Mont. Code Ann. » TITLE 70. PROPERTY · CHAPTER 19. REAL PROPERTY ACTIONS GENERALLY LIMITATIONS AND ADVERSE POSSESSION · Part 4. Limitations and Adverse Possession
Montana Code Annotated

Mont. Code Ann. § 70-19-401 (2026)

Action For Recovery -- Possession Within 5 Years Required

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 70
  3. CHAPTER 19
  4. Part 4
  5. 70-19-401 Action for recovery -- possession within 5 years required

TITLE 70. PROPERTY

CHAPTER 19. REAL PROPERTY ACTIONS GENERALLY LIMITATIONS AND ADVERSE POSSESSION

Part 4. Limitations and Adverse Possession

Action For Recovery -- Possession Within 5 Years Required

70-19-401. Action for recovery -- possession within 5 years required. An action for the recovery of real property or for the possession of real property may not be maintained unless it appears that the plaintiff or the plaintiff's ancestor, predecessor, or grantor was seized or possessed of the property in question within 5 years before the commencement of the action.

History: En. Sec. 29, p. 45, L. 1877; re-en. Sec. 29, 1st Div. Rev. Stat. 1879; re-en. Sec. 29, 1st Div. Comp. Stat. 1887; amd Sec. 483, C. Civ. Proc. 1895; re-en. Sec. 6432, Rev. C. 1907; re-en. Sec. 9015, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 318; re-en. Sec. 9015, R.C.M. 1935; amd. Sec. 1, Ch. 224, L. 1953; amd. Sec. 12, Ch. 263, L. 1975; R.C.M. 1947, 93-2504; amd. Sec. 2137, Ch. 56, L. 2009.

Notes of Decisions
Cited in 38 cases (4 in the last 5 years), 1979–2025 · leading case: Brimstone Mining, Inc. v. Glaus, 2003 MT 236 (Mont. 2003).
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Brimstone Mining, Inc. v. Glaus, 2003 MT 236 (Mont. 2003). · cites it 12× “Section 70-19-401, MCA. The period of prescriptive use by a claimant's predecessors in title inures to the benefit of the claimant.”
Renner v. Nemitz, 2001 MT 202 (Mont. 2001). · cites it 6× “Section 70-19-401, MCA. The period of prescriptive use by a claimant’s predecessors in title inures to the benefit of the claimant.”
Cook v. Hartman, 2003 MT 251 (Mont. 2003). · cites it 6× “Hartman argued that the *348 Plaintiffs had failed to establish continuous and uninterrupted use of the subject roads for the five-year prescriptive period set forth in § 70-19-401, MCA. The parties briefed the partial summary judgment motion and waived oral argument.”
Bonnie M. Combs-DeMaio Living Trust v. Kilby Butte Colony, Inc., 2005 MT 71 (Mont. 2005). · cites it 3× “Section 70-19-401, MCA. ¶15 Trust’s burden at trial was to prove the elements of prescription by clear and convincing evidence.”
Wareing v. Schreckendgust, 930 P.2d 37 (Mont. 1996). · cites it 3× “Section 70-19-401, MCA. All elements of prescriptive easement must be proved by a preponderance of the evidence or the claim will fail.”
Graham v. MacK, 699 P.2d 590 (Mont. 1985). · cites it 3× “The statutory period required is five years, section 70-19-401, MCA. Mack points out the use of the grade as a school bus road in the 1930’s and occasional use by hunters, loggers and berry-pickers in support of her claim of a prescriptive public easement.”
Leichtfuss v. Dabney, 2005 MT 271 (Mont. 2005). · cites it 2× “However, she could have gained such an easement either (1) because it already existed when she purchased the Briggs Tract and was conveyed to her *138 by the Malones at that time or (2) through the doctrine of “tacking,” pursuant to which she could have added her use of the Dead…”
Keebler v. Harding, 807 P.2d 1354 (Mont. 1991). · cites it 3× “Section 70-19-401, MCA. The appellants were unable to sustain their burden of proof of a private easement by prescription for the period of time after they pmchased their property.”
Steiger v. Brown, 2007 MT 29 (Mont. 2007). · cites it 3× “¶20 If a claimant establishes by clear and convincing evidence the elements of open, notorious, exclusive, continuous, and uninterrupted use of an easement, a presumption arises that the use is adverse to the servient estate and the burden then shifts to the owner to show the…”
Bretz v. Ayers, 756 P.2d 1115 (Mont. 1988). · cites it 8× “) Section 70-19-401, MCA. The District Court then found that Dewey, and thus Bretz, were complete strangers to the record title of the Aakre oil and gas lease and thus barred by the statutes to bring a quiet title action.”
Downing v. Grover, 772 P.2d 850 (Mont. 1989). · cites it 3× “Section 70-19-401, MCA. All elements of prescriptive easement must be proved by a preponderance of the evidence or the claim will fail.”
Gue v. Olds, 799 P.2d 543 (Mont. 1990). · cites it 8× “Did the court err in concluding that § 70-19-401, MCA, barred the Gues’ action to quiet title? 4.”
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