up. When you purchased the property, did
      you find the gates locked?

      A:     Yes.

      Q:   Did you acquire the keys to the locks on those gates
      when you purchased the property?

      A:     Yes, I did.
      Q:   Since that time, have you continued to lock those
      gates on a regular basis?

      A:     Yes.

      The record indicates that the Andersons and their predecessors

in interest have exercised complete dominion and control over the

roadway passing near their home in Section 29.             The evidence
indicates that gates over the roadway were used to control not only

livestock, but also to restrict access to the property and to
protect the property from theft.       Any individuals, including the

Smiths and their predecessors in interest, who used the road did so

at the express or implied permission of the Andersons and their

predecessors in interest.        In Greenwalt Family Trust v. Kehler

(1994), 267 Mont. 508, 885 P.2d 421, we stated that where there is

a community understanding or a local custom of allowing neighbors

to   cross   the    edges of   neighboring   fields, it   is   considered

permission. Greenwalt, 885 P.2d at 425.       I1
                                               1   the present case, such
a pattern of neighborly accommodation persisted for years and we
therefore determine that use of the roadway by Amerimont and the
Smiths was not adverse and cannot ripen into a prescriptive
easement.
    We hold that the District Court's findings of        fact are
supported by substantial evidence and are not otherwise clearly
erroneous.   The District Court correctly interpreted the law when
it concluded that Amerimont and the Smiths do not possess a
prescriptive easement over the Andersons' property.




                                  a=
    Affirmed.


                                        Justice


We concur:
I hereby certify that the following certified order was sent by   tates mail, prepaid, to the
following named:

Karl Knuchel




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