                                            No.    84-310

                I N THE SUPREME COURT O THE STATE O MONTANA
                                       F           F

                                                  1984




JAMES F.   GRAHAM,

                  P l a i n t i f f and Respondent,

         -vs-

MARGARET E.     P.4ACK and MILFERD SIEFKE,

                  D e f e n d a n t s and A p p e l l a n t s .




APPEAL F O :
        R M       D i s t r i c t C o u r t of t h e N i n e t e e n t h J u d i c i a l D i s t r i c t ,
                  I n and f o r t h e County o f L i n c o l n ,
                  The Honorable R o b e r t H o l t e r , J u d g e p r e s i d i n g .


C U J E O RECORD:
 O TS L F


         For Appellant:

                  S v e r d r u p & S p e n c e r ; Lawrence H.          Sverdrup, Libby,
                  Montana


         F o r Respondent:

                  Douglas & Bostock; Thomas R.                      B o s t o c k , Libby, Montana




                                                  Submitted:        O c t o b e r 11, 1984

                                                     Decided:       December 31, 1984



Filed:
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

      This is an appeal from an order quieting title to real
property.    Plaintiff instituted the action to quiet title and
defendant    answered     claiming   an   easement   of   access,   by
prescription, implication or necessity over pl-aintiff's land.
The District Court of the Nineteenth Judicial District, in
and   for       Lincoln     County, Montana,     entered   an   order
quieting    title   and   denying    defendant the easement.        We
affirm.
      The following diagram will help in explaining the facts
giving rise to this action:
        Testimony at trial indicated that the foliowing facts
were    not   in    substantial dispute.         Dr.   James F.    Graham,
plaintiff below and respondent herein, purchased                   land in
Sections 26 and 35, Township 31 North, Range 31 West, M.P.M.
from Charles Collingson          in   1964 and 1966.       In 1964, he
purchased lot 9 in Collingson Tracts, a subdivided area in
section 35.        In 1966, he purchased fifteen acres in section
26.     Running along the southern boundary of section 25, and
the section 26 lot was an old railroad grade.             At that time,
the grade was overgrown with brush and not passable.                It was
occasionally used by hunters and others at various times of
the year, hut never on a continual. basis, and was totally
impassable     to    vehicular    traffic   in     the   winter.    Graham
occasionally put obstructions such as logs, cables or fences
across the road to discourage its use.
        In the early 1960ts, Charles Collingson developed a
subdivision, known as Collingson Tracts, in sections 35 and
36, a-djacent to the section 26 lot.        At that time, Col-lingson
also owned the section 26 lot, but did not subdivide it.
        Collingson had planned to develop the railroad grade
along the southern edge of section 25 and the road that
connected it to Highway 37 into an access road for lots
17-21, and reserved a sixty foot strip adjacent to lot 17
(cross-hatched on the map) to allow a road to be built into
lots 22-25.        The owner of the section 25 lot, Boothman, had
given Collingson permission to develop the grade into a road
because it had actually been used as such in years past.              The
section 26 lot had originally been purchased from the St.
Regis Corporation by Collingson's parents in the 1930's.               The
Collingson family ran a school bus route on the grade until
1937.     Subsequently, it had been used occasionally as a
shortcut to a nearby dump, by hunters and berry-pickers, and
at least one logger.
         In the early 1 9 6 0 ' ~ ~
                                Collingson actually did blade and
gravel the portion of the grade in section 25, and did some
work on the access road to Highway 37.             The access road to
Highway 37 (dark shaded area on the map) went across some
Baothman land and some Forest Service land.                 It is very
steep, and in the winter, virtually impassable.              Around the
same time, though, he abandoned the plan to build a road into
lots 22-25.       This he did because R.E.      and Illa Roberts had
bought all of the bottom lots (22-25) with the intention of
buying     the    upper   ones     17-21 ,   and   had    indicated   to
Collingson that a road would not be necessary.
      When Coll-ingson sold the section 26 lot to Graham, both
were aware of the sixty foot strip along lot 1.7.                  Graham
specifically requested assurances that the section 26 portion
of the grade was not to be used for a way of access to lots
17-25.     Collingson assured Graham that no such access was
intended.     Nonetheless Graham, from 1966 on, continually put
obstructions such as a fence and logs across the grade to
prevent     its    use.          The   obstructions,     though,   would
occasionally be moved and the grade used in the manner it had-
been be fore.
         In 1977, Boothman sold the section 25 lot to the Macks.
Along with the lot, they sold the Macks all their rights in
the Forest Service road connecting the lot to Highway 37.              In
1978, Mrs. Mack and Plilferd. Siefke, her son, purchased lots
19-22 from the Robertses, and held             those lots as joint
tenants.     They moved onto the section 25 lot and from the
beginning had difficulty getting into it.              For three months
of the year the road was impassable.          The Macks began to come
in   from    the    west,   across       Graham's   lot;       removing   any
obstructions that had            been placed     along   it.      They used
Graham's lot in this manner until 1981.
         In June of that year, Graham became aware of the Macks'
use of the grade on his property.            He was concerned that they
were trying to ripen a prescriptive easement.                    To prevent
that he     had    his attorney, William A.          Douglas of Libby,
Montana, write to the Macks demanding they stop using his
property in that manner.                Graham also had cables strung
across the grade to prevent its use.
         The next winter, in 1982, Mr. Sverdrup, the attorney
for the Macks, contacted Graham.            Sverdrup told him that the
Macks were having great difficulty getting to their house
with the grade on section 26 blocked as it was.                 Graham told
Sverdrup that it was alright for the Macks to use the road
that winter, but that it was not to be a permanent situation.
Shortly thereafter, the cables came down, and Mrs. Mack had
the grade across section 26 bladed and levelled.                 When Graham
learned that Mrs.         Mack    had    work   done on the grade, he
promptly hired      a   contractor to dig several large ditches
across the road.        Mack then had to get to her house by foot.
        This action arose in 1983.              Graham had attempted to
sell the section 26 lot and lot 3 in the Collingson Tracts.
A deal was almost reached, but the buyers balked when they
became aware of the possible servitude on the land.                 The deal
fell through, and Graham instituted this action to quiet
title.    He also asked for damages from Mrs. Mack for the lost
sale.     The action was filed against Mrs. Mack and Milferd
Siefke, joint tenant with with Mrs. Mack in Collingson lots
19-22.
        Mrs. Mack was personally served on January 30, 1984.
Mr. Bostock, Graham's attorney, attempted to gain service on
both Mack and Siefke through Mr.             Sverdrup, her attorney.
Siefke had move         to Alaska to work and was difficult to
locate.       Despite repeated assurances to Bostock that he would
accept service and file an answer, Sverdrup failed to do so.
Default was had against Mrs. Mack on February 22, 3.984.                On
March 8, 1984, Siefke was dismissed from the lawsuit and
ludgment was rendered against Mack upon her default on March
12,    1984.    Four days after judgment had been entered, Mrs.
Mack, through Mr. Sverdrup, moved to set aside the default
and default judgment.         Mr. Sverdrup also accepted service for
both     Mrs.    Mack   and    Siefke   by   filing     an    answer   and
counterclaim.       On the 2lst of March, the District Court set
aside the default, and also granted Mrs. Mack1s motion that
she be named guardian ad litem for the minor Siefke.
        Trial was had on April 3, 1984, before the Honorable
Robert M.       Holter, District Judge, who heard evidence and
viewed the area in dispute.         In her answer and counterclaim,
Mack alleged she had a right-of-way over Graham's land by a
public prescriptive easement, or, alternatively, an easement
by necessity.       At the close of evidence, the District Court
asked the parties to brief the legal questions presented by
the evidence.       On June 1, 1984, the District Court entered a
judgment for Graham, quieting title in his favor, enjoining
Mack    from further use of Graham's property, and awarding
damages   .
        From the judgment Mack appeals, citing the following as
error:
         (1) That the District Court erred            i.n   not finding a
prescriptive public easement;
         (2) That the District Court erred in not finding an
easement by implication;
         (3)    That the District Court erred in not finding an
easement by necessity; and
         (4) That the District Court erred in awarding damages
to Graham.
         Graham raises by cross-appeal the following:
         (1) That the District Court erred            in vacating the
default judgment.
         We will address Graham's specification of error first.
         A District Court may, within its discretion, vacate a
previously entered default judgment.            It is given that power
by Rule 55 (c) of the Montana Rules of Civil Procedure, which
states: "For good cause shown the court may set aside an
entry of default and, if a judgment by default has been
entered, may likewise set it aside in accordance with Rule
60 (b). . .       "    Rule 60 (b) provides, in pertinent part: "On
motion and upon such terms as are just, the court may relieve
a party or his legal representative from a final judgment
order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect.           ..    "
         This Court has consistently ruled that a determination
to   set       aside   a   default   judgment   is   within       the   sound.
discretion of the trial court, to be determined on a case by
case basis, Williams v.          Superior Homes, Inc.         (1966), 148
Mont. 38, 417 P.2d 92.         Although it is clear that much of the
delay leading to the entry of default was attributable to Mr.
Sverdrup's inattention to the case, his affidavit in support
of   setting aside the default provided the District Court
adequate grounds to do so.           Sverdrup stated that some of the
delay was caused by his efforts to contact the minor Siefke,
who was, according to the affidavit,                        living in Washington
state at the tine; and to have Mrs.                          Mack appointed his
guardian.       Sverdrup also stated that he had no knowfedge that
Mrs. Mack had been served directly because she did not tell
him that she had, and that the reason she failed to do so was
her belief that Mr.             Sverdrup would take care of it.                       He
finally stated that Mrs. Mack would be able to present a
defense and good cause of action should the default and
judgment be set aside.
        It appears         from    a    review of          the    record       that Mr.
Sverdrup could have easily acted to prevent the default.
But, we have moved away from the rule that a client is
absolutely responsible for her attorney's neglect.                              Lords v.
Newman       (Mont.   1984),       688       P.2d    290,        41       St.Rep.   1793.
Furthermore, we will not overturn a District Court orcier
setting      aside    a   default      unless        the    order amounts to            a
manifest abuse of discretion. Lords v. Newman, 688 P.2d at
294,    41     St.Rep.     at     1497.      There    are    in       Mr.     Sverdrup's
affidavit, grounds to overturn the default, and that order
must stand.
        We next move to the District Court's order quieting
title    and    denying Mack           any    easement or             right-of-way    on
Graham's land.           Our review of the District Court's findings
nust be governed by the principles enunciated in Rule 52(a),
b5.R.Civ.P.:
                  ". . . Findings of fact shall not be set
                  aside unless clearly erroneous, and due
                  regard shall he given to the opportunity
                  of the    trial court to      judge the
                  credibility of the witnesses. .   'I                .
See also Rauer v. Cook (1979), 182 Mont. 221, 596 P.2d 200.
Thus, this Court's function on appeal is simply to determine
whether there is substantial evidence to support the District
Court's findings, and we will not reverse them unless there
is a clear preponderance of evidence against them.                           See
Taylor v. Petranek (1977), 173 Mont. 433, 568 P.2d 120, and
cases cited therein.            With this in mind, we turn to the
substantive issues.
          Mack first c0nten.d.s
                              that a prescriptive easement exists
in her      fa.vor.        Prescriptive easements may            be public   or
private, depending upon the user, but in either case, the
party      claiming    the     right       must:    "show    open,   notorious,
exclusive, adverse, continuous and uninterrupted use of the
easement claimed for the full statutory period."                     Thomas v.
Barnum (Mont. 1984), 684 P.2d 1106, 41 St.Rep. 1266, quoting
from Taylor v. Petranek (1977), 173 Mont 433, 568 P.2d 120;
see also 2 Thompson - -
                    on Real Property (1980 ed.) S342.                        The
statutory period required is five years, section 70-19-401,
MCA   .
          Mack points out the use of the grade as a school bus
road in the 1930's and occasional use by hunters, loggers and
berry-pickers in support of her claim of a prescriptive
public easement.           The District Court found that any use of
the rai1roa.d grade "was not continuous.                  . .   was interrupted
and was not adverse for any period of five years or more."
Similar findings have been upheld in the past.                       In Medhus,
Williams     &   Reddig v. Dutter      &    Deutsch (1979), 184 Mont. 437,
603 P.2d     669, the Court found in the record "occasional use
of    the    road     by    hunters,       hikers   and     neighbors   cutting
Christmas trees and gathering firewood."                    Medhus, 184 Mont.
at 443, 603 P.2d at 672.               This type of occasional use was
held insufficient to raise a presumption of adverse use.                     See
also Taylor v. Petranek (1977), 173 Mont. 433, 568 P.2d 120;
Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613; and
Ewan     v.    Stenberg      (1975),    168   Mont.    63,    541   P.2d    60.
("Occasional use by hunters, by sightseeing friends and by
neighbors visiting neighbors falls short of the extent and
type of usage necessary to result in the assertion of a
public use." 168 Mont. at 68, 541 P.2d at 63.)                      By way of
contrast, situations where public easements have been found
and upheld involve the assertion of public use by acts such
as public maintenance of a road, Kostbade v. Metier (1967),
150 Mont.       139, 432 P.2d     382, or the laying of a pipeline,
Riddock v. City of Helena              (Mont. 19841, 687 P.2d 1386, 41
St.Rep.       1817.    And    finally, it      is very       clear that the
Collingsonsl use of, at that time, their own land for the
school bus route cannot be used to establish any public
right.
       Next Mack contends that the District Court erred in not
finding an easement by implication.                Mack raises this issue
because of her ownership of lots 19-22 of the Collingson
Tracts, hoping to         "bootstrap" herself into access across
Graham's land.        Graham contends that Mack did not argue this
below, and thus should be precluded from doing so now, citing
Chamberlain v. Evans          (1979), 180 Mont. 511, 591 P.2d              237.
Easements by implication arise when it is necessary to effect
a presumed        intent on the part of parties               to a deed.      2
Thompson - -
         on Real Property (1980 ed.),                 S351.    The evidence
presented at trial brought into question the parties' intent,
and at the close of evidence, the court asked the parties to
brief the various legal theories on which access could be
found.        Here, the evidence, and the District Court, put the
partiesr intent in           issue, and       it   is properly      raised on
appeal.
      The doctrine of easement by inpl-ication is relatively
new to this state.      We first recognized it in Thisted v.
Country Club Tower Corp. (1965), 146 Mont. 87, 405 P.2d 4321
which overruled the case of Simonson v. McDonald (1957), 131
Mont. 494, 311 P.2d 982.    See also 19 Mont.L.Rev.   73 (1957).
Simonson had held tha-t implied easements by necessity did not
exist in Montana because condemnation was present as an
alternative, see State v. Cronin (1978), 179 Mont. 481, 587
P.2d 395.    Subsequent cases have abandoned the Simonson rule,
see Ingels v. Plickalson !1976), 170 Mont. I.,    549 P.26 459;
Godfrey v.    Pilon   (1974), 165 Mont.   439, 529 ~ . 2 d 1372.
Though the doctrine is new to this state, one of the common
threads running through the cases where it is at issue tias
stated most recently in Goeres v. Lindeys, Inc. (Mont. 1980),
619 P.2d 1194, 37 St.Rep. 1846, where we explained:
              "[Elach case must be examined after an
              examination of the particular facts and
              circumstances. Additionally, any implied
              negative easements as to a particular lot
              are to be considered with extreme caution
              since an action results in d.epriving a
              person of the use of his property by
              imposing   a   servitude   through   mere
              implication." (Emphasis in original.) 619

We went on to emphasize the necessity of knowledge--of the
use or its necessity--in presuming intent, 619 P.2d at 1197,
37 St.Rep. at 1850.    With this admonition in mind, we turn to
the common law as stated by Thompson.       To find an implied
easement:
              "over the property of another, there must
              have been a separation of title, and a
              use before the separation took place
              which continued so long and was so
              obvious or manifest as to show that it
              was meant to be permanent, and it must
              appear that the easement is necessary to
              the beneficial eniovment of the land
              granted or retaineda.." 2 Thompson - -
                                                 on Real
              Property (1980 ed.) , S351.
           Tt must be remembered that Mack can only forward this
argument because of her ownership of lots 19-22.               Otherwise,
the first element, unity of ownership, would not be met.
Nowhere in the record is it suggested that Collingson ever
owned the section 25 lot, or that the lot was ever under
unified      title with     the adjacent lands.         In that     light,
Collingson's intent on selling the section 26 lot to Graham
is important, because, at that time, he was still the owner
of Collingson Tracts lots           17-23.        He testified that he
intended to gain access to lots 17-25 via the Forest Service
road and Boothman's land on section 25.               He had Boothman's
permission to do so, and did some work on that road to that
end.         Collingson    and   Graham    both    testified   to     their
understanding that section 26 was not to be used for access.
Finally, any use of the road on section 26, up to the time of
severance, to gain access to any of Collingson's other land
cannot be considered "obvious or manifest" enough to raise
any presumption, or even question, of contrary intent.
           Next, Mack contends the District Court erred in not
finding an easement by necessity.            An easement by necessity
is     a     sub-species    of   implied     easements.        They    are
distinguished in the sense that implied easements are based
upon a contract that is "open and visible at the time of
conveyance," Godfrey v. Pilon (1974), 165 Mont. 439, 446, 529
P.2d   1372, 1376.         A way of necessity depends solely upon
"strict necessity" at the time of conveyance and is, in that
sense, more truly an implied use.            State v. Cronin 179 Mont.
at 488, 587 P.2d       at 399-400.        The way of necessity arises
when the strong public policy "against shutting off a tract
of land and thus rendering it unusable" gives rise to a
fictional intent defeating any such restraint, 2 Thompson -
                                                          on
Real Property (1980 ed.) 5351.          The result is the imposition
of a way upon the land of the grantor, and will only arise in
very specific circumstances, see Schmid v. McDowe11               (Plont.
1982), 649 P.2d 431, 39 St.Rep.            1313.    Goeres v. ~indeys,
Inc., supra.     State v. Cronin, supra.           In Schmid, we stated
the general rule:
               "[Wlhere an owner of land conveys a
               parcel thereof which has no outlet to a
               highway except over the remaining lands
               of the grantor or over the lands of
               strangers, a way of necessity exists over
               the remaining lands of the grantor." 649
               P.2d at 433, 39 St.Rep. at 131-6. (Citing
               cases. )

There axe two basic elements (1) unity of ownership; and (2)
strict necessity.      The necessity must exist at the time the
unified tracts are severed, State v. Cronin (1978), 179 Mont.
at 488, 587 P.2d at 399.        The way granted must be over the
grantor's land, and never over the land of a third party or
stranger to the title, Schmid v. McDowell 649 P.2d at 433, 39
St.Rep. at 1316.       And, finally, there must have been strict
unity   of   ownership,     Schmid    v.   McDowell,    supra;   Montana
Wilderness Association v. United States Forest Service (D.
Mont. 1980), 496 F.Supp.       880; 2 Thompson - - a lProperty
                                               on ~ e
(1980 ed.)   , 5362.
        The record does not support the imposition of a way of
necessity in the case.       First, as to Mrs. Mack's section 25
lot, there is no evidence in the record that even suggests
that it was ever under a common ownership--a unity of title
--with the adjoining property.         And, as to Mack's lots 17-22,
the unity of ownership element also is absent.               Mrs. Mack
bought those lots from R.E.          and Illa Roberts; Graham bought
his lots from Collingson.      The unity required in this case is
strict;   it makes     no   difference that Collingson was           the
original owner of lots 19-22.          There is no unity of grantor.
Graham's purchase of the section 25 lot occurred in 1966;
Mack's purchase was in the late 1970's--there is no unity of
time.     At no time after Graham's purchase of the section 25
lot did Collingson have the power under this doctrine to
grant any easement across Graham's land.           By the time Mack
acceded      to   title   in   lots   17-22, Graham was   a   complete
stranger to that title, and not subject to any easement
across his land for the benefit of those lots.
        As   the last issue, Mack contends that the District
Court was in error awarding damages to Graham.                We have
examined the record and have noted that Graham specifically
put into evidence the damages he suffered by way of Mack's
wrongful use of his land.             The District Court had ample
evidence on which to base an award of damages.         The orders of
the District Court are therefore affirmed.


                                                                  -   f



We concur:

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