Burcalow Family, LLC v. Corral Bar, Inc. , 372 Mont. 498 ( 2013 )

November 14 2013
DA 12-0716
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 345
BURCALOW FAMILY, LLC,
Plaintiff and Appellant,
v.
THE CORRAL BAR, INC.,
Defendant, Appellee and Cross-Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV 10-379B
Honorable Mike Salvagni, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Michael J. Lilly, Berg, Lilly & Tollefsen, P.C.; Bozeman, Montana
For Appellee:
Arthur V. Wittich, Margaret M. Reader, Wittich Law Firm, P.C.; Bozeman,
Montana
Submitted on Briefs: September 18, 2013
Decided: November 14, 2013
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Appellant Burcalow Family, LLC, (Burcalow) appeals the decision of the Eighteenth
Judicial District Court, Gallatin County, that determined that The Corral Bar, Inc. (the
Corral) possesses a prescriptive easement over Burcalow property and that entitled the Corral
to rescind a license agreement between the parties. The Corral cross-appeals that the District
Court has not entered a final judgment. We reverse and remand.
¶2 We address the following issues on appeal:
1. Whether the Corral possesses a prescriptive easement over Burcalow’s
property.
2. Whether allegedly fraudulent representations by Burcalow’s counsel entitled
the Corral to rescind the parties’ license agreement.
3. Whether the November 2, 2012, judgment constituted a final judgment.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 The Corral Bar sits in the Gallatin Canyon along Highway 191 to the south of the
popular skiing destination at Big Sky, Montana. The Corral property consists of a bar,
restaurant, and motel on 0.563 acres of land. The bar and restaurant have been in operation
since the 1940s. The Corral Bar employs between 35 and 40 people. It serves annually
approximately 50,000-80,000 patrons.
¶4 The Corral purchased the Corral Bar and motel property in 1988. The property sits
contiguous to property formerly owned by the United States Forest Service (Forest Service).
In fact, part of the restaurant building, a storage shed, a well and water transmission line, a
satellite television system, a propane tank, and a sanitation system consisting of a dosing
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tank actually sit on property formerly owned by the Forest Service. The Corral obtained a
special use permit from the Forest Service to use this land.
¶5 The United States Congress in the 1990s authorized the Forest Service to trade
property in the Big Sky area with private property owners. The Forest Service and Big Sky
Lumber Company entered into an exchange agreement pursuant to these acts. The Forest
Service agreed to trade property that it owned in exchange for land that the Big Sky Lumber
Company owned. The Forest Service included in the exchange with Big Sky Lumber
Company property that the Corral used pursuant to its special use permit. The Forest Service
advised the Corral of the proposed exchange in December 1998. The Forest Service
informed the Corral that its special use permit would be terminated as of December 31, 1998.
¶6 Burcalow purchased certain lots in Section 28 and additional adjoining property from
the Big Sky Lumber Company on September 1, 1999. This property sits adjacent to the
Corral Bar and includes the former Forest Service land that the Corral had been using. After
Burcalow’s purchase of the land, Larry Burcalow (Larry), an owner of Burcalow, and the
Corral discussed the Corral’s possible purchase of the property used by the Corral. Larry
also had conversations with Devon White (Devon), an owner of the Corral, and Devon’s
business partner, David House, before September 1, 1999, in which Larry assured the two
that the parties could reach an agreement for the purchase of a portion of Section 28 so that
the Corral could complete its expansion plans. Larry testified at trial that he told Devon that
if Burcalow bought Section 28, he would “make it right” with the Corral.
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¶7 The parties eventually agreed to a common boundary realignment. The Corral
exchanged the north and south corners of its land for a similar area of Burcalow’s land to the
west of the Corral’s property. The Corral’s property included in this trade to Burcalow
enjoyed direct access to Highway 191. The Corral used the land that it acquired from
Burcalow to expand its kitchen. This exchange did not provide the Corral with sufficient
land, however, for its drain field or well. The Corral nevertheless continued to use the land
with its drain field and well.
¶8 Burcalow’s counsel wrote to the Corral on July 6, 2004. Burcalow’s counsel
informed the Corral that its special use permit had expired on the date that the Forest Service
conveyed its interest in the land to a private entity. As a result, the letter pointed out that the
Corral “ha[d] been using the 1.79 acres covered by the special use permit without express
authority to do so.”
¶9 Burcalow’s counsel proposed that the Corral and Burcalow execute an agreement for
the Corral’s continued use of that 1.79 acres. The letter warned, however, that the Corral and
Burcalow must reach an agreement “or a lawsuit [will be] filed to quiet the title to the
property not later than August 15, 2004.” The letter concluded with counsel’s assurance that
Burcalow was “interested in amicably working out an agreement” for the Corral’s continued
use of the land in question. Burcalow’s counsel cautioned the Corral that Burcalow “must
take legal action by August 15, 2004, to protect its interests in the event an agreement cannot
be reached.”
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¶10 The parties signed a license agreement effective August 1, 2004. The Corral agreed
to pay Burcalow $250.00 per year beginning on August 1, 2004, for the use of Burcalow’s
property pursuant to the agreement. The license agreement expired in August 2009. The
parties failed to negotiate the Corral’s purchase of the land.
¶11 Burcalow filed a suit against the Corral in 2010 in which it alleged claims for trespass
and a declaratory judgment. The Corral answered and asserted six counterclaims:
prescriptive easement, detrimental reliance, mistake, negligent misrepresentation, fraud, and
breach of the covenant of good faith and fair dealing, and requested that the license
agreement be rescinded.
¶12 Burcalow filed a motion for separate trials. It requested a bench trial on the equitable
claims for declaratory judgment, rescission (i.e. mistake and fraud), estoppel (i.e. detrimental
reliance), and prescriptive easement. It requested a jury trial for the remaining legal issues of
trespass, negligent misrepresentation, and breach of the covenant of good faith and fair
dealing. The District Court granted Burcalow’s motion to bifurcate.
¶13 The District Court issued findings of fact, conclusions of law, and an order on
October 12, 2012. The District Court determined that the Corral possessed a prescriptive
easement over and across Burcalow’s property. The District Court also rescinded the license
agreement. Thus, the District Court estopped Burcalow from relying upon the license
agreement and ordered Burcalow to refund the $1,250.00 in fees that the Corral had paid
under the license agreement. The District Court entered a judgment on November 2, 2012,
in accordance with its October 12, 2012, order.
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¶14 The District Court conducted a hearing on May 1, 2013, to address whether its
November 2, 2012, order constituted a final order. The Corral argued that it never had the
chance to present its remaining counterclaims to a jury, including its claims for negligent
misrepresentation, detrimental reliance, fraud, and breach of the covenant good faith and fair
dealing. The District Court disagreed and deemed its November 2, 2012, judgment to be
final. In doing so, the District Court implicitly dismissed the Corral’s counterclaims.
STANDARD OF REVIEW
¶15 We review for clear error a district court’s findings of fact. Boyne USA, Inc. v.
Spanish Peaks Dev., LLC, 2013 MT 1, ¶ 28, 368 Mont. 143, 292 P.3d 432. We review for
correctness a district court’s legal determination. N. Cheyenne Tribe v. Roman Catholic
Church, 2013 MT 24, ¶ 21, 368 Mont. 330, 296 P.3d 450.
DISCUSSION
¶16 Whether the Corral possesses a prescriptive easement over Burcalow’s property.
¶17 Burcalow argues that the Corral cannot meet the five-year statutory requirement
needed to establish a prescriptive easement on Burcalow’s property. Burcalow first claims
that the Forest Service owned the Burcalow property at the time that the District Court
concluded that the Corral’s adverse possession began. Burcalow emphasizes that adverse
use cannot run against the federal government. Burcalow next maintains that the Corral’s
use of Burcalow’s land cannot be characterized as adverse in light of the mutual agreement
by the parties to allow the Corral’s use of the land as set forth in the license agreement.
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¶18 A prescriptive easement claim requires exclusive, continuous, uninterrupted, open,
notorious, and adverse use of a piece of property for five years. Section 70-19-404, MCA;
Brown & Brown of MT, Inc. v. Raty, 2012 MT 264, ¶ 19, 367 Mont. 67, 289 P.3d 156. A
party cannot obtain title to government property through adverse possession or use under
Montana law. Davis v. Hall, 2012 MT 125, ¶ 34, 365 Mont. 216, 280 P.3d 261. Other
jurisdictions routinely have recognized that private entities cannot acquire a right to use
property owned by the government via prescription. United States v. California, 332 U.S.
19, 39-40, 67 S. Ct. 1658, 1669 (1947), superseded on other grounds, 43 U.S.C. § 1301;
United States v. Osterlund, 505 F. Supp. 165, 168 (D. Colo. 1981); State v. Hutchison, 721
N.W.2d 776, 782 (Iowa 2006). Courts understand that the federal government lacks the
resources to monitor continuously whether people adversely are using its vast land holdings.
Restatement (Third) of Property: Servitudes § 2.17 cmt. e (2000).
¶19 The District Court determined that the Corral’s adverse use began on December 31,
1998, and, as a result, concluded that the Corral had met the five-year statutory requirement
for a prescriptive easement. Thus, the District Court found that the Corral’s adverse use ran
from December 31, 1998, the date that the Corral’s special use permit terminated, until
August 1, 2004, the effective date of the license agreement. The District Court recognized,
though, that the Forest Service owned the property in question from December 31, 1998,
until August 23, 1999.
¶20 The District Court distinguished Davis and other federal and state court decisions in
order to determine that the Corral’s adverse use started on December 31, 1998. The District
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Court acknowledged that a party cannot acquire a prescriptive easement against the federal
government. The Court reasoned, however, that the Corral was not seeking to acquire a
prescriptive easement against the federal government. The District Court pointed out that the
Corral instead asserted a prescriptive easement on Burcalow’s privately owned land.
¶21 A private party cannot obtain a prescriptive easement against the federal government.
See Davis, ¶ 34. Accordingly, a private party’s adverse use of property cannot begin to run
while the federal government owns that property. See Pines, Inc. v. Bossingham, 963 P.2d
397, 400 (Idaho App. 1998); Sandmaier v. Tahoe Dev. Group, 887 A.2d 517, 518-19 (Me.
2005); Kiowa Creek Land & Cattle Co. v. Nazarian, 554 N.W.2d 175, 176-77 (Neb. App.
1996); Herbertson v. Iliff, 775 P.2d 754, 756 (N.M. App. 1989). These courts have
recognized the inability of the federal government to monitor whether a private party has
been using its property without permission. Consequently, to allow a party’s adverse use to
run against the federal government would create problems if the government ever sold any
land. One court opined that it “would be impossible” for a new buyer to defend against a
claim of a prescriptive easement on a piece of land formerly owned by the government.
Kiowa Creek, 554 N.W.2d at 177. “No one could purchase that land from the government
without the land being subject to the possibility of an easement immediately upon sale.”
Kiowa Creek, 554 N.W.2d at 177. We agree. The Corral’s adverse use of the property in
question could not have begun to accrue until the Forest Service conveyed title to the
property to a private entity on August 23, 1999.
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¶22 The Corral argues in the alternative that even if its adverse use did not begin until
August 23, 1999, the license agreement effective on August 1, 2004, was invalid. The theory
of prescriptive easement requires adverse use. Brown & Brown, ¶ 19. A party cannot
acquire a prescriptive easement if the owner of the servient estate shows that use had been
permissive. Pederson v. Ziehl, 2013 MT 306, ¶ 13, 372 Mont. 223, __P.3d___; Brown &
Brown, ¶ 19. Burcalow permitted the Corral to use its property pursuant to the license
agreement. A valid license agreement would establish permissive use and defeat the Corral’s
claim of adversity. Pederson, ¶ 13.
¶23 The District Court invalidated the license agreement due to what it deemed false
representations in Burcalow’s July 6, 2004, letter. The District Court focused on Burcalow’s
representations that the Corral had no right to use Burcalow’s property. The District Court
determined that the Corral did have a right to use Burcalow’s property due to its possession
of a prescriptive easement over the property.
¶24 The Corral lacked a prescriptive easement at the time Burcalow’s counsel sent the
letter on July 6, 2004. The parties entered into a license agreement effective on August 1,
2004. The five-year statutory period for adverse use would not have passed until August 23,
2004—five years after the Forest Service transferred the property to a private party.
Burcalow’s counsel sent the letter to the Corral on July 6, 2004. Burcalow’s counsel made
no false representations under these circumstances.
¶25 Nothing estops Burcalow from relying on the license agreement. The license
agreement defeats the Corral’s claims of adverse use. Pederson, ¶ 13. Burcalow permitted
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the Corral’s use of its land pursuant to the agreement. The Corral cannot demonstrate that it
has used Burcalow’s property adversely for the requisite five-year period required to
establish a prescriptive easement. Heller v. Gremaux, 2002 MT 199, ¶ 12, 311 Mont. 178,
53 P.3d 1259. We reverse the District Court’s determination that the Corral possesses a
prescriptive easement over Burcalow’s land.
¶26 Whether allegedly fraudulent representations by Burcalow’s counsel entitled the
Corral to rescind the parties’ license agreement.
¶27 Burcalow contends that the District Court improperly rescinded the license agreement,
and, as a result, that it should not have to return the Corral’s payments made pursuant to the
agreement. The District Court found that the elements for fraud, mistake of fact, and mistake
of law had all been met. The District Court appears to base this decision largely on the July
6, 2004, letter that Burcalow’s counsel sent to the Corral. The District Court focused on
Burcalow’s counsel’s claims that the Corral did not have authority to use Burcalow’s
property and Burcalow’s threatened legal action if the Corral did not enter into a license
agreement.
¶28 The Corral must establish nine elements to make out a prima facie case for fraud,
including the falsity of a representation relied upon by the hearer to his detriment. McCulley
v. Am. Land Title Co., 2013 MT 89, ¶ 32, 396 Mont. 433, 300 P.3d 679. The Corral cannot
fulfill the false representation element required to establish a prima facie case for fraud. The
letter from Burcalow’s counsel’s contains no false representations. McCulley, ¶ 32. The
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Corral possessed no prescriptive easement on July 6, 2004. Burcalow’s counsel accurately
described the Corral’s lack of authority to use Burcalow’s property.
¶29 Montana law addresses two kinds of mistake—(1) mistake of fact and (2) mistake of
law. Section 28-2-408, MCA. A mistake of fact entails, in part, the belief in the present
existence of a thing material to the contract that “does not exist or in the past existence of
such a thing which has not existed.” Section 28-2-409(2), MCA. A mistake of law often
arises from “a misapprehension of the law by all parties,” in which all parties made
“substantially the same mistake as to the law.” Section 28-2-410(1), MCA.
¶30 Burcalow’s counsel made no mistake of fact when he claimed that the Corral lacked
the authority to use Burcalow’s property. The Corral did not possess a prescriptive easement
in July 2004. For the same reason, the Corral also cannot invoke the mistake of law doctrine.
Burcalow’s counsel correctly represented the respective legal positions of the parties as of
the date of the letter. We reverse the District Court’s decision to rescind the license
agreement.
¶31 Whether the November 2, 2012, judgment constituted a final judgment.
¶32 The Corral argues that the District Court’s November 2, 2012, judgment deprived it of
a jury trial on its negligent misrepresentation claim. The District Court relied upon what it
characterized as the Corral’s certification that the case could be concluded in its response to
Burcalow’s motion for separate trials. The Corral had opposed bifurcation based upon the
fact that “the issues in this case are not distinct and separate but have many common facts.”
The Corral further contended that all of the claims, especially those that are based in fraud,
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“are so intertwined, the judge in a judge trial would hear similar testimony to the jury in a
jury trial.”
¶33 The Corral provided three scenarios for the District Court to consider in its response
to Burcalow’s motion for separate trials. The Corral first posited that the jury could decide
that fraud on the part of Burcalow supported a decision to rescind the license agreement and
that the Corral possessed a prescriptive easement. The Corral argued that the case would be
“over” under that scenario. The District Court indeed deemed the case to be “over” based
upon its decision to rescind the license agreement and award a prescriptive easement to the
Corral.
¶34 The District Court based its final judgment ruling on its impression that the Corral had
woven its counterclaims with its request to rescind the license agreement. The District Court
thus reasoned that its decision to rescind the license agreement, as requested by the Corral,
had rendered moot the Corral’s remaining counterclaims. By the Corral’s own
representation in its response to Burcalow’s motion for separate trials this outcome resolved
all disputes and rendered a final judgment. M. R. App. P. 4(1)(a).
¶35 Our decision on appeal, however, upends the finality of the District Court’s order.
We have reversed the District Court’s decision to rescind the license agreement and we have
reversed the District Court’s award of a prescriptive easement to the Corral. This outcome
has resuscitated the Corral’s remaining counterclaims. The District Court’s entry of a final
judgment deprived the Corral of the chance to have a jury resolve its counterclaims. The
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District Court must provide the Corral with the opportunity to present its remaining claims to
a jury for resolution.
¶36 The Corral’s claim for negligent misrepresentation remains unresolved. To establish
a negligent misrepresentation claim, the Corral must show that: (1) Burcalow made a
representation about a material fact, (2) the representation was untrue, (3) Burcalow did not
have any reasonable ground for believing it to be true, (4) Burcalow made the representation
with the intent to induce the Corral to rely on it, (5) the Corral was unaware of the falsity of
the representation and justifiably relied upon the representation, and (6) the Corral must have
sustained damage because of this reliance. Harpole v. Powell County Title Co., 2013 MT
257, ¶ 28, 371 Mont. 543, 309 P.3d 34.
¶37 The Corral alleges in its counterclaim that Burcalow had represented to the Corral
numerous times that Burcalow would take care of the Corral and the Corral’s business and
that Burcalow would sell the property at issue to the Corral at a reasonable price. The
District Court discussed in its findings of fact that Larry had assured the Corral that
Burcalow and the Corral could reach an agreement for the purchase of a portion of Section
28. Larry testified at trial that he told Devon that he would “make it right” with the Corral if
Burcalow bought Section 28.
¶38 The Corral contends that it traded property with Burcalow in 1999 in anticipation of
future resolution regarding the disputed property. The Corral further claims to have relied
upon Larry’s representations when it reconstructed its kitchen and drilled a well on
13
Burcalow’s property. These allegations state a claim for negligent misrepresentation.
Harpole, ¶ 28.
¶39 We remand to the District Court to allow the Corral to proceed with its counterclaim
based upon Burcalow’s alleged negligent misrepresentations and any other valid claims
previously asserted. See Zavarelli v. Might, 239 Mont. 120, 125-26, 779 P.2d 489, 493
(1989) (stating, “On remand, the trial court may consider or decide any matters left open by
the appellate court, and is free to make any order or direction in further progress of the case,
not inconsistent with the decision of the appellate court, as to any question not presented or
settled by such decision.”). The same allegations by the Corral that Burcalow promised to
sell land to the Corral at a fair price also may support a counterclaim for detrimental reliance
if the Corral can demonstrate that Burcalow’s alleged promise induced it to take steps to its
detriment. The Corral’s counterclaim for its alleged breach of the covenant of good faith and
fair dealing also flows from this same alleged promise by Burcalow as this notion of good
faith underlies every contract. Phelps v. Frampton, 2007 MT 263, ¶ 29, 339 Mont. 330, 170
P.3d 474. Finally, the Corral’s counterclaim for fraud also stems from its allegation that
Burcalow made material representations upon which Burcalow intended from the Corral to
rely. Western Sec. Bank v. Eide Baily LLP, 2010 MT 291, ¶ 56, 359 Mont. 34, 249 P.3d 35.
¶40 Reversed and remanded for further proceedings in accordance with this opinion.
/S/ BRIAN MORRIS
We concur:
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/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JIM RICE
Justice Laurie McKinnon, concurring.
¶41 I agree with the Court’s analysis and conclusion that a party cannot obtain title to
government property through adverse possession or use. The distinction drawn by the
District Court that the Corral was not attempting to acquire a prescriptive easement against
the federal government, but rather against a private landowner, is inconsistent with this well-
established principle. I further agree that, based upon the findings of fact made by the
District Court pertaining to fraud in the license agreement, our decision that there was no
prescriptive easement requires reversal of the District Court’s order rescinding the license
agreement. I write separately to highlight procedural problems which I perceive occurred in
the District Court and which, as a result, have caused the proceedings before this Court to be
similarly difficult to sort through.
¶42 The difficulties appear to have started with the November 17, 2011 Pretrial Order,
which identified as an unresolved issue the question as to which of the parties’ claims would
be decided by the court and which would be decided by a jury. Burcalow had not requested
a jury trial on its claims, but the Corral had demanded a jury trial on its counterclaims. In
response to the Pretrial Order, Burcalow filed a Motion for Order Resolving Legal Issue
Prior to Trial. Burcalow asserted that a jury should resolve all factual issues associated with
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Burcalow’s trespass claim, the Corral’s negligent misrepresentation claim, and the Corral’s
claim for breach of the covenant of good faith and fair dealing. Burcalow further asserted
that the court should resolve the Corral’s rescission claim and the Corral’s prescriptive
easement claim. As authority for bifurcating the claims in this manner, Burcalow cited City
of Great Falls v. Forbes, 2011 MT 12, ¶ 18, 359 Mont. 140, 247 P.3d 1086, which states that
“[a] party has a right to a jury trial only on the legal claims even in litigation involving both
equitable and legal claims.” When the Corral failed to file a response to Burcalow’s motion,
the District Court granted the motion.
¶43 Bifurcation of the proceedings arose again, this time on the District Court’s initiative,
during the parties’ oral argument on Burcalow’s motion for summary judgment. As a result,
the parties submitted post-hearing briefs with differing proposals as to how the various
claims should be tried. At this point, the various bifurcation scenarios contemplated by the
parties were muddled and confusing—both as to the parties’ positions as well as the claims
being considered on the issue of bifurcation. Burcalow requested, first, a judge trial on the
equitable claims, which were identified as Burcalow’s claim for declaratory judgment and
the Corral’s claims for rescission, estoppel, and prescriptive easement. This was to be
followed, if necessary, by a jury trial on the legal claims, which were identified as
Burcalow’s claim of trespass and the Corral’s claims for negligent misrepresentation and
breach of the covenant of good faith and fair dealing. The Corral, on the other hand, argued
that there should be a jury trial on all claims because the issues were so intertwined and there
existed the potential for conflicting findings of fact from the judge and the jury. The Corral
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objected to bifurcation and maintained its right to have all factual issues tried by a jury. See
Gray v. City of Billings, 213 Mont. 6, 12-14, 689 P.2d 268, 271-72 (1984). At the same
time, however, the Corral conceded that the court should make certain initial determinations
prior to trial—namely, whether the Corral’s use of Burcalow’s property while it was owned
by the Forest Service could be included within the period of prescriptive use, and what
position the parties would be in if the license agreement were to be rescinded.
¶44 It seems that all of the confusion surrounding bifurcation stems from the parties’
competing interests in having or not having their claims heard by a jury and a vehicle by
which to accomplish that result. I can only assume that Burcalow perceived a judge trial
would benefit its interests while the Corral, conversely, desired to have all claims resolved
by a jury. In any event, it appears the main concern of counsel and the court regarded the
prescriptive easement and the license agreement. While the parties disputed whether a
prescriptive easement claim should be decided by a judge or a jury, they both agreed that the
ultimate issue needing to be resolved concerned prescriptive use against the Forest Service.
This issue very simply could have been decided by the court, as a matter of law and
undisputed fact, and the parties then could have proceeded to a jury trial with argument
thereafter being made about how to appropriately instruct the jury.
¶45 The District Court granted Burcalow’s motions for separate trials pursuant to
M. R. Civ. P. 42(b). The case proceeded to a two-day judge trial starting June 5, 2012.
Thereafter, the District Court entered findings of fact and conclusions of law. The court
determined that the Corral has a prescriptive easement over Burcalow’s property, that the
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parties’ license agreement should be rescinded, and that Burcalow should be estopped from
relying on the license agreement. The court entered judgment in favor of the Corral on these
claims, including an award of damages, on November 2, 2012, but indicated that the case
would proceed to trial on the remaining claims. Nevertheless, Burcalow filed a notice of
appeal, to which the Corral objected on the ground that it was premature since the District
Court had not yet entered a final judgment as to all claims.
¶46 In its May 7, 2013 Decision and Order, the District Court concluded that its
November 2, 2012 judgment was a final judgment which conclusively determined the
parties’ rights and settled all claims. The court reasoned that by declaring a prescriptive
easement in favor of the Corral and by rescinding the license agreement, there no longer
were any factual or legal grounds supporting the parties’ other claims. We have not
addressed the propriety of this reasoning; however, given the nature of these proceedings, I
agree with our decision finding that the District Court implicitly dismissed the Corral’s
remaining counterclaims. Opinion, ¶ 34. The District Court conducted a substantive
analysis on the election of remedies, drew conclusions regarding the various causes of action
set forth in the Corral’s counterclaims, and determined that none of the Corral’s
counterclaims survived. No other conclusion can be drawn from the District Court’s action
except that the Corral’s remaining claims were denied and dismissed.
¶47 We have reaffirmed today that, as a matter of law, a party cannot claim prescriptive
use against government-owned property. Opinion, ¶¶ 18, 21. We have also made clear that
the Corral has a right to a jury trial on any valid claims previously asserted, other than the
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claim of a prescriptive easement and the claim of fraud in the license agreement based on
representations that there was no prescriptive easement. Opinion, ¶¶ 35, 39. Finally, our
finding that the District Court implicitly dismissed the Corral’s remaining counterclaims,
thereby rendering this matter final for purposes of appeal, is supported by the District
Court’s May 7, 2013 Decision and Order. Hopefully these proceedings are now on solid
footing and may progress forward to a resolution.
¶48 I concur.
/S/ LAURIE McKINNON
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