From the Archives: 2004 Property Case

Supreme Court – Civil

PROPERTY: Fact issues preclude summary judgment
as to whether road is county road by public prescriptive
easement… McNeil reversed (unpublished).

T. & S. Brown brought a quiet title action claiming that
a quarter mile of roadway crossing their property was a private
driveway, not a public road as claimed by Sanders Co. and M.
& N. Masten. Judge McNeil granted summary judgment for
Defendants, finding that the roadway, commonly referred to as
Four Corners South West, was a public prescriptive easement and
decreeing its scope including the County’s right to maintain it and
the road being open to commercial operations. Browns appeal.

McNeil erred in granting summary judgment for
Defendants. A claimant must prove the same elements for a public
prescriptive easement as for a private prescriptive easement except
exclusivity. Browns contend that Defendants failed to prove that
the statutory period ran, providing numerous cites of uncertainty as
to use type and time period. They maintain that there was much
controverted evidence as to continuous and uninterrupted use of
the stretch of roadway. They dispute the width of the prescriptive
easement that McNeil found. Without relying on any case law
they allege that Defendants failed to provide clear & convincing
evidence that there was continual and uninterrupted commercial
use for the required statutory period. And they contend that
McNeil erred in stating a specific legal description of the road.
McNeil erroneously resolved disputed issues of material fact and
therefore exceeded the scope of his role at the summary
judgment stage. The record indicates a multitude of unresolved,
conflicting testimony. Remanded for determination by the trier of

Regnier, Cotter, Nelson, Leaphart, Warner.
Brown v. Sanders Co and Masten, 03-534, 6/22/04.
Linda St. Peter & Don St. Peter (St. Peter & Warren), Missoula, for
Browns; Dee Ann Cooney & Norman Grosfield (Utick & Grosfield), Helena, for
the County; Paul Tranel & Milton Datsopoulos (Datsopoulos, MacDonals &
Lind), Missoula, for Mastens.

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