                                  No.    90-225

                  IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1990



ROCKWOOD SCOTT BROWN and DEBORA A. BROWN,
husband and wife,
                           Plaintiffs and Respondents.


DOUGLAS E. TINTINGER, PEARL TINTINGER and
THOMAS TINTINGER,
                           Defendants and Appellants.



APPEAL FROM:          District Court of the First Judicial District,
                      In and for the County of Lewis and Clark,
                      The Honorable Dorothy McCarter, Judge presiding.


COUNSEL OF RECORD:
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              For Appellant:
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   a:                 Carl A. Hatch; Small, Hatch, Doubek   &   Pyfer; Helena,
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              For Respondent:
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   z *                Peter Michael Meloy; Meloy Law Firm; Helena, Montana
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        0     .                   Submitted on Briefs:      October 11, 1990
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                                                  ~ecided: November 29, 1990
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

     Plaintiffs, Rockford and Debora Brown (Browns), filed this
suit to quiet title to their real property and particularly to
determine whether defendants, Douglas, Pearl, and Thomas Tintinger
(Tintingers), have a perfected prescriptive easement across Browns'
property.     Tintingers cross claimed, claiming a right of access
across Browns' property, intentional attempt by Browns to deprive
them of use of the access, and seeking damages caused by the
deprivation of access.     Following a non-jury trial, the District
Court for the First Judicial District, Lewis and Clark County,
entered judgment for the plaintiffs, quieting title in plaintiffs
as owners in fee simple, and declaring that defendants have no
right, title, or      interest in or upon plaintiffs' property.
Defendants appeal.    We affirm.
     The issues are:
     1.     Did the District Court err in concluding that the Quiet
Title Decree issued in 1948 extinguished any alleged easement
claimed by Tintingers?
     2.     Did the District Court err in concluding that following
the Quiet Title Decree in 1948 the use of the road by the
Tintingers was permissive and not adverse?
     In 1984 the Browns purchased a parcel of land situated in
Lewis and Clark County.    Tintingers are the owners of a patented
mining claim known as the "Independent," and have the right to mine
on an unpatented claim known as the ItGoodChance.   The Independent
and Good Chance are located north of the property owned by the
Browns.   A strip of Forest Service land lies between the mining
claims and Browns' property.   An unimproved dirt road begins at a
public road on the south boundary of the Browns' property, crosses
Browns' property, then crosses the Forest Service strip and ends
at the Independent.
     Various members of the Tintinger family used this dirt road
for access to the Independent and Good Chance mining claims for
over 50 years. In 1947, the Henkes, previous owners of the Browns'
property, brought a quiet title action naming all previous owners
of the property together with:
     any and all persons unknown who claim or may claim any
     right, title, or interest in, or lien or encumbrance upon
     the real property described in this complaint, or any
     part thereof, adverse to the plaintiff's [sic] title
     thereto, whether such claim or possible claim be present
     or contingent, including any claim or possible claim of
     dower, inchoate or accrued.
A Decree of Quiet Title for the Henkes was issued February 17,


     Eugene Menth subsequently purchased the property from the
Henkes.   Menth deeded the property to Norwest Bank in lieu of
foreclosure in 1982.    The Browns purchased the property from
Norwest Bank in 1984 and in November of that year the Browns
erected a chain barrier across the entrance to the road to keep out
hunters and Christmas tree cutters.
     In May of 1985, the Tintingers called the Browns and demanded
access to the road. The Browns refused to give permission and the
Tintingers used the road without permission until 1987 for their
annual assessment work at the mines.        In 1987, Browns gave
permission to the Tintingers to use the access for the annual
assessment work.       In April 1988, the Browns filed this      action to
prevent the Tintingers' further use of the road.


       Did the District Court err in concluding that the Quiet Title
Decree issued in 1948 extinguished any alleged easement claimed by
Tintingers?
       None of the Tintingers were named as defendants in the 1948
Quiet Title Action. The District Court concluded that any easement
that    might   have    existed   in   behalf    of   the   Tintingers   was
extinguished under the Decree's language "any and all persons
unknown who claim or may claim any right, title, or interest in,
or lien or encumbrance upon       ..   .I'   The court's Conclusion of Law
No. 2 states:
       The decree of quiet title issued in 1948 extinguished any
       alleged easement claimed by the Tintingers. The decree,
       by its own       language, extinguished any lien or
       encumbrance on the property adverse to the owner. The
       Tintingers are bound by the decree, pursuant to Section
       70-28-109, M.C.A., which provides:
            Every person made a defendant to such action
            by name and every unknown claimant or possible
            claimant upon whom service has been made by
            publication    . . .  shall be bound by the
            judgment or decree entered in such action,
            subject to the right of any such defendants to
            apply for relief in any manner provided by the
            statutes applicable to the case of a
            defaulting    defendant    served   only    by
            publication. (Emphasis added.)
       The record does not reveal any legal action taken by the
       Tintingers to challenge the quiet title decree on the
       basis of faulty or invalid service of process pursuant
       to the above-quoted statute.
       The Tintingers argue that the           Henkes obviously knew the
Tintingers were using the road as access to their mining claims and
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    therefore they were not unknown or possible claimants, and that by
    law the Henkes should have named the Tintingers as defendants if
    they intended to extinguish the easement.
            There is no evidence in the record showing that the Henkes
    knew of the Tintingers use.          Absent knowledge by Henkes, the
    npersons unknownn language in the Decree extinguished, any right,
    title, or interest Tintingers may have or may have been attempting
    to perfect during the period prior to the 1948 Quiet Title Decree.
            We hold the District Court did not err in concluding that the
    Quiet Title Decree issued in 1948 extinguished any alleged easement
    claimed by Tintingers.
                                         I1
            Did the District Court err in concluding that following the
    Quiet Title Decree in 1948 the use of the road by the Tintingers
    was permissive and not adverse?
            In order to establish a prescriptive easement, the Tintingers
    must show open, notorious, exclusive, adverse, continuous and
    uninterrupted use for the full statutory period. Downing v. Grover
    (1989), 237 Mont. 172, 175, 772 P.2d 850, 852.         The statutory
    period is five years.     Section 70-19-401, MCA.   All       elements of
    prescriptive easement must be proved by a preponderance of the
    evidence or the claim will fail. Downinq at 175, 772 P.2d at 852.
    All elements must be proved in a case such as this because "one who
    has legal title should not be forced to give up what is rightfully
    his without the opportunity to know that his title is in jeopardy
    and that he     can fight for it."    Id.
            In order to perfect a prescriptive easement, the Tintingers

                                         5
must establish the elements during a 5 year period following the
1948 Quiet Title Decree.      The Henkes sold the property to Menth
in 1951.   Menth testified:
          Q. During your ownership of the land, do you ever
     remember seeing Mr. Tintinger using that road?
           A.   Yes.
          Q. .How often did you see him use it, if you can
     remember?
          A. To my knowledge, not very often.      Once a month.
     I don't know. I have no idea, really.
           Q.   Did you have any conversations with him --
           A.   Sure.    I talked to him all the time.

          Q.   While he was up        in the vicinity of your
     property?
           A.   Sure.   We were good friends.
          Q. What was your understanding about his use of
     that road? Did he have your permission to use it?
           A.   Definitely.
     The standard of review for a civil case for a judge sitting
without a jury is whether or not the District Court's findings are
clearly erroneous.      Dennis v. Tomahawk Services, Inc. (1989), 235
Mont. 378, 379, 767 P.2d 346, 347. This Court will not substitute
its judgment for that of the trial court absent that showing. Id.
Menth's testimony is sufficient to support the District Court's
finding that Tintingersl use of the road from 1951 to 1982 was
permissive and not adverse.
     In 1982 Menth deeded the property to Norwest Bank and Norwest
Bank sold the property to the Browns in 1984.      In November 1984,
the Browns erected the chain barrier, and in May of 1985 the Browns
refused to give permission to the Tintingers to use the road.        In
1987 the Browns gave the Tintingers permission to use the road for
their yearly assessment work only.
      There is no evidence that Norwest Bank had            any notice
whatsoever    that   the   ~intingers were   using   the   road   either
permissively nor adversely. Likewise there is no evidence that the
Browns knew of any permissive or adverse use of the road by the
Tintingers until May of 1985.      The period of time from May 1985
until the filing of this action in April, 1988 is less than the
statutory five-year period to establish a prescriptive easement and
thus it is immaterial whether Tintingers' use was adverse or
permissive during this period. Therefore, the Tintingers have not
established an easement by prescription over the Browns' property.
      We hold that the District Court did not err in concluding that
following the ~ u i e t~ i t l eDecree in 1948, the use of the road by
the Tintingers was permissive and not adverse.
      Af firmed.




We Concur:           A"
        Chief Justice




             Justices
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