*1 KATHERINE ASHBY, PERRY ASHBY and Appellants, Plaintiffs ALCOSSER, PHILLIP SANDRA MAECHLING, and HARVE L. DALTON, Cross-Appellants. Appellees and Defendants, DANo. 09-0115. Argued January and Submitted 2010. April Decided
JUSTICE Associates, (argued); Moss Moss & Darrel L. Appellants: For MacDonald P.C., Missoula; VanCanagan; Datsopoulos, K. William Lind, P.C., & Missoula. King (argued); Martin S. Cross-Appellants:
For Appellees Thane, P.C., Missoula. Worden of the Court. Opinion JUSTICE McGRATH delivered
CHIEF Ashbys seek an dispute from a in which the This case arises ¶1 by Maechling, Alcosser by necessity properties easement across owned (referred The District Court collectively Maechlings). and Dalton Ashbys an District held that had Twenty-First Judicial Both by necessity scope and defined the of the easement. and we affirm. appeal sides issues for review that we restate as follows: present
¶2 determining the District Court erred in Issue One: Whether ¶3 scope of the easement. failing Whether the District Court erred in to award Issue Two:
¶4 a claim ofinterference with the easement. Ashbys damages upon based Maechlings issues for review that we restate as follows: ¶5 declaring the District Court erred in Issue Three: Whether ¶6 Maechlings property exists across by Ashbys. owned property to reach determining that the District Court erred in Issue Four: Whether
¶7 County Line Road is a road. West determining that the District Court erred in Issue Five: Whether for one Ashbys’ property allows access to
the easement of the easement. scope deem this to be related to residence. We PROCEDURAL AND FACTUAL BACKGROUND Highway The at issue is west of U.S. northern property Montana, County, and is bordered on the north Missoula Ravalli County large tax deed title to a tract County. acquired In 1932 Ravalli At property parties. of land that included all of the now owned Road, County along time the Line which runs east-west West County line, large Ravalli-Missoula entered east end of Ravalli County provided County tract and access to it. In 1934 the sold to George property by Maechlings. Jones the now owned property by Ashbys retained the now owned and sold it to Robert Ashbys’ tract McKenzie 1935.1The is 120 acres and lies to the west Maechlings’ Maechling and Alcosser and reside on 30 own immediately Ashbys’ land, acres east of and Dalton owns and resides immediately Maechling on a tract east of and Alcosser. No established roads have ever entered the property agricultural permanent
no residence or use was ever established there. irrigation There is an ditch that crosses the parcel, but has not been 1800s, developed episodes logging, other than three one in the by Ashbys another in the 1970s and another conducted in 2007. Ashbys bought property along their in late 2004 a separate with 150 acre They from same seller. knew at the time of purchase that there was no established access to the and that *3 policy excepted Maechlings their title insurance access. had for some prior gate time to 2004 maintained a locked property on their at the County end of West Line Road. The Road did apparently not and never property has extended to the now owned In Ashbys. Ashbys 2005 Maechling wrote and claiming by necessity Alcosser across their land purposes logging offering for and not to sue them if Maechling Ashbys and Alcosser sold a perpetual non-exclusive declined Maechlings offer, easement for $10. and this event precipitated Ashbys’ claim for interference with the easement. Ashbys July in seeking they sued 2005 that ¶12 establish had an Maechlings’ easement across property to reach their 120- parcel, damages acre and for upon Maechlings’ alleged based interference with the claimed In February, Ashbys easement. 2006 summary judgment October, moved for on the easement issue. In Ashbys’ the District Court denied ground motion on the that had County-owned parcel, property encompassed referred to as the “tax deed” parties end, along property the land now owned all the on its northern with other parties. the south now owned third convincing clear and evidence met their burden to show by necessity existed. March, summary judgment, and Ashbys again In moved ¶13 August summary judgment. moved for On Maechlings in June also Maechlings’ summary motion for 2007 the District Court denied Ashbys, holding that judgment granted summary judgment road, County Line Road is a and that have an West Maechlings’ across land to reach the road. Immediately ruling, Ashbys District arrived on after the Court Road, County Line Maechlings’ land at the end of West removed gate property Maechlings’ locked and constructed road to their across Maechlings August have not blocked the access since the ruling. District Court March, 2008, Ashbys partial summary judgment In moved for on easement, of the that the “Court scope requesting issue determine, law, scope as matter of of the easement arose in 1934 is unlimited other than that such use must in be govern development accordance with laws that the normal use and real in and the Ravalli State Montana.”2 Maechlings August also moved for reconsideration of the regarding by necessity. order the existence of an easement July, 2008, Maechlings’ the District denied Court motion for reconsideration, scope denied motion on the of the easement granted summary judgment Maechlings against Ashbys the claim for interference with the easement. The District Court then evidentiary hearing September, held an in 2008 on the scope easement. Witnesses testified and exhibits were received. Findings Fact, The District Court entered Conclusions of Law November, 2008, Judgment findings January, and amended
STANDARDS OF REVIEW This reviews a district court’s decision on a motion for novo, summary judgment using de the same provided standards M. 2 Ashbys any plans property, did not disclose to use the and in fact have stated *4 they plans specific plans logging that have no short-term or to use it other than for the completed ditch that crosses the land. When asked at a upkeep existing irrigation in 2007 and for incidental maintenance and ofthe hearing why before the District Court he property, Ashby granted right needed access to the Mr. stated: “Because we were gain by Court, my understanding.” time, Ashbys access this At the same have only by applicable contended that easement should be their use of the land is limited law and equally broad. 72 160, 14, 139, Allen, MT 295 Mont. 983 v. 1999 Spinler ¶
R. Civ. P. 56. 348. P.2d they if are findings upheld of fact will be A district court’s Brown, MT Steiger v. 2007 by credible evidence.
supported substantial a district 29, P.3d 705. This Court reviews 29, 16, 336 Mont. 152 ¶ are correct. Id. whether conclusions of law to determine court’s
DISCUSSION the District Court pivotal first consider the issue whether We necessity Maechlings’ exists across by held that an easement properly recognized the long land. Montana law has land to access the by necessity species as a easements. existence of easements time, necessity are “considered extreme by easements with At same tenement owner of they deprive caution” because servient Mack, 165, v. 216 Mont. rights “through implication.” mere Graham (1984) 174, 590, original). Easements (emphasis 596 of a tract of land legal arise from a fiction owner way intended to portion having not isolate a ofit without leave would Owens, being the lands severed. v. parcel of access to the over Wolf 302, 16, 340 74, 172 essential elements 2007 MT Mont. P.3d Two ¶ unity and strict by necessity ownership of an easement are Dundas, 104, 32, 164, necessity. v. 2006 MT 332 Mont. Watson ¶ prove must proponent P.3d 973. The of the easement Watson, convincing clear and evidence. necessary elements ¶¶ 40-41. Unity exists the owner of a tract of land ownership where an outlet to a road. part providing
severs
of the tract without
Watson,
at one
single
33. A
owner must
time have owned both
¶¶
tract
the easement and the tract across which
to be benefited
Luraski,
223, 49,
would
Loomis v.
2001 MT
pass.
¶
Unity
originate
can
decades
ownership
Mont.
evidence that there was no evidence of road to connect Ashbys’ parcel public parcel to a road. Severance of now owned Maechlings’ by Ashbys. landlocked the owned No now appears substantial evidence to contradict that conclusion. that found Maechlings contend District Court should have brought extinguished any title in and 2001 quiet
that actions by necessity easement to serve the tract. The District Court rejected in considered but the contention that the decrees those two extinguished by necessity, finding actions the easement that while the known, predecessors Ashbys to the were not made well were to the The District further parties actions. found that service “all publication upon persons” unknown was not effective to bind diligence. known individuals who can be identified with reasonable County, Baertsch v. & Lewis Clark (1992). properly prior The District Court therefore decided that the
quiet title actions did not bar the easement. argues Ashbys The dissent failed to demonstrate strict 3Maechlings prior agreement among predecessors contend that a parties provided Ashby parcel extinguished access to the and therefore the easement However, necessity. agreement there is no evidence that the easement was still in right by necessity. effect and useable at the time asserted 4 Maechlings argue Corp., that under Leisz v. Avista 2007 MT ¶ 294, 174 proponent by necessity Mont. of an easement must demonstrate residence, property, an actual use of the landlocked such at the time of severance. language they rely Leisz, necessary on in 48 was not to the decision in that case (beta. addition, opinion and is therefore there is no indication in the Leisz any prior by necessity Court intended to overrule any on law easements or intended to add requirements Leisz, proponent Nothing new to be met of an easement. applied require proponent should be demonstrate ownership. of an easement must actual use of the land at the time the tract was severed from common County, predecessor as the owner of the
necessity because Ravalli
had the
to condemn an easement across the
parcels,
relevant
First,
road.
this issue
provide
servient
access to
because,
acknowledges,
should not be considered
as the dissent
it was
only
passing
in the District Court and was noted
not raised
Second,
authority
for the condemnation rule is Leo
appeal.
primary
(1979).
U.S.,
Sheep
Sheep
Co. v.
440 U.S.
across lands to the Union Pacific but now owned Co. to reach a recreation area on Sheep Leo Federal land. The Supreme Court held that because the United States could condemn a *6 right way necessity required of it could not demonstrate the strict to governmental entity secure an easement. Since the are not a domain, ofeminent the Leo Sheep with case does not resolve the present dispute.5 Therefore, convincing since there was clear and evidence of
¶26 unity ownership necessity, both of and strict the District Court concluded that properly by necessity provide existed to access to the tract. The second issue we consider is whether the District Court
¶27
properly
County
concluded that the West
Line Road is a public road.
exists,
all,
An
if at
to connect the landlocked
Watson,
tract of land to a public road.
32.
¶
Maechlings
County
contended that the West
Line
Road is not
public
road and therefore an easement
could not be
implied to provide access to it. The District Court received and
carefully considered substantial historical evidence as to the nature of
County
the West
Line
upon
Road. Based
this evidence the District
granted summary judgment
Court
Ashbys, concluding
to
that Ravalli
County
1894,
had declared the
public highway
Road to be a
in
and that
already
the Road
opened
at that time with the exception of a one-
half mile section. The District Court also concluded that the Road
5
McDonald,
494,
The dissent also cites Simonson v.
131 Mont.
75 land now owned of Section on at the northwest corner terminated by Ashbys. the land now owned extending Maechlings, but County Court that the West contended in District Maechlings way. The District adopted public as a properly was never Line Road way and has been public the Road is a concluded that properly Court recognizing this Court 1894, relying on decisions from since county roads created history the detailed difficulty reconstructing County, 192 Mont. years ago. In Reid v. Park as much as rule that it is (1981), adopted this “the 627 P.2d public shows that a [county] record taken as a whole sufficient if the public particular on the in a created. Otherwise the burden road was may many years ago created so well be case road was prove documentary evidence Requiring production insurmountable.” County Powell v. long ago impracticable, that occurred can be events Ranch, 337, 25, Mont. Angus MS 2004 MT ¶ 5 Rockin’ duty has disputable presumption
P.3d and there is a official 26-1-602(5), Discrepancies Section MCA. regularly performed. been county documents are not description or location of road old county County, turn a into Powell private property. sufficient to road Here, length opened the fact that the full of the road was not Bozeman, county Bolinger as a road. in 1894 does not alter its status (1972). non-use, 507, 509, 493 1062, 1063 Mere even for time, generally extended insufficient alone to indicate periods Baertsch, Mont. at public way. intent to abandon a at 111. case, in detail the District explained The record in this orders, sufficiently that Ravalli created and
Court’s established *7 Line Road as a road. The District dedicated West concluding correct in that there were no material facts Court was summary judgment and that concerning whether the Road was created appropriate. on that issue was by scope Ashbys’ next consider the issue of the easement We
¶32 necessity. appeal Both sides from the District Court’s determination Ashbys of the easement. contend that the easement should scope broader, that it is too broad. Maechlings be while contend for upon The issue arose in the District Court motion ¶33 that the summary judgment support of their contention partial long the easement is unlimited as as it serves some use of scope of and that with law. have not property complies applicable use land, their and in fact disclaim specified any they contemplate use for any plans using They similarly specify parameters it. did by necessity, asserting than that it must of the easement other be any of the property. sufficient to allow them to make lawful use conducting evidentiary hearing After an and after extensive law, the District Court concluded that the scope review ofthe facts Ashby easement wide, currently exists, for one approximately 12-15 feet as it residential, single-family non-commercial use owners of the Property, assigns, including Plaintiffs’ their lawful successors and property recreational access to wildlands on Plaintiffs’ and for use, irrigation system inspection, repair, maintenance and thinning use Plaintiffs related to forest and logging consistent responsible practices with reasonable and forest and for no other. owners, All other uses or use persons other than lawful assigns property scope successors or of Plaintiffs’ shall exceed the of this easement and is prohibited. by necessity This easement automatically legal shall terminate if and other alternate when easement access is obtained to Plaintiffs’ Property. Ashbys contend that scope of their easement must be any lawfully
unlimited in order to serve use can make of the property. Maechlings contend that the easement as decreed is too in that it allows purposes broad use residential and there has never been a residence on the The law in Montana on the scope of an Sieben,
necessity begins
with Herrin v.
easement concept but this endorsed the that a scope decision implied of an easement should consider “the being [of actual uses made at estate] dominant the time of the severance, such uses as the facts and circumstances show were within the reasonable contemplation parties at the time of the conveyance, parties and such uses as the might reasonably have expected from future of the Tungsten, uses dominant tenement.” Such may evidence be scarce in the case of
when, case, as in the present the severance occurred decades before issues Nonetheless, arose as to the use easement. if such available, evidence is determining should be considered in scope by necessity. of an easement Here, there is no evidence of contemplation the actual of Ravalli
County purchasers or its as to the and future use of the property County in 1934. The the land acquired in Depression-era tax foreclosure was portions but able to sell of it and return it tax rolls years a few no later. There is evidence that County ever used the and it likely County’s is therefore interest expectation at the time was to tax realize income from the tract. There is evidence that the Ashby land was at that time forested wildland with no established vehicular access route. The evidence also shows that the land had logged been in the late century 19th used, but otherwise had been all, if at for wildland purposes. Similarly, recreational the evidence is that at the time of severance area surrounding rural, tax forested, agricultural and the site of scattered rural residential dwellings. Therefore, nothing history or condition of the property
at the time of severance would support finding that the extent of the across the land of the servient estates should be unlimited. considered that properly also The District Court precise is not limited to the scope, while not unlimited
necessity, So, if the the time of severance. technology at and prevailing uses *9 of motor vehicles general use prior at a time occurred severance may allow for still power, an easement and electric use developments” long as as the does not technological “reasonable rights or interference with damage unreasonable cause Natural Department Schumacher v. e.g. owner. See servient estate 2003). (Mich. Thus, modern Resources, App. 924 663 N.W.2d may part of an utility allowed as services be vehicle access legal a the easement arose as though even easement improvements. general use such matter before these recognized principles properly The District Court here ¶42 and residential vehicular recreational allowed for non-commercial expressly District Court did Ashby The by property. access road to utility other underground or gates, guards, address cattle not Court, lines, “[although do invited to so transmission because those issues. party” neither addressed upon which the District Court not evidence Ashbys provide did
¶43 easement different for the might parameters have fashioned having any plans, or needs for specific disclaimed uses necessity. They they right anything to do only asserted that had the property must accommodate their that the law allowed and that easement decisions, they By reasoning, such might whatever be. that future lot, mine, gravel feed a dirt track disparate uses as a cattle motorcycle high-density might all be racing venue or a subdivision Ashby impose It is not reasonable to legally on the tract. permissible unlimited Maechlings’ burdens on potential such unknown and the current nature of the properly The District Court considered ¶44 County. in Ravalli is located northern area which tract is mixed. To the immediate west is surrounding area scattered, is low- largely land. The area rural with Forest Service larger acreage. or The District Court’s intensity residential uses on lots to single-family Ashby property, residence on the decision to allow one easement, of land use served reasonable reflection be developed in the area. The District Court reached a reasoned has by necessity. scope on the of the easement proper decision that the District Court erred in Ashbys’ We next consider claim Maechlings’ interference with the awarding damages them damages are to of over Ashbys claim that entitled easement. rejection perpetual ofthe easement $100,000 Maechlings’ $10 because acquire in 2005 caused to to temporary them have easement from a third to party logging conduct the on the property in 2007. The District granted summary judgment against on Ashbys this claim. prior ruling August, 2007, The District Court noted its that holding by necessity existed, that the easement Ashbys’ motion for summary judgment the existence of the easement had been denied. Further, August 31, Ashbys after used the easement without Maechlings. interference from gave While the essential acts that rise 1930s, Ashbys’ right arose in to the easement was not 31,2007. August
established until Prior Maechlings time could wrongfully State, not have interfered with easement. Stokes MT Mont. P.3d 865. therefore affirm We the District Court’s determination did not have a claim against Maechlings necessity. interference with the The District Court’s orders appealed from are affirmed. COTTER,
JUSTICES WHEAT and MORRIS concur. LEAPHART, specially
JUSTICE concurring. specially concur the result but express opinion ¶49 I no on the issue *10 whether, severance, as of the of time the a ownership by common governmental entity powers with any condemnation defeats claim of “strict necessity.” This and, issue was raised below on appeal, only referenced once in a reply footnote in a I Accordingly, brief. would defer addressing the issue until it is properly raised and adequately briefed.
JUSTICE joins RICE in specially the concurring opinion of JUSTICE LEAPHART. NELSON,
JUSTICE dissenting. things death, “Few are as certain as taxes and the legal entanglement that follows a sale landlocked real Bob estate.” (Idaho 1984). Weaver, 1010, Daniels and Sons v. 681 P.2d App. entanglement This is made all the worse litigation poorly when the is pleaded, researched, poorly briefed, poorly argued-as and poorly unfortunately Nevertheless, is the case here.1 it apparent is on the face the record that by claimed the regard, only point Alcosser, In Maechling, this fair to out that and Dalton replaced attorney during Court, litigation their first the in the District after the court summary judgment Ashbys establishing had entered in favor the the by necessity. Accordingly, significant damage Maechling, the most of done to Alcosser, attorney and Dalton’s case was under their first and not their caused current counsel. I alleged the that at the time simple reason not exist for
does (the alleged servient and the Ashbys’ property) dominant tenement from were severed (Maechling property) Alcosser’s and tenement (Ravalli entity County) held ownership, were common and thus there was right-of-way, condemn which had the easement. necessity” no “strict current Maechling Alcosser’s outset, I At note that in the argument and during oral point made this exact
counsel is that appeal. problem Brief Reply Appeal Cross Appellees’ theory argued specific legal this predecessor neither he nor his that this Court Court, general “[t]he rule in Montana is District or appeal for the first time on an issue raised will not address either Indus., Easley, Inc. v. change legal theory.” party’s Unified 145, 15, P.2d 100. MT ¶ rule, general however-one to this important exception There is an Dabney, 2005 MT in the case. applies which Leichtfuss arguing over parties were constituted an Dabney’s question use of the easement whether parties But both on Leichtfuss’s servient increased burden easement, which ignored the antecedent issue of whether largely of a life through use the holder prescriptive had established been best, briefing estate, ofthat life estate. At survived the termination arguments particularly parties’ artful” and the on this issue was “not Yet, although under Leichtfuss, 37 n. 8. “underdeveloped.” were might have declined to address the these circumstances we otherwise issue, we observed ultimately may
“a court
consider an issue ‘antecedent
...
it,
fail
dispositive
dispute
parties
even an issue
before
Ore. v.
identify and brief.” United States Nat. Bank
America,
(1993),
Ins.
Inc.
508 U.S.
Independent
Agents of
Similarly,
an issue or claim is
“[w]hen
113 S.Ct.
court,
limited to the
properly
particular
before
the court is not
rather retains the
legal
parties,
theories advanced
but
identify
apply
proper
construction
independent power to
*11
Ore., 508 U.S. at
governing
of
law.” United States Nat. Bank of
omitted)
(internal
quotation marks
Leichtfuss, original). 37 n. 8 In (ellipsis, ¶ brackets light principles, of these we that “it is appropriate held us to address the issue [related estate] the termination of the life since is an integral step analysis.” Leichtfuss, 8; e.g. our n. see also ¶ Clinch, Salish and Kootenai Tribes v. 2007 MT ¶ Confederated (“Though squarely addressed parties, we must sovereignty address this issue of tribal ... as necessary predicate deciding change whether use proceedings this type permissible are under (citing Leichtfuss, Montana law.” 37¶ 8)). n. case, In alleged issue whether the
necessity exists squarely presented was District Court and has been squarely presented to this Court. And the same is true of the specific question more of whether “strict necessity” existed at the time of severance. In regard, this Maechling always and Alcosser have maintained that there no necessity” “strict easement over what is now their property. While the specific theory that Ravalli County lacked necessity” “strict because it had the to condemn an easement was raised belatedly, addressing this issue is an integral step analysis in our ultimately and is dispositive of the dispute before Indeed, below, fully us. discussed the law supports Maechling and Thus, Alcosser on this point. confuse, we “set bad precedent and rather clarify, than by ignoring Maechling law” argument and Alcosser’s affirming necessity despite caselaw to the contrary.2 Leichtfuss, 37 n. 8. ¶ then, Turning, question necessity,” I “strict conclude that following undisputed facts and legal well-established principles
dictate the resolution of this case. here, 1. The real properties at issue now owned Ashbys, Alcosser, Maechling, Dalton, were held common ownership 2 The Court states that this issue should not be considered because it was not only raised in passing” appeal. Opinion, the District Court and was noted “in is, however, validity alleged by The fact depends of the easement necessity” alleged on whether “strict existed at the time the dominant and servient properties ownership. Consequently, were severed from common whether Ravalli could reserve an easement is an antecedent issue which we must validity. my view, address in order to determine the easement’s the Leichtfuss exception clearly applies on the facts at issue here. *12 turn, part of a were properties, All of these County in 1934. Ravalli larger tract in 1932. The by tax deed County acquired the larger tract Parcel.” record as the “Tax to in the is referred owned now County conveyed properties the 1934, the July 2. In tracts, to adjoining Dalton, several Alcosser, plus Maechling, by the now owned property retained the County The George Jones. W. following depiction The (hereinafter, Ashby Property). the Ashbys’ motions an exhibit included as is properties the so that inches wide 6.5 It reduced summary judgment. has been identifying added have been following page, and labels could fit on misrepresents diagram Also, original properties. description property on the Tax Based Parcel. full extent Parcel also County, the Tax to Ravalli tax deed in the 1932 contained below. area shown includes the shaded line, The Tax Parcel bold represented heaviest properties represented by relevant within the Tax Parcel are lighter bold lines and the dashed lines. The Property consists adjoining the three tracts that are each numbered sold adjoining 9,10, Jones are consists of seven tracts that numbered Tracts). (collectively, these, and 15 Of Jones Maechling and Alcosser now own the tracts numbered and 10 (hereinafter, Maechling Property), and Dalton now the tract owns (WCL Road) numbered 16. West Line Road runs along *13 (to north) boundary County County between Missoula the Ravalli (to south). east, the approaches WCL Road from the and the record reflects that the road terminates at the northwest corner Dalton’s therefore, The Ashbys, easement claimed the would Ashby Property connect the to WCL Road Maechling over the Property. 3. When transferred the Jones Tracts to Jones Ravalli
County expressly failed to an reserve easement over that land the for Ashby benefit of the Property. Specifically, County the failed to expressly reserve easement connecting Ashby the Property to WCL Road via the Maechling Property. result, Ashby As a the Property “[sjurrounded supposedly “landlocked,” i.e., land, became with no way get to in or except crossing another,” out the land Black’s 2004). Law Dictionary (Bryan ed., ed., A. Garner 8th say West I “supposedly” because patently the record is inconclusive this point. (other thing, For one Ashbys the have not shown that all property than Tracts) the Jones adjacent to the Ashby Property at the time of severance was held or owned someone other County. than Ravalli Indeed, the record is unclear as to whether County, time, the at this retained other properties within the Tax Parcel the Ashby besides Property and whether County, time, the at this held other properties adjacent to the Tax Parcel. See 481, 488, 587 State Cronin 179 Mont. (1978) (‘We caution explore court and to counsel these factual questions an implied where ... easement necessity is asserted. Examination of the titles to the surrounding parcels would provide a reliable indication of whether strict necessity existed when question the land in conveyed. We therefore reverse finding the by necessity, there being insufficient evidence in the it.”). Furthermore, record support Ashbys tacitly acknowledged in the they District Court that do know for certain whether other (besides Road) roads WCL accessed Tax Parcel in 1934. They offered only any had “found no Yet, evidence” of other access. some of early- maps mid-1900s as included exhibits to the actually coming road depict a summary judgment motions
parties’ boundary very at near the eastern ending or public highway aoff their short, Ashbys failed to meet burden In Parcel. of the Shaded in fact became landlocked Ashby Property establishing that the genuine anything, If their evidence creates result of the 1934 sale. Nevertheless, purposes material fact. issues of Ashby premise as true their only, accept I will discussion following the sale of the Jones Tracts. Property was landlocked County Ravalli transferred 4. September this Ashbys purchased The L. McKenzie. Property to Robert December 2004.3 over an easement had the condemn 5. Ravalli it sold Ashby Property, before Property, favor of Maechling (1935). 1622, 4478, 9934, RCM McKenzie. See Ashby Property §§ power. exercise this County did not Ravalli by necessity. We have described claim granted the other by necessity, one of easement types two reserved: has no conveys land thereof which
Where an owner of grantor remaining over the lands of highway except outlet to a way strangers, a exists over or over the land of Similarly, way necessity is remaining grantor. lands of the portion the inner the owner of lands retains found when balance, go he for exit across which must to another the conveying *14 and access. (1982) 233, 431, McDowell, 237, 649 P.2d 433 v. 199 Mont.
Schmid omitted). marks, (alteration, and citations quotation internal by by Ashbys and the District Court is theory adopted advanced the 1934, byit the Jones Tracts to Jones in when sold Ravalli necessity by over the lands thus an easement implication reserved County’s of retained lands. conveyed for the benefit the show, by necessity, proponent the must To establish (1) i.e., evidence, unity ownership, prior of convincing and by clear tenements, alleged dominant and servient ownership common 3 agreement provision Notably, Ashbys’ purchase which cautions contains a Buyer fully parcel. question 120 has been is of access acre them: “There a accepts 120 ‘AS IS’....” This title to the acre of such access issue informed cooperate to address the the things, providing will with the provision further states that seller existing by, among “regarding use other evidence access issue added). certainly family” (emphasis This of the Seller’s access Seller and members necessity an easement to question that a exists for claim calls into access their
85 (2) necessity strict an easement at the time the dominant and servient tenements were severed from ownership, common as well as continuing necessity Mack, for an easement. See Graham v. 216 Mont. 165, 175-76, 590, (1984); Houle, 699 P.2d 596-97 v. Woods 250, (1988); Luraski, 223, 766 P.2d 253 Loomis v. 2001 MT 49-51, 478, 862; Bartels, 36 P.3d v. see also Gacki ¶¶ (111. 2006) (“It 1178, 1184 App. N.E.2d 2d Dist. is the burden of the an party claiming necessary easement to show the facts to create an Furthermore, by implication. easement party claiming easement proof by convincing must meet this burden of clear and (citation omitted)); Eid, 38, 6, evidence.” 1998 ND Griffeth (“A party seeking N.W.2d an easement has the burden proving the existence of the convincing clear and evidence.”). The common law doctrine of easement “does not right any exist ensure a property; access all landlocked rather, the doctrine properly applied only is when the circumstances establish that access easement was intended at the time of the conveyance.” Burch, common owner’s Murphy v. 2009).
(Cal.
“Courts are reluctant
by implication
to find easements
such
depriving
reason that
an action results in
a person of the use
property by
Woods,
of his
imposing
implication.”
servitude
mere
landlocked parcel is held entity. private “Where a conveys landowner to another individual a portion of his lands in a rest, certain presumed area retains the it is at common law that grantor has granted reserved an easement to pass over the passage if such necessary is to reach the retained property. ” These rights-of-way are by necessity.’ referred to ‘easements Leo Sheep States, Co. v. United 440 U.S. 99 S. Ct.
(1979)
added).
(emphasis
But where
government conveys portion
lands,
its
actually
“the
a matter of necessity ...
because the
eminent
Government has the
domain.” Id. at
679-80,
Jurisdictions have seen eminent domain and easements ways as alternative to effect the same result. For example, longer recognizes State of no Wyoming the common- law easement involving cases landlocked estates. provides procedure It whereby instead for a the landlocked owner can have an upon access route condemned on payment his behalf *15 necessary compensation the owner of the servient estate. For similar reasons other state have courts held that the
86 sovereign. not by necessity” doctrine is available
“easement
(footnote omitted);
Murphy, 205
see also
680,
at 1410
at
99 S. Ct.
Id.
(“In
however,
conveyances,
party
to private
contrast
P.3d at 294
typically do
owner
involving sovereign
a
as the common
conveyances
or other
reservations of easements
give
implied
rise to
necessity does not
land,” in
because “strict
conveyed
part
interests
private
the case of the
sovereign as in
in the case of the
exist
of eminent
landowner,
sovereign
power
can exercise the
because
rights-of-way.”).
all
any
to obtain
reasonable
domain
McDonald,
See Simonson
This is the law in Montana.
(1957).
Notably,
factual
494,
presents
Simonson
Simonson
Angstman
reasoning
Specifically,
in the
Justice
opinion.
the earlier
implied
therefore
in this state there can be no
“Weconclude
wrote:
may
by necessity. They
be
grants
or
of easement
reservations
if
made of
showing be
proceedings proper
in eminent domain
obtained
at
at
There was no
therefor.” Id.
985-86.
*16
for abolishing
easement-by-necessity
outright;
basis
the
doctrine
reason,
subsequently
holding.
for this
the Court
limited
In
Simonson’s
Country
Corp.,
Thisted v.
Club Tower
146 Mont.
Maechling Property Ashby Property favor of can exist. Such an arisen, all, easement would if have at when these properties were severed from ownership July Yet, common 1934. the common owner (Ravalli County) had the power to condemn an easement for the of benefit its retained and (supposedly) Hence, parcel. landlocked no necessity” “strict existed no necessity easement by came into Again, existence. it is important emphasize that an created, is all, if at at time severance. Schmid, 237-38, 433; Big at 649 P.2d at Sky Village Hidden Owners Assn. v. Village, 268, 277, 915 845, 850 Hidden (1996). Contrary Ashbys’contentions, such an easement does not suddenly spring years into existence 70 after the severance because time, passage changed circumstances, parties and other make palatable that more result. attempts Court’s to impugn analysis wholly this are First,
unavailing. the Court contends that Sheep inapposite Leo because “the governmental entity are not a with the power eminent domain.” Opinion, 25. But this plainly contention ¶ misses point made the Supreme Court in its discussion of easements by necessity-namely, a governmental that where entity conveys a portion lands, its easement by does not arise favor of a government retained landlocked parcel because the the power has right-of-way. condemn a supra; See Sheep, Leo 440 U.S. at ¶ 679-80, Here, 99 Ct. at S. as the Court in itself states strict ¶ necessity must exist “at time the tracts are severed from the necessity did not exist at the Obviously, strict ownership
original Maechling Property were severed Property and the time the that Ravalli simple reason ownership for the original from owner of the present eminent domain. Whether power had entirely beside the eminent domain is Ashby Property power has the time necessity did exist at requisite strict point, given that ownership-which, again, the original were severed the tracts from requirement to establish states in 22 is ¶ necessity. part by overruled in Second, the Court notes Simonson however, above, the critical explained 25 n. 5. As Opinion,
Thisted. (as they are relevant to the and Thisted point of Simonson case) “strict holding that disturb Simonson’s is that Thisted did not by public is held the retained landlocked necessity fails where right-of-way. to condemn a entity with the *17 Ashbys’ easement-by- analysis, the foregoing on the Based they the facts undisputed a law on necessity claim fails as matter of did at the necessity it. not exist support marshaled in Strict have severance, entitled to Maechling and Alcosser were time of and summary judgment this basis alone.4 on record, County failed to in the Ravalli explained For reasons not Ashby Property the to McKenzie it sold condemn an easement before necessarily Ashbys options, leave the without That does not in 1935. just thing, they try purchase could for For one to however. which, litigation, they have in this compensation the easement try an Ashbys acquire also to nothing.5 for could demanded Pilon, Godfrey See v. private a condemnation action. through necessity highly present exists at the time either. See It doubtful that strict (“Strict necessity Opinion, [unified] at the time the tracts are severed must exist ¶ (citing original ownership Watson and at the time the easement is exercised.” from the 973)). best, 104, 32, 164, 136 Dundas, At the evidence in 332 Mont. P.3d v. the record indicates 2006 MT ¶ problem genuine issue. The issues ofmaterial fact exist this however, Alcosser, Dalton, discovery Maechling, sanction is that because a and case), they attorney’s manage properly (resulting failure to the from their first admitted practical “[n]o access to road saddled with an admission that have been words, contrary currently Ashby Property.” to the Court’s from the other evidence” exists issue, Opinion, on a suggestion ¶ the on this that the District Court “reviewed discovery necessity solely fact is that the existence of “strict is based the sanction. Maechling lawsuit, Ashbys commencing counsel mailed to the instant Prior Ashby Property indicating log the intended to and Alcosser offering letter Maechling Property purchase express easement over the hardly “just compensation.” $10.00— 439, 448, 70-30-102, (1974); -107, §§ But are not summary judgment MCA. entitled to on their claim by necessity. of an easement Indeed, setting claim even aside fact this is invalid as a above, analysis woefully
matter law under the record before us is underdeveloped shoddy research, briefing, due to the pleading, argument supra. thing, referred to For one this held in ¶ 294, 174 Corp., Leisz Avista 2007 MT necessity” that “strict does not exist at the time if “no of severance one Yet, living [landlocked was on the property].”6 have provided living no evidence that someone on or using Property significantly, in 1934. But more the record fails to answer important questions about alternative routes to the Tax Parcel in as as the ownership remaining well status and of the tracts in Tax adjacent properties following Parcel to the Tax Parcel the sale Ashbys, therefore, wholly demonstrate, to Jones. The have failed evidence, and convincing matter, clear a purely factual that strict at the Consequently, existed time severance. even under approach, ignores issue, Court’s which the eminent domain granting summary District Court’s decision judgment favor Ashbys should be reversed this case should be remanded for and, further development necessary, of the record if a trial on the merits. said, however, That I being would follow procedural exception
recognized We should resolve
case on
this
the basis of
Leichtfuss.
and ultimately
antecedent
dispositive
(albeit,
issue raised
belatedly) by
Alcosser,
Maechling,
doing,
and Dalton. In so
we would
preserve
legal
the well-established
principles underlying the doctrine
by necessity;
Meachling’s
we would uphold
and Alcosser’s
rights
enjoyment
the ownership and
of their
real
free of an
implied easement that
no
fact;
has
basis in law or
and we would avoid
*18
publishing,
important
case,
in an
contrary
decision that is
law,
decades of easement
that will
inconsistency
introduce
into our
easement-by-necessity
jurisprudence,
grounded
in an
underdeveloped
record
lawyering.
characterized
bad
agree
6 Icannot
with
Opinion,
the Court that this statement
in Leisz was “dicta.”
part
holding;
it,
¶ 22 n. 4. It
of our
expressly
until
overrules
it is
applicable
question
law
extant
of whether
have
shown
strict
necessity.
term
matter,
For
Godfrey
Leisz is
our
consistent with
observation in
necessity”
enjoyment
premises
“strict
means “essential
to use and
permanently improved
conveyance
at the time
the servient estate.” 165 Mont. at
added,
omitted).
(emphasis
quotation