                                            No. 02-174

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2003 MT 42N


CHAD J. ARMSTRONG, FOREST J.
ARMSTRONG and JAMES F. ARMSTRONG,

              Plaintiffs and Respondents,

         v.

JOHN C. VON BERGEN and
HERBERT C. VON BERGEN,

              Defendants and Appellants.




APPEAL FROM:         District Court of the Fifth Judicial District,
                     In and For the County of Madison, Cause No. DV-29-00-38,
                     Honorable Loren Tucker, Presiding


COUNSEL OF RECORD:

              For Appellants:

                     Lee Bruner, Poore, Roth & Robinson, P. C., Butte, Montana


              For Respondents:

                     Jack Morris, Jardine & Morris, Whitehall, Montana



                                                         Submitted on Briefs: October 3, 2002

                                                                    Decided: March 11, 2003


Filed:

                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     John and Herbert Von Bergen appeal from the findings of fact, conclusions of law and

judgment of the Fifth Judicial District Court, Madison County, determining that an easement

across their property was established by adverse possession. We affirm the judgment of the

District Court.

¶2     Pursuant to Section I, Paragraph 3(d)(i), Montana Supreme Court 1996 Internal

Operating Rules (Memorandum Opinions), we determine the issues are factual and there

clearly is sufficient evidence to support the District Court’s findings of fact. Further,

pursuant to Section I, Paragraph 3(d)(v), 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.

¶3     Von Bergens contend that Respondents, the Armstrongs, did not present clear and

convincing evidence of adverse use prior to their purchase of the property and that, absent

such a showing, their use was permissive. Von Bergens point to the testimony of multiple

witnesses establishing that, over a 30-year period, the Von Bergens and the various owners

of the Edwards Homestead agreed to permissive use–in particular, the testimony of the Von

Bergens themselves, their conversations with Shaw and Bausch, the testimony of the ranch

foreman for the Shaws and the testimony of the real estate agent for Bausch.




                                             2
¶4     In arguing that their use was adverse rather than permissive, the Armstrongs point to

the testimony of Bausch’s partner and associate, Joe Vujovich. Further, the District Court

heard testimony contradicting Herbert Von Bergen’s testimony that Frank Shaw asked for

permission to use the road. In particular, Dorothy Shaw, widow of Frank Shaw and a

previous owner of the Edwards’ Homestead, testified that her husband did not request the

Von Bergens’ permission to cross their land because the Shaw family had been using the

Pole Canyon Road without permission for over forty years.

¶5     As is apparent from the parties’ positions, there was conflicting testimony as to

whether the Armstrongs had established adverse use. In resolving the conflicting testimony,

the District Court had to judge the credibility of the witnesses. Here, the District Court

found that Armstrongs made use of the road for more than five years, asserted rights hostile

to the rights of the owners, and brought their claims to the attention of the owners. Further,

the court found that Armstrongs’ claims are exclusive to themselves; that they claim as a

matter of right and not as a matter of privilege or license; and finally, that Armstrongs have

made continuous and uninterrupted use of the road for the requisite period of time.

¶6     We review conclusions of law to determine whether the District Court’s interpretation

of the law is correct. Public Lands Access v. Boone & Crockett (1993), 259 Mont. 279, 283,

856 P.2d 525, 527. We have also explained that it is within the province of the trier of fact

to weigh the evidence and assess the credibility of witnesses, and we will not second-guess

those determinations. Moreover, we will uphold a district court’s findings when there is




                                              3
substantial evidence to support them even when there is also evidence supporting contrary

findings. Rafanelli v. Dale (1996), 278 Mont. 28, 33, 924 P.2d 242, 245-46.

¶7    The burden of proof in prescriptive easement cases is that of clear and convincing

evidence and rests with the party claiming the easement. See Wareing v. Schreckendgust

(1996), 280 Mont.196, 206, 930 P.2d 37, 43.

¶8    We conclude that the District Court’s decision was grounded in the record and its

judgment of the witnesses’ credibility. Further, its findings of fact are supported by

substantial evidence. The District Court properly determined that the Armstrongs’ use was

adverse and not permissive.

¶9    Affirmed.



                                                      /S/ W. WILLIAM LEAPHART


We concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE




                                           4
