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                                                              No. 99-411

                    IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                           2000 MT 229N

                                                        JEFF LANGEVIN,

                                                    Plaintiff and Appellant,

                                                                      v.

                             TEDDY ANDERSEN, CAROL ANN ANDERSEN,

                               JOHN S. BASHAM, and SHARIE L. BASHAM,

                                                Defendants and Respondents.


                 APPEAL FROM: District Court of the Nineteenth Judicial District,

                                             In and for the County of Lincoln,

                         The Honorable Robert S. Keller, Retired Judge presiding.

                                                  COUNSEL OF RECORD:

                                                            For Appellant:

                                         James C. Bartlett, Kalispell, Montana

                                                          For Respondent:

                                         Scott B. Spencer, Kalispell, Montana

                                         Submitted on Briefs: March 16, 2000


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                                                   Decided: August 22, 2000

                                                                    Filed:

                              __________________________________________

                                                                    Clerk

Justice W. William Leaphart 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 Jeff Langevin (Langevin) appeals the judgment and order of the Nineteenth Judicial
District Court, Lincoln County.

¶3 We affirm in part and reverse in part.

¶4 The following issues are presented on appeal:

¶5 1. Whether the District Court erred in concluding that Langevin did not have a
prescriptive easement.

¶6 2. Whether the District Court erred in awarding Defendants damages in the amount of
$8,826.00.

                                                        Standard of Review

¶7 We review a district court's findings of fact to determine whether they are clearly
erroneous. See Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820
P.2d 1285, 1287. As we determined in Rafanelli v. Dale (1996), 278 Mont. 28, 33, 924
P.2d 242, 246 (citations omitted), "[i]t 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
substantial evidence to support them even when there is also evidence supporting contrary

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findings." We review a district court's conclusions of law for whether they are correct. See
Steer, Inc. v. Dept. Of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

                                           Factual and Procedural Background

¶8 In 1961 Jim and Mary Johnson (hereafter, the Johnsons) purchased the northeast
quarter of the northwest quarter of Section 26 in Lincoln County. A steep hill "bisects the
east half of said property, extending from the south by southwest to the north by
northeast." When the Johnsons purchased their property, a foot trail crossed the hill from
the southwest to the northeast. Jim Johnson opened the trail with a small tractor to a
maximum width of three feet. Thereafter, apparently in the mid to late 1980s, Langevin
purchased the northwest quarter of the aforementioned northeast quarter of Section 26,
with the exception of two contiguous tracts of land. Since 1994, defendants Teddy and
Carol Andersen (hereafter, the Andersens) and John and Sharie Basham (the Bashams)
have also owned parcels of land in the northeast quarter of the northwest quarter of
Section 26.

¶9 In August, 1998 Langevin filed a complaint, asserting that he had a right of way over a
road crossing Defendants' property that he had used "under a claim of right openly,
visibly, notoriously, and adversely to Defendants and Defendants' predecessors-in-interest
continually for a period in excess of five years." A trial to the bench was held in March,
1999. The District Court found that the foot trail that the Johnsons widened to a maximum
width of three feet remained in that condition until John Kneller (Kneller) logged timber in
the area in 1992. When Kneller began his work, a twenty-foot wide slough crossed the
trail and four-inch wide trees grew in the trail. Until Kneller cleared and widened the trail,
it was impassable to four-wheel drive vehicles.

¶10 While Kneller conducted his logging, Langevin asked the Johnsons for permission to
use the road to remove logs from his land. At that time, the Johnsons owned the property
that the road crossed. The Johnsons gave him permission, but told him their permission
was on a "temporary basis." When the logging was completed, the Johnsons barricaded a
county road that provided access to the road that Kneller created. The Johnsons removed
the barricade in 1993. In spring of 1997, a major slide crossed the road, blocked all
vehicular traffic, and remained until the summer of 1998, when John Basham saw that
someone was using a cat on the road. Basham installed a barricade on the road and
contacted Langevin regarding ownership of the cat. Langevin told Basham that he had
opened the road. After Langevin removed the slough covering the road, a "mass began

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sliding downhill; causing significant damage." Basham agreed to remove the barricade so
that Langevin could in turn remove the cat. Believing that Langevin had removed the cat,
John Basham replaced the barricade. Langevin later "tore out the barricade."

¶11 The District Court determined that Langevin's use of the road began in 1992 with the
permission of the Johnsons, that it was neither notorious nor hostile, that the Johnsons'
permission ended in 1992, and that the road was barricaded until 1993, "i.e., he did not
drive his pickup during that period of time." Further, the road was closed in 1997 because
of the slough and the road did not reopen until 1998. The District Court further determined
that Langevin's removal of the slough in 1998 "damaged the Defendants in the amount of
$8,926." From the District Court's Judgment and Order Langevin appeals.

                                                                Discussion

¶12 1. Whether the District Court erred in concluding that Langevin did not have a
prescriptive easement.

¶13 An easement by prescription is created by operation of law. See Hitshew v. Butte/
Silver Bow County (citation omitted), 1999 MT 26, ¶ 16, 293 Mont. 212, ¶ 16, 974 P.2d
650, ¶ 16. The party claiming an easement by prescription must show "open, notorious,
exclusive, adverse, continuous, and uninterrupted use of the easement claimed for the full
statutory period of five years." Amerimont, Inc. v. Gannett (1996) (citations omitted), 278
Mont. 314, 318, 924 P.2d 1326, 1330. Further, "all elements must be proved," Amerimont
(citations omitted), 278 Mont. 314, 318, 924 P.2d 1326, 1330, and the "consecutive five
year period may have occurred at any time." Lemont Land Corp. v. Rogers (1994), 269
Mont. 180, 183, 887 P.2d 724, 726.

¶14 Langevin contends that he has satisfied the requirements for a prescriptive easement
in either of two time periods: for October, 1986 through October, 1991 and "for years after
that including the time period beginning July 1994, when the Respondents became
owners." Langevin argues that he used the road "whenever he wished to retrieve firewood
and logs and to enjoy recreational activities." At trial Langevin testified that he used the
road an average of twelve times a year and, depending on the time of year, that he drove
pickup trucks, motorbikes, and snocats on the road.

¶15 Defendants respond that Langevin has failed to establish an easement by prescription
for any relevant five year period of time. They contend that the District Court had


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substantial credible testimony that the road was not passable for vehicles before 1992.
Further, Defendants argue that Langevin has failed to show that he acquired an easement
by prescription after 1992.

¶16 We conclude that the District Court had substantial credible evidence that the road
was not used by vehicular traffic before 1992. A number of witnesses so testified. For
example, John Kneller, who logged timber in the area in 1992, testified that before 1992
the road was "not really a road, it never was, it was a skid trail" and that it would not have
been possible for someone to drive a pickup on the skid trail. Mary Johnson testified that
the road was a mere foot trail in 1961 when she and her husband bought the property. She
testified that her husband widened the trail with a very small tractor. Further, she disputed
Langevin's testimony that in the late 1980s he had begun driving regularly down the road
to access his property, stating "I was not aware that he ever made it down the road because
there were trees across, and there was a big slide and stumps that had been rolled over."
Mary Johnson remembered seeing Langevin drive by her house and honk and wave, but
she said "the fact that he went by our house did not tell us where he was going. There's a
loop there."

¶17 Although Langevin's testimony regarding his use of the road contradicted that of other
witnesses, we will not disturb the District Court's determination of witness credibility. See,
e.g., Rafanelli, 278 Mont. at 33, 924 P.2d at 245-46 (citations omitted). We hold that the
District Court correctly concluded that Langevin did not acquire an easement by
prescription for the road prior to 1992.

¶18 We turn to Langevin's claim that he established an easement by prescription sometime
after 1991. Langevin claims vaguely that "for years after [1991] including the time period
beginning July 1994, when the Respondents became owners," he also obtained a
prescriptive easement. Langevin has not met his burden to show that he obtained an
easement by prescription for a specific consecutive statutory five year period after 1991.
Compare Amerimont, 278 Mont. at 318, 924 P.2d at 1330 (concluding the party claiming
an easement by prescription must show "open, notorious, exclusive, adverse, continuous,
and uninterrupted use of the easement claimed for the full statutory period of five years")
and Lemont, 269 Mont. at 183, 887 P.2d at 726 (concluding the "consecutive five year
period may have occurred at any time").

¶19 Moreover, substantial evidence supported the District Court's conclusion that
Langevin did not obtain an easement by prescription after 1991. Mary Johnson testified


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that after Kneller improved the road for logging in 1992, Langevin asked her permission
to use the road to remove logs from his property. She testified that they "agreed that he
[Langevin] could use it [the road] to bring his logs out, but we also reminded him that we
were not granting any sort of a permanent easement . . . ." Langevin's permissive use was
inconsistent with an easement by prescription. Compare Public Lands Access v. Boone
and Crockett (1993), 259 Mont. 279, 284, 856 P.2d 525, 528 (citation omitted)
(concluding a permissive continuous use of road is not adverse and does not ripen into
prescriptive right).

¶20 Further, Langevin does not claim that the District Court's findings that the road was
"barricaded until 1993, i.e., he [Langevin] did not drive his pickup during that period of
time" and that "the road was closed in 1997 by virtue of the sloughing, and stayed closed
until 1998" were clearly erroneous. On this undisputed record, we conclude that Langevin
has failed to show that there was a consecutive five year period in which he could have
obtained an easement by prescription after 1991. We hold that the District Court correctly
concluded that Langevin did not establish adverse use of the road for "a period of five
continuous years" after 1991 and that he does not have an easement by prescription.
Because this holding is dispositive, we decline to address the other issues that Langevin
raises.

¶21 2. Whether the District Court erred in awarding Defendants damages in the amount of
$8,826.00.

¶22 At trial, Andersen testified that the cost of repairing the damage to the hill and road
from Langevin's clearing the slough was $8,826.00. Basham testified that his costs in
installing the barricade were $100.00.

¶23 Langevin argues that the District Court erred in awarding damages in the amount of
$8,926.00. He argues that although John Basham was competent to testify about his costs
of $100 in installing a barricade, Andersen lacked necessary personal knowledge to testify
about the costs of working on the sloughed roadway pursuant to Rule 701, M.R.Evid.
Langevin argues that the District Court abused its discretion in allowing Andersen to read
from a list of costs that Chris Nobles prepared, because the summary was "intended for an
expert witness" and it was a hearsay statement.

¶24 Defendants respond that Andersen's testimony was sufficient to establish the cost of
repairs. Defendants argue that the costs to which Andersen testified "were based on values


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given to Andersen by Chris Noble for the hiring of the work." Defendants contend further
that Andersen had a reasonable basis for his damage claim and that he "had particular
expertise upon which to base his conclusions and damage calculations."

¶25 We turn to Andersen's testimony. We note initially that the District Court did not
recognize Andersen as an expert on road and hill reconstruction costs. Andersen testified
that after the slough occurred in 1997, he concluded that Langevin's removal of slough
material had destabilized the slide area. Andersen testified that he had prepared a summary
of costs that Chris Noble, a contractor, gave him. Langevin's counsel objected to the
summary on the grounds of hearsay and foundation. In response, Defendants' counsel
offered "the testimony of Mr. Andersen subject to my subsequently calling Mr. Noble to
verify the values that he used because we are a little bit out of order." Andersen testified
that the total cost of the work necessary to restore the road would be $8,826. When
Defendants' counsel questioned Chris Noble about the costs, Langevin's counsel objected
on the ground that Noble was "not listed as a witness in the pretrial order, and so for him
to give an opinion at this late stage would be improper." The District Court sustained the
objection. Thus, to establish his damages, Andersen offered only hearsay testimony
concerning Noble's cost estimates. Noble did not verify those costs; he testified only that
he provided "prices" to Andersen.

¶26 As the District Court lacked competent evidence regarding Andersen's damages, we
conclude that the District Court erred in determining damages. Because the District
Court's award of $8,826 in damages was based solely on Andersen's testimony, we further
conclude that the District Court's error substantially prejudiced Langevin.

27 ¶The District Court's judgment that Andersen sustained damages in the amount of
$8,826 is therefore reversed.

¶28 However, because Langevin does not dispute Basham's costs of one hundred dollars
for the barricade, that part of the District Court's award of damages is affirmed.

                                               /S/ W. WILLIAM LEAPHART

                                                               We Concur:

                                                        /S/ J. A. TURNAGE



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                                                     /S/ KARLA M. GRAY

                                                        /S/ JIM REGNIER

                                               /S/ TERRY N. TRIEWEILER




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