delivered the Opinion of the Court.
The Grigonises appeal from the Ravalli County, Twenty-first Judicial District Court’s Order and Judgment granting Dennis Ruana, Robert W. Bielby, Carla J. Bielby, Pam McCoy and Karl HeinzFtaken, Respondents, summary judgment. The Respondents, Bielby and Ruana, are the developers of “Paradise Acres,” Pam McCoy and Karl Heinz-Finken are purchasers of one of the “Paradise Acres” lots which abuts the Grigonis property. Together, the Respondents moved for summary judgment arguing that they have a reserved sixty-foot easement crossing the Grigonises’ property as a matter оf law. They base their argument on two recent decisions by this Court,
Halverson v. Turner
(1994),
The following issues are presented by the Grigonises:
1. Did the District Court err in holding, as a matter of law, that Respondents have an easement by reservation across a sixty-foot wide private road and public utility easement on the Grigonises’ property, where the certificate of survey for Respondents’ property does not include or depict the easement nor is it recorded on any other pertinent documents?
2. Are the Grigonises entitled tо summary judgment on the issue of easement by prescription?
3. Are the Grigonises entitled to summary judgment on the issue of easement by implication?
4. Are the Grigonises entitled to judgment on the issue of laches?
*444 5. Are the Grigonises entitled to summary judgment on the issue of trespass, based on the Respondents’ construction of Blue Sky Lane and the raising of the surface of North Hidden Valley Road?
6. Are the Grigonises entitled to attorney’s fees expended in defense of their land?
The property at issue is located in Ravalli County, Montana, and is situated north and south of the section line between Sections 8 and 17 of Township 10 North, Range 19 West, M.RM. The Respondents allege that they have rights to two easements. The first is a sixty-foot private road and public utility easement running east-west just south of the 8-17 section line. North Hidden Valley Road runs roughly through the center of this easement continuing east to a dead end, and continuing west until it joins the East Side Bitterroot Highway. The second potential easement, Blue Sky Lane, comes off North Hidden Valley Road. Respondents built Blue Sky Lane to access their 56-lot “Paradise Acres” subdivision to the north of North Hidden Valley Road. Blue Sky Lane originates on the Grigonises’ property.
The properties owned by the Grigonises and the Respondents were originally contained in a much larger parcel of property, the Cook Ranch. In 1976, the Cooks sold a portion of the ranch to Wilbur and Ila Hensler. The Henslers’ property encompassed the parcels now owned by the Grigonises and the Respondents. In 1977, the Henslers sold a portion of their property to John Reely, Williаm Reely, and Delbert Ashmore (Reely-Ashmore). The Henslers to Reely-Ashmore sale included property south of the 8-17 section line including within it the property now owned by the Grigonises. The Henslers retained the property to the north of the 8-17 section line that is now owned by the Respondents. Thus, it was this 1977 sale that split the properties now at issue from single ownership. In 1988, the Grigonises purchased 10.76 acres south of the 8-17 section line from Reely-Ashmore’s successors in interest. In 1990, the Henslers sold Respondents approximately 133 acres north оf the 8-17 section line, including the land just to the north of the Grigonises. The northern border of the Grigonis property abuts the property of the Respondents.
When the Grigonises purchased their property, there was a grassy strip extending southward approximately fifteen feet from the northern border of their property. The grassy strip contains public utility lines. North Hidden Valley Road abuts the grassy strip to the south and runs roughly down the center of the sixty-foot wide public utility, private road easement. North Hidden Valley Road is a dirt road, approximately twenty to twenty-five feet wide that runs east-west. *445 Both the grassy strip and North Hidden Valley Road fall within the “private road and public utility easement” that extends south sixty feet from the 8-17 section line into the Grigonises’ property (see diagram).
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The Grigonises acknowledge that when they bought their property it was plainly subject to the North Hidden Valley Road east-west easement. This easement allowed homeowners to the east to access their properties. However, they argue that this easement does not еxtend north, that is, no easement to the north off of North Hidden Valley Road such as Blue Sky Lane was ever reserved or created.
A fence separates the Respondents’ and Grigonises’properties. In 1991, without the Grigonises’ permission, Bielby, one of the Respondents, took down the fence and constructed a dirt road, Blue Sky Lane. Blue Sky Lane originates from North Hidden Valley Road in the Grigonises’ property and heads north through the grassy strip into Respondents’property. Blue Sky Lane provides access onto North Hiddеn Valley Road for the 56-lot “Paradise Acres” subdivision.
The Grigonises were unhappy with the construction of Blue Sky Lane on their property and offered to sell Respondents easement rights. Respondents did not reply to the Grigonises’ offer and there were no further negotiations. Leonard Grigonis re-erected the fence and posted signs stating that use of Blue Sky Lane was unpermitted trespass. Bielby removed the signs and a portion of the fence and Respondents continued to use Blue Sky Lane as their access to Nоrth Hidden Valley Road.
*446 Respondents sought and obtained an injunction to prevent the Grigonises from interfering with Respondents’ use of Blue Sky Lane. Respondents asserted easement rights based on a number of theories: easement by reservation, easement by grant, public road by prescription, and easement by necessity, all with the accompanying right to build an access road, i.e., Blue Sky Lane. The Grigonises asserted that Respondents have no easement rights in North Hidden Valley Road, have no right to build an access roаd to intersect North Hidden Valley Road, and that in building Blue Sky Lane, Respondents wrongfully occupied, trespassed, converted, and physically damaged the Grigonises’ property. The Grigonises sought Rule 11, M.R.Civ.R, sanctions against Respondents in the form of attorney’s fees and costs, as well as damages under the tort theories of wrongful occupation, trespass, conversion and property damage. The parties filed numerous motions and cross-motions for summary judgment on the following grounds: public prescriptive easement, tortious interference with easement rights, easement by estoppel, trespass, wrongful occupation, easement by grant, easement by reservation, easement by necessity, laches and Rule 11, M.R.Civ.R, sanctions.
Initially, the court denied summary judgment to either party for easement by grant and/or reservation and for public road by prescription; denied both parties summary judgment for laches, tortious interference, trespass and/or wrongful occupation; granted summary judgment in favor of the Grigonises on Respondents’ claim of easement by estoppel; dismissed Respondents’ claim of easement by necessity and substituted a claim of easement by implication in its place; granted summary judgment to Respondents as to whether any rights to use North Hidden Valley Road automatically included rights to use and build within the entire sixty-foot easement area thereby limiting argument at trial to whether Respondents have rights in the sixty-foot easement containing North Hidden Valley Road, and; granted summary judgment to Respondents for the Grigonises’ claims of Rule 11, M.R.Civ.R, violations and abuse of process. The Grigonises sought and were denied a Motion for Reconsideration.
Respondents subsequently filed another motion for summary judgment based on this Court’s recent decisions in
Halverson v. Turner
(1994),
*447 as a matter of public record, a sixty (60’) foot road/ utility easement by reservation which crosses Defendants’ [Grigonises’] property and lies adjacent to Plaintiffs’ [Respondents’] proрerty as described in Certificate of Survey 1733. Such easement right includes the accompanying right to build access roads or drive ways, such as Blue Sky Lane, in order to exercise their easement right to use North Hidden Valley Road which lies within the north and south boundaries of their sixty foot easement and any other use consistent with the road and utility purposes of the easement.
The Grigonises appeal the District Court’s grant of summary judgment as well as its prior rulings denying their cross-motions for summary judgment.
1. Did the District Court err in holding, as a matter of law, that Rеspondents have an easement by reservation across a sixty-foot wide private road and public utility easement on the Grigonises’ property, where the certificate of survey for Respondents’ property does not include or depict the easement nor is it recorded on any other pertinent documents?
Our standard of reviewing a grant of summary judgment is the same as that used by the district court.
Halverson,
An easement is a non-possessory interest in land, a right which one person has to use the land of another for a specific purpose or a servitude imposed as a burden upon land.
Kuhlman v. Rivera
(1985),
*448 Concerning North Hidden Valley Road, the District Court noted that:
the public record clearly evidenced the long term existence of the 60’private road/public utility easement dating at least as far back as the 1970s, and that thе public record, as well as testimony before the Court, evidenced the existence of the road which lies within the boundaries of the easement dating as far back as the early 1900s. However, there did not appear to be any instruments of conveyance containing specific language “creating” the easement of record and/or the road.
Because an easement by reservation must arise from the written documents of conveyance, we examine the chains of title in question.
Halverson,
SUBJECT TO an access easement being sixty (60) feet wide and lying south of and adjacent to the follоwing continuous line; the north line of the NE1/4NW1/4 of Section 17; the north line of the NE1/4 of Section 17; and the north line of the NW1/4 of Section 16 [i.e., North Hidden Valley Road],
The deed also stated:
Section 17: All of the NE1/4 except that land as recorded on Certificate of Survey No. 1316; also all of the NW1/4 except that land as recorded on Certificate of Survey No. 1316.
Certificate of Survey (COS) number 1316 does not depict the sixty-foot private road (North Hidden Valley Road) and public utility easement just south of the 8-17 section line.
*449 Reely-Ashmore assigned the parcel of land to Hidden Valley Ranches in 1977. The deed to Hidden Valley Ranches contained the same “subject to” language and reference to COS number 1316 stated above. In 1978, Hidden Valley Ranches sold twenty-one and one-half acres to John Reely. However, rather than the “subject to” language and reference to COS number 1316, the deed from Hidden Valley Ranches to John Reely recited the property description and stated “ [according to survey data, monuments and easements as shown on Certificate of Survey No. 1503.” Certificate of Survey number 1503 clearly dеpicts the sixty-foot private road and public utility easement just south of the 8-17 section line.
In 1978, John Reely, in anticipation of splitting his acreage further, had COS number 1733 prepared. Certificate of Survey number 1733 also clearly depicts the sixty-foot private road and public utility easement just south of the 8-17 section line. Neither COS number 1503 nor COS number 1733 depict any property north of the 8-17 section line, they only portray property south of the section line. The subsequent deeds that continued to split the property into smaller pаrcels up and until the 1988 sale to the Grigonises, included a reference to COS number 1733.
In Wild River, we held that, normally, the words “subject to” do not create an easement. Wild River, 812 P.2d at 346.
The words “subject to” used in their ordinary sense, mean subordinate to, subservient to or limited by. There is nothing in the use of the words “subject to,” in their ordinary use, which would even hint at the creation of affirmative rights or connote a reservation or retention of property rights.
Wild River,
On the other hand, we held in
Bache
and
Halverson
that an easement by reservation can be established when, in conjunction with a division of land, the subject easement is shown on the certificate of survey and the certificate of survey is referred to and incorporated in the deed of conveyance.
Halverson,
In the instant case, COS number 1316, filed in June 1977 in conjunction with the Hensler to Reely-Ashmore deed when the properties in question were split, does not depict the sixty-foot wide private road and public utility easement just south of the 8-17 section line. However, COS number 1503, filed in July of 1978 in conjunction with the Hidden Valley Ranches to John Reely deed, clearly shows the sixty-foot wide private road and public utility easement just south of the 8-17 section line. Certificate of Survey number 1503 identifies the easement clearly and specifically.
Bache,
Based on Wild River, Bache and Halverson, the North Hidden Valley Road easement was not granted or reserved as to the Grigonises’ property until there was a reference in a document of conveyance to a recorded COS adequately describing the easement. Accordingly, the easement was not granted or reserved when the Henslers sold to Reely-Ashmore because neither the language of the deed nor COS number 1316 established thе easement. Thus, the easement was not granted or reserved when what are now the Grigonises’ and Respondents’ properties were split from single ownership. The Grigonis property was not subjected to the easement until 1978 when Hidden Valley Ranches sold twenty-one and one-half acres to John Reely. It was granted by the 1978 deed which described the property according to the data, monuments and easements shown on COS number 1503. Certificate of Survey number 1503 clearly depicts the east-west private road and public utility еasement just south of the 8-17 section line. This easement by reservation could only apply to east-west travel on North Hidden Valley Road because the parcels of land being divided were to the east and west of each other, and because the land to the north of section line 8-17, i.e., the Respondents’ property, had been split off earlier without reservation of an easement. Additionally, both COS number 1503 and COS number 1733 only depict property south of the 8-17 section line, neither portray nor refer to proрerty north of the 8-17 section line. Consequently, under Wild River, Bache and Halverson, the conveying documents in the Grigonises’ chain of title establish that their prop *451 erty cannot be servient to an easement by grant or reservation held by the Respondents to the north because Respondents’ predecessors in interest, the Henslers, did not reserve or create any easement rights in North Hidden Valley Road when they sold that portion of their property south of the 8-17 section line. The Grigonises’ property is only servient to the east-west easement created by the 1978 deed from Hidden Valley Ranches to John Reely.
The Respondents’ chain of title supports this conclusion that the Henslers did not grant or reserve any easement rights to North Hidden Valley Road or Blue Sky Lane. In 1990, the Henslers sold Respondents 133 plus acres north of the 8-17 section line. The August 2,1991, deed from the Henslers to the Respondents granting the 133 plus acres did not contain any language referring to the claimed easements at issue. Subsequent to the filing of this lawsuit, on October 29, 1993, the Henslers executed an Amended Deed exрressing their intent to replace and supersede the August 2, 1991 deed. The Amended Deed from the Henslers to Respondents included the following provision:
8. An easement for access over the 60 foot private road and public utility easement known as North Hidden Valley Road, to the extent of those rights reserved by the Grantors.
However, as explained above, the Henslers had not created or reserved easement rights to North Hidden Valley Road when they retained the property to the north of the 8-17 section line in thеir 1977 conveyance to Reely-Ashmore. The Hensler to Reely-Ashmore deed did not create or reserve an easement because the language “subject to” is insufficient to grant or reserve an easement.
Wild
River,
*452 Appellate review of the remaining issues:
Having reversed the District Court’s 1995 Final Order and Judgment, a question arises as to whether the court’s earlier rulings on various motions for summary judgment are now also reviewable. Once a final judgment has been entered, all nonappealable intermediate orders or decisions, to which there has been a proper objection, are reviewable on appeal from the final judgment.
Kirchner v. Western Mont. Mental Health Ctr.
(1993),
although a motion for summary judgment is a non-appealable order at the time it is made because of its interlocutory character ... аll non-appealable intermediate orders or decisions properly excepted or objected to which involve the merits or necessarily affect the judgment are reviewable on appeal from a final judgment. ... This review includes reviewing an order denying a motion for summary judgment.
Brown,
In its order of May 1994, the District Court granted summary judgment with regard to the following issues:
1. easement by estoppel
2. Rule 11, M.R.Civ.P., violations and abuse of process.
Since these issues have not been appealed, we need not discuss them. The court denied summary judgment as to the following issues:
1. easement by public prescription
2. laches
3. tortious interference
4. trespass and/or wrongful occupation.
The court dismissed Respondеnts’ claim of easement by necessity and, sua sponte, substituted a claim of easement by implication in its place. The court also granted Respondents summary judgment as to whether any rights to use North Hidden Valley Road automatically included rights to build within the entire sixty-foot easement area. The Grigonises appeal from the court’s denial of summary judgment in their favor as to the above issues.
Our standard of reviewing a grant, or in the present case, denial, of summary judgment is the same as that used by the district court.
Halverson,
We agree with the District Court that material questions of fact remain as to whether Respondents have an easement by prescription, including the issue of whether the construction of Blue Sky Lane exceeds the use allegedly made of North Hidden Valley Road during the period of prescriрtion. We remand for trial on this issue. Easement by Implication:
We note that the District Court made no ruling on the issue of easement by implication. Rather, in its May, 1994 Order and Opinion addressing Respondents’ claim of easement by necessity, the District Court found sufficient evidence to support a claim of an implied easement over the Grigonises’ property based on this Court’s decision in
Graham v. Mack
(1984),
The Grigonises argue that Respondents cannot meet the high standard of establishing an easement by implication. They argue that Respondents cannot produce evidence to show manifest, obvious or permanent use of what is now Blue Sky Lane prior to 1977.
Graham,
Do rights to use the sixty-foot easement containing North Hidden Valley Road automatically include rights to build an access road such as Blue Sky Lane?
The District Court holding that any easement rights Respondents might have in the sixty-foot easement containing North
*454
Hidden Valley Road automatically include the right to build Blue Sky Lane is in error. Based on our discussion of easement by prescription and easement by implication, it is apparent that any right Respondents may have to use North Hidden Valley Roаd does not
automatically
include a right to build Blue Sky Lane to the north. “No use may be made of the right of way, different from that established at the time of creation so as to burden the servient estate to a greater extent than was contemplated at the time of the grant.”
Titeca v. State, Dep’t of Fish & Game
(1981),
The extent of a servitude is determined by the terms of the grant or thе nature of the enjoyment by which it was acquired.
Consequently, assuming Respondents can establish an easement to use North Hidden Valley Road, they must then either: 1) establish that construction and use of Blue Sky Lane is encompassed within and does not exceed the scope of their easement, whether by implication or prescription, on North Hidden Valley Road, or; 2) establish that, in addition to their easement on North Hidden Valley Road, they have an easement by prescription or implication on Blue Sky Lane. The questions of laches, trespass, and attorney’s fees:
Conсerning the issues of laches, trespass, and attorney’s fees, the District Court, in its May 1994 Order and Opinion, stated:
Until the issues are resolved as to whether Plaintiffs [Respondents] have any rights in the easement, ruling on issues regarding damages for interference with or trespass on property rights is premature.
We agree. The issues of laches, trespass, and the propriety of attorney’s fees must await determination of the easement question.
Accordingly, we remand for trial on all remaining issues. Reversed and remanded for proceedings consistent with this opinion.