                                                                                           January 28 2014


                                           DA 13-0249

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 25N



LAZY JC RANCH, LLC,

              Plaintiff and Appellee,

         v.

CHARLIE DONNES,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twenty-Second Judicial District,
                        In and For the County of Carbon, Cause No. DV 08-86
                        Honorable Blair Jones, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Thomas A. Budewitz, Attorney at Law; Helena, Montana

                For Appellee:

                        Jared M. Le Fevre, Monique Voigt, Crowley Fleck, PLLP; Billings, Montana



                                                     Submitted on Briefs: December 18, 2013
                                                                Decided: January 28, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Charlie Donnes (Donnes) appeals from the Judgment of Montana Twenty-Second

Judicial District Court, Carbon County, finding that Lazy JC Ranch (Lazy JC) had

established a prescriptive easement to use an access road to cross his property and enjoining

him from interfering with Lazy JC’s use of the road.

¶3     In 1998, Donnes inherited certain real property located in Carbon County, Montana.

That property was originally homesteaded in 1901, with the patent issuing in 1906. Lazy JC

owns adjoining property, which it acquired from Joe and Constance Chenoweth (Chenoweth)

in 1994. Portions of the Chenoweth property were previously owned by the Umland family.

Different portions of the property stem from different patent dates, all of which date to the

early 1900s.

¶4     A county road traverses Donnes’s property. At issue is a private access road (Access

Road) leaving the county road, crossing Donnes’s property and entering Lazy JC’s property.

The Access Road is about eighteen feet wide, graveled, and fenced on either side. After

crossing Donnes’s property, the Access Road traverses Lazy JC’s property and connects with

properties south of Lazy JC that were historically developed for oil, starting in the 1890s.

Oil developers accessing those southerly properties used the Access Road beginning before

Donnes’s predecessor settled on, or acquired an interest in, the property Donnes now owns.

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¶5      From 1902 to 1931, the Butcher Creek School was located on property that now

belongs to Donnes, and students from surrounding homesteads used the Access Road to

reach the school. Neighboring families—including the Umlands—used the Access Road for

ingress and egress to and from their properties, to obtain mail, and to move cattle, among

other uses. Their guests also used the Access Road. The Forest Service used the Access

Road to fight fires. At some time around 1954, after a petition to make the Access Road a

county road failed, the County paid for the leveling and graveling of the road. Gates on

either end of the Access Road have been in place since the 1950s and were used to

discourage hunters from accessing the property and to keep cattle within the property

boundaries. Donnes’s predecessors never denied ingress and egress to anyone traveling the

Access Road and no one ever asked permission to use the road. At one point, someone

placed a post in the Access Road. John Umland removed the post and continued using the

road.

¶6      From 1978 to the initiation of this suit, Chenoweth and Lazy JC have used the Access

Road as the primary means of ingress and egress to the home on the property. From 1978 to

1992, Chenoweth and his lessees used the Access Road for ingress and egress to the home on

the property, to move cattle, check fences, ensure that the pasture land was sufficient, and

make sure that the home was secure. Between 1981 and 1996, the Chenoweths plowed,

repaired, and maintained the Access Road on multiple occasions. Chenoweth lived on the

property now owned by Lazy JC between 1992 and 1995. Since 1995, he has split his time

between Lazy JC’s property and his home in Billings, Montana. Chenoweth and Lazy JC

have consistently used the Access Road for ingress and egress to their property.

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¶7     Donnes visited the Donnes property between 1994 and 2000, but did not live on the

property, or in Montana, until 2000. In 1995, Donnes sent a written letter concerning the

Access Road to Chenoweth. He did not take any action to keep Chenoweth from using the

road. In 2003, Chenoweth and Donnes discussed the Access Road. Chenoweth advised

Donnes that he had an historic easement right to use the road. Chenoweth plowed the road

every year between 1995 and 2008, except for two years. In February 2008, Donnes

attempted to prevent Chenoweth from plowing snow from the road. Chenoweth drove over

the road repeatedly to make a passable track to the home. Donnes attempted to block

Chenoweth from using the Access Road with his pickup on July 15, 2008. Chenoweth called

the Carbon County Sheriff’s Department. Donnes moved his vehicle and the Lazy JC

workmen who were using the road continued using it.

¶8     In May 2008, Lazy JC filed a Complaint against Donnes claiming it was entitled to a

prescriptive easement “over, upon and across the Access Road” for its own use and that of its

guests and invitees, and requesting a permanent injunction prohibiting Donnes from

interfering with its use of the Access Road. At a bench trial, Lazy JC presented evidence and

testimony pertaining to historic prescriptive use of the Access Road. Donnes presented

evidence and testimony that the use was permissive. The District Court entered Findings of

Fact, Conclusions of Law and an Order on December 17, 2012, in which it found that Lazy

JC was entitled to a prescriptive easement and an injunction preventing Donnes from

interfering with its use of the easement. The court entered Judgment in Lazy JC’s favor,

awarding costs in the amount of $4055.94 to Lazy JC. Donnes appeals.



                                             4
¶9     We review a district court’s findings of fact for clear error. Boyne USA, Inc. v.

Spanish Peaks Dev., LLC, 2013 MT 1, ¶ 28, 368 Mont. 143, 292 P.3d 432. We review a

district court’s conclusions of law de novo to determine whether the court's interpretation

and application of the law are correct. State v. Houghton, 2010 MT 145, ¶ 13, 357 Mont. 9,

234 P.3d 904 (citing State v. Ariegwe, 2007 MT 204, ¶ 119, 338 Mont. 442, 167 P.3d 815).

¶10    Donnes argues that the District Court erred in determining that Lazy JC holds a

prescriptive right to use the Access Road and that the District Court erred in taxing costs to

Donnes. To establish an easement by prescription, the party claiming the easement must

prove, by clear and convincing evidence, the elements of open, notorious, continuous and

uninterrupted, exclusive and adverse use of the easement for five years before

commencement of the action. Albert v. Hastetter, 2002 MT 123, ¶ 20, 310 Mont. 82, 48

P.3d 749; §§ 70-19-401 and 70-19-404, MCA. After a claimant has established the elements

of a prescriptive right, 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. Wareing v. Schreckendgust, 280 Mont. 196, 209, 930 P.2d 37, 45 (1996) (citing

Tanner v. Dream Island, Inc., 275 Mont. 414, 425, 913 P.2d 641, 648 (1996); Lemont Land

Corp. v. Rogers, 269 Mont. 180, 185, 887 P.2d 724, 727-28 (1994)).

¶11    The District Court properly interpreted the evidence before it to conclude that Lazy JC

is entitled to a prescriptive easement and a permanent injunction preventing Donnes from

interfering with its use of the Access Road. The District Court did not, as Donnes contends,

consider use by parties other than Lazy JC and Lazy JC’s predecessors as evidence of Lazy

JC’s prescriptive claim. Instead, the District Court relied on the evidence of use by the oil

                                              5
developers and schoolchildren mainly to illustrate that the public had long been using the

Access Road under a claim of right sufficient to put the Donneses on notice of potential

adverse claims. The District Court also correctly concluded that the evidence of the oil

developers’ use tends to rebut Donnes’s assertion that use of the Access Road was originally

permissive, since the road’s existence predated Donnes’s predecessors’ ownership of the

property.    Lazy JC presented clear and convincing evidence that the elements of a

prescriptive easement were satisfied, in the form of public records and testimony from

adjoining landowners and the parties’ predecessors in interest. A presumption of adverse use

arose, which Donnes bore the burden of rebutting.

¶12    Donnes’s proposed alternate view of the evidence is not sufficient, in our view, to

carry his burden of proving use of the road was permissive. Although the significance of the

facts Donnes highlights, on appeal, is certainly open to interpretation, their nature is not so

unmistakable as to render the District Court’s conclusions as to their legal significance

incorrect.

¶13    The District Court did, however, err in taxing certain costs to Donnes. Section 25-10-

201, MCA, sets forth which costs may be taxed to the non-prevailing party:

       (1) the legal fees of witnesses, including mileage, or referees and other
       officers;
                                           . . .
       (9) other reasonable and necessary expenses that are taxable according to
       the course and practice of the court or by express provision of law.

The costs Donnes contests are a video-conferencing fee of $330.33, the cost of a copy of a

deposition transcript made for Lazy JC’s counsel, and Lazy JC’s share of the mediation fee.

No local rule or practice requires the losing party to pay all mediation fees, nor could such

                                              6
practice be considered “customary.” Regarding the video-conferencing cost, however, as

Lazy JC points out, Montana law “respects form less than substance.” Section 1-3-219,

MCA. The cost of the video-conferencing fee, which is far less expensive than the cost of

mileage would have been, seems to be within what was contemplated by the Legislature

when it provided “legal fees of witnesses, including mileage” are recoverable. Finally, the

District Court correctly concluded the cost of the deposition transcript was recoverable,

pursuant to our decision in Liedle v. State Farm Mut. Auto. Ins. Co., 283 Mont. 129, 135, 938

P.2d 1379, 1383 (1997). As the District Court reasoned, since Donnes used the transcript at

trial, Lazy JC needed a copy to ensure that Chenoweth’s testimony was consistent and to

rebut Donnes’s attempt to impeach Chenoweth.

¶14    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. The issues

in this case are controlled by the statutes and precedent. The District Court correctly

concluded that Lazy JC is entitled to a prescriptive easement to use the Access Road and

granted Lazy JC a permanent injunction to prevent Donnes from interfering with Lazy JC’s

use of the easement. We affirm that portion of the District Court’s opinion. We reverse the

District Court’s determination that Donnes must pay the cost of Lazy JC’s share of the

mediation fee.

¶15    Affirmed in part and reversed in part.


                                                    /S/ MICHAEL E WHEAT

We Concur:


                                                7
/S/ JIM RICE
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON




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