Adjacent Landowner Acquired Prescriptive Easement to Cross Neighbor’s Ranchland Where Neighbor “Passively Acquiesced” to the Use.

In 1998, the plaintiff purchased ranch land adjacent to that of defendant.  Before the purchase, the defendant had crossed the land to move cattle and conduct other ranching and recreational operations. After the purchase, a dispute arose between the parties regarding the defendant’s right to cross the plaintiff’s property.  The animosity escalated until the plaintiff filed an action to exclude the defendant from his property. The trial court found that because the defendant had been crossing the property since 1973, he had acquired a prescriptive easement to continue the use. On appeal, the court affirmed. The plaintiff argued that defendant’s use began only through neighborly accommodation and that it could not ripen into a prescriptive easement. The court agreed that Montana law recognizes that land use based upon "mere neighborly accommodation" is not adverse use and cannot ripen into a claim for a prescriptive easement. However, the court stated a landowner's “passive acquiescence” to another's use of his land is not evidence of permissive use. The court found that the evidence supported a conclusion that the defendant’s use began with a claim of right that plaintiff’s predecessor in interest did not contest. One justice dissented, arguing that the evidence established that the defendant’s use was permissive and by neighborly accommodation. The court remanded the case for a redetermination of costs assessed to the plaintiff.  Lyndes v. Green, 374 Mont. 510 (2014).

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