No. 92-255
IN THE SUPREME COURT OF THE STATE OF MONTANA
Plaintiff, Counterdefendant
and Appellant,
MICHAEL B. KECSKES,
Defendant, Counterclaimant
and Respondent.
APPEAL FROM: District Court of the Fourteenth Judicial flistrict,
In and for the County of Meagher,
The Honorable Roy Rodighiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gregory W. Duncan; Harrison, Loendorf & Poston,
Helena, Montana
For Respondent:
William F. Hooks; Hooks Law Firm, Townsend, Montana
9%
J&md
Submitted on ~riefs: November 5, 1992
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from the Fourteenth Judicial District,
Meagher County, the Honorable Roy C. Rodeghiero presiding.
Appellant Marti Wangen (Wangen) appeals an order granting summary
judgment to respondent Michael Kecskes (Kecskes) and declaring that
he has an easement by implication and by necessity on a road
crossing Wangen's property in Meagher County. We affirm.
Wangen and Kecskes own adjoining tracts of real property in
sections 8 and 9, respectively, in Township 9 North, Range 8 East,
M.P.M. Until 1972, these tracts were part of a cattle ranch owned
by Alfred Edwards (Edwards). The Edwards ranch comprised
approximately 4,400 acres on hilly terrain cut by timbered ravines.
In 1972, Edwards sold over 4,000 acres to Frank Murphy (Murphy),
reserving a 320-acre tract along Fourmile Creek at the west end of
the original ranch. In 1988, he conveyed this reserved tract to
Wangen, his granddaughter.
Murphy conveyed all but 240 acres of his portion of the ranch
to Townsend Ranch, Inc., a Montana corporation, in 1975. The 240-
acre reserved tract was at the west end of Murphy's land, east of
and adjacent to the 320-acre tract now owned by Wangen. In 1984,
Murphy sold 220 acres of this tract to Kecskes. Two years later,
he sold the remaining 20 acres to Mark Scott, who in turn sold it
to Sandra Gould, the owner at the time these proceedings commenced.
Gould's parcel abuts the common boundary between the Kecskes and
Wangen tracts and is otherwise surrounded by the Kecskes property.
A U.S. Forest Service road (the Fourmile Road) runs along the
2
west edge of Wangen's tract, connecting it with U.S. Highway 12
east of White Sulphur Springs. This road existed in 1972, when
Edwards sold 4,000 acres of his ranch to Murphy. No other known
public road crossed the ranch in 1972, though a dirt road linking
the east portion of Murphy's purchase to the Fourmile Road is shown
on U.S. Forest Service maps. This road, known to the parties as
the Coal Bank Road, also existed in 1972.
The subject of this controversy is an unimproved single-track
road that connects the Fourmile Road with Gouldts20-acre lot. It
crosses Wangen's property from west to east, passing through
Kecskesl land to terminate at Gould8s cabin. Murphy attested to
the existence of this road in 1972, and to his use of it for motor
vehicle access and for trailing cattle, from the time that he
bought the land. In his affidavit he said:
The connecting road between the Fourmile Forest Service
Road and the 220 acre parcel was necessary to use and
enjoy the 220 acre parcel subsequently sold to Mr.
Kecskes. ... In June, 1972, when I purchased the [220
acre] parcel from Alfred M. Edwards, there was no outlet
to a public road or highway from that parcel, except over
the remaining property retained by Mr. Alfred Edwards, or
over the lands of strangers.
Edwards stated that he had occasionally used the road for
fixing fence and cutting poles, but that to his knowledge, Murphy
had used it on only one occasion, for cutting timber. On that
occasion Edwards had refused to allow logging trucks on the road,
though he had, he said, "granted permission" for the cutters to use
it.
On July 25, 1986, Edwards granted Sandra Gould an easement on
the road, under an agreement that it would remain in its present
3
unimproved condition and would not be graded. Kecskes had asked
for a similar easement in 1984, before he bought the 220-acre
parcel from Murphy, but Edwards had refused. Instead, he and
Kecskes signed a "Memorandum of AgreementM in which Edwards agreed
to allow Kecskes and his family access to the 220-acre parcel
through Edwardsa land in exchange for Kecskes allowing water access
for Edwardsa cattle. By its terms, the 1984 agreement was to
remain in effect as long as Kecskes owned the 220 acres. Two weeks
after Edwards and Kecskes signed this agreement, Kecskes purchased
the land from Murphy.
In his 1991 affidavit, however, Edwards stated that he
believed that the 1984 agreement was merely a license and that it
was IfterminableNat the time he conveyed his 320-acre parcel to
Wangen. Wangen herself views the agreement as a Itlimited
conditional permissive agreement." In 1990, Kecskes asked her for
an easement similar to the one Edwards had given Gould, but she
refused. Through counsel, however, she has indicated that she
would be willing to give Kecskes a license.
his case originated as Wangenas action to quiet Kecskesa
claim to an easement on the road crossing Wangen1s property. Both
parties moved for summary judgment, which the District Court
granted in f a v o r of Kecskes. On appeal, Wangen presents the
following issues:
1. Whether the District Court erred in finding that
Kecskes has an easement by implication.
2. Whether the District Court erred in finding that
Kecskes has an easement by necessity.
3. Whether the District Court erred in finding that
Kecskesf claim or right to an easement was not
extinguished under 5 70-17-111, MCA.
4. Whether the District Court erred in granting summary
judgment in favor of Kecskes.
Kecskes argues that the only issue is whether the District
Court erred in granting summary judgment. Because the District
Court granted summary judgment on the basis of its finding that
Kecskes had an easement by implication and by necessity, we address
the issues of easement by implication and its extinguishment. As
these issues are dispositive, we do not address the issue of
easement by necessity.
I
~oes
Kecskes have an easement by implication?
An implied easement rests on the "implied intent of the
parties gathered from the circumstances surrounding the
conveyance." Woods v. Houle (1988), 235 Mont. 158, 162, 766 P.2d
250, 253. See also Graham v. Mack (l985), 216 Mont. 165, 173, 699
P.2d 590, 595 (an easement by implication arises when it is
necessary to effect a presumed intent on the part of parties to a
deed). We have emphasized that an implied easement is to be
considered with extreme caution, because it imposes a servitude
through mere implication. Woods, 766 P.2d at 253; Graham, 699
P.2d at 596, citing Goeres v. Lindeys, Inc. (1980), 190 Mont. 172,
619 P.2d 1194. The following elements must be satisfied: (1)
separation of title; (2) a long-standing, obvious use before the
separation, which shows that the use was meant to be permanent; and
(3) necessity of the easement for beneficial enjoyment of the land
granted or retained. Graham, 699 P.2d at 596.
Here, the first element is satisfied because Edwards is the
original grantor of the Wangen and Kecskes parcels. Separation
occurred in 1972, when Edwards conveyed all but 320 acres of his
land to Murphy. The second element is satisfied because Edwards
used the road at issue before 1972, for access to the land now
owned by Kecskes, and because use of the road, in 1972 as now, was
obvious, visible, and appeared to be permanent. The third element
is satisfied because the road offered the only practical access to
the west end of the property Murphy bought in 1972.
Murphy stated in a 1991 affidavit that both he and Edwards had
used the road for access to the land subsequently sold to Kecskes,
and that in 1972 the road was the only outlet to a public road from
that land. Wangen argues that Edwards never intended to give
Murphy an easement, but Edwards' 1991 affidavit does not describe
his intention at the time of the 1972 conveyance to Murphy. It
does imply that he expected Murphy to use the road in such a way as
not to damage his (Edwards1) property. He had refused access to
logging trucks, he said, because they would "tear up the property;"
presumably he had accepted cutters because they would not. This
statement suggests that Edwards and Murphy intended an easement for
purposes associated with cattle-raising and that usingthe road for
logging trucks would have expanded the easement beyond the use
contemplated at the time of the 1972 conveyance.
We hold that Murphy acquired an easement by implication on the
road over Edwards' property when he bought 4,000 acres from Edwards
in 1.972. In the absence of any act on the part of Murphy or
Edwards that extinguished that easement, it passed to Kecskes with
title to the 220-acre tract at the west end of the property Murphy
bought from Edwards. Section 70-20-308, MCA.
II
Was Kecskes' claim or right to an easement extinguished under
5 70-17-111(3), MCA?
Section 70-17-111(3) provides that a servitude is extinguished
by "the performance of any act upon either tenement by the owner of
the servitude or with his assent that is incompatible with its
nature or exercise.I1 Wangen argues that Murphy extinguished any
claim he might have had to an easement across Edwards1 land by
asking Edwards for permission to use the road for logging purposes.
The District Court determined, and we agree, that this single act
does not rise to the type of act or omission sufficient to
constitute an extinguishment of the easement.
To support her argument, Wangen cites Downing v. Grover
(l989), 237 Mont. 172, 772 P.2d 850. In Downing, we held that
asking permission to use a road across another's property is
inconsistent with a prescriptive easement, which requires open,
notorious, adverse, and continuous use. The plaintiff, Downing,
and his predecessor in interest had gained access to the
plaintiff's property through a locked gate and a road across the
defendants' property. The Grovers allowed access to anyone who
asked, but Downing used the road only once, in connection with his
lawsuit. Here, no claim has been made that Murphy established a
prescriptive easement, with which permissive use is inconsistent.
See Xeebler v, Harding (1991), 247 Mont. 518, 521, 807 P.2d 1354,
1356 (existence of a prescriptive easement depends on whether
historical use of road was adverse or permissive).
Wangen goes on to argue that Kecskes' request for an easement
from Edwards also was inconsistent with an easement and is evidence
that Kecskes bought the property knowing that he had no easement.
She characterizes the agreement Edwards and Kecskes signed in 1984
as a "permissive license" and argues that it is incompatible with
possession of an easement.
A license is the permission or authority to do a particular
act or series of acts upon another's land without possessing an
interest therein. It is revocable at the will of the s e r v i e n t
tenement. Kuhlman v. Rivera (1985), 216 Mont. 353, 357, 701 P.2d
982, 984-85. Kecskesl 1984 agreement with Edwards, by its express
terms, gives him access to his 220-acre parcel across Edwards' land
as long as Kecskes owns the land. It is not, as Wangen contends,
I1revocableMif I1certainterms and conditions are not metgtbut is
conditioned only on Kecskes allowing Edwards1 cattle access to
water on the 220-acre parcel. Although Wangenlslawyer stated that
Edwards has never used this water, no suggestion has been made that
Kecskes breached the condition. Because the agreement is not
revocable at the will of the servient tenement (Edwards') , it is
not a license.
Finally, Wangen argues that Kecskesl attempt to obtain an
easement from her is incompatible with prior possession of an
easement and indicates that Kecskes knew his agreement with Edwards
was not an easement, While it is obvious that the Edwards-Kecskes
agreement was not an easement--if it were, it could not be
terminated when Kecskes sold the land--we have no evidence that
Kecskes knew that Murwhv had an implied easement or that his own
access was assured by that easement. Kecskesg deed for the 220-
acre parcel includes " a l l easements . . . providing accessH but
without covenants of warranty. Kecskesg effort to secure written
confirmation of access is understandable in light of his lack of
documentation from Murphy and Wangeng opposition to his use of the
s
road.
We held in City of ~illings 0. E. Lee Co. ( 1 9 7 5 ) ,
v. 168 Mont.
264, 5 4 2 P.2d 97, that the city's purchase of an easement in 1944
for a right of way that had been conveyed to the city i n 1885 did
not extinguish the 1885 easement. Here, Kecskes' effort to obtain
documentation of the easement that already existed by implication
did not extinguish that easement.
I11
Did 'the District Court err in granting summary judgment to
Kecskes?
Our standard of review for a grant of summary judgment is the
same as that initially applied by the trial court under Rule 56,
M.R. Civ.P. Mayer Bros. v. Daniel Richard Jewelers, I n c . (1986),
2 2 3 Mont. 397, 726 P.2d 815. Summary judgment is appropriate if
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 judgment as a matter of law. Rule
56(c), M.R.Civ.P.
The party moving for summary judgment has the initial burden
of showing that "there is no genuine issue as to any fact deemed
material in light of the substantive principles that entitled the
movant to judgment as a matter of law." Fleming v. Fleming Farms,
Inc. (1986), 221 Mont. 237, 241, 717 P.2d 1103, 1105-1106. Once
the movant has met this burden, the party opposing the motion must
show "by present facts of a substantial nature that a material fact
issue does exist. Mere conclusory or speculative statements are
insufficient to raise a genuine issue of material fact." Maver
Bros., 726 P.2d at 816 (citations omitted).
Here, the District Court determined that the pleadings, the
discovery propounded by Kecskes, and the affidavits established
that the material facts of this case are not in dispute. Both
parties agreed that Edwards had been the sole owner of both
Wangen1s and Kecskesl parcels and that severance of title occurred
in 1972; that the Fourmile Road existed as a public road at the
time of severance of title; that the single-track dirt road
crossing Edwards1 property also existed at the time of severance of
title and was open, visible, and in use for ranching purposes at
that time.
The court also determined that the affidavit, maps and
photographs submitted by Kecskes established that at the time of
severance of title, the land now owned by Kecskes had no outlet to
a public road except over the property retained by Edwards, and
that the road in question was then and still is necessary to
beneficial enjoyment of the land now owned by Kecskes.
Wangen submitted affidavits from her mother, Sue Weingartner
(Edwardstdaughter), stating that she was not aware of geographical
barriers preventing access to Kecskes' land from the Coal Bank
Road. Because the Coal Bank Road does not provide access to
Kecskest land, this testimony is irrelevant. Further, as the
District Court observed, Wangen offered no evidence that
Weingartner had personal knowledge of the feasibility of road
construction over the land north and east of Kecskes' property, or
that she was competent to testify on such matters. Her testimony,
therefore, does not meet the standard of Rule 56(e), M.R.Civ.P.,
which provides that affidavits filed in opposition to a motion for
summary judgment "shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein." Because they
do not meet this standard, Weingartner's affidavits do not raise a
genuine issue of material fact.
In short, the undisputed facts show that the road across
Edwardst land was the only means of access to the Fourmile Road
from the property now owned by Kecskes, and that the elements of an
easement by implication were present when severance of title
occurred in 1972. Kecskes is entitled to judgment as a matter of
law.
AFFIRMED.
We concur:
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7
Chief ~ u s t i e ' e /
January 5 , 1993
CERTIFICATE OF SERVICE
I hereby certifj that the following order was sent by United States mail, prepaid, to the following
named:
John P. Poston & Gregory W. Duncan
Harrison, Loendorf & Poston
2225 Eleventh Ave., Ste. 21
Helena, MT 59601
William F. Hooks
Hooks Law Firm
P.O. Box 1289
Tomsend, MT 59644
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY: Ia-
?t