by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

EASEMENTS; CREATION; PRESCRIPTION: The presence of a gate across a road, together with evidence of a "neighborly accommodation," prevents plaintiffs from proving a private or public prescriptive easement over defendants' property.

Kessinger v Matulevich, 925 P.2d 864 (Mont. 1996).

In order to prove that a public or private prescriptive easement exists, the party claiming the easement must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period.

Reversing the trial court's judgment for plaintiffs here, the Montana Supreme Court placed considerable weight on the existence of a gate at the entrance to defendants' land to find no prescriptive easement. Although members of the public used the road for recreational purposes, testimony that the gate was opened and closed by the public indicated that the public respected defendants' claim of right over the property and road.

Plaintiffs' use of the road for recreational purposes after the gate was built, which the plaintiffs called "a neighborly thing," indicated that the defendants allowed the road to be used as an accommodation, so that its use was not sufficiently hostile or adverse to create a prescriptive easement. To the extent any easement existed before the gate was built, the gate operated as "reverse adverse possession" by which defendants recaptured the easement. The court left intact the trial court's finding that defendants had a prescriptive easement over the same road on plaintiffs' property, as supported by substantial evidence.

Note: The court also comments that under the Montana rule, "mere recreational use," such as for hiking, skiing, or similar activities, cannot ripen into a prescriptive right in any event.

Comment 1: The presence of a gate that users routinely have passed through has not been a dispositive factor in many other prescriptive use cases. It is particularly interesting that the appeals court used this factor to reverse a trial court finding of adversity, especially when the adverse claimant itself surrendered a prescriptive right to the other side in the same case.

Comment 2: Even more remarkable is the court's conclusion that the construction of a gate could establish a prescriptive bar to an already "ripened" prescriptive easement where use of the roadway continued despite the presence of the gate. This appears to turn the concept of prescriptive rights on its ear, and is an overly generous protection of a landowner that did little to protect itself.

Compare: Warnack v. Coneen Family Trust, 923 P.2d 1087 (Mont. 1996). ("Neighborly accomodation" argument denied; hostility of road use recognized as establishing prescriptive right.)

Also see: Willis v. Holley, 925 P.2d 539 (Okla. 1996). (Where initial use is permissive, subsequent use without consent of original permittor's heir will not be adverse absent specific notice of hostility.)

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