97-692




                                                                         No. 97-692

                                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                        1998 MT 82N



                                                   IN THE MATTER OF THE ESTATE OF
                                                 WILLIAM RUSSELL MANGER, Deceased.

                                                          HALMES LIVESTOCK COMPANY,
                                                            a Montana Partnership,

                                                           Plaintiff and Appellant,

                                                                                  v.

                                            ESTATE OF WILLIAM RUSSELL MANGER,
                                         Deceased, and KATHLEEN E. JOHNSTON, as
                                      the Personal Representative of the Estate of
                                                 William Russell Manger,

                                                       Defendants and Respondents.



               APPEAL FROM:                   District Court of the Fourteenth Judicial District,
                                                       In and for the County of Meagher,
                                               The Honorable Roy C. Rodeghiero, Judge presiding.


                                                                 COUNSEL OF RECORD:

                                                                     For Appellant:

                                                  John Keith, Great Falls, Montana

                                                                    For Respondent:

                                    John V. Potter, White Sulphur Springs, Montana



                                               Submitted on Briefs: March 12, 1998

                                                           Decided:            April 14, 1998
                                                                              Filed:



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                                         __________________________________________
                                                            Clerk

Justice William E. Hunt, Sr., delivered the Opinion of the Court.


¶1   Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996
Operating Rules, the following decision shall not be cited as precedent but
shall be filed as a public document with the Clerk of the Supreme Court and
shall be reported by case title, Supreme Court cause number, and result to the
State Reporter Publishing Company and to West Group in the quarterly table
of noncitable cases by this Court.

¶2   Halmes Livestock Company (Appellant) appeals from the November
4, 1997 order of the Fourteenth Judicial District Court, Meagher County,
entering summary judgment in favor of the Estate of William R. Manger,
Deceased (the Estate). We affirm.

¶3   Appellant and William R. Manger (Manger) were adjacent ranch
owners. For more than 50 years, Appellant and Manger, and their respective
predecessors in interest, have engaged in what has been termed a "neighborly
exchange or accommodation" whereby each respective owner has agreed to
use approximately 300 acres of land belonging to the other owner. Clifton J.
Coleman, a neighboring rancher, testified that these exchanges or
accommodations are common, and are undertaken to make general ranch
operations, such as building fences and watering livestock, easier and more
convenient.

¶4   Appellant came into possession of his land in 1977, and continued to
use Manger's land as did his predecessors. Appellant claims that in 1988, he
and Manger orally agreed to a formal acre-for-acre trade of the exchanged
lands, and that Appellant would pay $100 per acre of surplusage he would
receive as a result of the trade. Appellant submitted only one item as evidence
of the purported trade agreement; a written, signed lease executed by Manger
and a third party in which Manger indicated he "may effect an exchange of
these lands with Halmes in which event the lands exchanged . . . will be
released from this lease and the lands received . . . will be substituted
therefor." For unknown reasons, no formal trade occurred. Appellant and
Manger continued to use each other's land. Appellant claims that he improved
Manger's land in reliance on the purported trade agreement.

¶5   After Manger died in 1995, Appellant sought to enforce the agreement
against the Estate, but the Estate refused. Appellant then brought this action
for either specific performance or, alternatively, a declaration of prescriptive
easement over, or adverse possession of, Manger's land. The District Court
granted summary judgment in favor of the Estate. Appellant then filed this
appeal on the issues of specific performance and prescriptive easement. We
affirm.

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¶6   Appellant's claim for specific performance is without merit for two
reasons. First, the purported trade agreement between Appellant and Manger
fails the statute of frauds, §§ 28-2-903, 30-11-111, and 70-20-101, MCA. The
lease agreement between Manger and the third party, although a written,
signed expression, merely stated that Manger may exchange lands with
Appellant in the future. The lease did not contain the specific terms of the
purported trade agreement. Agreements to agree, and agreements with
uncertain terms, are unenforceable in law and in equity. Section 27-1-412(5),
MCA; Quirin v. Weinberg (1992), 252 Mont. 386, 393, 830 P.2d 537, 541.

¶7    Second, there was no part performance to remove the oral agreement
from the statute of frauds. In Quirin, we stated:
     To be an act sufficient to constitute part performance, . . . the
     act must be unequivocally referable to the contract. . . . [W]hen
     possession is taken in pursuance of a contract, followed by the
     making of valuable improvements, there is a sufficient part
     performance. [Emphasis supplied.]

Quirin, 252 Mont. at 393, 830 P.2d at 541 (citations omitted). The sufficiency
of acts to constitute part performance can be decided as a matter of law.
Quirin, 252 Mont. at 393, 830 P.2d at 541. In this case, the fact that Appellant
made valuable improvements on Manger's land is not enough to constitute part
performance. Appellant must show that these improvements and any other
acts of possession were taken in pursuance of the purported contract, and not
in continuance of the neighborly accommodation. Appellant submitted no
proof that the character of his possession of Manger's land ever changed from
that of neighborly accommodation to one in pursuance of the contract.
Appellant failed to establish that his post-1988 improvements on Manger's
land were "unequivocally referable" to the purported trade agreement.

¶8   Appellant's claim for a prescriptive easement over Manger's land is
also without merit. A party seeking to establish a prescriptive easement must
show open, notorious, exclusive, adverse, continuous and uninterrupted use of
the claimed easement for the statutory period. Keebler v. Harding (1991), 247
Mont. 518, 521, 807 P.2d 1354, 1356. To be adverse, the use of the claimed
easement must be exercised under a claim of right and not permissive.
Keebler, 247 Mont. at 521, 807 P.2d at 1356-57. In this case, the record
clearly shows that historically, the exchange and use of the subject lands by
the current owners and their predecessors was permissive, a neighborly
accommodation. As a courtesy, each rancher permitted the other rancher to
use and improve 300 acres of his land. Although a use permissive in its
inception may ripen into a prescriptive easement, it cannot do so unless there
is a later distinct and positive assertion of a right adverse to the owner. Taylor
v. Petranek (1977), 173 Mont. 433, 437, 568 P.2d 120, 123. Appellant neither
alleged nor proved that he made a distinct and positive assertion that his use
of Manger's 300 acres was hostile or adverse. Appellant having failed to
establish adverse use, his claim for prescriptive easement fails.

¶9   We hold that there exists no genuine issue of material fact and that the
Estate is entitled to judgment as a matter of law. Affirmed.

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                                                             /S/       WILLIAM E. HUNT, SR.

We Concur:

/S/       KARLA M. GRAY
/S/       W. WILLIAM LEAPHART
/S/       JIM REGNIER
/S/       TERRY N. TRIEWEILER




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