                                                                                        November 20 2012


                                           DA 11-0739

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2012 MT 264



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


COUNSEL OF RECORD:

                For Appellants:

                        Gregory J. Hatley, Davis, Hatley, Haffeman & Tighe, P.C.,
                        Great Falls, Montana

                For Appellee:

                        J. Devlan Geddes, Goetz, Gallik & Baldwin, P.C., Bozeman, Montana

                        Thomas J. Sheehy, Sheehy Law Office, PLLC, Big Sandy, Montana



                                                    Submitted on Briefs: September 12, 2012

                                                                Decided: November 20, 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?



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                 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.

¶8     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


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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 Ratys purchased the Upper and Lower Setty Ranches.

The Ratys submitted photographs showing use of the road for moving cattle, driving

vehicles and equipment, and holding family gatherings at the cabin on the Upper Setty

Ranch.

¶9     Earl Brown, Sr. grew up on the Brown Ranch. His father, Steve Brown, managed

the Brown Ranch until shortly before his death in 2002. Earl Brown, Sr. testified by

affidavit that he recalled Robert Boyce letting his father know when he planned to move

cattle so that the Browns could move their cattle away from the subject roadway and

prevent the herds from intermixing. When Earl Brown, Sr. took over the cattle operation,

the neighborly relationship continued. Keith Raty would ask if it would be okay to trail

cattle down the road on a particular week or day. Earl Brown, Sr. could not recall a time

when he denied the Ratys access or use of the road. In either 2003 or 2004, Brown

installed a locked cable gate at one end of Greenfield to control access by hunters. Keith

Raty requested a key to the lock. Earl Brown, Sr. lent Keith Raty the key, and he


                                          4
returned it when he was done using it. While Earl Brown, Sr. was aware of the Ratys

pulling a horse trailer up the subject road and driving a vehicle up the road to repair

fences and put out salt, he stated that he was generally unaware of the Ratys’ vehicle use

on the road. Earl Brown, Sr. believed that the Ratys usually used an alternate route when

accessing the Upper Setty Ranch by vehicle. He was generally unaware of the subject

road being used to access the cabin or for other recreational purposes, but he noted that

he often observed the Ratys’ vehicles at the cabin around the Fourth of July.

¶10    Earl Brown, Jr., who has worked for Brown and the Ratys, testified in his

deposition that for virtually as long as he could remember, he knew that the Ratys trailed

cattle along the subject road. He also stated that he was aware of other uses of the road

by the Ratys, including driving a tractor and sprayer up the road to spray weeds. Earl

Brown, Jr. testified that he was unaware of the Ratys ever asking permission to use the

road in question.

¶11    In the summer of 2003, the Grabofskys started locking a gate across the subject

road where it enters their property. Keith Raty was moving cattle down the road when he

encountered the lock. He cut the lock and continued to use the road. Keith Raty called

Earl Brown, Sr. on the phone to tell him that he had cut the lock. The Ratys brought a

lawsuit against the Grabofskys claiming an existing prescriptive easement. The parties

reached a settlement agreement on February 21, 2008. The agreement confirmed and

memorialized the existence of a prescriptive easement.        The prescriptive easement

granted the Ratys a right-of-way to traverse the existing road for ingress and egress to

Upper Setty Ranch. The agreement set forth the following approved purposes for which


                                         5
the easement could be used:        mending or installing fences; caring for, moving, or

otherwise working with livestock; maintaining or developing water sources; spraying

weeds; maintaining roads; hauling firewood, posts, and poles; driving agricultural or

construction equipment; and occasional residential access. The agreement limited the

easement to a width of twenty feet, but acknowledged that livestock will not necessarily

remain within the designated width. Ratys agreed to use best efforts to keep livestock

within a distance of fifty feet from the centerline of the road.

¶12    The Ratys purchased a right-of-way deed from the State in 2006 allowing them to

use the subject road as it passes through State land. The State granted the Ratys a

twenty-foot-wide easement to access the residence and outbuildings on the Upper Setty

Ranch and conduct normal ranching and farming activities.

¶13    After the Ratys filed the lawsuit against the Grabofskys, similar disputes arose

between the Ratys and Brown over access and use of the subject roadway. In May 2004,

Allison Florance of Brown made a phone call to the Ratys and insisted that they would

now be required to ask permission to use the road as it passes through Greenfield. The

Ratys responded that they would not ask Brown for permission, but would continue to

notify Brown when they intended to use the road. Even after Allison Florance denied

them access to Greenfield, the Ratys continued to use the road. On July 13, 2008, Allison

Florance wrote a letter to the Ratys informing them that Brown would begin locking

several gates across the roadway as it passed through Greenfield. In August 2008, Brown

locked the gates that previously provided entry to Greenfield. Keith Raty cut the locks

and continued to make use of the subject road.


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¶14    On September 17, 2008, Brown initiated this lawsuit by filing a Complaint and

Application for Preliminary Injunction.       Brown sought a preliminary injunction

preventing the Ratys from crossing Greenfield without permission. In the alternative,

Brown asked the District Court to issue a declaratory judgment stating that the Ratys do

not have a prescriptive easement across Greenfield.       The Ratys filed a motion for

summary judgment on the existence of a prescriptive easement. The District Court heard

oral arguments on the Ratys’ motion for summary judgment on January 21, 2010. On

October 29, 2010, the District Court issued its order granting summary judgment in favor

of the Ratys.    The District Court’s order stated that the Ratys have a prescriptive

easement over Greenfield “so that they may trail cattle over a 20 foot wide route and

engage in other travel necessary to maintenance of the cattle and the property on which

the cattle are placed.”

¶15    On December 10, 2010, the Ratys filed a motion for entry of judgment. In their

supporting brief, the Ratys sought modification of the District Court’s order on summary

judgment to clarify the court’s ruling on the width of the prescriptive easement solely as

it pertains to trailing cattle. The District Court entered a Final Judgment on November 3,

2011. Judge David G. Rice retired shortly after the summary judgment decision was

issued, so the Final Judgment was entered by Judge Daniel A. Boucher. The Final

Judgment limited the width of the prescriptive easement to twenty feet. The judgment set

forth the permitted uses of the prescriptive easement as follows: (1) trailing cattle and

engaging in other travel necessary for the maintenance of the cattle and the property on

which the cattle are placed; (2) residential uses associated with the cabin/residence


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maintained on the Upper Setty Ranch; and (3) recreational uses associated with the

cabin/residence located on the Upper Setty Ranch.

¶16    The Ratys appeal the District Court’s limitation of the width of the prescriptive

easement to twenty feet, and request reversal on this issue and remand for the sole

purpose of modifying the Final Judgment. Brown cross-appeals seeking reversal of the

District Court’s grant of summary judgment and entry of Final Judgment. Specifically,

Brown argues that genuine issues of material fact exist regarding whether the Ratys’ use

of the subject road was permissive or a product of neighborly accommodation. Brown

also challenges whether the prescriptive easement properly included residential and

recreational uses, and disputes the width of the prescriptive easement found by the

District Court.

                               STANDARD OF REVIEW

¶17    We review a district court’s ruling on a motion for summary judgment de novo,

applying the same criteria of M. R. Civ. P. 56 as did the district court. Davis v. Hall,

2012 MT 125, ¶ 15, 365 Mont. 216, 280 P.3d 261. Summary judgment “should be

rendered if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3). The party moving for

summary judgment has the initial burden of proving that no genuine issues of material

fact exist. Myers v. Dee, 2011 MT 244, ¶ 10, 362 Mont. 178, 261 P.3d 1054. The burden

then shifts to the non-moving party to prove by more than mere denial and speculation

that a genuine issue of material fact exists. Myers, ¶ 10.


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                                        DISCUSSION

¶18    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?

¶19    “The proponent of a prescriptive easement must show open, notorious, exclusive,

adverse, continuous, and uninterrupted use over the five-year statutory period1 by clear

and convincing evidence.” Schmid v. Pastor, 2009 MT 280, ¶ 11, 352 Mont. 178, 216

P.3d 192; Knutson v. Schroeder, 2008 MT 139, ¶ 23, 343 Mont. 81, 183 P.3d 881. Since

the theory of prescriptive easement is based on adverse use, no such easement can be

acquired if the owner of the servient estate shows that use was permissive. Leisz v. Avista

Corp., 2007 MT 347, ¶ 17, 340 Mont. 294, 174 P.3d 481; Public Lands Access Ass’n v.

Boone & Crockett Club Found., 259 Mont. 279, 283-84, 856 P.2d 525, 527 (1993). Once

the claimant satisfies his burden, “a presumption of adverse use arises and the burden

shifts to the landowner affected by the prescriptive claim to establish that the claimant’s

use was permissive.” Leisz, ¶ 17 (quoting Wareing v. Schreckendgust, 280 Mont. 196,

209, 930 P.2d 37, 45 (1996)).

¶20    To meet the “adverse” requirement, “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 landowner, and such claim must be known to and acquiesced in by the

landowner.” Heller v. Gremaux, 2002 MT 199, ¶ 13, 311 Mont. 178, 53 P.3d 1259;

Swandal Ranch Co. v. Hunt, 276 Mont. 229, 233, 915 P.2d 840, 843 (1996). When


1
 Since 1953, the statutory period required to establish an adverse possession claim has been five
years pursuant to § 70-19-404, MCA. Prior to 1953, the statutory period was ten years.


                                            9
evaluating whether the use was adverse, it is important to note that “[i]mplied

acquiescence is not the same as permission.” Cremer v. Cremer Rodeo Land & Livestock

Co., 192 Mont. 208, 211, 627 P.2d 1199, 1201 (1981). The Cremer decision explained

the distinction between implied acquiescence and permission as follows:

      It must be apparent, therefore, that “acquiescence” and “permission” as
      used in this connection are not synonymous. “Acquiescence,” regardless of
      what it might mean otherwise, means, when used in this connection,
      passive conduct on the part of the owner of the servient estate consisting of
      failure on his part to assert his paramount rights against the invasion thereof
      by the adverse user. “Permission” means more than mere acquiescence; it
      denotes the grant of a permission in fact or a license.

Cremer, 192 Mont. at 212, 627 P.2d at 1201 (quoting Dozier v. Krmpotich, 35 N.W.2d

696, 699 (Minn. 1949)). While the servient landowner must know about and acquiesce to

the user’s claim of right, Montana law does not require a prescriptive easement claimant

to verbally communicate a hostile intent. Albert v. Hastetter, 2002 MT 123, ¶ 28, 310

Mont. 82, 48 P.3d 749; Warnack v. Coneen Family Trust, 278 Mont. 80, 83, 923 P.2d

1087, 1089 (1996).

¶21   Generally, some circumstance or act tending to indicate that the use was not

merely permissive is required. Heller, ¶ 14; Wilson v. Chestnut, 164 Mont. 484, 490, 525

P.2d 24, 27 (1974). Use of a neighbor’s land based on neighborly accommodation or

courtesy is not adverse and cannot ripen into a prescriptive easement. Public Lands, 259

Mont. at 284, 856 P.2d at 528. “[N]eighborly accommodation is a form of permissive

use which, by custom, does not require permission at every passing.” Tomlin Enters.,

Inc. v. Althoff, 2004 MT 383, ¶ 18, 325 Mont. 99, 103 P.3d 1069; Heller, ¶ 14.




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¶22   In Wareing, a landowner claimed he had established a prescriptive easement on an

irrigation ditch that passed through a neighbor’s land. Wareing, 280 Mont. at 199, 930

P.2d at 39. The claimant established the elements of a prescriptive right necessary to

raise a presumption of adverseness, but the neighbor argued that the claimant’s use was

permissive. Wareing, 280 Mont. at 209, 930 P.2d at 45. In support of his argument, the

neighbor presented evidence showing that the claimant notified the neighbor when he

intended to turn on the water and make use of the ditch. Wareing, 280 Mont. at 210, 930

P.2d at 45. The neighbor attempted to characterize this notification as an implied request

for permission. Wareing, 280 Mont. at 210, 930 P.2d at 45. This Court rejected that

argument, finding instead that the claimant never expressly sought permission from the

neighbor to use the ditch and only contacted him pursuant to a neighborly custom.

Wareing, 280 Mont. at 210, 930 P.2d at 45.

¶23   Similarly, the District Court determined that the Ratys and their predecessors in

interest never asked Brown for permission to pass through Greenfield. The District Court

concluded that the Ratys presented sufficient evidence of the existence of a prescriptive

easement necessary to raise a presumption of adverse use. The burden then shifted to

Brown to rebut this presumption with specific evidence showing the use was permissive

or the result of neighborly accommodation or implied acquiescence.

¶24   It is undisputed that the Ratys and their predecessors in interest would often

contact and notify Brown before they made use of the subject road. Brown argues that

the Ratys were asking for permission when they would contact Brown and ask “would it

be okay to go on such and such a day[?]” However, undisputed testimony from both


                                        11
parties reveals that when the Ratys contacted Brown, they did so to notify Brown of the

particular date on which they intended to move their cattle. This notice would allow

Brown the opportunity to move any of its cattle from the area surrounding the road to

avoid mixing the herds together and prevent other potential conflicts.            Similar to

Wareing, the Ratys’ actions are best understood as simply abiding by custom to advise

their neighbors of an upcoming use. Brown’s attempt to characterize these conversations

as a request for permission does not create a genuine issue of material fact. We agree

with the District Court’s conclusion that these conversations between the Ratys and

Brown do not create a genuine issue of material fact as to whether the Ratys’ use of the

subject road was permissive in nature.

¶25    Next, Brown contends that the Ratys’ use of the road in question was a product of

neighborly accommodation. Brown’s argument is based on the general proposition that

landowners in the area allow their neighbors to trail cattle across their land as a courtesy.

Brown offered affidavits from landowners in the area as evidence of the general attitude

that access is allowed as long as the neighbors are respectful. Brown also points to a time

when Keith Raty requested and obtained a key to unlock a gate in Greenfield. The Ratys

counter that they and their predecessors in interest have always used the subject road as it

passes through Greenfield as a matter of right.

¶26    The undisputed facts demonstrate that Brown impliedly acquiesced in the Ratys’

use of the road prior to 2004 and did not require the necessary “permission in fact or a

license” that would defeat the Ratys’ claim of adverse use. Furthermore, Brown was put

on notice of the Ratys’ adverse use of the road when Keith Raty cut a gate lock in August


                                         12
2003 and notified Brown of the incident. When Allison Florance insisted in 2004 that the

Ratys must ask permission to use the road, the Ratys refused to do so. Even when Brown

denied the Ratys access to Greenfield and locked the gates in 2008, Keith Raty continued

to use the road as a matter of right and would cut the locks whenever he encountered

them. The fact that Keith Raty borrowed a key to one of the locks in 2004 does not

sufficiently rebut the presumption of adverseness. The undisputed facts establish that the

Ratys would have continued to use the road as they pleased. If the Ratys had not been

given a key, they simply would have cut the locks as they did in 2003 when the

Grabofskys placed a lock and in 2008 when Brown installed locks and did not provide a

key.

¶27    In further support of its argument that the Ratys’ use of the road through

Greenfield was permissive, Brown directs our attention to its use of gates to control

access to Greenfield. Montana case law recognizes that the presence of gates alone will

not defeat a prescriptive easement, but they are often considered strong evidence of

permissive use. Rathbun v. Robson, 203 Mont. 319, 323, 661 P.2d 850, 852 (1983). For

example, we have concluded that where passage through a roadway is barred by gates

that parties are required to open and close during usage, such an arrangement is strong

evidence that the public has a mere license to pass over the roadway. Public Lands, 259

Mont. at 285, 856 P.2d at 528.

¶28    The District Court determined that Brown’s placement of locks on gates across the

alleged easement defeated its defense of permissive use through neighborly

accommodation. Brown offered testimony that the gates were first locked in either 2003


                                        13
or 2004 to prevent access by hunters. Prior to being locked in either 2003 or 2004, it

appears that the sole purpose of the gates was livestock control, which is insufficient to

overcome the presumption of adverse use. See Lemont Land Corp. v. Rogers, 269 Mont.

180, 186, 887 P.2d 724, 728 (1994). The instant case is highly distinguishable from

Public Lands, in which the claimants sought to prove an easement on behalf of the

public. Here, although the Ratys opened and closed gates allowing access to Greenfield,

the Ratys’ use of the road was always as a matter of right—not merely under terms

agreeable to the landowner. We agree with the District Court that Brown’s evidence that

the Ratys were respectful and always closed the gates behind them is insufficient to

create a genuine issue of material fact.

¶29    Brown failed to raise a genuine issue of material fact sufficient to overcome the

presumption of adverse use and prevent the entry of summary judgment in favor of the

Ratys. We hold that the District Court did not err in granting summary judgment on the

existence of a prescriptive easement.

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

¶31    “The extent of a servitude is determined by the terms of the grant or the nature of

the enjoyment by which it was acquired.” Section 70-17-106, MCA. The right to use an

easement acquired by prescription cannot exceed the use which was made during the

prescriptive period. Kelly v. Wallace, 1998 MT 307, ¶ 37, 292 Mont. 129, 972 P.2d

1117; Ruana v. Grigonis, 275 Mont. 441, 454, 913 P.2d 1247, 1255 (1996). If an

easement is not specifically defined, it need only be such as is reasonably necessary and



                                           14
convenient for the purpose for which it was created. Clark v. Heirs & Devisees of

Dwyer, 2007 MT 237, ¶ 27, 339 Mont. 197, 170 P.3d 927; Leffingwell Ranch, Inc. v.

Cieri, 276 Mont. 421, 430, 916 P.2d 751, 757 (1996); Strahan v. Bush, 237 Mont. 265,

268, 773 P.2d 718, 720 (1989). Frequency of use during the prescriptive period limits the

frequency of future use. Kelly, ¶ 34.

¶32    The District Court included residential and recreational uses associated with the

cabin/residence located on the Upper Setty Ranch as permitted uses pursuant to the

prescriptive easement. Brown argues that the Ratys presented insufficient evidence to

substantiate these uses which were at best occasional and sporadic.

¶33    The affidavits of Keith Raty and Robert Boyce aver that the Ratys and their

predecessors in interest used the subject road to access the cabin on the Upper Setty

Ranch, and used this cabin for family gatherings, working cattle, fencing, hunting, and

fishing.   Eldwin Brown testified by affidavit that the Ratys used the cabin only

occasionally. The affidavits of Earl Brown, Sr. and Earl Brown, Jr. state that they were

aware of the Ratys’ residential and recreational uses, but believe that the Ratys usually

accessed the Upper Setty Ranch through a different route that did not pass through

Greenfield.

¶34    Our case law has long recognized that “ ‘[c]ontinuous use’ does not mean constant

use; rather, if the claimant used the property in dispute whenever he desired, without

interference by the owner of the servient estate, the use was continuous and

uninterrupted.” Meadow Lake Estates Homeowners Ass’n v. Shoemaker, 2008 MT 41,

¶ 40, 341 Mont. 345, 178 P.3d 81; Cook v. Hartman, 2003 MT 251, ¶ 29, 317 Mont. 343,


                                        15
77 P.3d 231 (quoting Confederated Salish & Kootenai Tribes v. Vulles, 437 F.2d 177,

180 (9th Cir. 1971)). The evidence is clear that the Ratys made use of the prescriptive

easement for residential and recreational purposes whenever they desired. Although

these uses were secondary to the primary use—trailing cattle—the undisputed evidence

establishes that residential and recreational uses were within the scope of the prescriptive

easement. The fact that the Ratys may have occasionally used alternative routes to access

the Upper Setty Ranch cabin is unpersuasive because the Ratys are not claiming an

easement by necessity. As the District Court pointed out, the affiants relied on by Brown

had no real direct knowledge regarding the extent that the Ratys and their predecessors in

interest used the road.

¶35    We hold that the District Court did not err in concluding that the prescriptive

easement included residential and recreational uses. For the sake of clarification and to

alleviate Brown’s concern that the District Court has granted the Ratys unlimited use of

the road for residential and recreational uses, we remand this issue to the District Court

for the purpose of limiting the residential and recreational use of the prescriptive

easement to those historical uses established during the prescriptive period.

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

¶37    Since the extent of a servitude is determined by the nature of the enjoyment by

which it is acquired, the width of a prescriptive easement must be limited to the width

actually used during the prescriptive period. See Section 70-17-106, MCA. When




                                         16
defining an easement, a court should consider what is “reasonably necessary and

convenient for the purpose for which it was created.” Clark, ¶ 27.

¶38    The District Court limited the width of the prescriptive easement to twenty feet.

The Ratys contend that the District Court erred because they presented evidence showing

that their cattle have not historically remained within the twenty-foot width and cannot be

expected to do so in the future. Brown also takes issue with the width of the prescriptive

easement, arguing that genuine issues of material fact exist because the Ratys failed to

prove what widths were used along what portions of the subject road.

¶39    The affidavits of Robert Boyce and Keith Raty clearly show that the Ratys used

the road to trail cattle herds of varying size throughout the year. The Ratys submitted

photographs taken while moving cattle along the subject road to show that the cattle do

not remain within a strict distance from the center of the road. Brown is involved in the

cattle business and no doubt understands that cattle do not simply walk in straight lines

and remain within strict width limitations when being trailed through areas without

fences. Considering the nature of cattle and the historical use of the road, we hold that

the District Court erred when it limited the width of the prescriptive easement to twenty

feet for the purpose of trailing cattle. We reverse the District Court’s ruling on this issue

and remand for the purpose of modifying paragraph four of the Final Judgment to reflect

the fact that when the easement is being used to trail cattle, the Ratys are expected to use

best efforts to keep their cattle as close to the road as is reasonably possible, but the cattle

are not required to remain at all times within the twenty-foot width of the easement.

                                      CONCLUSION


                                           17
¶40    For the foregoing reasons, we affirm the District Court’s determination that the

Ratys have established by clear and convincing evidence the existence of a prescriptive

easement. We reverse the District Court’s decision to limit the width of the prescriptive

easement to twenty feet for the purpose of trailing cattle. We remand this case to the

District Court for modification of paragraph four of its Final Judgment in accordance

with our resolution of issues two and three.


                                                      /S/ PATRICIA COTTER


We concur:


/S/ MIKE McGRATH
/S/ JIM RICE
/S/ BETH BAKER
/S/ BRIAN MORRIS




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