05/16/2017
DA 16-0410
Case Number: DA 16-0410
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 119N
MARY VANBUSKIRK and ROGER BARBER,
Plaintiffs and Appellees,
v.
PATRICIA DOW GEHLEN, RAY GEHLEN,
Trustees, GEHLEN PATRICIA DOW TRUST,
Defendants and Appellants.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and For the County of Hill, Cause No. DV 14-126
Honorable David Cybulski, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Christopher D. Meyer, CD Meyer Law Firm, Bozeman, Montana
For Appellees:
Brian Lilletvedt, Jamie Bedwell, Bosch, Kuhr, Dugdale, Martin & Kaze
PLLP, Havre, Montana
Submitted on Briefs: March 15, 2017
Decided: May 16, 2017
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Appellants Patricia Dow Gehlen and Raymond Gehlen are the trustees of the
Patricia Dow Gehlen Trust, hereinafter, collectively, “Gehlens.” Gehlens appeal the grant
of summary judgment by the Twelfth Judicial District Court, Hill County, in favor of Mary
VanBuskirk and Roger Barber, hereinafter, collectively, “VanBuskirks.”
¶3 Much like a phoenix, this case arises out of an old easement dispute, which has been
litigated several times. The contested road, referred to as the “Northern Loop Road,”
crosses a field currently owned by Gehlens. Northern Loop Road is located in Section 2,
Township 32 North, Range 16 East, M.P.M., Hill County. The map below shows the
location of Northern Loop Road.
2
...,
•,
181h31
____
Path referenced in Exhibit C of
February 13, 1987 stipulation
Northern Loop road
Al
Patricia Dow Gehlen Trust Land
02 01
Non-Party
Property
_
Non-Party Patricia Dow Gehlen I Non-Party VanBuskirk VanBuskirk
Property Trust Land Property
1976
County Road 440 Western Loop road 1978
32N 16E 40________----,
2008
VanBuskirk VanBuskirk
1977
Non-Party
11 r____ 12
Property
¶4 In 1976, Certificate of Survey #440093 (COS #440093) was completed “for the
purpose of creating a new tract.” COS #440093 created a new 21 acre parcel, which
VanBuskirks’ predecessors-in-interest1 purchased. Following the purchase, VanBuskirks’
predecessors-in-interest sought to secure their access to the property via Northern Loop
Road.
1
VanBuskirks’ predecessors-in-interest are Mary VanBuskirk’s parents, Warren and Edith
VanBuskirk.
3
¶5 In 1980, VanBuskirks’ predecessors-in-interest brought a lawsuit against Gehlens’
predecessors-in-interest2 “to keep the [N]orthern [L]oop [R]oad available based on
prescriptive use.” At that time, District Judge Leonard Langen determined that
VanBuskirks’ predecessors-in-interest could not establish a prescriptive easement because
“they did not have five years continuous use of the [Northern] [L]oop [R]oad.” Then, in
1982, VanBuskirks’ predecessors-in-interest brought a second lawsuit, claiming a right of
way by necessity over the road. The parties entered into negotiations to settle the matter
and, finally, in 1987, the parties reached a settlement memorialized by a February 23, 1987
Stipulation (Stipulation) filed with the District Court and recorded in the Hill County Clerk
and Recorder’s Office.
¶6 The Stipulation stated:
[Gehlens’ predecessors-in-interest] agree that [VanBuskirks’
predecessors-in-interest] have the right to use the path across that real
property more particularly described on Exhibit “C” appended hereto and by
this reference made a part hereof, at all times which do not interfere with the
farming operation on that real property, or whenever necessary.
(Emphasis added.) The incorporated Exhibit C stated:
A roadway in the NE½SE½; Section 2, Township 32 North, Range 16 East,
M.P.M., Hill County, Montana, the centerline of which is described as
follows:
Beginning at a point which lies S0°1’E a distance of 30.0 feet from the
Northwest corner of Certificate of Survey #44[0]093; Thence S89°28’W a
distance of 71.4 feet; Thence N24°14’W a distance of 236.3 feet; Thence
N1°39’W a distance of 283.5 feet; Thence N21°20’E a distance of 223.9 feet;
Thence N7°38’W a distance of 3261.4 feet to a point on the South [r]ight-of-
way [l]ine of U.S. Highway #2.
2
The Gehlens’ predecessors-in-interest are Vivian and Roy Bruner and Dow Brothers, Inc.
4
Length of easement is 3,176.5 feet.
(Emphasis added.) Below the legal description on Exhibit C is a map from the United
States Department of the Interior Geological Survey. Upon the map is a hand-drawn line
roughly indicating the location of the described “path.” The Stipulation was signed by the
partys’ attorneys and included an order signed by Judge Langen dismissing the litigation
for good cause on the basis of the Stipulation.
¶7 In the current case, the District Court concluded “the Stipulation created a right of
way to cross the field on the path which transverses what is now Defendants’ property, but
did not create a right to ‘build up’ a road across the property,” which constituted an
easement. The District Court permanently restrained and enjoined Gehlens from
interfering with VanBuskirks’ or their successors’ use of the easement, and awarded
VanBuskirks’ attorney fees and costs in prosecuting the action. Alternatively, the District
Court held that VanBuskirks had acquired a prescriptive easement across the road. Gehlens
challenge these rulings on appeal.
¶8 “We review de novo a district court’s grant or denial of summary judgment,
applying the same criteria of M. R. Civ. P. 56 as a district court.” Pilgeram v. GreenPoint
Mortg. Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839 (citation omitted).
“We review a district court’s conclusions of law to determine whether they are correct and
its findings of fact to determine whether they are clearly erroneous.” Pilgeram, ¶ 9 (citation
omitted).
5
¶9 “An easement is a nonpossessory 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 the
land.” Blazer v. Wall, 2008 MT 145, ¶ 24, 343 Mont. 173, 183 P.3d 84 (citations omitted).
Further,
[a]n easement appurtenant is one that benefits a particular parcel of land, i.e.,
it serves the owner of that land and passes with the title to that land. The
benefited parcel is known as the “dominant” tenement or estate, and the
burdened parcel is termed the “servient” tenement or estate.
Blazer, ¶ 24 (citations omitted). “An easement appurtenant must have both a dominant
tenement and a servient tenement,” both of which must be determinable. Blazer, ¶ 24
(citations omitted). “A document creating an easement may reference a separate document
that adequately describes the easement’s contents.” James v. Chicago Title Ins. Co., 2014
MT 325, ¶ 12, 377 Mont. 264, 339 P.3d 420 (citations omitted). Further, “[t]he
construction of a writing granting an interest in real property . . . is governed by the rules
of contract interpretation.” Broadwater Dev., L.L.C. v. Nelson, 2009 MT 317, ¶ 19, 352
Mont. 401, 219 P.3d 492 (citations omitted). Finally, the rules of contract construction
state that a contract must be so interpreted as to give effect to the mutual
intention of the parties as it existed at the time of contracting . . . and that
when a contract is reduced to writing, the intention of the parties is to be
ascertained from the writing alone if possible.
Broadwater Dev., L.L.C., ¶ 19 (citation omitted; emphasis added).
¶10 In this case, the subject easement was created out of the settlement of a lawsuit
between Gehlens’ predecessors-in-interest and VanBuskirks’ predecessors-in-interest.
The Stipulation, essentially a contract, was entered into by the parties and submitted to the
6
District Court. The Stipulation, including attached Exhibit C, evidences an intention by
the parties to create an easement appurtenant. The Stipulation indicates Gehlens’
predecessors-in-interest were granting VanBuskirks’ predecessors-in-interest a “right to
use” the “path” across the property described in the exhibit, and used the term “easement”
to describe this right. The easement itself is identified by the property description provided
in Exhibit C. Further, the servient tenement can also be determined from the property
description. Based on the incorporated legal description and associated map, it is clear that
the easement runs directly through Gehlens’ property. Additionally, the dominant
tenement can also be determined based on the property description in Exhibit C. The
easements description begins at the Northwest corner of COS #440093, which created the
subject VanBuskirk parcel, and terminates at United States Highway Number Two.
Northern Loop Road is not an open-ended roadway—it serves VanBuskirks’ property, the
dominant tenement identified by COS #440093.
¶11 We affirm the District Court’s conclusion that the 1987 Stipulation, which ended
the prior litigation, created an easement. Based on this conclusion, we further affirm the
District Court’s grant of a permanent injunction restraining and enjoining Gehlens from
interfering with VanBuskirks’ or their successors’ right to use the easement in the manner
provided in the Stipulation. Consequently, the District Court’s ruling on the prescriptive
easement claim was unnecessary and we do not address it further.
¶12 Regarding attorney fees, “a district court’s decision as to whether legal authority
exists to award attorney fees is a conclusion of law.” Trs. of Ind. Univ. v. Buxbaum, 2003
7
MT 97, ¶ 15, 315 Mont. 210, 69 P.3d 663 (citation omitted). “We review conclusions of
law to determine whether the district court’s interpretation of the law is correct.” Buxbaum,
¶ 15 (citation omitted).
¶13 The District Court held VanBuskirks were entitled to attorney fees under
§§ 27-1-316(c) and 27-8-311, MCA. Section 27-1-316(c), MCA, a remnant of the Field
Code, defines the “detriment” that is caused by a “breach of a covenant of seisin, of right
to convey, of warranty, or of quiet enjoyment in a grant of an estate in real property” to
include “any expenses properly incurred by the covenantee in defending possession.” This
action is based on VanBuskirks’ claim to a nonpossessory easement interest, not a defense
of possession of an estate in real property. We have previously declined to award attorney
fees under § 27-1-316(c), MCA. See Haggerty v. Gallatin Cty., 221 Mont. 109, 121, 717
P.2d 550, 557 (1986); Stevenson v. Ecklund, 263 Mont. 61, 67, 865 P.2d 296, 299 (1993).
This provision does not authorize an award of attorney fees herein. However, the District
Court also cited the Uniform Declaratory Judgment Act in support of the fee award, under
which we have approved an award of attorney fees as supplemental relief. Buxbaum, ¶ 42.
We conclude that the District Court did not err by awarding attorney fees and costs here as
supplemental relief.
¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. This appeal presents
no constitutional issues, no issues of first impression, and does not establish new precedent
or modify existing precedent. The District Court did not err in its conclusions of law.
8
¶15 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
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VanBuskirk v. Gehlen
Combined Opinion