Burlingame v. Marjerrison

In Burlingame v. Marjerrison, 204 Mont. 464 (1983) the Court noted that "both prescriptive easements and title by adverse possession are established in a similar manner." In distinguishing between the two, the Court held: Where a prescriptive right to a servitude has the effect of Ieaving the owner with an empty fee title, the situation is not one of prescriptive right in the form of an easement. It has ripened into a claim for adverse possession Here, Marjerrisons' use and occupancy of the land did not amount to acquisition of an easement that was merely appurtenant to the dominant tenement. It must rather be characterized as complete possession, dominion and use of the parcel to the exclusion of Burlingames and their predecessors in interest. It takes on the aspect of a fee. Marjerrisons first lived on the property in 1935. Testimony established that the plot was used for gardening. Corn was raised. Cows and horses were and horses were pastured and watered here. A fence in some form or another has existed since 1935. (Burlingame, 204 Mont. at 471, 665 P.2d at 1140.)