Montana landowners successfully claim reverse adverse possession of county road created by public prescriptive easement

by Hannah Dankbar and Gary Taylor

Letica Land Company, LLC v Anaconda-Deer Lodge County
Montana Supreme Court, November 17, 2015

Letica Land Company (Letica) and Don McGee appeal a lower court’s ruling that two stretches of a road crossing their properties in Anaconda-Deer Lodge County are public roads.

Modesty Creek Road was established as a county road by the County Commission in 1889. The land across which the road traverses has been owned by the federal government, Anaconda Company, various private interests and most recently Letica and McGee who purchased the land in 1989 and 1997 respectively. Prior to Letica and McGee purchasing the land locked gates were placed on various places in the road that blocked public access, even though the public continued to access the road on a permissive basis. Because of these gates Letica and McGee claim that they were unaware of any public right of access of Modesty Creek Road.

In 2012 county residents asked the County Commission to reaffirm the road as a county road and reopen it to the public. The County Commission voted in approval and Letica filed a complaint. The complaint was denied and McGee joined as a plaintiff to amend the complaint.

The trial court concluded that Modesty Creek Road’s lower branch was a statutorily created road, and that Modesty Creek Road’s upper branch was established as a public road via public prescriptive easement, and that the prescriptive easement had not been terminated by “reverse adverse possession.” The court also found the takings question was not ripe until after an appeal. Letica and McGee appealed, challenging both the declaration of a statutorily created road and the declaration of a public prescriptive easement.

Letica and McGee first claimed that the record does not sufficiently demonstrate that the road was created by petition. They claim that Modesty Creek Road is on some county road maps, but not on others. The court found that this does not qualify as “affirmative steps to indicate intention to abandon” county roads once they are established, further these maps do nothing to provide evidence of the process of how these roads were approved. Letica and McGee also claimed that the lower branch must terminate at the eastern portion of Section 23, Township 6 North, Range 11 West. There is no definitive description in the record of where the road ends, but evidence when taken as a whole, such as testimony and other historical records are consistent enough for the court to conclude that the Dry Gulch is located along Section 22, Township 6 North, Range 11 West and that the lower court correctly took the record as a whole. The lower court’s decision regarding the statutorily created lower branch of the road were affirmed.

Letica and McGee argued that the actions of landowners to block public access throughout the years created in the landowners ownership by adverse possession.  The court emphasized that in Montana a “private individual may not obtain title to a public statutorily created road by a adverse possession.” Since it was established that the lower branch is a statutorily created road and therefore could not be claimed by adverse possession.  This still left open the question of whether reverse adverse possession extinguished the public prescriptive easement on the upper branch.

Locked gates blocked public access to the upper branch from 1980 to 2012. The public who used to use the upper branch found alternate routes and County staff said they would have cut the locks if they were made aware of the issue as they did this in other instances. The record shows that the public “cooperated and adhered” to the permissive use policy. Those who leased land or had water rights along the road had keys to the gates.

After declaring the upper branch a county road in 2012 the County found that the landowners asserted hostile rights for thirty years. However, the court found that the public abandoned this road and the County was aware of the gates and did not remedy the situation.  Montana statute provides that a prescriptive easement may be terminated “by disuse of the servitude by the owner of the servitude for the period prescribed for acquiring title by enjoyment.” The Court reversed the lower court’s ruling that the public prescriptive easement was not terminated by reverse adverse possession.

One justice dissented. Chief Justice McGrath concurred with the resolution of the first issue, and dissents the conclusion of the second issue. He would uphold the lower court’s decision and conclude that “this case would not exist but for the unlawful closure of the lower branch road….[A] person may not illegally block a road created by action of a public government entity, and then use that blockage as evidence to support a claim of reverse adverse possession that extinguishes the public’s prescriptive right to any other property or interest in property.”

Co op days shy of being able to claim adverse possession

by Andrea Vaage and Gary Taylor

Quality Ag Service of Iowa Inc. v. Burlington Northern Santa Fe Railway
Federal 8th Circuit Court of Appeals, October 30, 2015

At issue is the ownership of a sidetrack adjacent to two Burlington Northern Santa Fe Railway (BNSF) tracks running through Melrose, Iowa. Quality Ag of Iowa purchased land on August 25, 2000 from Farmers Coop, which purchased land from BNSF in 1994.  The sale did not include the sidetrack adjacent to the purchased parcel; however, Quality Ag has used the sidetrack to receive fertilizer shipments since 2000. On August 3, 2010, one of BNSF’s trains derailed east of the sidetrack. BNSF used the sidetrack to store equipment after the derailment, preventing Quality Ag from using the sidetrack for fertilizer shipments. Instead, Quality Ag was forced to truck fertilizer in at increased expense.  Quality Ag sued BNSF for damages due to the increased cost of delivery, and property damages resulting from the derailment.  The claim was dismissed and an appeal ensued.

Quality Ag’s owner testified that he believed the sidetrack was part of the land purchased from Farmers Coop because a Farmers Coop representative told him that it did at the time of the sale. He also testified that BNSF entered into a written agreement with Quality Ag that BNSF could use the sidetrack if BNSF maintained it; however, the owner was unable to produce this agreement for trial. Conversely, BNSF was able to produce a land survey showing they owned the sidetrack. On appeal, Quality Ag raised the claim that it owns the sidetrack due to adverse possession.

In order to prove a claim of adverse possession a party must “establish hostile, actual, open, exclusive and continuous possession, under a claim of right or color of title, for at least a ten year period.” Quality Ag would need to establish that it met those conditions from August 25, 2000 to August 25, 2010. Since BNSF used the track for equipment storage on August 3, 2010 and beyond, after the derailment, Ag Services failed to show continuous sole use for a full ten year period.  The maintenance agreement claim also failed because Quality Ag was unable to produce the maintenance agreement or othershow it owned the sidetrack.

The decision of the district court was affirmed.

http://media.ca8.uscourts.gov/opndir/15/10/143025P.pdf

 

Landowner unable to claim adverse possession over land subject to street easement

by Victoria Heldt

Donald Hector, et al. v. Gary Hoffer, et al., City of Adrian
(Minnesota Court of Appeals, December 12, 2011)

This case involves an undeveloped street easement in the City of Adrian, Minnesota.  The easement was granted in 1891 in order to develop Second Street, but the street was not developed towards the western end.  The Hoffers and the Lonnemans own property on the southern edge of the easement while the Hectors own property to the immediate north and west of the easement.  The Hectors bought their property in 1995 and the Lonnemans and the Hoffers both acquired their properties between 2005 and 2006.  Neither of the deeds conveying the property contained rights to the land under the easement.  When the Hoffers and the Lonnemans purchased their properties, a wire fence and a row of volunteer trees ran through the middle of the easement.  Both the Hoffers and Lonnemans found them to be an eyesore and wanted them removed, but the Hectors disagreed.  Thinking that the fence and trees were on city property, Mark Hoffer asked the city zoning administrator if he could remove them.  The zoning administrator said yes because he believed they were on a city right of way, but the Hectors objected.  After receiving permission from the city administrator, the Hoffers and Lonnemans removed the fence and trees.

The Hectors filed suit in district court initially only making claims against the Hoffers and the Lonnemans.  The Hectors sought a declaration that they owned the property either by title or by adverse possession and requested damages from the Hoffers and Lonnemans for trespass and for the removal of the fence and trees.  The Hectors also claimed that a drain tile (installed by the Hoffers and the Lonnemans) caused drainage onto one of their driveways. Later, the complaint was amended to include counts of trespass and conversion against the City.  The City, the Hoffers, and the Lonnemans all sought summary judgment.  The court granted summary judgment to the City, noting that its advice had been “based on a negligent misrepresentation of law, which is not actionable.”  The court additionally found that the Hectors owned the Property underlying the easement up to and including the fence line but not the property south of the line.  It concluded that the Hoffers and Lonnemans had trespassed and awarded the Hectors $200 in damages for the loss of the fence.  The Hectors appealed.

In its analysis, the Court first noted that, pertaining to the underlying interest of a public easement for a street, any abutting landowner has an interest in the property up to the middle of the street.  Subsequently, under the general rule, the Hoffers, the Lonnemans, and the Hectors would own their respective property underlying the easement up to the center line of the easement.  The Hectors first argued that they own all of the land under the easement since they own two intersecting sides of the land underlying the easement.  The Court focused on the fact that the original platters of the land owned the land both to the north and to the south of the easement.  Due to this fact, when the land was platted into blocks and the title of the Hectors block passed to them, they only took title up to the center of the street line.

Alternatively, the Hectors argued that they owned the entirety of the property under the easement due to adverse possession.  In order to claim property by adverse possession, a party must prove that it has used the property exclusively and continuously for 15 years.  The Hectors argued that Leander Ruffing, the previous owner of their property, had used the land exclusively for over 15 years.  The Court acknowledged that it is not necessary for the current owner to prove continuous ownership for 15 years and that the previous owner’s use could be accounted for in determining adverse ownership.  However, the Court still found that the Hectors failed to prove adverse ownership of the property to the south of the fence since that was not claimed to be used by Ruffing.  The Hectors’ warranty deed was dated October 1995 and they could not prove 15 years of use before the Court’s order in April 2010.  In addition, Victoria Hector herself admitted that the Hoffers and the Lonnemans used a portion of the easement to the south of the fence for a utility trailer.  This fact shows the Hectors did not maintain exclusive use of the property, and therefore the claim for title by adverse possession failed.

The Hectors also challenged the $200 in damages and the court’s failure to assign damages for the loss of trees.  Historically, the amount of damages due for a loss of trees has been measured by the difference in the value of the land before and after the removal of the trees.  The Hectors failed to prove that the value of the land had changed due to the loss of the trees.  Additionally, there was no evidence to show that the trees served an aesthetic purpose.  The Court affirmed the district court’s measure of damages.

The Hectors further argued for punitive damages.  In order for punitive damages to be appropriate, a showing must be made that the defendant “showed deliberate disregard for the rights or safety of others.”  Since the Hoffers and Lonnemans did not think the Hectors owned the trees or the fence (based on comments from the city zoning administrator) they did not show a “deliberate disregard” for the Hectors’ rights.  Consequently, the Court found punitive damages to be inappropriate.

In regards to the claim against the City, the Court found that, even if the district court’s summary judgment were reversed, it would have a minimal affect on the lawsuit since the Hectors were already awarded $200 in damages.  The Court affirmed the district court’s decision.

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