                              NQ.   12145

    I N THE SUPREME COURT O THE SmTE O M N A A
                           F          F QTN

                                 1972



FjIFFORD W, POEPPING and JOYCE M. POEPPING,
husband and w i f e ,

                         P l a i n t i f f s and Respondents,



WAYNE NEIL and R T NEIL,
                   UH
husband and w i f e ,

                         Defendants and Appellants.



Appeal from:     D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
                 Honorable Nat A l l e n , Judge p r e s i d i n g ,

Counsel of Record:

       For Appellant :

               Gough, Booth, Shanahan and Johnson, Helena, Montana,
               Ward A. Shanahan argued, Helena, Montana.

       For Respondent :

               Loble, P i c o t t e , Loble, Pauly& Sternhagen, Helena,
                Montana.
               Gene P i c o t t e argued, Helena, Montana,



                                                    Submitted:         May 1 5 , 1972

                                                       Decided:       JUL 1 9 1972
Mr. Justice Wesley Castles delivered the Opinion of the Court.

        This is an appeal from a judgment entered on findings of
fact and conclusions of law by the district court of the first
judicial district, Lewis and Clark County, the Honorable Nat Allen
presiding.    The judgment and a subsequent order were in favor of
plaintiffs.     Defendants appeal.
        The issues on appeal are:
        1 Did the district court err in concluding that plain-
         )
tiffs had established a prescriptive right to use an access road
and driveway which crosses the land of defendants?
        2)    If a prescriptive right was shown, did the district
court, after I Iextinguishing" a driveway easement because of the
actions of plaintiffs, err in failing to extinguish the "access
road" easement because of the increased burdens created by the
change in character of the use by plaintiffs?
        3)    If a prescriptive right was shown, did the district
court err in failing to limit the use of the "access road" ease-
ment to those uses existing prior to March 1970?
        Plaintiffs, respondents here, are man and wife and will
be referred to as Poepping. Defendants, appellants here, are
also man and wife and will be referred to as Neil.
       Poepping and Neil are neighbors. Poepping commenced this
      to
actiodenjoin the construction of a fence and erection of boundary
signs, and to declare an access road and driveway easements by
prescription.
        The properties here involved are located adjacent to the
"Canyon Creek Store1'some sixteen miles north of Helena.   Both
properties had a common ownership until 1946.   In 1946 Anderson,
the owner, sold the Canyon Creek Store and five acres to one Wall,
who in 1952 sold to Young, who in turn sold to Poepping on April
10, 1969.    In 1950 Neil bought the ranch surrounding the store
property on t h r e e s i d e s .       So, what had been a common ownership
was now s p l i t .     The property l i n e i n contention runs i n a north-
south d i r e c t i o n between t h e s t o r e b u i l d i n g and a residence b u i l d i n g ,
down t h e middle of a driveway running n o r t h and south.                      There were
no r e s e r v a t i o n s of easements.
            A public road known a s t h e Lincoln Road runs i n an e a s t -
west d i r e c t i o n and i s contiguous t o t h e southern edge of t h e
Poepping property/%$             Neil property.           From t h a t public road a
somewhat " e l l i p t i c a l " access road comes o f f t h e p u b l i c road t o t h e
n o r t h a c r o s s t h e "borrow p i t " ,    then p a r a l l e l s t h e public road and
                                                             11
r e j o i n s t h e public road back a c r o s s t h e        borrow pit".      This access
road i s on both p r o p e r t i e s and was h i s t o r i c a l l y used by t h e s i n g l e
owner.      The property l i n e running north-south and t h e driveway
between t h e b u i l d i n g s , previously mentioned, b i s e c t s o r j o i n s t h e
II
     access road".
            Poepping operated a country s t o r e and a p o s t o f f i c e .             His
                                        It
patrons commonly used t h e                  access road".        Neil operated a farm and
he used t h e "access road".                  Both p a r t i e s used t h e "driveway" a s
well.
            I n November 1969 Neil had a survey made of h i s property
t o determine t h e boundary l i n e between t h e p a r t i e s .           It was i n
1969 t h a t Poepping had purchased h i s property on a c o n t r a c t and
was d i s c u s s i n g improvements.           I n March 1970 Poepping began t o b u i l d
a c a f e extension on t h e s i d e of the Canyon Creek Store.                    This ex-
tension projected t o t h e e a s t i n t o t h e driveway used by both
p a r t i e s , projected t o w i t h i n about twenty inches of t h e c e n t e r
l i n e of t h e driveway, which was t h e property l i n e .               Neil p r o t e s t e d
and c o n s t r u c t i o n was stopped f o r a time and then s t a r t e d again.
A t t h i s p o i n t , Neil put up marker s i g n s and began t o i n s t a l l s t e e l
fence p o s t s on h i s property l i n e , down t h e middle of t h e driveway.
The driveway was hard packed b u t otherwise unimproved.
          On   May 1, 1970, Poepping brought an action claiming a
prescriptive right and irreparable injury and obtained a temporary
restraining order against Neil to stop the installation of the
fence.
          Neil answered by general denial and two counterclaims.
He asserted, in effect, that Poepping had, by constructing the
'cafebuilding on the joint driveway, waived any claim to the
driveway; and further, concerning the "access road", that such
use was a permissive use, and since the use was being materially
changed by a beer sale license and the new cafe construction,
that such increased and changed usage was an attempt to change
and enlarge any access or prescriptive right, if any there had been.
          Issue was joined and testimony taken.    We shall not
discuss ancillary matters such as motions, contempt, and other
things not relevant to the main issue. The trial judge found
and treated the "access" road and the "driveway" as two separate
and distinct matters.     Both the "access"road and "driveway" are
hardpacked areas bordered by grass but otherwise unimproved. As
Co   the common driveway, the trial court found that although
Poepping had established a prescriptive right to a driveway ease-
ment between the properties, he had forced a change in the manner
and location of the easement such as to cause an abandonment by
him in March 1970, when the cafe was built.       (Because of this
"abandonment" Neil chose to build the fence.)
         As to the separated "access road", the trial court found
that Poepping had established a prescriptive right or easement to
use it and it was necessary for ingress and egress to the Poepping
land, store, and United States postoffice which Poepping operated.
         A supplementary order was made which spelled out the
rights on the "access easement", granting access and parking rights
to both parties with fencing rights and even down to the detail
of describing a "Do Not Block rivew way" sign.
         Heretofore we set forth the issues; and subsequently we
described the facts briefly to preface a discussion of what we
consider the main issue. That is         ---- whether a "prescriptive
right" as distinguished from a "permissive right" was established
to the access road?
         First, the two properties derived from - ownership.
                                                one
No easements were resewed. The Poepping property is a store,
a postoffice, and other buildings which has ample room for ingress
and egress on the other side. Anderson, the single owner, severed
the five acre piece when he sold to Wall in 1946. That the drive-
way and access roadwere jointly used is clear. Until the fall of
1969, no problem existed. At that time all indicia of permissive
user were present.
         But, what indicia of prescriptive or adverse user were
present? The trial court found, as to the use of the access road,
that there was "no open and notorious objections thereto until on
or about April 29, 1970   * * *.   If   This is not the rule.   Rather,
the rule is the opposite.    In White v. Kamps, 119 Mont. 102, 114,
171 P.2d 343, this Court discussed prescriptive easements and
stated that there must be a distinct and positive assertion of a
right hostile to the rights of the owner and must be brought to the
attention of the owner.    OtConnor v. Brodie, 153 Mont. 129, 454
P.2d 920.
        Here there is really no evidence or testimony of adverse
use other than the joint use known to each owner and not objected
to.   There is testimony that succeeding owners of the store property
orally understood they could use the access and driveway.         This,
however, is consistent with permissive use.        We simply do not find
in the record evidence to support a prescriptive easement.         In this
case it is difficult to demonstrate the negative. Any prescrip-
tive use, recognizing that a permissive use may ripen into a
prescriptive right under some circumstances, is simply not shown
here.   It is as if a private sidewalk to a person's dwelling house
which visitors and patrons even use for years suddenly becomes a
prescriptive right in the public.
        Poepping seems to recognize the difficulty of finding evi-
dence to support the finding of prescriptive easement.    A ground
not urged before (counsel on appeal is different than at trial)
is put forth, Poepping now urges an easement by virtue of section
67-1607, R.C.M.   1947, what may be termed an implied reservation or
grant of an easement by necessity.
        In Thisted v. Country Club Tower Corp., 146 Mont. 87, 102,
405 P.2d 432, this Court discussed section 67-1607, together with
other statutes, and said:
        "We think certain Montana statutes, under the facts
        in this case, are controlling:
           "'13-722. Necessary incidents implied. All
        things that in law or usage are considered as
        inciaental to a contract,-or as necessary to carry
        it into effect, are implied therefrom, unless some
        of them are expressly mentioned therein, when all
                  .
        other things of the same class are deemed to be
        excluded '
           "'67-1607. What easements pass with property.
        A transfer of real Drovertv passes all easements
        attached thereto, ahd creakes in favor thereof an
        easement to use other real property of the person
        whose estate is transferred in the same manner and
        to the same extent as such property was obviously
        and permanently used by the person whose estate is
        transferred, for the benefit thereof, at the time
        when the transfer was agreed upon or completed. I
           "'13-721. Reasonable stipulations--when applied.
        Stipulations which are necessary to make a contract
        reasonable, or conformable to uiage, are implied, in
        respect to matters concernin? which the contract mani-
        fests no contrary intention.
            "'49-114. One who grants a thing is presumed to
         grant also whatever is essential to its use. 1
             "'49-121. That which ought to have been done
          is to be regarded as done, in favor of him to whom,
          and against him from whom, performance is due. I
          "We are further of the opinion that under all the
          facts shown in evidence here and as heretofore re-
          ferred to herein, an implied equitable servitude
          attached to the transfers of the apartments in
          question, requiring the use of the apartments for
          residential purposes only.
             "'67-606. Extent of servitudes.     The extent
          of a servitude is determined by the terms of the
          grant, or the nature of the enjoyment by which it
          was acquired,1
          "BY reason of our statutes and what has been hereto-
          fore said, there can be implied reservations or
          implied grants of easement by necessity in Montana,
          and insofar as the holding in Simonson v. McDonald,
          131 Mont. 494, 311 P.2d 982, states to the contrary
          we must observe that the language therein used was
          too broadly put and should have been limited in its
          application to the facts existent in that case.
          Under the facts and circumstances existing here that
          holding is expressly overruled. (See criticism of
          Simonson v. McDonald in Vol. 19, Montana Law Review,
          page 7 . "
                3)
The foregoing quote demonstrates how an implied easement may
arise.
          As to the driveway, Poepping did not rely on an implied
easement existing.    He built on it and the court found that it was
abandoned.    As to the access road, Poepping's brief states that
the buildings occupy only a very tiny portion of his property.
Poepping has ample room for ingress and egress.   This simply is
not a case where the facts indicate an "implied easement" nor did
Poepping attempt to establish such,
         Were we to develop the theory of an implied easement, we
would necessarily have to discuss the material change in the use
since the building of the cafe; but we do not deem this necessary
here.
          Poepping would also have us declare a "public easement",
since people go to the store and postoffice by means of the access
road.    However, we fail to see how the public gets any right under
the circumstances here.
         We have examined the entire record and recognize that the
 trial court made a valient effort to attempt to settle a dispute
 between neighbors. Nevertheless, we fail to find evidence suffi-
 cient to uphold the findings and conclusions as to prescriptive
 rightssand thus reverse the judgment,
         The cause is returned to the district court for entry of
 judgment for appellants,



                                   ~ssociiteJustice




/ /   Chief ~ustice




      Associate Justices.
