Vicevich v. Kultgen, DA 25-0505

The dispute concerns whether a platted 60-foot Kelsey Lane/Kelsey Road easement benefits the Kultgens’ Lot 4 and whether Vicevich and Clark’s fence unlawfully obstructs it. 1
Lot 4’s deed incorporates Plat 222-B, which depicts the 60-foot unrestricted private road easement, and Plat 727-B preserved easements of record after the Lot 1 and 3 aggregation. 2
Vicevich sued to declare the loop portion of the easement abandoned, and the parties later signed a 2021 Easement Agreement that the Kultgens did not sign. 3
The fence at issue crosses the western leg of the loop below Lot 5’s driveway and runs along the boundary between Lots 1A/3, 5, and 4, blocking access to Lot 4. 4
A special master recommended summary judgment for the Kultgens, and the district court later adopted that recommendation and awarded $106,209 in attorney fees. 5
On appeal, the Montana Supreme Court affirmed the easement’s existence and nonextinguishment, affirmed the specific fence-obstruction ruling, reversed a generic removal provision, and affirmed fees while awarding appellate fees. 6

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Plat 222-B create an express easement for Lot 4? 7	Vicevich said the plats were ambiguous and inconsistent with on-the-ground use.	Kultgens said Lot 4’s deed and Plat 222-B unambiguously created the easement.	Yes; the deed and plat created the express easement. 8
Was the easement extinguished by the 2021 agreement or abandonment? 9	Vicevich said the signatories superseded the easement and the Kultgens abandoned the loop.	Kultgens said they never signed away their property right and never abandoned it.	No; neither the agreement nor abandonment extinguished it. 10
Did the identified fence obstruct the easement? 11	Vicevich said the record did not precisely identify any obstructing fence.	Kultgens said the western fence was within the easement and blocked Lot 4 access.	Yes, for the specifically identified western fence only. 12
Were attorney fees authorized and reasonable? 13	Vicevich said the covenants were unenforceable and the fee award excessive.	Kultgens said the covenants authorized fees and the award was supported.	Yes; the covenant authorized fees and the amount was reasonable. 14
Are the Kultgens entitled to appellate fees? 15	Vicevich opposed fees and argued the partial reversal affected prevailing-party status.	Kultgens said they still prevailed on the principal issues.	Yes; appellate fees awarded on remand. 16

Quarter Circle JP Ranch, LLC v. Jerde, 391 Mont. 104, 414 P.3d 1277 (Mont. 2018) (summary judgment reviewed de novo 17)
Kipfinger v. Great Falls Obstetrical & Gynecological Assocs., 411 Mont. 269, 525 P.3d 1183 (Mont. 2023) (nonmovant must identify specific admissible facts creating a trial issue 18)
Pearson v. Virginia City Ranches Ass’n, 298 Mont. 52, 993 P.2d 688 (Mont. 2000) (deed reference to plat can create express easement and cannot be unilaterally extinguished 19)
Blazer v. Wall, 343 Mont. 173, 183 P.3d 84 (Mont. 2008) (defines easement as a land-use right burdening another’s property 20)
Sieben Ranch Co. v. Adams, 404 Mont. 510, 494 P.3d 307 (Mont. 2021) (an express easement is created by a written instrument 21)
Apecella v. Overman, 424 Mont. 202, 577 P.3d 133 (Mont. 2025) (abandonment requires nonuse plus decisive conduct showing clear intent to abandon 22)
Renner v. Nemitz, 306 Mont. 292, 33 P.3d 255 (Mont. 2001) (clear-and-convincing proof required for abandonment of an easement 23)
Musselshell Ranch Co. v. Seidel-Joukova, 362 Mont. 1, 261 P.3d 570 (Mont. 2011) (servient use may not unreasonably interfere with easement rights 24)
Plath v. Schonrock, 314 Mont. 101, 64 P.3d 984 (Mont. 2003) (factors for assessing reasonableness of attorney fees 25)
Ferdig Oil Co., Inc. v. ROC Gathering, LLP, 393 Mont. 500, 432 P.3d 118 (Mont. 2018) (fee awards must be reasonable and supported by competent evidence 26)