*1 WATSON, E. NANCY Appellant, Plaintiff and v. DUNDAS, and MARGO
GEORGE
BERBERET,
and GRACE
GEORGE WILLIAM
OF
COUNTY BOARD
BROADWATER
THE
COMMISSIONERS,
COUNTY
LANDS,
OF STATE
DEPARTMENT
MONTANA
Respondents.
Defendants
No. 02-534.
February
2006.
on Briefs
Submitted
9,May
2006.
Decided
Rehearing
2006.
Denied June
For Sommerfeld, PLLP, Billings. Towe, Ball, Mackey & Enright, County Board of Broadwater Respondent For County Attorney, Broadwater Flynn, John T. Commissioners: Townsend. Tommy H. State Lands: Department of Respondent Montana
For General, Helena. Butler, Attorney Assistant Special the Court. Opinion delivered the MORRIS JUSTICE (Watson) Eighteenth ofthe from a decision Nancy appeals in an action Watson Court, County, District Gallatin Judicial Margo George across the lands access to her gain (Dundases). remand for part, reverse in part, affirm Dundas proceedings. further appeal: following issues We consider summary judgment properly Court Whether the District to an easement claim regarding the Dundases Watson’s
in favor of grant. properly granted the District Whether claim to an easement regarding the Dundases Watson’s
in favor of necessity. the correct burden held Watson to the District Court Whether *3 right public constitutes that the Lower Road on her claim
proof way? granted properly the District Whether
¶6 for Dundases’ counterclaim VI-XIII, considering the by on Counts damages to awarding by entering judgment damages, and Dundases? BACKGROUND PROCEDURAL
FACTUAL AND R3E, 34, T5N, ofSection the northeast Dundases sold The ¶7 Watson, at Dundas, his wife son, and Roger their County, to Gallatin they that parcel surrounds the Dundas’s land time, in 1983. The east, west, and on the then-daughter-in-law son and conveyed to their and the 15, 22, 23, own Sections The Dundases north. private map. Another See attached Section 34. quarter of northwest and no outlet parcel this the south of the land to landowner holds or Roger provided have that would private land across this exists public to a access only apparent The road. to a Watson access by the Dundases. owned now, property then, exists across road for Dundases from the the land Roger purchased cash, so price purchase pay not afford to $40,000. They could they pin-chase property through financed the of the a loan from the (FHA). Roger Farmer’s Home Administration The FHA required acquire and Watson an easement to access the FHA before approve they would loan of the fact that could not access their property traveling without across the Dundas’s lands. Roger requested that his parents provide easement to access property. The FHA represented they granted permanent Roger easement to and Watson to facilitate the loan. The FHA approved the loan with the easement provided by the Dundases. George they Dundas testified that did not execute the Grant of Right-of-Way 1986, however, Easement and document until because attorney their did complete paper timely not work in a manner. The portion recitals of the stated that it provide meant to Roger Watson and Dundas “permanent with a right-of- way over and across the undersigned’s remaining lands for purposes egress and ingress.” portion of the document stated that granted it a “permanent easement and right-of-way over and across along Section 27 ... the historic road now traversing Section 27 and historically ingress used for egress to the lands above described in Section 34.” granted permits road, Watson to follow an old Road,
known as the Lower that runs slightly north and west from Watson’s land across Section 27. The road also crosses Section however, another portion ofland owned the Dundases. See attached map. It west, then crosses over Section 21 to the George owned (“Bill”) (Berberets). William and Grace Berberet proceeds The road Montana, northwest into Section owned the State of then turns west Road, into Section 17 and intersects county with Sixmile road. Watson and Roger accessed their property along this road from the time purchase in 1983 through 1994. Roger Watson and Dundas entered into a property settlement
agreement in 1993 as oftheir dissolution. The property settlement agreement for their provided divorce that Watson would obtain full purchased title to the land from the Dundases. George Dundas sent a letter to in February of 1994 to inform her for the first time easement permitted her to cross Section 27. Watson, Dundas further informed “I hereby give you permission to cross section 22 permission you only.” but this is limited to *4 Watson filed suit May to enforce the terms of the easement in granted 1994. She contended that the easement her right to cross 168 temporary Court issued a Section 27.1The District Section 22 and
both Watson to injunction permitting and a restraining preliminary order filed a litigation. The Dundases during 22 and 27 cross Sections alia, 1995, that Watson alleging, inter August on counterclaim them. The by driving 22 over crops planted their damaged conducting summary judgment after motions for parties filed various discovery. substantial summary Dundases’ motion for granted The District (Easement Necessity) and to Count relating to Count IV
judgment Easement) (Grant into a parties 2000. The entered August on V 26,2001, Court to decide permitting District on October stipulation law) law) II road federal on (public (public I road Montana Counts affidavits, and exhibits filed with depositions, the basis of the I relating to Counts judgment The District Court issued court. way or easement 4, 2002, public right that no of finding II April 16 and 21. existed over Sections 2002, order, separate April and a August In 2000 order its easement) (prescriptive Count III Court dismissed
District summary Watson and a concession accordance with (declaratory judgment Dundases on Counts VI-XIII judgment claims). findings of The District Court issued and various tort based 18,2002, trial on the June after a bench of law on fact and conclusions $4,200 counterclaim, that Watson owed ruling Dundases judgments appeals the crops. to their damages Dundases for State, Berberets, and Broadwater Dundases, in favor of County. OF REVIEW
STANDARD This court’s Court reviews a district 2004 MT Staples, v. Union Mut. Ins. Co. de novo. Farmers contained the criteria 99, 18, apply P.3d 18. We Mont. April thirteen counts. Complaint lists Amended filed on The Third Berberets, Department against the Montana the claims as first two identified County (State), Commissioners Board and the Broadwater State Lands (Broadwater as identified the County). counts either (I) Public/County generally. as follows: The counts were the claim defendants or stated (II) Right-of-Way Federal Law, Road as a Matter of Public a Matter of Montana Road as Law, (VI) (V) Easement, (IV) Necessity, (III) Easement, Grant Prescriptive Easement (IX) (VIII) Fraud, (VII) Injunction-Estoppel, Judgment, Declaratory Reformation, Permanent (XI) Relationship, (X) Bad Contractual with Tortious Interference (XII) Dealing, Intentional and Fair Implied Good Faith Covenant of Faith-Breach (XIII) Damages. Distress, and Punitive Emotional Infliction of
169 56, rule, Rule M.R.Civ.P. Staples, According 18. to this the moving ¶ party must establish both the genuine absence of a issue of material judgment fact and entitlement to as a matter of law. Grimsrud v. 194, Hagel, 14, 142, 14, 119 2005 MT 47, 328 Mont. ¶ P.3d 14. The ¶ ¶ burden then non-moving shifts to the party prove, by to more than mere denial and speculation, genuine that a issue does exist. Grimsrud, If 14. the court genuine ¶ determines that no issues fact exist, the court must then determine whether the moving party is judgment entitled to Grimsrud, as a matter of law. 14. We review ¶ legal determinations made a district court to establish whether the Grimsrud, conclusions are correct. 14. ¶ We review a district findings court’s of fact they to determine if clearly
are erroneous. Ramsay v. Neurosurgical Assocs., Yellowstone 317, 13, 2005 MT 489, 13, 329 Mont. 1091, ¶ 125 P.3d 13. ¶ We use ¶ a three test determining when whether a district findings court’s 1) clearly are erroneous: whether the findings are supported by 2) substantial evidence in has record; whether the trial court 3) misapprehended the effect of evidence; and if substantial evidence exists and the effect of the evidence has not misapprehended, been may Court still determine that the trial findings court’s clearly are when, although erroneous it, evidence supports a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed. Ramsay, 13. We ¶ review district court’s conclusions of law for correctness. Galassi v. Lincoln Bd. of Com’rs, 319, 7, 288, 2003 MT ¶ 80 P.3d 7. ¶ ¶
DISCUSSION Grant Easement The District granted summary judgment to the Dundases granted the easement to applied only to Section 27. The
court found that specific the more language of the grant portion of the document trumped the general recital’s more language. See 1- Section 4-103, MCA. The recitals portion of the easement provides document sought
Dundases grant Roger and Watson a “permanent easement and right-of-way over and across the [Dundases’s] lands for purposes egress and ingress to the said northeast added.) of Section (Emphasis 34.” language grant in the portion document, however, appears to limit the easement to “the historic road traversing now Section historically used for ingress egress” parcel Roger owned The grant Watson. easement specifically does not mention Section 22.
170 apply interpreting of contract law an principles General 215, 32, MT by grant. Bing, Mularoni v. 2001 ¶ 405, 32, A interpreted 32. should be favor of ¶ ¶ 70-1-516, uncertainty MCA. In cases of “the grantee. Section strongly against be most language interpreted of contract should 28-3-206, party uncertainty who caused the to exist.” Section MCA. Roger presumption granted A also exists that the Dundases through long- 22. One “Montana’s Section standing jurisprudence” grants thing maxims of states that one who also essential its use. Erker v. presumed is whatever is Kester, MT P.2d Mont. MCA, 1-3-213, specifically principle. codifies this they Roger represented to the FHA that had *6 by they to could provide Watson an easement a route which access also owned the property. their An easement over Section Dundases, through of an easement Section proves essential the use that purpose. 27 for phrases This Court “not isolate certain of the instrument will parties, grasp the instrument its
garner the intent of the but will instrument, ascertain the four corners and in the entire parties.” Rumph the v. Dale guiding and intent of paramount Edwards, (1979), 163, 168. Erker, In Inc. P.2d Sky property Big a at with a house to the piece the Kesters sold $310,000. asphalt driveway The to access Erkers for Erkers used six-year period. asphalt driveway for a The property the and house property the to the Erkers’s and only ingress egress represented the sought asphalt later the Erkers’s use of house. Kesters block $310,000 driveway purchase price the did not include basis separate negotiate were to a asphalt driveway parties the asphalt driveway for additional consideration. purchase sale and ofthe documenting inconsistent on agreements the transaction were asphalt driveway in the parties intended include whether $310,000 purchase. original 1-3-213,MCA,in determining maxim applied codified § use necessary complete to the
that “access was and essential property Kesters sold enjoyment Erkers of house which Erker, by its grasped purchase agreement the sale and them.” 23. We entirety” reaching “in its corners and evaluated document four Erker, conclusion. this 70-1-515, MCA, this prevents The Dissent contends § grant of a unless examining portion even the recitals
from Dissent, yet are 48. We have grant of a doubtful.” “operative words to interpret what constitutes language grant “doubtful” as set 70-1-515, 70-1-514, MCA, forth in MCA. companion statute, § however, sets forth the proposition. inverse It states that a “clear and distinct limitation in a is not controlled by other words less clear 70-1-514, and distinct.” Section MCA. applies This statute when the granting document ambiguity. itself contains no example, For County Court in Park Rod & Department (1973), Gun Club v. of Hwys. 372, 517 P.2d upon 70-1-514, MCA, relied what is now § in rejecting a claim of ambiguity granting in a document. There a controversy arose private about whether a party had
granted the State fee title to a piece
property along
the Yellowstone
River or
an easement
to use
property
public
as a
park. The
private party
“Easement,”
executed an instrument entitled
in favor of
the State.
County
Club,
Park
Rod & Gun
163 Mont. at
at
granting
353. The
document noted that the private party retained
the right
enjoy
to use and
except
rights granted
as to the
to the State. The portion of the document granting
rights
State twice referred to the fact that
the land was to be used “as a
Park,”
Public
and specifically described “said easement.”
Park
Club,
Rod & Gun
claim deed in
private
favor of the
party.
gun
The local
challenged
club
the reversion of the easement back to the private party
grounds
on the
that the State had failed to
governing
follow statutes
the sale of land, including an appraisal
requirement. The Court applied
67-
§
(1947),
R.C.M.
the predecessor to what now is codified at 70-1-
514, MCA. The Court noted that
the instrument was titled
“Easement,” that it
specifically
referred
to the limited
for “use as
Park,”
a Public
and the fact that
provided
the State
the private party
*7
no consideration for the
light
easement.
In
of
any
the absence of
ambiguities in the granting instrument,
recognizéd
the Court
“clear and distinct limitation” in the instrument
that the grant was to
be an
only.
County
Club,
easement
Park
Rod & Gun
Dundases, contained a significant ambiguity. significant This ambiguity interpreted against must be drafting Dundases as the party. 28-3-206, See Section purpose MCA. The document’s stated was provide Roger to and permanent Watson a easement all across of the Dundases “remaining egress lands for purposes ingress” to the northeast grant of Section 34. The portion of the document contradictorily limits the easement to cover Section 27. Section
172 MCA, 70-1-514,MCA, 70-1-515, application have no under those circumstances. phrase limiting we isolate the Instead must not in parties’
to intent of the must evaluate at at 168. document. We also Rumph, entire grant grantee. ofWatson Section 70- interpret must in favor as 1-516, A document leads us to conclude that MCA. review of the entire granted summary judgment favor of improperly the District Court that an they the Dundases did not easement across property. Section 22 of their conflicting permitted in the document language granting The regarding to extrinsic the parties’
District Court consider evidence Bernhard, MT intent. Doble v. The that 19. extrinsic evidence demonstrated undisputed
P.2d access their Section 34 Roger and Watson could not remaining lands, traveling all of the Dundases’s without across $40,000 They 27. including provided Section 22 and Section parcel for the Section 34. consideration landlocked provided & had no in Park Rod Gun Club The State Mont. P.2d at The grant. for the See 163 at consideration the FHA’s loan to $40,000 consideration in this case stemmed from Watson, an contingent upon the Dundases’s Roger and loan newly Roger provided that access to their easement to and Watson they The Dundases made no claim that sold the purchased property. reflect the lack of parcel Roger price to Watson for a reduced $40,000 purchase price The Dundases made no claim access. George Dundas even anything reflected other than fair-market value. they provide Roger and Watson with conceded that intended across both sections: words, going if Attorney: Okay. you’re In other leave 27, if you get [Section] can’t go up house here and [Watson’s] to Mile Road? 27, you get [Section] never Six out Dundas: No.
Attorney: Right? That’s right.
Dundas: you intended, it? And is Attorney: that wasn’t what Dundas: No. Roger us to conclude extrinsic evidence leads hope the mere pay not market value for did fair remained long as and Watson
permissive Roger easement for as timely filed cross- parties dispute whether Watson married. cross-motion, however, summary require no judgment. for motion
173 moving party when the had a full and fair opportunity to consider the proposition and all other summary judgment criteria for are met. See (1991), 100, Bunday 108, 974, Canal Ins. Co. v. 249 Mont. 813 P.2d 979. conclude, law, granting instrument, as matter of whole, conjunction
when considered as a and in undisputed with the evidence, extrinsic provided Watson with an easement across the Dundases remaining property, including Section 22 and Section 27. Similar to the asphalt driveway Erker, in the permanent easement by Dundases “was necessary and essential to the complete enjoyment” use and by Roger and Watson of the landlocked in parcel Section 34 that the Dundases Erker, 23; earlier had sold them. 1-3- ¶ 213, MCA. We refuse to allow the Dundases to benefit from an ambiguity oftheir own making and to skirt the overriding intent ofthe granting document: to provide Roger and ingress and egress to their landlocked parcel-a landlocked parcel sold to them the Dundases. by Necessity
Easement The two elements of an by necessity unity are ownership and strict necessity. Luraski, 223, 49, Loomis v. 2001 MT ¶ 478, 49, 306 862, Thus, Mont. 36 P.3d 49. ¶ easement exists ¶ necessity when the owner of a tract ofland sells a ofthe tract that has no outlet to a public road except over the other lands of the seller. Ass’n, Kullik v. Skyline Inc., 137, 22, Homeowners 2003 MT ¶ 146, 22, Mont. 225, 69 P.3d necessity ¶ 22. Strict means a lack of practical access to a public ingress road for egress. Kelly v. Burlington (1996), Northern 238, 243, R.R. Co. 4, Mont. 927 P.2d necessity 7. Strict must exist both at the time the unified tracts are severed and the time Loomis, of exercise of the easement. 50. imposition The of an by necessity only very will arise specific circumstances, “where an conveys owner of land a parcel thereof which highway has no outlet to a except over the grantor lands of the strangers, or over the lands of way necessity exists over the remaining grantor.” lands of the Graham v. Mack (1984), 165, 699 P.2d 596. The party seeking by necessity establish an easement carries the burden to all prove required elements Loomis, establish that easement. 51. Additionally, way necessity only exists across land that had access to a public road when the property was divided. Schmid v. McDowell (1982), summary District Court based its judgment solely
unity grounds. of title granting court stated its order necessity on the easement count that unity Plaintiffs to a public
“there is no of title from road.” 15, 22, 23, 26, This is The Dundases Sections statement incorrect. own are contiguous and the northwest of Section which demonstrate that the Sixmile maps lands. The the record *9 Indeed, years in crosses Section 15. its order entered two later on Road II, rights way over relating public Counts I and to of Sections 21, District Court as the trier of fact found that 15, 22, 26, 27, 35, 23, and the northwest of owned Sections 34, demonstrating unity thus oftitle over lands from Watson’s property public road. necessity Court to rule The District also failed on the strict of conflicting face in her
easement of evidence. Watson testified road, Road, there is into out of deposition that one Lower her property. however, to emerge, respect with the Lower problems Several First, therefore Watson cannot
Road. the Berberets own Section unity necessity. of title element for an easement satisfy Moreover, pursuant to public right way no of exists over Section that Bill holding our 39-42 below. Dundases note Berberet ¶¶ property. road On a deposition in his another to Watson’s described questioning reading of the Berberet and colloquy casual between A this road the Dundases’ land. attorney, it would seem that avoids record, however, use maps reveals that to this road review ofthe belonging have to cross land to the Dundases. Watson would possible other routes exist from her asserts that various ¶37 Watson George property road, including “Upper Road.” Dundas public passes it from Upper Road in 1978 or 1980 and constructed 27, 22, through north Sections Watson’s connecting Road in Section Watson ultimately with Sixmile trail “Upper shifting more of a than a road. described the Road” as passable that this route would involve making Watson notes her further contends that expense. considerable Roads, but rather Upper not restricted the Lower would claim is contiguous permit of the Dundases’ sections pass over whatever road, no though specifics offers public her reach the nearest she beyond the two mentioned routes. regard with Court’s incorrect statement Given District road, the directly public and a title between Watson’s land
unity of conflicting necessity, evidence any ruling on strict and the absence of Court’s necessity, conclude the District about strict we We reverse the on this issue was in error. judgment against Watson on Count IV and remand the cause for proceedings. Although further we have determined that the Dundases granted an easement to Watson to cross Section 22 and Section public Watson still has no outlet to a road in of the District rulings respect Court’s with to a road across property owned the State and the Berberets. The District Court denied also Watson’s prescriptive Thus, claim of a easement across those same lands. District claim Court still must resolve the issue of on an Watson’s by necessity upon remand.
Burden of Proof
argues
that the District
improperly
found that she
must
her
prove
public right way
on the
Lower Road
clear and
convincing evidence. Watson contends that
prove
she needed to
her
only by
case
a preponderance
Rose,
of the evidence. See Richter v.
MT
easements, including public rights way, and have a “long established line precedent of clear setting forth the proof burden of in prescriptive easement cases as that of clear and convincing evidence.” Wareing v. (1996), Schreckendgust 43. We inadvertently may have ambiguity introduced point this in Richter *10 by stating “that the District correctly concluded that the Richters did not the establish existence of a public highway pursuant to R.S. by preponderance Richter, the evidence.” 32¶ of added). (emphasis Wareing ¶41 We therefore reaffirm the precedent line of on this issue, that clear convincing evidence constitutes the applicable burden of proof prescriptive easements, for including public rights of way. We conclude that the District Court properly applied the clear and convincing standard in Watson’s case. Watson also contends that the misapprehended
¶42 District Court the applicable rule of and improperly required law her to five prove years of use July 1, 1895, continuous of the Lower Road prior to in order to establish the road a public right way. as of Watson cites no authority, however, that a length indicates different of time applied. should be The State and County respond Broadwater five-year requirement agree is correct. the State and the We with County. Our precedent way is clear that to a public right establish of by prescription circumstances, in these Watson had the burden to prove that the public used the Lower Road over Sections 16 and 21 for years 1, 1895. (1909), five prior July City See Butte v. Mikosowitz 354-55, 102 P. 594-95. affirm the District holdings on I and II.
Court’s Counts Damages Counts VI-XIII and argues ruling Watson that the District Court its on predicated on upon Counts VI-XIII its Count IV (Easement Easement) (Grant by Count V Necessity) and incorrectly that because District Court Dundases. contends counts, judgment on judgment alleged predicate entered these reversed. We and remand to the agree Counts VI-XIII should be proceedings Court for further consistent with our decision. We District VI the extent the court its reverse Count based determination on lack of an easement across Section of the do Dundases land. We not disturb District Court’s conclusion that right way property exists across the or that no Berberet’s across this as prescriptive had obtained a easement I, II, in Counts III. further the District Court’s alleged and We reverse damages to Dundases caused use ofthe road award of Watson’s 22 in had Section of our conclusion that the Dundases across across 22 and Section granted an easement to Watson Section
CONCLUSION reasons, Court’s foregoing For the we affirm the District order way the District regarding public right issues. We reverse relating granted order easement across Section 22 and Court’s by the Dundases allows Watson to hold that the easement District 27. We further reverse the Court’s cross Section relating necessity across Dundases’ order issues, remand the cause for property, damages we proceedings further on the counts. for part, in and remanded further part, Affirmed reversed
proceedings. concur. WARNER, COTTER and LEAPHART
JUSTICES dissenting part. RICE JUSTICE herein, regarding first holding I dissent from the Court’s grant. document ambiguity the easement The Court finds *11 the see grant language, the with recital comparing language law, ofcontract by general principles ambiguity applying resolves that However, Court fails to the including resort to extrinsic evidence. matter. controls this specifically the statute which apply grant language grant within recital and application ¶48 70-1-515, as MCA, provides follows: governed by is which documents 70-1-515. Recitals-when resorted to. If operative the words grant doubtful, of a are may recourse be had to its recitals to assist the construction. subjugates grant This statute document’s recitals to the
operative wording itself; grant grant of the the recitals and the do not stand on equal footing. may The statute directs that recitals be looked Here, if the words of the are doubtful. no doubt whatsoever emanates from the operative grant: words of the clearly granted Thus, easement was over only. Section 27 the Court’s obligation apply governing here is to statute and reach the conclusion which the requires statute us to reach-that the easement does not extend any over Section or other property by owned Dundases. Instead, however, the past Court looks the clear language of the
grant in phrases favor of nebulous within the recitals which refer to “the purpose” of the document as granting an easement “over across the undersigned’s remaining lands,” and then on a embarks journey determine, using evidence, extrinsic to which of the “remaining lands” the recitals are referring. Given that the Dundases many own other “remaining lands” in surrounding area, the Court opens a Pandora’s Box ambiguity that well illustrates both the purpose served the statute and the Court’s ill-advised decision to discard it. Further, the Court bends other of our principles complete its
journey. Citing Mularoni v. Bing, the Court “[g]eneral claims that principles of contract apply law in interpreting by grant.” an easement See 20. This is indeed is unclear and the meaning true-i/'the (“In of the grant needs to interpreted. Mularoni, be See 32¶ interpreting meaning grant, an easement principles contract added)). apply.” (emphasis general contract principles offered the Court are not applied when an grant language easement’s is crystal requires clear and no interpretation. The Court then cites general contract interpretations!
principles which instruct that we will “not isolate phrases certain instrument,” “grasp but will instrument its four comers and instrument, ofthe entire ascertain paramount guiding intent of the parties.” However, See instead of grasping document, it, the Court particularly releases language clear of the grant, and looks to extrinsic evidence. The Court then uses that evidence to create its own version of a story,
road asserting “[t]he undisputed extrinsic evidence Roger demonstrated that and Watson could not access their *12 remaining of the Dundases’ traveling across all 34 without in Section course, 29. Of “all of Section 27.” See lands, including Section 22 and include not Section remaining lands” the Dundases’ part of Section Section Section but Section led the recitals has Thus, Court’s focus on as well. and Section 35 a circuitous access somehow that the easement it to conclude finally ending property, of Dundases’ over some seven sections route home. I submit long way That is a land in Section 34. in Watson’s matches this route. rationale well the Court’s 70-1-515, MCA, provided the clear instruction apply I would affirm I the Court’s that issue. concur with District Court on holdings. join the dissent NELSON and JUSTICE CHIEF JUSTICE GRAY RICE. JUSTICE