No. 91-001
I N THE SUPREME COURT O F THE STATE O F MONTANA
WILD RIVER ADVENTURES, INC.,
Plaintiff and Appellant,
-vs-
BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 8
OF FLATHEAD COUNTY,
D e f e n d a n t and Respondent.
APPEAL FROM: D i s t r i c t C o u r t of t h e Eleventh J u d i c i a l District,
In and for the County of Flathead,
The Honorable Michael R , Keedy, Judge presiding.
COUNSEL O F RECORD:
For Appellant:
Scott C. Wurster; Law Off ices of Arnbrose G. Measure,
Kalispell, Montana
For Respondent:
M. Dean Jellison; Kalispell, Montana
Justice R. C. McDonough delivered the Opinion of the Court
This is an appeal from a grant of summary judgment to the
defendant in a quiet title action. The plaintiff Wild River
Adventures, Inc. (Wild River) appeals the order of the Eleventh
Judicial District Court, Flathead County, granting summary judgment
to the defendant, Flathead County School District No. 8 on the
grounds that School District's predecessors in interest did not
create an easement in plaintiff's favor across the School
District's land. We affirm.
The sole issue on appeal is whether the District Court erred
in denyingthe plaintiff's motion for summary judgment and granting
the defendant's motion for summary judgment.
The uncontested facts in this case are as follows. Prior to
February 20, 1986, the United States Forest Service owned the
property that is the subject of this dispute. The suit involves
several conveyances of the property as part of a unified complex
land swap accomplished over a period of months involving School
District No. 8 and its predecessors in interest: School District
No. 6, the Thompsons, Sloan et. al., and the United States Forest
Service (USFS).
On February 20, 1986, the property was conveyed by deed from
the USFS to Sloan et. al. The deed was recorded on June 9, 1986.
Prior to this conveyance, a certificate of survey (COS) was
prepared in conjunction with the transfer. The COS shows two
distinct roads, the West Glacier School Road and a forty foot
private road easement. The COS contains the language t1 [ s ]ubject
to and together with a 40 foot public road known as the West
Glacier School Road; [slubject to and together with a 40 foot
private road easement as shown hereon. . - . II The COS was
prepared for the Thompsons, in anticipation of the land swap.
On June 1, 1986, Sloan conveyed the property by warranty deed
to the Thompsons. The grant used the same property description as
contained in the COS: "[slubject to and together with a 40 foot
private road easement1'. In their affidavit, SLoan et. al. alleged
that it was t h e i r intention to convey t i t l e to the property as they
received it from the USFS and they did not intend to reserve any
easement across the property in making the conveyance.
On June 3, 1986, Thompson conveyed by Gift Deed the property
to School District No. 6 for school purposes. On March 5, 1987,
School District No. 6 conveyed the property to School District No.
8, the defendant here, to complete the land swap. The property
descriptions in both conveyances again contained the language
lt[s]ubject to and together with a 40 foot private road easement."
By affidavit, the Thompsons allege that they intended to retain the
"40 foot private road easementu when they conveyed the property to
the School District; they allege that this intent is further
evidenced by their later conveyance of the easement to Wild River
in a separate instrument. Despite this allegation, the record
indicates that neither Sloan nor Thompson owned or had any interest
in dominant property which could be served by the claimed easement
at the time of the conveyances.
Wild River operates a raft guide service on property leased
from the Burlington Northern Railroad. The business is accessible
by the West Glacier School Road and by the claimed "40 foot private
road easement." In an instrument entitled "Easement," recorded on
May 16, 1989, Thompson purports to have granted use of this
easement to Wild River and its customers for business purposes.
The defendant School District No. 8 subsequently erected two chain
link fences with a gate blocking the "easement."
Wild River filed this quiet title action on June 22, 1989 to
obtain a judicial determination that it had a valid right of way
across the School District's property. Respondent answered and
counterclaimed for a decree determining that it owned the property
in fee simple subject only to the public easement, the West Glacier
School Road, and a possibility of reverter should the property no
longer be used for school purposes. The parties stipulated to
allow Wild River access while litigation of the matter was pending.
Each party moved for summary judgment on its claims. The court
issued its order on August 6, 1990, denying Wild River's motion and
granting the School District's motion. Wild River now appeals.
The standard of review of summary judgment is the same as that
used by the trial court granting the judgment. In order for
summary judgment to issue, the movant must show that there is no
genuine issue as to all facts that are material in light of the
substantive principles entitling the movant to judgment as a matter
of law. Rule 56 (c), M.R. C i v . P. ; Frigon v. Morrison-Maierle, Inc.,
(1988), 233 Mont. 113, 117, 760 P.2d 57, 60, Cerek v, Albertsonls,
Inc. (l98l), 195 Mont. 409, 411, 637 P.2d 509, 511.
Wild River alleged in its motion for summary judgment the
absence of a genuine issue of material fact. It alleged that the
record before the court on the motion clearly showed that the
Thompsons intended to reserve an easement for themselves and then
later conveyed that easement to Wild River. Alternatively, if the
trial court were to reject this argument, Wild River alleged that
a genuine disputed material fact issue regarding the grantors1
intent precluded the court from granting the School DistrictI s
motion for summary judgment.
Wild River relies on the rule that I1[a] grant is to be
interpreted in favor of the grantee, except that a reservation in
any grant . . . is to be interpreted in favor of the grantor.I1
Section 70-1-516, MCA. See also City of Missoula v. Mix (l95O),
123 Mont. 365, 372, 214 P.2d 212, 215-16. Thus, Wild River argues
that the language, "subject to and together with a 40 foot private
road easement," in the Thompson to School District No. 6 deed
reserved an easement in the Thompsonsl favor and such easement was
later conveyed to Wild River. It further argues that the
Thompsons' intent t o create this easement is clearly shown in their
affidavit. The School District, on the other hand, argues that
while the deed noted that the property was "subject to1'the above
language neither the Thompsons nor any of their predecessors had
ever reserved an easement and thus no easement was ever created.
"An easement is an interest in land that cannot be created,
granted or transferred except by operation of law, by an instrument
in writing, or by prescription." Prentice v. McKay (1909), 38
Mont. 114, 118, 98 P. 1081, 1083. In this case we have a purported
easement alleged to have been created by language in a deed as
follows: "subject to and together with a 40 foot private road
easement." Thus, we are faced with the question of whether the
language "subject to" constitutes an exception or reservation
sufficient to create an easement. The modern trend is to avoid
overly technical interpretations of words in favor of ascertaining
the actual intent of the parties:
In the older English conveyancing, the term "exception"
denoted some physical part of the conveyor's land which
was excluded from the conveyance; while the term
"reservation" denoted a retained tenurial right issuing
from the granted land, as for example rents or services.
Thus, neither of these technical terms fitted a retained
easement with respect to the granted land. Since no man
can have an easement in his own land, a conveyor could
not technically claim to have withheld an easement at
the time of conveyance. In short, he could not withhold
something which did not exist. .. .
In the United States a less technical attitude has
helped to simplify the law and to effectuate better the
real intent of the parties. A conveyor who, in terms,
"exceptsI1or reserve^^^ an easement, is permitted to have
the rights thereby intended to be enjoyed by him. ...
A reservation has been differentiated from an exception
on the ground that a reservation connotes an implied
regrant, while an exception operates as an exclusion of
a right existent in the conveyor. . ..
3 Powell on Real Property, 5407, pp. 34-39 to 34-42.
In City of Missoula v. Mix, supra, this Court stated:
The modern conception of conveyancing, however, seeks to
ascertain the intent of the grantor from a consideration
of the entire instrument, without regard to the position
of the several clauses, and, in order to give effect to
such intent when ascertained, an exception will be
construed as a reservation, and visa versa.
Mix, 214 P.2d at 215, quoting Marias River Syndicate v. Big West
Oil Co. (1934), 98 Mont. 254, 264, 38 P.2d 599, 601. Thus, when
the intent of the parties is properly ascertained, an easement may
be created by an exception as well as a reservation. See Kuhlman
v. Rivera (1985), 216 Mont. 353, 359, 701 P.2d 982, 985.
Normally, however, the words "subject to" do not create an
easement. See generally, 23 Am.Jur. Deeds, 5 293 (1983). 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. Shell Oil Co., Inc. v. Manley Oil
Corp., (7 Cir. 1941), 124 F.2d 714, 716; Englestein v. Mintz
(l93l), 345 Ill. 48, 177 N.E. 746, 752. See also Procacci v. Zacco
(Fla. 1975), 324 So.2d 180. ItSubjecttott
wording is commonly used
in a deed to refer to existing easements, liens, and real covenants
that the grantor wishes to exclude from warranties of title. Bruce
and Ely, The Law of Easements and Licenses in Land, 5 3.05[3
3-13; accord Medhus v. Dutter (1979), 184 Mont. 437, 444, 603
669, 673; Wilson v. Chestnut (1974), 164 Mont. 484, 492, 525
24, 28; see also, 23 Am.Jur. Deeds, $293 (1983). Use of the words
"subject to" in a conveyance is a qualification and rarely requires
a court to look to the intent of the parties.
Moreover, the parties intent is immaterial in this case,
because regardless of their intent the Thompsons could not have
created the easement in question. In their affidavit dated March
1, 1990, the Thompsons alleged that "to ensure access, at such a
time as our riqht of reverter misht arise, we reserved the disputed
easement unto ourselves to serve the entire property." The
District Court correctly noted that the reasoning that is the basis
of the Thompsons' alleged intent is misguided. If the property did
in fact revert to the Thompsons, there would be no reason for the
Thompsons to have an easement across their own property. As the
District Court noted, it is fundamental that no man can have an
easement in his own land; the easement and the fee title would
necessarily merge. Thus, we conclude that the wording Itsubjecttow
here does not create an easement.
Finally, we note that the trial court requested the parties
to submit proposed findings of fact and conclusions of law
supporting their positions and then issued its judgment in the form
of proposed findings of fact and conclusions of law. Technically,
this procedure is incorrect, for the trial court is precluded from
determining material fact issues on a motion for summary judgment.
See Rule 56(c), M.R.Civ.P. While we do not condone this practice,
we find no reversible error in this case. The facts set out in the
District Court's order are virtually uncontested, and any fact
issue regarding intent is immaterial in this case.
We hold that there is no material fact issue in this case
regarding the Thompsonsl intent to create an easement. Viewing the
plaintiff's factual allegations regarding the Thompsonsl intent in
the light most favorable to the plaintiff, the Thompsons could not
have reserved an easement, and thus they had no easement to grant.
Accordingly, the District Court did not err in granting the
defendant I s motion for summary judgment. The order of the District
Court is
AFFIRMED.
We Concur:
. -
May 30, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Scott C. Wurster
Law Offices of Ambrose G. Measure
P.O. Box 918
KalispelI, MT 59903
M. Dean JelIison
Attorney at Law
120 First Ave. West
Kalispell, MT 59901
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA