IN THE SUPREME COURT OF THE STATE OF MONTANA
JOHN H. TITECA and CLARA L. TITECA,
Individually and as husband and wife,
Plaintiff and Appellant,
STATE OF MONTANA, ACTING BY AND THROUGH
THE DEPARTMENT OF FISH, WILDLIFE, and
PARKS,
Defendant and Respondent.
Appeal from: District Court of the Sixth Judicial District,
In and for the County of Sweet Grass.
Honorable Jack Shanstrom, Judge presiding.
Counsel of Record:
For Appellant:
J. Brian Tierney, Butte, Montana
For Respondent :
F. Woodside Wright, Helena, Montana
Submitted on briefs: July 9, 1981
Decided: September 15, 1981
Filed: SEP I 19@f
Q- $ *?b
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
Plaintiffs, John H. Titeca and Clara L. Titeca, appeal
from the summary judgment granted in the District Court,
Sixth Judicial District, Sweet Grass County, to defendant,
the State of Montana, acting by and through the Department
of Fish, Wildlife and Parks (hereinafter department).
The property involved in this matter is located on the
Boulder River within Section 15, Township 2 South, Range 13
East, Sweet Grass County, Montana. The site is approximately
20 miles south of Big Timber, Montana, and approximately 3
miles east of McLeod, Montana.
In 1954, by a recorded document entitled "Deed of Right
of Way over Existing Road", W. T. Rule, Jr. and Edith Rule,
his wife, predecessors in interest to the department, transferred
an interest in property to Annice B. Abarr (Somers), predecessor
in interest to plaintiffs and appellants, John H. Titeca and
Clara L. Titeca. The document states:
" [Tlhe said parties of the first part ...
do hereby grant and convey unto said party of
the second part, her heirs and assigns; a
permanent right of way, twenty feet wide, for
use as a private road across and over a strip
of land in Sweet Grass County, Montana, more
particularly described as that land now being
used as a private road over and across a twenty
foot strip of land . .."
This right of way over the Rule property provided
access to the Abarr property. The road still provides the
only access to Titeca's property (formerly Abarr's property).
Through various mesne conveyances, the department
acquired the Rule property (servient estate) and Titeca
acquired the Abarr property (dominant estate). The department
intends to pave the road and open it to the public. The
road will serve a dual purpose: it will provide a route to
the Titeca property and to the proposed Boulder Forks fishing
access site, located on the department's land.
-2-
Titeca brought an action seeking damages of $500,000
and an injunction to prevent the department from developing
and using the department's property as a public fishing
access site, and to prevent the paving of the road.
Titecals complaint was based on a claimed fee title to
the roadway, allegations of improperly made environmental
studies, of creating a nuisance, of exposing Titeca to
personal liability, and of maintaining a trespass, disturbing
peace and contentment, depreciating land values and taking
without just compensation. The complaint was supported by
the affidavit of John Titeca which alleged that he owned fee
title in the right of way and that "irreparable injuries,
trespass, damages and losses" would occur by reason of the
proposed use of the right of way and development of the
access site.
A hearing was held and testimony taken from John Titeca
and the department's regional parks manager, Ray Berntsen.
No decision was rendered at the hearing.
Subsequently, the department moved for summary judgment.
The motion was supported by affidavits from Don Abarr (husband
of Annice Abarr when the deed of right of way was granted)
and Annice Abarr (Somers). Both affidavits indicated the
deed was intended to provide only an easement from the
Rules. The motion was further supported by an environmental
assessment and a preliminary environmental review together
with affidavits, made by a department program manager, Ron
Aasheim, and a department civil engineer, Walt Anderson.
Completion of the environmental assessment was apparently
required to qualify the purchase for matching federal funds.
The conclusions of both affidavits were that the environmental
studies were properly made. Each study concluded that the
impacts of the project would be minor and each resulted in a
finding that the drafting of an environmental impact statement
was not necessary.
In opposition to the motion for summary judgment,
Titeca introduced affidavits from Edith Rule, one of the
original grantors, and, another from Annice Abarr (Somers),
the original grantee. Thus, each party submitted an affidavit
from Annice Abarr in support of their position.
The District Court found the department had met its
burden and that there were no genuine issues of material
fact. Swnmary judgment was entered as a matter of law on
behalf of the department.
We affirm the judgment of the District Court.
In granting summary judgment, the District Court ordered:
"1. That title to the property in question
is quieted in the State of Montana, Department
of Fish, Wildlife, and Parks, subject to an
easement for roadway purposes held by plaintiffs.
"2. That defendant acted under proper authority
in acquiring the property in question and did
so without depriving plaintiffs of their constitu-
tional right d5 due process.
"3. That defendant made all necessary and proper
environmental assessments before acquiring the
property and before undertaking the project thereon.
"4. That defendant's acquisition, management, and
use of the property is not a taking of plaintiff's
property without compensation."
It is this order of the District Court which we review
upon appeal.
An appropriate statement of the law with regard to
summary judgment can be found in Byrd v. Bennett, White and
American Title & Escrow of Billings (1981), - Mont . I
"In recent opinions, this Court explained the
purpose of summary judgment under Rule 56,
M.R.Civ.P., and we outlined the proper procedure
for entry of summary judgment. See, Anaconda
Co. v. General Acc. Fire & Life (1980), Mont .
, 616 P.2d 363, 37 St.Rep. 1589; Reaves v.
Reinbold (1980), - Mont. , 615 P.2d 896,
37 St.Rep. 1500. Under Rule 56(c), M.R.Civ.P.,
summary judgment shall be entered if I . .. the
pleadings, depositions, answers to interrogatories,
and admissions on file [together with the affidavits
if any] show that there is no genuine issue as to
any material fact and that the moving party is
entitled to a judgment as a matter of law.' The
purpose of summary judgment is to encourage economy
through the elimination of unnecessary trial, delay
and expense, but the procedure is never to be a
substitute for a trial if a material factual controversy
exists. Engebretson v. Putnam (1977), 174 Mont. 409,
571 P.2d 368. In a summary judgment proceeding, the
formal issues presented by the pleadings are not
controlling. The question to be decided in a motion
for summary judgment is whether there exists a genuine
dispute over material facts. The party moving for
summary judgment has the burden of showing the complete
absence of material factual questions. The proof
proffered by the movant is closely scrutinized. The
party opposing the motion may block summary judgment
by offering proof that a dispute exists regarding facts
material to the claim for relief." 38 St.Rep. at
1084.
It is in light of this standard that we must review the
holding of the District Court.
1. Did the District Court err when it entered summary
judgment quieting title to the roadway in the department
subject to an easement for roadway purposes held by plaintiffs?
To resolve this issue we must determine what interest
Titeca has in the disputed right of way. The language of
the 1954 conveyance quoted earlier is sufficiently clear on
this point. It is entitled "Deed of Right of Way Over
Existing Road." Titeca maintains that this instrument
conveys a fee interest in the roadway or, in the alternative,
an exclusive easement under the terms of which Titeca alone
is allowed to use the roadway. The department contends that
the instrument conveys nothing more than an ordinary, nonexclusive
easement.
The language of the instrument creating Titeca's interest
in the roadway is, on its face, clear and unambiguous: the
instrument conveyed "a permanent right of way . . . for use
as a private road . . ." The grant of an easement is the
grant of a use and not a grant of title to the land. Bolinger
v. City of Bozeman (1972), 158 Mont. 507, 511, 493 P.2d
1062, 1064. The instrument conveys an easement.
Although Titeca directs us to numerous cases involving
strips of land where it was held that a fee interest was
either granted or reserved, each case is easily distinguishable.
In most instances, this can be accomplished on the basis of
the language of the instruments involved.
In the course of the litigation, neither party indicated
who has paid taxes on the roadway since 1954. Although that
information would not be entirely determinative of the issue
of fee or easement, it would provide some insight into which
one of the parties owned the road.
Titeca's alternative assertion--that if he does not
have a fee interest in the road, he at least holds an exclusive
easement--is the stronger of his two arguments. We find,
however, that Titeca holds nothing more than an ordinary
easement.
Titeca bases his assertion that he holds an "exclusive"
easement on the use of the words "private road" in the 1954
document . "An 'exclusive easement' is an unusual interest
in land; it has been said to amount almost to a conveyance
of the fee." 2 Thompson - --
on Real Property (1980), S 426, at
654-655. "No intention to convey such a complete interest
can be imputed to the owner of the servient tenement in the
absence of a clear indication of such an intention." City of
Pasadena v. California-Michigan Land & W. Co. (1941), 17
Cal.2d 576, 110 P.2d 983, 985. The mere use of the words
"private road" is not a clear indication of an intent to
create an "exclusive" easement.
Furthermore, section 70-17-106, MCA, states "[tlhe
extent of a servitude is determined by the terms of the
grant . . . by which it was acquired." In other words,
"[wlhere an easement is claimed under a grant .. . the
extent of the rights granted depends upon the terms of the
grant,. .. properly construed. If it is specific in its
terms, it is decisive of the limits of the easement." 25
Am.Jur.2d Easements and Licenses, § 73, at 479. "[Nlo use
may be made of the right of way, different from that established
at the time of its creation, so as to burden the servient
estate to a greater extent than was contemplated at the time
of the grant." 25 Am.Jur.2dI supra, § 77, at 483. The
purpose of the easement was, and is, to give Titeca access
to his land. On Titeca's part, the road is "private" to the
extent that no person other than Titeca and those authorized
by him can use it to get to Titeca's land, located across
the river from the department's land.
There can be no doubt that after granting the easement,
the grantors, their successors in interest, and those authorized
by them, had the right to use the road over what is now the
department's land. The department, as successor in interest
to the grantors has the same right.
Nothfng in the department's proposed use of the roadway
appears to interfere with Titeca's right to use it to get to
- property.
his It is a well-settled rule that "[tlhe owner
of the servient tenement may make use of the land in any
lawful manner that he chooses, which use is not inconsistent
with and does not interfere with the use and right reserved
to the dominant tenement or estate." City of Missoula v.
Mix (1950), 123 Mont. 365, 372, 214 P.2d 212, 216. &M
involved a reserved easement, but for the purposes of defining
the department's rights with regard to the road, its principles
are applicable to the present case. As yet there is no
evidence that the department's proposed use of the road--
paving it and opening it to the public--will interfere with
Titeca's right to use it to get to his land. The fishing
access site was not open at the time of the lower court
proceedings and any allegations that the public's use of the
road would interfere with Titeca's use were mere speculation.
This Court cannot declare the department's proposed use to
be inconsistent with Titeca's easement on the basis of
speculation.
The recent case of Macpherson v. Smoyer (1980),
Mon t . , 622 P.2d 188, 37 St.Rep. 2079 is easily distinguishable.
First, the words of the instrument in that case clearly
established that part of the easement was for the "exclusive
use" of the plaintiff and part of it was for use "in common"
with the defendant. Macpherson, 622 P.2d at 192, 37 St.Rep.
at 2084. Second, defendant's predecessor in interest was in
the habit of asking plaintiff's permission before using that
portion of the easement reserved for plaintiff's exclusive
use. In the case at bar, the department's predecessors in
interest did not have to ask permission before using the
road in dispute here. This is a strong indication that the
easement was never intended to be for Titeca's exclusive
use, except in the sense that he alone could use it to get to
his land. Third, the principal type of interference complained
of in Macpherson was that defendants were parking their
vehicles on plaintiff's exclusive easement without permission.
In the case at bar, there is a separate area set aside for
parking and there is no indication that the public will use
the road for anything other than access to and from the
fishing site.
2. Did the trial court err when it found that the
department acted under proper authority in acquiring the
property in question and did so without depriving Titeca of
his constitutional right of due process?
The authority of the department to acquire property for
recreational purposes is specifically stated in both the
constitution and the statutes of the State of Montana. The
1972 Mont. Const., Art. IX, § 4, states: "The legislature
shall provide for . . . the acquisition . . . of . . .
recreational areas . . . and for their use and enjoyment by
the people." Pursuant to this constitutional directive, the
legislature has stated several times the authority of the
department to acquire lands. Section 23-2-103(4), MCA,
provides that the department may "acquire . . . and develop
outdoor recreational areas and facilities and land and
waters and interests in land and waters for such areas and
facilities." Further, section 23-1-102, MCA, authorizes the
department to purchase areas to be held as state recreational
areas. Finally, section 87-1-209(1)(c), MCA, states that the
department may purchase lands for the purpose of public
fishing areas, Thus, it is clear the department acted lawfully
and under proper authority in acquiring the property.
Titeca further alleges, however, that he was entitled to
but did not receive notice and a hearing before the department
acquired the parcel of land over which his easement runs.
This omission, he maintains, deprives him of his property
without due process of law.
We have already determined that Titeca does not have a
fee interest in the road itself. He has, instead, an
ordinary easement over the land. Thus, because Titeca holds
an easement, he has a property interest in the right of way
that runs through the land acquired by the department. As
we pointed out earlier, however, there is no indication that
the department has in the past or will in the future interfere
with Titeca's right to use the road. It follows that Titeca
has not been deprived of the property interest--the easement--
which he holds in the road.
In making his argument on issue no. 2, Titeca alleges
that the proposed - of the property (i.e., the operation
use
of the fishing access site) will create a private nuisance
and expose him and his family to personal liability, disturb
their peace and contentment, and depreciate the value of
their ranch and residence. The access site was not in use
at the time of the hearing in the lower court. That court
could hardly have held that Titeca had been deprived of his
property without due process on the basis of his speculation
that a fishing access site across the river from his ranch
would have a disturbing effect upon his family and his
property. As yet, he has suffered no deprival of his
property, let alone a deprival of his property without due
process.
3. Did the trial court err by ordering that the department
had made all necessary and proper environmental assessments
before acquiring the property and before undertaking the
project thereon?
In support of his position, Titeca asserts that no
public hearing was held with regard to the w e -
1,iminary environmental review and the environmental assess-
ment. He cites no statute or regulation which requires a
public hearing, before, during, or after the preparation of
a preliminary environmental review or an environmental
assessment, both of which studies indicate that no environmental
impact statement is warranted. There are provisions alluding
to public hearings in A.R.M. 5 12.2.407(1)(b), and A.R.M. 5
12.2.419. Both of these provisions, however, relate to
environmental impact statements and are therefore not applicable
to the case at bar. We can find no language in either the
Montana Environmental Policy Act, section 75-1-101, et seq.,
MCA, or the Montana Administrative Procedure Act, section 2-4-
101, et seq., MCA, which would indicate that in a preliminary
environmental review a hearing is required.
Eurthermore, Titeca's attack upon the department's
preparation of the environmental studies is collateral.
The department's method of conducting the environmental
studies is not germane to the principal issue in this action,
that issue being the nature of Titeca's interest in the
roadway. To demonstrate that Titeca's contention is a
collateral attack, we point out that whether the department
conducted the studies improperly or whether it should or
should not have required an environmental impact statement
has no bearing on, and would not determine the meaning of,
the right-of-way instrument. It is an issue inappropriate
for the District Court's consideration in this suit, and for
ours, because the question of the department's impact on the
environment in using the land for a fishing access is
extraneous to the issue of the nature of Titeca's interest
in the roadway. See, Intermill v. Nash (1938), 94 Ut. 271,
75 P.2d 157, 162.
4. Did the trial court err in determining that the
department's acquisition, management, and use of the property
is not a taking of Titeca's property without just compen-
sation?
In our discussion of issue no. 2, we said that Titeca
has not yet suffered a deprival of his property in regard to
either his easement or his ranch land. We are now asked to
determine whether the department's use of its land "damages"
Titeca's property so as to entitle him to compensation under
1972 Mont. Const., Art. 11, B 29, which provides: "Private
property shall not be taken - damaged for public use without
or
just compensation to the full extent of the loss having been
first made to or paid into court for the owner." (~mphasis
added.
Any damages alleged by Titeca at this time are purely
speculative. To resolve this issue, we need only repeat
that Titeca has no right to compensation until his property
has been taken or damaged. Bakken v. State (1963), 142 Mont.
166, 382 P.2d 550, 552.
We affirm the summary judgment entered by the District
Court.
We Concur:
Chief Justice