97-336




                                                                        No. 97-336

                                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                        1998 MT 147N



                                                                    EDITH KINNEY,

                                                                                    Plaintiff and Appellant,

                                                                                    vs.

                                                       H. W. BURNS FAMILY L.L.C.,
                                                           ROBERT H. BURNS and
                                                         HORATIO WINSPEAR BURNS,

                                                           Defendants and Respondents.




                  APPEAL FROM:                   District Court of the Sixth Judicial District,
                                                      In and for the County of Sweet Grass,
                                                  The Honorable G. Todd Baugh, Judge presiding.



                                                               COUNSEL OF RECORD:

                                                                              For Appellant:

                                                 Lee Overfelt, Gary Overfelt, Billings, Montana

                                                                             For Respondent:

                                            David L. Weaver, Morgan, Cameron & Weaver, Bozeman,
                                                                  Montana




                                                                            Submitted on Briefs: November 13, 1997

                                                                            Decided: June 9,1998
                                                                            Filed:



file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-336%20Opinion.htm (1 of 6)4/18/2007 1:57:15 PM
 97-336




                                                       __________________________________________
                                                                        Clerk

                     Justice James C. Nelson 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.

¶2   This is an appeal from the findings of fact, conclusions of law and
judgment of the Sixth Judicial District Court, Sweet Grass County, wherein the
court concluded that Plaintiff Kinney (Kinney) failed to establish, acquire or
otherwise gain a prescriptive easement across the property of Defendants H.
W. Burns Family L.L.C., et al., (Burns) located in Sweet Grass County,
Montana. We affirm.

¶3        We restate the following issues raised on appeal:

¶4        1.       Did the District Court correctly conclude that Kinney failed to
                   establish a prescriptive easement across Burns' property?

¶5        2.       Did the District Court properly set forth its findings of fact and
                   conclusions of law?

¶6        3.       Did the District Court err by commenting on Stan Kinney's
                   credibility as a witness in Finding of Fact. No. 69?
                    FACTUAL AND PROCEDURAL BACKGROUND

¶7   Both Kinney and Burns own property in Sweet Grass County, Montana.
Purchased in 1953 from her mother, Hanna Rudd, Kinney's property is more
particularly described as:
     Southeast quarter of the Northwest quarter (SE¬ NW¬),
     Southwest quarter (SW¬), West half of the Southeast quarter
     (W« SE¬) and the Southeast quarter of the Southeast quarter
     (SE¬ SE¬) of Section Twenty-Six (26), Township Two (2)
     North, Range Thirteen (13) East.
Property owned by Burns relevant to this action is described as:
     Township Two (2) North, Range Fourteen (14) East:
          Sections Nineteen (19), Twenty (20), Twenty-Nine (29),
          Thirty (30), and Thirty-One (31).
          Township Two (2) North, Range Thirteen (13) East:
          Sections Thirty-five (35) and Thirty-Six (36).

Defendant Robert H. Burns, purchased this property in 1951 and later sold this

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-336%20Opinion.htm (2 of 6)4/18/2007 1:57:15 PM
 97-336


property to the H. W. Burns Family L.L.C. in 1994, excepting only Section 36
which was purchased by Horatio W. Burns from the State of Montana in
November 1964 and is still owned by him.

¶8   Defendant H. W. Burns Family L.L.C. and Horatio Burns are the record
owners of a private road located on their property (Burns Road) which is more
particularly located at:
     Beginning on the Swamp Creek road near the Southwest corner
     of Section Twenty (20), Township Two (2) North, Range
     Fourteen (14) East and proceeding in a Southwesterly direction
     through a portion of Sections Nineteen (19), Thirty (30), and
     Thirty-One (31) in the above township and range to the
     Southern portion of Section Thirty-Six (36), Township Two (2)
     North, Range Thirteen (13) East. The road then proceeds in a
     Northwesterly direction through a portion of Sections Thirty-Six
     (36), and Thirty-Five (35) in Township Two (2) North, Range
     Thirteen (13) East and beyond Defendants' western property
     line.
Kinney and her predecessors as well as her son, Stan Kinney, have historically
accessed Kinney's property by using Burns Road as well as a road entering
Burns' property from the south (Whitetail Creek Road).

¶9   On April 27, 1995, Kinney filed a complaint in the Sixth Judicial
District Court, Sweet Grass County, to enjoin Burns from interfering with her
use of her alleged prescriptive easement through Burns' property over Burns
Road. On April 17, 1996, during a non-jury trial, the District Court heard
testimony and received evidence concerning Kinney's alleged prescriptive
easement across Burns' property. On February 28, 1997, the court entered its
findings of fact and conclusions of law and on March 11, 1997, entered
judgment in favor of Burns concluding that Kinney had failed to establish a
prescriptive easement across Burns' property. This appeal followed.
                   STANDARD OF REVIEW

¶10 Our standard of review for a district court's findings of fact is set forth
in Rule 52(a), M.R.Civ.P., which provides in part:
     Findings of fact, whether based on oral or documentary
     evidence, shall not be set aside unless clearly erroneous, and
     due regard shall be given to the opportunity of the trial court to
     judge of the credibility of the witnesses.

¶11 To interpret Rule 52(a), M.R.Civ.P., we have adopted the following
three-part test:
          First, the Court will review the record to see if the
     findings are supported by substantial evidence. Second, if the
     findings are supported by substantial evidence we will
     determine if the trial court has misapprehended the effect of
     evidence. Third, if substantial evidence exists and the effect of
     the evidence has not been misapprehended, the Court may still
     find that "[A] finding is 'clearly erroneous' when, although there

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-336%20Opinion.htm (3 of 6)4/18/2007 1:57:15 PM
 97-336


     is evidence to support it, a review of the record leaves the court
     with the definite and firm conviction that a mistake has been
     committed."
Wareing v. Schreckendgust (1996), 280 Mont. 196, 202, 930 P.2d 37, 41
(quoting Public Lands Access Ass'n, Inc. v. Boone and Crockett Club Found.
(1993), 259 Mont. 279, 283, 856 P.2d 525, 527).

¶12 We review a district court's conclusions of law to determine whether
the court's interpretation of the law is correct. Wareing, 280 Mont. at 203, 930
P.2d at 41 (citing Public Lands, 259 Mont. at 283, 856 P.2d at 527).
                       DISCUSSION

¶13       1.       Did the District Court correctly conclude that Kinney
                   failed to establish a prescriptive easement across
                   Burns' property?

¶14 To establish a prescriptive easement across Burns' property, Kinney
was required to establish "open, notorious, exclusive, adverse, continuous and
uninterrupted use of the easement for the full statutory period." Wareing, 280
Mont. at 206, 930 P.2d at 43 (citing Swandal Ranch Co. v. Hunt (1996), 276
Mont. 229, 233, 915 P.2d 840, 843). Furthermore, Kinney was required to
prove each element of her prescriptive easement claim by clear and convincing
evidence. Wareing, 280 Mont. at 206, 930 P.2d at 43. If Kinney successfully
established the elements of her prescriptive easement, a presumption of
adverse use would arise and the burden of proof would shift to Burns, the
landowner affected by her prescriptive claim, to establish that Kinney's use
was permissive. Wareing, 280 Mont. at 209, 930 P.2d at 45 (citations
omitted).

¶15 Kinney argues that while the District Court correctly found that she had
established open and notorious use of the subject easement, the court erred
when it failed to find that she had also established the remaining elements of
her prescriptive easement claim. In essence, Kinney argues that substantial
evidence in the record established contrary findings than those set forth by the
District Court. That is, the evidence in the record proved by clear and
convincing evidence that she successfully established a prescriptive easement
over Burns' property. In this regard, Kinney also argues that because she
successfully proved the establishment of her prescriptive easement, the burden
of proof shifted and Burns failed to rebut the resulting presumption of her
adverse use. We disagree.

¶16 We review a district court's findings of fact to determine whether
substantial evidence supports those findings, not contrary findings. Wareing,
280 Mont. at 210, 930 P.2d at 46. After reviewing the entirety of the record,
we hold that the District Court's findings of fact are supported by substantial
evidence; the court has not misapprehended the evidence; and we are not left
with a definite and firm conviction that the court made a mistake.
Furthermore, we hold that the District Court correctly interpreted the law
when it concluded that Kinney had failed to establish a prescriptive easement

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-336%20Opinion.htm (4 of 6)4/18/2007 1:57:15 PM
 97-336


across Burns' property by clear and convincing evidence. Moreover, because
Kinney failed to establish a prescriptive easement, the burden of proof never
shifted to Burns. Therefore, we decline to address Kinney's argument that
Burns failed to rebut the presumption of adverse use.

¶17       2.       Did the District Court properly set forth its findings
                   of fact and conclusions of law?

¶18 Kinney argues that the District Court erred when it adopted Burns'
findings of fact and conclusions of law "almost verbatim." However, we have
previously explained:
     Although a district court may adopt verbatim findings of fact
     and conclusions of law, the practice does not constitute error per
     se. When reviewing the adequacy of the findings of fact and
     conclusions of law, we examine whether they are sufficiently
     comprehensive and pertinent to provide a basis for a decision,
     and whether they are supported by substantial evidence.
In re Marriage of Nikolaisen (1993), 257 Mont. 1, 5, 847 P.2d 287, 289. After
reviewing the record, we hold, as we did in Issue 1, that the District Court's
findings of fact are supported by substantial evidence. Further, we hold that
both the court's findings of fact and its conclusions of law are sufficiently
comprehensive and pertinent to provide a basis for its decision that Kinney
failed to establish a prescriptive easement across Burns' property by clear and
convincing evidence. The District Court, therefore, did not err by issuing
findings and conclusions substantially similar to those proposed by Burns.

¶19       3.       Did the District Court err by commenting on Stan
                   Kinney's credibility as a witness in Finding of Fact
                   No. 69?

¶20 Stan Kinney, Edith Kinney's son, testified on her behalf in this case.
In Finding of Fact No. 69, the District Court stated that "Stan Kinney testified
that he and his family had used semi-trucks to truck cattle to their place since
the 1950's. The Court finds this to be improbable and finds Stan Kinney's
credibility has suffered by this testimony." Kinney argues that the District
Court erred by setting forth this finding because it was prejudicial to her
case.
We disagree.

¶21 We have always explained that because a district court is in a better
position to observe the witnesses and judge their credibility than this Court,
"[w]e will not second guess the district court's determination regarding the
strength and weight of conflicting testimony." Wareing, 280 Mont. at 210,
930 P.2d at 45-46 (citing Double AA Corp. v. Newland & Co. (1995), 273
Mont. 486, 494, 905 P.2d 138, 142). Here, the court sat without a jury, and,
therefore, was the exclusive judge of witness credibility. See § 26-1-302,
MCA. Therefore, we hold that the District Court did not err by setting forth
its evaluation of Stan Kinney's credibility in Finding of Fact. No. 69.


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-336%20Opinion.htm (5 of 6)4/18/2007 1:57:15 PM
 97-336


¶22       Affirmed.

                                                             /S/       JAMES C. NELSON



We Concur:

/S/       J. A. TURNAGE
/S/       KARLA M. GRAY
/S/       JIM REGNIER
/S/       WILLIAM E. HUNT, SR.




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-336%20Opinion.htm (6 of 6)4/18/2007 1:57:15 PM
