file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-105%20Opinion.htm




                                                               No. 00-105

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2001 MT 65N


                                                 PHILIP JOHN MILANOVICH,

                                                      Plaintiff and Respondent,

                                                                      v.

                                     STOJAN JANICICH, MARY JANICICH,

                                  NATALIE JANICICH MARUSICH, LOUISE

                            JANICICH OBRADOVICH, DELORES JANICICH,

                                   LOUIS JANICICH, IGNATZ MILLINACH,

                     BLAZO (or BOB) KILIBARDA, MICHAEL J. HENNESSY,

                              WILLIE D. HENNESSY, THOMAS COUGHLIN,

                          CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC

                    RAILROAD COMPANY, A & K RAILROAD MATERIALS,

                      MIKE BARTOLETTI, DAN O'NEILL, and all other persons

                            unknown claiming or who might claim any right, title,

                         estate, or interest in or lien or encumbrance upon the real

                          property described in the complaint adverse to plaintiff's

                             title thereto, whether such claim or possible claim be

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-105%20Opinion.htm (1 of 6)3/27/2007 4:20:47 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-105%20Opinion.htm


                                                       present or contingent,

                                                     Defendants and Appellants.

                            APPEAL FROM: District Court of the Second Judicial District,

                                               In and for the County of Silver Bow,

                                       The Honorable Ted L. Mizner, Judge presiding.

                                                      COUNSEL OF RECORD:

                                                              For Appellants:

                                  R. Lewis Brown, Jr., Attorney at Law, Butte, Montana

                                   Brian T. Atcheson, Attorney at Law, Butte, Montana

                                                             For Respondent:

                       Carl A. Hatch, Small, Hatch, Doubek & Pyfer, Helena, Montana 59624

                                             Submitted on Briefs: October 19, 2000
                                                   Decided: April 18, 2001

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk

Justice Jim Regnier delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 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 issued by this Court.



 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-105%20Opinion.htm (2 of 6)3/27/2007 4:20:47 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-105%20Opinion.htm


¶2 Philip John Milanovich filed an action to quiet title to real property in Silver Bow
County, Montana. Mike Bartoletti and Dan O'Neill appeared to contest the quiet title
action. The District Court quieted title in favor of Milanovich and also granted his right to
a prescriptive easement. Bartoletti and O'Neill appeal and present the following questions:

¶3 1. Did the District Court err in quieting title to Lot 4, Section 30, T.2 N., R.7 W., M.P.
M., Silver Bow County, Montana, in favor of Milanovich?

¶4 2. Did the District Court err in determining that Milanovich had a prescriptive easement
over roads across the Ernest Lode?

¶5We affirm.

                                                          BACKGROUND

¶6 On November 26, 1968, Philip John Milanovich acquired title by deed to Lot 1, Section
29, and Lots 3 and 4, Section 30, T.2 N., R.7 W., M.P.M., as shown on C.O.S. #177-A.
Milanovich surveyed and fenced the property and filed the survey with the Clerk and
Recorder of Silver Bow County in June 1980. The survey showed that the Chicago,
Milwaukee, St. Paul, and Pacific Railroad (hereinafter Milwaukee Railroad) had railroad
tracks curving through Lot 4. Milanovich continuously paid taxes on the property since his
original date of ownership.

¶7 On October 5, 1989, Milanovich received a letter from the Butte-Silver Bow County
Appraisal Supervisor indicating that his tax assessment on his property was being reduced
from 99.13 acres to 88.32 acres, and the difference of 10.81 acres was being assessed to A
& K Railroad Materials, Inc., as owners of the property. Milanovich protested the action
by the assessor and continued to pay taxes on 99.13 acres. Milanovich subsequently filed
an action to quiet title to the full 99.13 acres.

¶8 Defendant Mike Bartoletti disputes Milanovich's ownership of the 10.81 acres in Lot 4,
Section 30, which formerly was used by Milwaukee Railroad as a right-of-way.
Milwaukee Railroad, through its trustee in bankruptcy, deeded its interest in the property
to A & K Railroad Materials, Inc., by quitclaim deed, and Bartoletti subsequently
purchased the property by quitclaim deed from A & K Railroad Materials, Inc.

¶9 Defendant Dan O'Neill also disputes Milanovich's ownership. O'Neill owns a patented


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-105%20Opinion.htm (3 of 6)3/27/2007 4:20:47 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-105%20Opinion.htm


mining claim known as the Ernest Lode which is located entirely within the boundaries of
Milanovich's property as shown on C.O.S. #177-A. O'Neill and Milanovich have had a
long standing dispute regarding Milanovich's right to use roads that cross the Ernest Lode.
Milanovich sought a prescriptive easement across two roads in the Ernest Lode which
proceed off of the existing road as shown on C.O.S. #177-A, one leading east to Lot 1,
Section 29, and one leading west to Lot 3, Section 30.

¶10 The District Court conducted a hearing addressing the issues between Milanovich and
Bartoletti on July 17, 1998, and heard the issues between Milanovich and O'Neill on
November 20, 1998. On December 8, 1999, the Court filed its findings of fact and
conclusions of law. The District Court entered its Judgment and Decree of Quiet Title on
January 17, 2000, quieting title to Lot 1, Section 29, Lot 3, Section 30, and Lot 4, Section
30 as described on C.O.S. #177-A in favor of Milanovich and sustaining Milanovich's
prescriptive easement across Ernest Load on the road leading to Lot 1, Section 29, and the
road leading to Lot 3, Section 30. Bartoletti and O'Neill appeal.

                                                  STANDARD OF REVIEW

¶11 An action to quiet title is a proceeding in equity. In equity cases, we apply the
standard of review set forth in § 3-2-204(5), MCA, which requires this Court to determine
all of the issues in the case and to do complete justice. Montana Earth Resources Ltd.
Partnership v. North Blaine Estates, Inc., 1998 MT 254, ¶ 17, 291 Mont. 216, ¶ 17, 967
P.2d 376, ¶ 17.

                                                              ISSUE ONE

¶12 Did the District Court err in quieting title to Lot 4, Section 30, T.2 N., R.7 W., M.P.
M., Silver Bow County, Montana, in favor of Milanovich?

¶13 Milanovich contends that he and his predecessors in interest enjoyed possession and
ownership of Lot 4, Section 30, from the time of the original patent to Joseph A. Gearing
on March 14, 1917, subject only to a right-of-way of the Milwaukee Railroad granted
pursuant to 43 U.S.C. § 934. Milanovich further contends that the Milwaukee Railroad
abandoned its right-of-way across Lot 4, Section 30, prior to October 1983.

¶14 Bartoletti argues that the interest in that section of land was legally conveyed to him
via quitclaim deed by A & K Railroad Materials, Inc. He argues that A & K Railroad


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-105%20Opinion.htm (4 of 6)3/27/2007 4:20:47 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-105%20Opinion.htm


Materials, Inc., purchased its interest from Milwaukee Railroad which acquired title
through a good faith purchase from an original mining claimant.

¶15 The District Court concluded that Milanovich has full legal ownership of the disputed
property. We agree. At no time did the Milwaukee Railroad, or its predecessors in interest,
receive a patent to the land it used as a right-of-way. The Milwaukee Railroad had a right-
of-way that was a mere possessory interest for as long as it operated the railroad. See 43 U.
S.C. §§ 934-938 (1875 Railroad Right of Way Act). When it abandoned operations, the
full right to the property reverted back to the United States. Thus, Milanovich holds full
title to the property because he succeeded to the rights of the original patentee.

¶16 We conclude that the District Court did not err in quieting title to Lot 4, Section 30,
T.2 N., R.7 W., M.P.M., Silver Bow County, Montana, in favor of Milanovich.

                                                              ISSUE TWO

¶17 Did the District Court err in determining that Milanovich had a prescriptive easement
over roads across the Ernest Lode?

¶18 Milanovich contends that he and his predecessors have used two roads through the
Ernest Lode openly, visibly, notoriously, continuously, adversely, and exclusively under a
claim of right, and without permission from anyone, for a period of more than 50 years.
O'Neill contends that Milanovich has not utilized the roads and does not have the right to
utilize the roads that cross through his property. The District Court concluded that
Milanovich had a right to use the existing roads and that his continued use ripened into a
prescriptive easement for the required statutory period. We agree.

¶19 A party claiming an easement by prescription must show open, notorious, exclusive,
adverse, continuous and uninterrupted use of the easement for the full statutory period of
five years. See § 70-19-404, MCA; see also Unruh v. Tash (1995), 271 Mont. 246, 250,
896 P.2d 433, 435. Even though conflicting evidence was presented as to the validity of
the prescriptive easement, testimony by Milanovich with the presentation of aerial
photographs was substantial evidence for the District Court to properly conclude that the
requirements for the creation of a prescriptive easement had been fulfilled. See Hagfeldt v.
Mahaffey (1978), 176 Mont. 16, 22, 575 P.2d 915, 919. We conclude that the District
Court did not err in determining that Milanovich had proven the existence of a prescriptive
easement to the two roads through the Ernest Lode.


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-105%20Opinion.htm (5 of 6)3/27/2007 4:20:47 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-105%20Opinion.htm


¶20 Affirmed.

                                                         /S/ JIM REGNIER

                                                               We Concur:

                                                      /S/ KARLA M. GRAY

                                               /S/ W. WILLIAM LEAPHART

                                                    /S/ JAMES C. NELSON

                                                /S/ TERRY N. TRIEWEILER




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-105%20Opinion.htm (6 of 6)3/27/2007 4:20:47 PM
