McFADDEN, Chief Justice.
This is an appeal by Fred Montgomery, defendant-appellant, from a judgment in favor of plaintiffs-respondents, Alfred J. and Lillian Stecklein, husband and wife, in an action involving an alleged roadway across property owned by respondents, and for damages for injuries resulting from an alleged assault and battery. The court affirms the award of damages for the personal injuries, and reverses the balance of the judgment and remands for new trial.
The Steckleins filed this action against Montgomery seeking to enjoin him from trespassing on Stecklein property, for damages for various instances of alleged trespass and for assault and battery resulting from an altercation during one of the alleged trespasses. Montgomery counterclaimed, alleging that a public road traversed Stecklein’s property and that Steckleins had caused him damage by preventing his use of the public road. Montgomery also sought damages for assault and battery. Following trial, judgment was entered in favor of Steckleins on all counts except general and punitive damages for trespass. Montgomery was denied relief on his counterclaims.
At the outset the court has examined the record concerning the assignment of error directed to the trial court’s findings of an assault and battery upon Mr. Stecklein, and the award of special damages in the amount of $111.95 for the assault and battery. The record discloses a conflict in the evidence concerning this item. There is substantial and competent, although conflicting, evidence to sustain this finding and award, and under the oft repeated rule this court will not disturb such finding. I.R. C.P. 52(a). Ramseyer v. Ramseyer, 98 Idaho 47, 558 P.2d 76 (1976). That portion of the judgment is affirmed.
On appeal Montgomery contends the trial court erred in numerous of its findings of [673]*673fact regarding the roadway and in the conclusions of law based thereon.
Briefly the facts in this record disclose that the Steckleins and the Montgomerys own adjoining land. The Montgomery lands lay in the bottom of Rock Creek Canyon, near Twin Falls, and the Stecklein property, which is higher ground, adjoins the Montgomery property to the north. A roadway runs southerly from a public road to the Stecklein property, and to a fence on the Stecklein property. It then continues across a portion of the Stecklein property to the Montgomery property. It is this roadway which is the basis of this controversy.
Montgomery owned his property and also all of the Stecklein property from 1947 until 1951, when he sold a portion of his total holdings to a Mr. Starr. By mesne conveyances, the Steckleins became owners of their property on December 31, 1970, and have owned it to date.
Montgomery used the roadway since he acquired ownership of the land. After he conveyed to Mr. Starr in 1951, he continued to use the roadway, even though his conveyance to Starr contained no reservation of any easement across the land sold. None of the mesne conveyances subsequent to Starr, including the Steckleins, contain any reservation of any easement for this roadway. There was some evidence in the record from which it could be concluded that the roadway was well marked and obvious to anyone examining the premises, although no finding or conclusion in this regard was made. There was also evidence that this roadway is the only practical access to Montgomery’s property. See 2 Thompson Real Property § 352, p. 324 (1961).
On appeal Montgomery argues he has established a prescriptive use to this roadway over the Stecklein property. This argument is countered by the Steckleins’ contention that such issue was never raised by the pleadings nor presented to the trial court for resolution, and thus cannot be raised for the first time upon appeal. The trial court concluded that the Steckleins owned the land in question, and that “there is no public road, highway, or access over or upon the plaintiffs’ land described above and no person has any right to any use of said property without consent of plaintiffs.”
The preliminary question is whether the prescriptive easement issue was presented to the trial court. At the close of the presentation of appellant’s evidence, but prior to resting, his attorney moved to amend his counterclaim so as to read, “[t]hat your counterclaimant has exercised his rights to use the roadway.” Steckleins’ counsel objected “to the amendment of the pleadings at this time to comply with the proof” on the ground that “their proof had tended to show that they are now claiming what appears to be a prescriptive or an easement by prescription; and this is a complete deviation from the pleadings.” The court however, granted the motion to amend, and thus it is the conclusion of this Court that such issue was presented at trial for resolution and was never resolved. There were no findings of fact or conclusions of law entered dealing with that issue.
The trial court concluded that defendants had no easement or use of the claimed right of way over the Stecklein property and had no right to any use without the consent of the Steckleins. Such a conclusion cannot logically be made without first resolving the issue of whether Montgomery had a prescriptive right for the use of this easement or roadway.
This court has in the past and most recently in West v. Smith, 95 Idaho 550, 511 P.2d 1326 (1973), set forth the elements of proof necessary to establish a prescriptive easement. Those elements include a use which is open, notorious and adverse to the owner of the servient tenement and continuous in time for a period of five years. The trial court made no specific finding of fact regarding the existence or nonexistence of these specific elements. Based upon the following analysis of the elements of prescriptive easement, this court concludes that the record discloses facts from which it could be found that a prescriptive easement exists.
[674]*674There is evidence of continuous use for the five-year period required by statute. I.C. § 5-203. Montgomery testified as follows:
“Q. Have you used the road since 1947?
A. I have used that every year since that time.”
This testimony is uncontroverted. Further, witness Welch testified that he was employed by Montgomery to perform bulldozer work to improve the road in 1964 and 1967. Parrott testified that he was employed to make similar improvements in 1971. Professor Powell has noted that “[t]he making of repairs to facilitate further enjoyment of the use indicates an intent to continue the use and affords good ground for an inference of the required ‘continuousness.’ ” 3 Powell on Real Property, ¶413, p. 489 (1977). See also: 2 Thompson on Real Property, § 347, p. 275 (1961). The testimony that Montgomery regularly employed persons to repair and maintain the road from 1964 to 1971 is such evidence. This taken together with Montgomery’s testimony is strong and uncontroverted evidence of continuous use lasting for more than the required five year period.
Once continuous use has been established, a presumption of adverseness arises:
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McFADDEN, Chief Justice.
This is an appeal by Fred Montgomery, defendant-appellant, from a judgment in favor of plaintiffs-respondents, Alfred J. and Lillian Stecklein, husband and wife, in an action involving an alleged roadway across property owned by respondents, and for damages for injuries resulting from an alleged assault and battery. The court affirms the award of damages for the personal injuries, and reverses the balance of the judgment and remands for new trial.
The Steckleins filed this action against Montgomery seeking to enjoin him from trespassing on Stecklein property, for damages for various instances of alleged trespass and for assault and battery resulting from an altercation during one of the alleged trespasses. Montgomery counterclaimed, alleging that a public road traversed Stecklein’s property and that Steckleins had caused him damage by preventing his use of the public road. Montgomery also sought damages for assault and battery. Following trial, judgment was entered in favor of Steckleins on all counts except general and punitive damages for trespass. Montgomery was denied relief on his counterclaims.
At the outset the court has examined the record concerning the assignment of error directed to the trial court’s findings of an assault and battery upon Mr. Stecklein, and the award of special damages in the amount of $111.95 for the assault and battery. The record discloses a conflict in the evidence concerning this item. There is substantial and competent, although conflicting, evidence to sustain this finding and award, and under the oft repeated rule this court will not disturb such finding. I.R. C.P. 52(a). Ramseyer v. Ramseyer, 98 Idaho 47, 558 P.2d 76 (1976). That portion of the judgment is affirmed.
On appeal Montgomery contends the trial court erred in numerous of its findings of [673]*673fact regarding the roadway and in the conclusions of law based thereon.
Briefly the facts in this record disclose that the Steckleins and the Montgomerys own adjoining land. The Montgomery lands lay in the bottom of Rock Creek Canyon, near Twin Falls, and the Stecklein property, which is higher ground, adjoins the Montgomery property to the north. A roadway runs southerly from a public road to the Stecklein property, and to a fence on the Stecklein property. It then continues across a portion of the Stecklein property to the Montgomery property. It is this roadway which is the basis of this controversy.
Montgomery owned his property and also all of the Stecklein property from 1947 until 1951, when he sold a portion of his total holdings to a Mr. Starr. By mesne conveyances, the Steckleins became owners of their property on December 31, 1970, and have owned it to date.
Montgomery used the roadway since he acquired ownership of the land. After he conveyed to Mr. Starr in 1951, he continued to use the roadway, even though his conveyance to Starr contained no reservation of any easement across the land sold. None of the mesne conveyances subsequent to Starr, including the Steckleins, contain any reservation of any easement for this roadway. There was some evidence in the record from which it could be concluded that the roadway was well marked and obvious to anyone examining the premises, although no finding or conclusion in this regard was made. There was also evidence that this roadway is the only practical access to Montgomery’s property. See 2 Thompson Real Property § 352, p. 324 (1961).
On appeal Montgomery argues he has established a prescriptive use to this roadway over the Stecklein property. This argument is countered by the Steckleins’ contention that such issue was never raised by the pleadings nor presented to the trial court for resolution, and thus cannot be raised for the first time upon appeal. The trial court concluded that the Steckleins owned the land in question, and that “there is no public road, highway, or access over or upon the plaintiffs’ land described above and no person has any right to any use of said property without consent of plaintiffs.”
The preliminary question is whether the prescriptive easement issue was presented to the trial court. At the close of the presentation of appellant’s evidence, but prior to resting, his attorney moved to amend his counterclaim so as to read, “[t]hat your counterclaimant has exercised his rights to use the roadway.” Steckleins’ counsel objected “to the amendment of the pleadings at this time to comply with the proof” on the ground that “their proof had tended to show that they are now claiming what appears to be a prescriptive or an easement by prescription; and this is a complete deviation from the pleadings.” The court however, granted the motion to amend, and thus it is the conclusion of this Court that such issue was presented at trial for resolution and was never resolved. There were no findings of fact or conclusions of law entered dealing with that issue.
The trial court concluded that defendants had no easement or use of the claimed right of way over the Stecklein property and had no right to any use without the consent of the Steckleins. Such a conclusion cannot logically be made without first resolving the issue of whether Montgomery had a prescriptive right for the use of this easement or roadway.
This court has in the past and most recently in West v. Smith, 95 Idaho 550, 511 P.2d 1326 (1973), set forth the elements of proof necessary to establish a prescriptive easement. Those elements include a use which is open, notorious and adverse to the owner of the servient tenement and continuous in time for a period of five years. The trial court made no specific finding of fact regarding the existence or nonexistence of these specific elements. Based upon the following analysis of the elements of prescriptive easement, this court concludes that the record discloses facts from which it could be found that a prescriptive easement exists.
[674]*674There is evidence of continuous use for the five-year period required by statute. I.C. § 5-203. Montgomery testified as follows:
“Q. Have you used the road since 1947?
A. I have used that every year since that time.”
This testimony is uncontroverted. Further, witness Welch testified that he was employed by Montgomery to perform bulldozer work to improve the road in 1964 and 1967. Parrott testified that he was employed to make similar improvements in 1971. Professor Powell has noted that “[t]he making of repairs to facilitate further enjoyment of the use indicates an intent to continue the use and affords good ground for an inference of the required ‘continuousness.’ ” 3 Powell on Real Property, ¶413, p. 489 (1977). See also: 2 Thompson on Real Property, § 347, p. 275 (1961). The testimony that Montgomery regularly employed persons to repair and maintain the road from 1964 to 1971 is such evidence. This taken together with Montgomery’s testimony is strong and uncontroverted evidence of continuous use lasting for more than the required five year period.
Once continuous use has been established, a presumption of adverseness arises:
“ ‘A presumption that the use was under a claim of right, and adverse, arises from an undisputed use of an easement for the established period of prescription, and the burden is upon the party alleging that the use has been by virtue of a license or permission to prove that fact by affirmative evidence. An uninterrupted use for the requisite period unexplained is sufficient to establish a right by prescription and to authorize a presumption of a grant. After such period of enjoyment the owner of the land has the burden of proving that the use of the easement was under some license, indulgence or special contract inconsistent with a claim of right by the other party.’ (Thompson on Real Property, vol. 1, sec. 394, page 509.)” Eagle Rock Corp. v. Idamont Hotel Co., 59 Idaho 413, 431, 85 P.2d 242, 249 (1938).
See also, Taylor v. O’Connell, 50 Idaho 259, 295 P. 247 (1931); Checketts v. Thompson, 65 Idaho 715, 152 P.2d 585 (1944); Hogan v. Blakney, 73 Idaho 274, 251 P.2d 209 (1952); Beneficial Life Ins. Co. v. Wakamatsu, 75 Idaho 232, 270 P.2d 830 (1954); Sinnett v. Werelus, 83 Idaho 514, 365 P.2d 952 (1961); Deer Creek Inc. v. Hibbard, 94 Idaho 533, 493 P.2d 392 (1972); West v. Smith, 95 Idaho 550, 511 P.2d 1326 (1973). Although a previous owner did testify that he had given Montgomery permission to use the road, that permission was given in the early 1950’s. The property was then sold in 1961. Through the 1960’s, during the time when Montgomery was maintaining the road, there is no evidence whatsoever of permission. Absent other evidence of permission, the presumption operates to establish adverseness.
The pleadings here are less than a model of clarity, and the question of prescriptive easement is admittedly not spelled out with any definiteness in the pleadings. However, in view of the amendment of the appellant’s counterclaim approved by the court, the issue of prescriptive right was submitted to the trial court.
Also, there was evidence indicating a way by necessity which came into this record without objection and which would invoke the provisions of I.R.C.P. 15(b): “When issues not raised by the pleading[s] are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Since there were no specific findings of fact on these issues, it is the conclusion of the court that the portion of the judgment pertaining to the quieting title to the roadway and damages for trespass must be reversed and the cause remanded for a new trial on these issues.
Affirmed in part and reversed in part and remanded for new trial. No costs allowed.
BAKES, J., concurs.