adverse claim in Montana

2003To this end, the Iowa Supreme Court has often repeated the maxim that “the custody of children should be quickly fixed and seldom disturbed.” Denly, 590 N.W.2d at 51 .

2003To this end, the Iowa Supreme Court has often repeated the maxim that "the custody of children should be quickly fixed and seldom disturbed." Denly, 590 N.W.2d at 51 .

2003Glaus asserts he regained control of the easement by locking the gate because under Public Lands Access Ass’n and Downing v. Grover (1989), 237 Mont. 172 , 772 P.2d 850 overruled in part by Wareing v. Schreckendgust (1996), 280 Mont. 196 , 930 P.2d 37 , permissive use after a hostile act is sufficiently inconsistent to extinguish an easement.

2003Glaus asserts he regained control of the easement by locking the gate because under Public Lands Access Ass’n and Downing v. Grover (1989), 237 Mont. 172 , 772 P.2d 850 overruled in part by Wareing v. Schreckendgust (1996), 280 Mont. 196 , 930 P.2d 37 , permissive use after a hostile act is sufficiently inconsistent to extinguish an easement.

1907In the case of Mattingly v. Lewisohn, 8 Mont. 259 , 19 Pac. 310 , decided by the territorial supreme court in 1888, it was first declared in this jurisdiction that the allegations referred to are substantial facts, which must be alleged by the plaintiff in order to warrant a recovery.

1904The rule -was first' declared by the territorial supreme court in Mattingly v. Lewisohn, 8 Mont. 259 , 19 Pac. 310 .

2018The use "must give the landowner actual knowledge of the claimed right, or be of such a character as to raise a presumption of notice." Albert v. Hastetter , 2002 MT 123 , ¶ 21, 310 Mont. 82 , 48 P.3d 749 . ¶ 22 Phillips acknowledges that the Walkers' use was open and obvious, but claims that she lacked notice of the adverse claim and the ***57 opportunity to know that her title was in jeopardy.

2018The use "must give the landowner actual knowledge of the claimed right, or be of such a character as to raise a presumption of notice." Albert v. Hastetter , 2002 MT 123 , ¶ 21, 310 Mont. 82 , 48 P.3d 749 . ¶ 22 Phillips acknowledges that the Walkers' use was open and obvious, but claims that she lacked notice of the adverse claim and the ***57 opportunity to know that her title was in jeopardy.

2015Against this backdrop, we turn to the question of whether the District Court abused its discretion in failing to impose a default judgment. ¶20 District courts “are well equipped under the Montana Rules of Civil Procedure to address the problem [of spoliation of evidence] as it occurs and deal with it accordingly, even entering default when the circumstances justify such relief.” Oliver v. Stimson Lumber Co., 1999 MT 328, ¶ 32 , 297 Mont. 336 , 993 P.2d 11 .

2015Against this backdrop, we turn to the question of whether the District Court abused its discretion in failing to impose a default judgment. ¶20 District courts “are well equipped under the Montana Rules of Civil Procedure to address the problem [of spoliation of evidence] as it occurs and deal with it accordingly, even entering default when the circumstances justify such relief.” Oliver v. Stimson Lumber Co., 1999 MT 328, ¶ 32 , 297 Mont. 336 , 993 P.2d 11 .

2015The court found that this “purported sanction would have absolutely no punitive, deterrent, or remedial value” and would otherwise condone “the spoliation of the best evidence available to resolve the factual dispute with the greatest accuracy.” Peschel, 664 F. Supp. 2d at 1145 . ¶36 The court in Peschel further concluded that the rebuttable presumption created by an adverse instruction allowing the jury to infer that the video recording would have been unfavorable to the City “would not sufficiently punish the City for its spoliation nor serve as a sufficient disincentive to destroy evidence,

2015The court found that this “purported sanction would have absolutely no punitive, deterrent, or remedial value” and would otherwise condone “the spoliation of the best evidence available to resolve the factual dispute with the greatest accuracy.” Peschel, 664 F. Supp. 2d at 1145 . ¶36 The court in Peschel further concluded that the rebuttable presumption created by an adverse instruction allowing the jury to infer that the video recording would have been unfavorable to the City “would not sufficiently punish the City for its spoliation nor serve as a sufficient disincentive to destroy evidence,

2014Brown & Brown of MT, Inc. v. Raty, 2012 MT 264, ¶ 34 , 367 Mont. 67 , 289 P.3d 156 (concluding that “the undisputed evidence establishes that residential and recreational uses were within the scope of the prescriptive easement”); Schmid v. Pastor, 2009 MT 280, ¶ 21 , 352 Mont. 178 , 216 P.3d 192 (finding recreational use sufficient to give notice to the servient owner of an adverse claim to support a narrow prescriptive easement for recreational, but not residential, purposes); PLAA v. Jones, 2004 MT 394, ¶ 33 , 325 Mont. 236 , 104 P.3d 496 (considering recreational use among other factors est

2014Brown & Brown of MT, Inc. v. Raty, 2012 MT 264, ¶ 34 , 367 Mont. 67 , 289 P.3d 156 (concluding that “the undisputed evidence establishes that residential and recreational uses were within the scope of the prescriptive easement”); Schmid v. Pastor, 2009 MT 280, ¶ 21 , 352 Mont. 178 , 216 P.3d 192 (finding recreational use sufficient to give notice to the servient owner of an adverse claim to support a narrow prescriptive easement for recreational, but not residential, purposes); PLAA v. Jones, 2004 MT 394, ¶ 33 , 325 Mont. 236 , 104 P.3d 496 (considering recreational use among other factors est

2014Brown & Brown of MT, Inc. v. Raty, 2012 MT 264, ¶ 34 , 367 Mont. 67 , 289 P.3d 156 (concluding that “the undisputed evidence establishes that residential and recreational uses were within the scope of the prescriptive easement”); Schmid v. Pastor, 2009 MT 280, ¶ 21 , 352 Mont. 178 , 216 P.3d 192 (finding recreational use sufficient to give notice to the servient owner of an adverse claim to support a narrow prescriptive easement for recreational, but not residential, purposes); PLAA v. Jones, 2004 MT 394, ¶ 33 , 325 Mont. 236 , 104 P.3d 496 (considering recreational use among other factors est

2014Brown & Brown of MT, Inc. v. Raty, 2012 MT 264, ¶ 34 , 367 Mont. 67 , 289 P.3d 156 (concluding that “the undisputed evidence establishes that residential and recreational uses were within the scope of the prescriptive easement”); Schmid v. Pastor, 2009 MT 280, ¶ 21 , 352 Mont. 178 , 216 P.3d 192 (finding recreational use sufficient to give notice to the servient owner of an adverse claim to support a narrow prescriptive easement for recreational, but not residential, purposes); PLAA v. Jones, 2004 MT 394, ¶ 33 , 325 Mont. 236 , 104 P.3d 496 (considering recreational use among other factors est

2014Brown & Brown of MT, Inc. v. Raty, 2012 MT 264, ¶ 34 , 367 Mont. 67 , 289 P.3d 156 (concluding that “the undisputed evidence establishes that residential and recreational uses were within the scope of the prescriptive easement”); Schmid v. Pastor, 2009 MT 280, ¶ 21 , 352 Mont. 178 , 216 P.3d 192 (finding recreational use sufficient to give notice to the servient owner of an adverse claim to support a narrow prescriptive easement for recreational, but not residential, purposes); PLAA v. Jones, 2004 MT 394, ¶ 33 , 325 Mont. 236 , 104 P.3d 496 (considering recreational use among other factors est

2014Brown & Brown of MT, Inc. v. Raty, 2012 MT 264, ¶ 34 , 367 Mont. 67 , 289 P.3d 156 (concluding that “the undisputed evidence establishes that residential and recreational uses were within the scope of the prescriptive easement”); Schmid v. Pastor, 2009 MT 280, ¶ 21 , 352 Mont. 178 , 216 P.3d 192 (finding recreational use sufficient to give notice to the servient owner of an adverse claim to support a narrow prescriptive easement for recreational, but not residential, purposes); PLAA v. Jones, 2004 MT 394, ¶ 33 , 325 Mont. 236 , 104 P.3d 496 (considering recreational use among other factors est

2008As we stated in Nolan , “[i]t is inconceivable that it was the intention of Congress and of the Legislature to say that two or more persons crossing at random on each of a dozen trails across an open quarter section of land could constitute an acceptance of the government grant as to each of such trails, and the entire quarter section thus become but a series of irregular and divergent rights of way.” Nolan, 58 Mont. at 173 , 191 P. at 152 . ¶80 The Wisconsin Supreme Court reached a similar conclusion with respect to acceptance of the R.S. 2477 offer: As said in [Streeter v. Stallnaker, 85 N.W

2008As we stated in Nolan , “[i]t is inconceivable that it was the intention of Congress and of the Legislature to say that two or more persons crossing at random on each of a dozen trails across an open quarter section of land could constitute an acceptance of the government grant as to each of such trails, and the entire quarter section thus become but a series of irregular and divergent rights of way.” Nolan, 58 Mont. at 173 , 191 P. at 152 . ¶80 The Wisconsin Supreme Court reached a similar conclusion with respect to acceptance of the R.S. 2477 offer: As said in [Streeter v. Stallnaker, 85 N.W

2003Glaus asserts he regained control of the easement by locking the gate because under Public Lands Access Ass’n and Downing v. Grover (1989), 237 Mont. 172 , 772 P.2d 850 overruled in part by Wareing v. Schreckendgust (1996), 280 Mont. 196 , 930 P.2d 37 , permissive use after a hostile act is sufficiently inconsistent to extinguish an easement.

2003Glaus asserts he regained control of the easement by locking the gate because under Public Lands Access Ass’n and Downing v. Grover (1989), 237 Mont. 172 , 772 P.2d 850 overruled in part by Wareing v. Schreckendgust (1996), 280 Mont. 196 , 930 P.2d 37 , permissive use after a hostile act is sufficiently inconsistent to extinguish an easement.

1996See Unruh v. Task (1995), 271 Mont. 246, 250 , 896 P.2d 433, 436 ; Greenwalt, 885 P.2d at 424 ; Downing, 772 P.2d at 852 .

1992Polites v. United States (1960), 364 U.S. 426, 433 , 81 S.Ct. 202, 206 , 5 L.Ed.2d 173, 177 .

1992Polites v. United States (1960), 364 U.S. 426, 433 , 81 S.Ct. 202, 206 , 5 L.Ed.2d 173, 177 .

1979Townsend v. Koukol (1966), 148 Mont. 1 , 416 P.2d 532 .

1979Townsend v. Koukol (1966), 148 Mont. 1 , 416 P.2d 532 .

1946Therefore, as a general propostion, the entry on one cotenant enures to the benefit of all.’ Freeman on Cotenancy, (2d Ed.) sec. 166. ‘And, supported by the same reasons, and prevailing to the same extent, is the rule that the continuing possession of a eotenant, whether the entry was made by himself or in connection with his companions, is the possession of all the co-tenants.’ Id., sec. 167.” “Putting a tax deed for the whole tract on record is no ouster of a cotenant unless he knew of the adverse claim, and this is true even though the claimant enters under such a deed and exercises certain

1939The writ of possession was properly issued by the trial court under the conditions then existing, by virtue of section 9081, Revised Codes, reading: “In an action brought by a person out of possession of real property, to determine an adverse claim of an interest or estate therein, the person making such adverse claim and the persons in possession may be joined as defendants, and if the judgment be for the plaintiff, he may have a writ for the possession of the premises, as against the defendants in the action against whom the judgment has passed.” (And compare Doggett v. Johnson, 82 Mont. 338

1939The writ of possession was properly issued by the trial court under the conditions then existing, by virtue of section 9081, Revised Codes, reading: “In an action brought by a person out of possession of real property, to determine an adverse claim of an interest or estate therein, the person making such adverse claim and the persons in possession may be joined as defendants, and if the judgment be for the plaintiff, he may have a writ for the possession of the premises, as against the defendants in the action against whom the judgment has passed.” (And compare Doggett v. Johnson, 82 Mont. 338

1938(Moore v. Sherman, 52 Mont. 542 , 159 Pac. 966 .) Since the claim of the defendants, if any, to the waters of Crow Creek is not made under an appropriation by them, any claim to the use of the water as against the plaintiffs, who are not the owners of the “Swede Ditch,” cannot be adverse to the rights of such plaintiffs.

1938(Moore v. Sherman, 52 Mont. 542 , 159 Pac. 966 .) Since the claim of the defendants, if any, to the waters of Crow Creek is not made under an appropriation by them, any claim to the use of the water as against the plaintiffs, who are not the owners of the “Swede Ditch,” cannot be adverse to the rights of such plaintiffs.

1938(Warren v. Senecal, 71 Mont. 210 , 228 Pac. 71; Wheat v. Cameron, 64 Mont. 494 , 210 Pac. 761 .) A subsequent appropriation of water is not any notice of an adverse claim.

1938(Warren v. Senecal, 71 Mont. 210 , 228 Pac. 71; Wheat v. Cameron, 64 Mont. 494 , 210 Pac. 761 .) A subsequent appropriation of water is not any notice of an adverse claim.

1938(Warren v. Senecal, 71 Mont. 210 , 228 Pac. 71; Wheat v. Cameron, 64 Mont. 494 , 210 Pac. 761 .) A subsequent appropriation of water is not any notice of an adverse claim.

1938(Warren v. Senecal, 71 Mont. 210 , 228 Pac. 71; Wheat v. Cameron, 64 Mont. 494 , 210 Pac. 761 .) A subsequent appropriation of water is not any notice of an adverse claim.

1926(Pickens v. Stout, 67 W.

1924The statute enlarges the class of cases in which equitable relief could formerly be sought in the quieting of title.” The latter, a suit to remove a cloud, is directed at instruments rather than at adverse claims asserted by individuals, and preserves in statutory form one of the remedies afforded by courts of equity upon the principle of quia timet. (2 Story’s Equity Jurisprudence, 14th ed., sec. 935; Hicks v. Rupp, 49 Mont. 40 , 140 Pac. 97 ; Hopkins v. Walker, 244 U. S. 486 , 61 L.

1924The statute enlarges the class of cases in which equitable relief could formerly be sought in the quieting of title.” The latter, a suit to remove a cloud, is directed at instruments rather than at adverse claims asserted by individuals, and preserves in statutory form one of the remedies afforded by courts of equity upon the principle of quia timet. (2 Story’s Equity Jurisprudence, 14th ed., sec. 935; Hicks v. Rupp, 49 Mont. 40 , 140 Pac. 97 ; Hopkins v. Walker, 244 U. S. 486 , 61 L.

1924The statute enlarges the class of cases in which equitable relief could formerly be sought in the quieting of title.” The latter, a suit to remove a cloud, is directed at instruments rather than at adverse claims asserted by individuals, and preserves in statutory form one of the remedies afforded by courts of equity upon the principle of quia timet. (2 Story’s Equity Jurisprudence, 14th ed., sec. 935; Hicks v. Rupp, 49 Mont. 40 , 140 Pac. 97 ; Hopkins v. Walker, 244 U. S. 486 , 61 L.

1924The statute enlarges the class of cases in which equitable relief could formerly be sought in the quieting of title.” The latter, a suit to remove a cloud, is directed at instruments rather than at adverse claims asserted by individuals, and preserves in statutory form one of the remedies afforded by courts of equity upon the principle of quia timet. (2 Story’s Equity Jurisprudence, 14th ed., sec. 935; Hicks v. Rupp, 49 Mont. 40 , 140 Pac. 97 ; Hopkins v. Walker, 244 U. S. 486 , 61 L.

1924As was said by the-supreme court of California in Castro v. Barry, 79 Cal. 443 , 21 Pac. 946 , in construing a statute from which our section 9479 was copied: “The statute ‘does not confine the remedy to the case of an adverse claim ant setting üp a legal title or even an equitable one; but the Act intended to embrace every description of claim whereby -the plaintiff might be deprived of the property, or its title clouded, or its value depreciated, or whereby the plaintiff might be incommoded or damnified by the assertion of an outstanding title already held or to grow out of the adverse prete

1924As was said by the-supreme court of California in Castro v. Barry, 79 Cal. 443 , 21 Pac. 946 , in construing a statute from which our section 9479 was copied: “The statute ‘does not confine the remedy to the case of an adverse claim ant setting üp a legal title or even an equitable one; but the Act intended to embrace every description of claim whereby -the plaintiff might be deprived of the property, or its title clouded, or its value depreciated, or whereby the plaintiff might be incommoded or damnified by the assertion of an outstanding title already held or to grow out of the adverse prete

1923Ducie v. Ford, 8 Mont. 233 , 19 Pac. 414 , was an action to compel specific performance of a contract respecting the division of a mining claim after patent, the agreement having been entered into in advance of patent in settlement of an adverse claim.

1921(Davidson v. Nicholson, 59 Ind. 411 .) This court, without considering specifically the question now under review, has recognized the right of a claimant to an easement to maintain an action to quiet title under the statute above in two instances at least.

1907While it is a general rule that a motion for a nonsuit must state precisely the grounds on which the moving party relies, so that the attention of the court and opposing counsel may be directed to the supposed defects in .the plaintiff’s case (Coffey v. Greenfield, 62 Cal. 602 ), still where the defense of laches is relied upon, as in this instance, and it appears that the plaintiff knew of the defendant’s adverse claim for twelve years before he invoked the aid of the court, and had every opportunity to explain the delay, but offered no explanation whatever,' but waited until the relative pos

1904Co., 27 Mont. 288 , 10 Pac. 1114 .) It is said that the court had no jurisdiction of the action because it is apparent that the amended complaint was filed long after the expiration of the thirty days from and after the suspension of the proceedings in the land office; in other words, the court cannot proceed to judgment in such cases unless a complaint stating a cause of action has been filed within thirty days after the filing of the adverse claim.