BOS Terra, LP v. Beers
2015 MT 201
Mont.2015Background
- In 1977 Barrett (Grantor) granted Stevensons and Kolars (Grantees) a written "Real Estate Easement Agreement" to install a pipeline drawing water from the Judith River; the Agreement references grantees, their heirs and successors, and requires Grantor's written consent for assignments.
- The pipeline connected to and reconstituted an abandoned irrigation channel called Enterprise Ditch; grantees used the system for irrigation beginning in 1978 and seasonal pump/access cooperation continued among neighbors.
- Beers purchased Barrett's land in 1999 and continued permitting access under the Agreement. In 2011 Bos Terra bought the Stevensons' and Kolars' interests, changed operations, and began using the system without first obtaining Beers' written consent.
- The Kolars and Stevensons assigned their interests to Bos Terra in January 2013; Bos Terra requested Beers' consent thereafter and was refused. Bos Terra sued seeking a declaration that the easement was appurtenant (running with the purchased land) and alternatively claimed a prescriptive easement in Enterprise Ditch.
- District Court granted partial summary judgment holding the 1977 easement was in gross, Bos Terra was an assignee requiring Grantor's consent (which Beers could reasonably withhold), and denied Bos Terra summary judgment on prescriptive-easement grounds because the ditch use was permissive. Final judgment incorporated a jury finding Beers reasonably withheld consent. Bos Terra appealed the summary judgment rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1977 easement is appurtenant or in gross | Bos Terra: easement benefits the land irrigated (dominant tenement) and runs with the land Bos Terra purchased | Beers: Agreement contains no identified dominant tenement; easement benefits persons, not a parcel | Held: Easement is in gross — no dominant tenement identified in the conveyance documents |
| Whether Bos Terra is a successor (passes automatically) or an assignee requiring consent | Bos Terra: it is a "successor in interest" and so inherits easement rights without separate consent | Beers: Agreement limits transfer to "heirs and successors"; other transfers require Grantor's written consent | Held: Bos Terra is an assignee, not an heir/successor under the Agreement; consent provision is valid and enforceable |
| Whether extrinsic evidence (e.g., irrigation use, DNRC filings) can supply a dominant-tenement description | Bos Terra: extrinsic records and historical irrigation patterns identify the dominant parcel | Beers: dominant tenement must be ascertainable from the conveyance itself; extrinsic evidence cannot supply omitted description | Held: Extrinsic evidence cannot supply a missing dominant-tenement description; recording system utility precludes requiring title-search of parol context |
| Whether Bos Terra has a prescriptive easement in Enterprise Ditch | Bos Terra: ditch use was adverse since 1978 and separate from the pipeline right, satisfying prescriptive elements | Beers: use of the ditch was permissive under the Agreement, so not adverse or continuous for the prescriptive period | Held: Use was permissive (implicit in Agreement to convey water from pipeline); Bos Terra failed to prove five continuous adverse years prior to suit |
Key Cases Cited
- Leffingwell Ranch, Inc. v. Cieri, 276 Mont. 421, 916 P.2d 751 (Mont. 1996) (appurtenant easement limited to purposes connected with dominant tenement)
- Swandal Ranch Co. v. Hunt, 276 Mont. 229, 915 P.2d 840 (Mont. 1996) (elements required to establish a prescriptive easement)
- Grimsley v. Estate of Spencer, 206 Mont. 184, 670 P.2d 85 (Mont. 1983) (failure to prove any prescriptive element for full statutory period defeats the claim)
- Rother-Gallagher v. Mont. Power Co., 164 Mont. 360, 522 P.2d 1226 (Mont. 1974) (Montana enforces non-assignment provisions in real-property contracts)