No. 93-533
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
LLOYD BACHE and VIRGINIA BACHE,
Plaintiffs and Respondents,
MARK OWENS, d/b/a MARK OWENS LOGGING,
Defendant, Counterclaimant, Third-
Party Plaintiff and Appellant,
v.
TITLE U.S.A. INSURANCE CORPORATION,
Third-Party Defendant and Respondent.
LLOYD BACHE and VIRGINIA BACHE,
Plaintiffs, Third-Party Plaintiffs
- OCT 19 1994
and ~espondents,
DESHAZER RYAN REALTY, and its agent/
employee, COLLEEN MONCUR,
Third-Party Defendants and Respondents.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
I. James Heckathorn, Murphy, Robinson, Heckathorn
and Phillips, P.C., Kalispell, Montana
For Respondents:
Lon J. Dale, Milodragovich, Dale and Dye, Missoula,
Montana (Bache); Gary Kalkstein, Quane, Smith,
Howard & Hull, Missoula, Montana (DeShazer Ryan
Realty); John K. Tabaracci, Sullivan and Tabaracci,
Missoula, Montana (Mont. Assoc. Realtors)
Submitted on Briefs: August 25, 1994
Decided: October 19, 1994
Filed:
chief ~usticeJ. A. Turnage delivered the Opinion of the Court.
Mark Owens, doing business as Mark Owens Logging, appeals from
an order of the Nineteenth Judicial District Court, Lincoln County,
granting partial summary judgment to Lloyd and Virginia Bache and
denying his motion for partial summary judgment. We affirm the
decision of the District Court.
The issue is whether the District Court erred in ruling that
the Baches retain an easement on the land they sold to Owens.
Lloyd and Virginia Bache owned a 34-acre tract of land in
Lincoln County, Montana. Mark Owens, doing business as Mark Owens
Logging, purchased 2.42 acres of the Baches' property (Tract 2) in
July, 1988. The Baches retained the remainder of the property
(Tract 1). The instruments of conveyance are: (1) the Agreement to
Sell and Purchase, dated April 16, 1988; (2) the Contract for Deed,
dated July 8, 1988; (3) the Warranty Deed, dated July 6, 1988; and
(4) Certificate of Survey No. 1657 (COS), which was filed on July
6, 1988.
The Agreement to Sell and Purchase, dated April 16, 1988,
required the Baches to convey the property by warranty deed free of
all encumbrances except those described in the title insurance
provision. That provision required title insurance to be obtained
insuring merchantable title free and clear of all liens and
encumbrances except "encumbrances hereinabove mentioned, zoning
ordinances, building and use restrictions, reservations in federal
patents, beneficial utility easements apparent or of record,
easements of record, and no others." The Agreement did not refer
to the easement which the Baches now claim. However, the policy of
title insurance which was required under the Agreement provided:
PRIOR TO THE ISSUANCE OF TITLE INSURANCE, a complete
legal description must be placed of record in the office
of the Lincoln County Clerk and Recorder.
Both the Warranty Deed and the Contract for Deed first
describe the property being conveyed by metes and bounds. Both
documents then refer to the property conveyed as
being Tract 2 shown on Certificate of Survey No. 1657,
records of the Lincoln County Clerk and Recorder.
SUEUECT TO the provisions contained in that certain
Certificate of Subdivision Plat Approval executed by the
State of Montana, Department of Health & Environmental
Sciences, File No. 27-88430-765, records of Lincoln
County, Montana.
SUEUECT TO easements, reservations, covenants and
restrictions apparent or of record.
The COS provides legal descriptions and a scaled drawing of
the boundaries of Tracts 1 and 2. In addition, the COS depicts a
dotted line thirty feet east of the western boundary of Tract 2 and
running parallel thereto. The area between the dotted line and the
western boundary of Tract 2 is labeled "P.R. E. " and "P.U.E., " which
the legend identifies as "private roadway easement" and "public
utility easement." The relevant part of the COS is reprinted as an
appendix to this opinion. Attached to the COS are documents that
are a part of the Department of Health and Environmental Sciences'
certification of subdivision plat approval
~uring1991 and 1992, Owens erected a shop building on Tract
2. The Baches filed this action seeking removal of the building,
alleging that it obstructs their access easement parallel to the
western border of Tract 2. Owens answered, contending that no such
easement exists. He also counterclaimed against the Baches and
asserted a third-party complaint against the title insurance
company. The Baches later added their realty company and its
employee as third-party defendants.
Owens asked the District Court for partial summary judgment
that, as a matter of law, the transaction instruments did not
create an access easement for the Baches. The Baches filed a
cross-motion for partial summary judgment asking the court to
conclude, as a matter of law, that the instruments created an
easement by express reservation in their favor.
The District Court granted partial summary judgment to the
Baches, denied Owensv motion, and certified its order to this Court
as a final judgment under Rule 54(b), M.R.Civ.P. The court
subsequently denied Owensv motion for reconsideration.
Owens appeals. Neither his counterclaim nor the third-party
actions are part of this appeal.
Did the District Court err in concluding that the Baches
retain an easement on the land they sold to Owens?
Our standard for reviewing a grant of summary judgment is the
same as that used by the district court. Wild River Adventures v.
Bd. of Trustees (1991), 248 Mont. 397, 399-400, 812 P.2d 344, 345.
We determine whether there is an absence of genuine issues of
material fact and whether the moving party is entitled to judgment
as a matter of law. Rule 56(c), M.R.Civ.P.
In this case, the material facts are not in dispute. As to
the issue of law, the District Court ruled:
By including the Certificate of Survey number as part of
the legal description in the Contract for Deed and
Warranty Deed, said certificate is regarded as incorpo-
rated in its entirety into said instruments of conveyance
as a matter of law.
The court cited 5 76-3-304, MCA. That statute, which is part of
the Montana Subdivision and Platting Act, provides:
The recording of any plat made in compliance with the
provisions of this chapter shall serve to establish the
identity of all lands shown on and being a part of such
plat. Where lands are conveyed by reference to a plat,
the plat itself or any copy of the plat properly certi-
fied by the county clerk and recorder as being a true
copy thereof shall be regarded as incorporated into the
instrument of conveyance and shall be received in
evidence in all courts of this state.
Pursuant to the above statute, reference in documents of conveyance
to a plat which describes an easement establishes the easement.
See Benson v. Pyfer (1989), 240 Mont. 175, 179, 783 P.2d 923, 925.
In divisions of land subject to its surveying requirements,
the Montana Subdivision and Platting Act requires that either a
"platvv a "certificate of surveyvv
or be filed. Section 76-3-302,
MCA. The statute further requires that descriptions of the parcel
or tract in instruments of transfer must describe the parcel or
tract by reference to the filed certificate or plat. Subdivisions,
as defined under the Act, must be surveyed and "platted." Section
76-3-402, MCA. Other divisions of land must be surveyed and Ira
must be prepared. Sections 76-3-401 and 76-
certificate of surveyr1
3-404, MCA. The division of land in this case was an "occasional
sale" as defined at 5 76-3-207(1) (d), MCA (l987), which was
excepted from most subdivision requirements other than surveying.
Therefore, a "certificate of surveyr1was required to be filed
before the instruments transferring title from the Baches to Owens
could be recorded.
"Plat" is defined for purposes of the Act at 1 76-3-103(9),
MCA :
"Platr1means a graphical representation of a subdivision
showing the division of land into lots, parcels, blocks,
streets, alleys, and other divisions and dedications.
"Certificate of survey" is defined at 5 76-3-103(1), MCA:
IICertificateof survey11
means a drawing of a field survey
prepared by a registered surveyor for the purpose of
disclosing facts pertaining to boundary locations.
Owens argues that, as a "certificate of survey" and not a
the COS filed in this case does not establish an easement
pursuant to 76-3-304, MCA. He cites State ex rel. Swart v.
Stucky (1975), 167 Mont. 171, 536 P.2d 762. In that case, a county
clerk and recorder refused to accept for filing a survey of a tract
of land, on the basis that the survey had not been inspected and
approved by the city county planning board. The district court
refused to issue a writ of mandamus compelling the clerk to file
the document. This Court reversed, ruling that the survey was a
"certificate of survey," not a subdivision "plat" as defined by the
Act, and that subdivision review by the city county planning board
was not required before the tlcertificate survey" could be filed.
of
Swart, 536 P.2d at 765. In so doing, this Court discussed the
difference between a tfplatlt a "certificate of survey":
and
The terms "certificate of survey," "plat, and
"subdivision" have important technical meanings that are
established by the definition section of the Act. . ..
The classification of the instrument as a subdivi-
sion "platN or as a "certificate of survey" is important
since the Act requires different treatment, depending
upon the classification. ...
There is no doubt that appellant's document is a
"certificate of survey" and not a subdivision "plat" as
defined by the Act. Its purpose is to establish bound-
aries and the property description for a deed on an
entire single parcel which contains an area greater than
the 10 acre requirement established by section 11-
3861(12), [R.C.M. ,I prior to its amendment to 20 acres in
1974. Furthermore, the proffered document contains no
"graphical representation of a subdivision showing the
division of land into lots, parcels, streets, and alleys,
and other divisions and dedications" within the meaning
of section 11-3861(6), [R.C.M.,] which sets forth the
definition of a "plat.I1
Swart
I 536 P.2d at 764-65.
In the case at bar, the COS does more than to establish
boundaries and a property description of a single parcel of land.
It establishes the division of the land into two parcels, Tract 1
and Tract 2. The COS shows a right of way thirty feet wide along
the western boundary of Tract 2 for a "private roadway easement"
and a lrpublic utility easement." Additionally, the COS and
attached documents establish that the sale of Tract 2 underwent
subdivision review as an "occasional salettpursuant to S 76-3-
207(1) (d), MCA (1987). In contrast to the certificate of survey in
Swart, the COS in the present case meets the definition of a "plat"
set forth at 76-3-103(9), MCA.
Moreover, the idea that a map or plat incorporated into an
instrument of conveyance can establish an easement predates the
definition of ttplatu S 76-3-103(9), MCA.
in In Majers v. Shining
Mountains (l986), 219 Mont. 366, 711 P.2d 1375, the documents at
issue were filed before the effective date of the Montana Subdivi-
sion and Platting Act. In that case, we cited with approval the
following language from Ute Park Summer Homes Ass'n. v. Maxwell
Land Gr. Co. (N.M. 1967), 427 P.2d 249, 253:
[Wlhere land is sold with reference to a maD or plat
showing a park or like open area, the purchaser acquires
a private right, generally referred to as an easement,
that such area shall be used in the manner designated.
Maiers, 711 P.2d at 1378 (emphasis added).
The purpose of the Montana Subdivision and Platting Act is to
promote the public health, safety, and general welfare by
regulatingthe subdivision of land; to prevent overcrowd-
ing of land; to lessen congestion in the streets and
highways; to provide for adequate light, air, water
supply, sewage disposal, parks and recreation areas,
ingress and egress, and other public requirements; to
require development in harmony with the natural environ-
ment; and to require uniform monumentation of land
subdivisions and transferring interests in real property
by reference to plat or certificate of survey.
Section 76-3-102, MCA. This purpose would not be furthered by
elevating form over substance and ruling that the COS does not
establish a road easement because it is denominated as a certifi-
cate of survey instead of as a plat.
Owens also relies on this Court's opinion in Wild River. The
bases for our holding in wild River were that (1) "subject to"
language in a document of conveyance does not create an easement,
and (2) no easement could be created on the owner's own land.
River, 812 P.2d at 346-47. In the present case, the Baches rely
primarily upon incorporation of the COS into the instruments of
conveyance, not upon "subject to" language, for creation of the
easement. Further, the conveyance fromthe Baches to Owens results
in division of the land into two parcels with two different owners.
Our holding in wild River is therefore inapplicable here.
The COS identifying the easement in this case was filed with
the county clerk and recorder, as required by law. The COS
identifies the easement clearly and specifically. In addition to
the dotted lines showing the scaled location of the easement, the
easement is labeled in two places on the COS as "P.R.E." and
'tP.U.E." Those acronyms are defined in the legend of the COS to
mean "private roadway easement" and "public utility easement."
Additionally, the easement is labeled in two places as being thirty
feet wide.
We conclude that identification of the establishing document
as a "plat" pursuant to 76-3-103(9), MCA, is not a critical
element in the creation of an easement through incorporation of a
map or plat into documents of sale. We hold that the transaction
documents concerning the Baches' sale of land to Owens establish an
easement in favor of the Baches along the western edge of the
property sold to Owens, as described in the COS. We therefore
affirm the summary judgment entered by the ~ i s t r i c tCourt.
We concur:
Justices
Justice Karla M. Gray, dissenting.
I respectfully dissent from the Court's opinion which is, in
my view, contrary to existing Montana statute and case law. For
purposes for clarity, I first set forth the appropriate legal
analysis and resolution of the issue presented in this case; that
analysis will reflect my overall disagreement with the approach and
resolution adopted by the Court. I then focus in on more specific
errors in the Court's reliance on certain authorities.
This case involves an interest in real property which the
sellers assert they created in themselves, during the transaction,
to the detriment of the purchasers. Given the importance of real
property interests, it is imperative that we be both clear and
focused in setting forth the issue before us. Here, the narrow
issues are these:
(1) Whether showing an easement on a certificate of
survey creates, in and of itself, the easement; and
(2) Assuming that it does not, whether such a certificate
of survey can be incorporated into the transaction
documents via 5 76-3-304, MCA, with the result that the
incorporation creates the easement.
The Court does not analyze the first issue but apparently answers
it in the affirmative through its holding that "the transaction
documents . . . establish an easement in favor of the Baches along
the western edge of the property sold to Owens, as described in the
COS." It so holds at the end of an opinion which primarily
addresses and applies the statute at issue here, 5 76-3-304, MCA.
Thus, despite the quoted holding, the Court appears to answer the
second issue in the affirmative as well. Notwithstanding my
11
disagreement with the entirety of the Court's opinion and result,
my biggest concern is with the Court's lack of analysis and clarity
in this important area of property rights.
An easement is a nonpossessory interest in real property.
Kuhlman v. Rivera (1985), 216 Mont. 353, 358, 701 P.2d 982, 985.
While the definition of an easement has remained constant, this
Court has stated the recognized methods of creating an easement by
several different means. In Prentice v. McKay (1909), 38 Mont.
114, 118, 98 P. 1081, 1083, we stated that an easement "cannot be
created, granted, or transferred except by operation of law, by an
instrument in writing, or by prescription." We recently reiterated
that principle in Wild River Adventures v. Bd. of Trustees (1991),
248 Mont. 397, 400, 812 P.2d 344, 346-47. We also have stated that
easements can be created by grant, reservation, exception or
covenant, by implication or by prescription. Kuhlman, 701 P.2d at
985. In addition, we have recognized the creation of easements by
necessity, describing such easements as a subspecies of easements
by implication or, as they are sometimes called, implied easements.
Graham v. Mack (1985), 216 Mont. 165, 175, 699 P.2d 590, 596.
The thrust of the Prentice/Wild River approach is that
easements can be created by an instrument in writing or by
operation of law. Of the types of easements recognized in Montana
through the Kuhlman/Graham line of cases, easements created by an
instrument in writing are those created by express grant,
reservation, exception or covenant. Because such easements involve
interests in real property, they must be in writing to comply with
the statute of frauds. Bruce and Ely, The Law of Easements and
Licenses in Land, $ 3.01 (1988 & Supp. No. 1 1994). As is
generally the case in construing instruments in writing, the
parties* intentions regarding the creation of an easement should be
determined from the language of the instruments; only where that
language is ambiguous or uncertain may all of the circumstances
surrounding the transaction be considered. See, 25 Am. Jur. 2d
Easements & Licenses 5 23 (1966); Wild River, 812 P.2d at 346-47.
Easements which are created by operation of law, on the other
hand, rather than through instruments in writing, have arisen and
been recognized in order to meet particular needs and
circumstances. Easements created by operation of law and
recognized in Montana are easements by prescription; by implication
(sometimes called implied easements or implied easements by
reservation; see Woods v. Houle (1988), 235 Mont. 158, 162, 766
P.2d 250, 253); and by necessity. These easements created by
operation of law are not favored by courts because they result in
depriving people of the use of their property by imposing a
servitude based on considerations not constrained by the
"instrument in writing" requirement for creating interests in real
property; each has specific requisite elements which must be proved
before such an easement is established. See, e a ,Woods,
.. 766 P.2d
at 252-53.
Here, the Court dispenses entirely with any reference to the
type of easement it determines was created in this case. While one
might surmise from the lack of analysis that the Court agrees that
the easement was not created through the transaction documents on
a stand-alone basis and that its result requires the application of
§ 76-3-304, MCA, its holding suggests otherwise. In any event, the
District Court at least implicitly rejected the Baches' 'Ieasement
by express reservation1' (that is, solely through instruments in
writing) theory in concluding that a private roadway easement was
created in their favor by "operation of law" via the application of
5 76-3-304, MCA. To the extent the District Court rejected that
theory, it was correct. Importantly, in this regard, the Baches
have abandoned that theory on appeal and argue in support of the
District Court's "operation of law" conclusion. This Court does
not bother to state the actual basis of its determination that an
easement was created here.
Existing law simply does not support the result reached by the
Court. As discussed above, we have recognized only three kinds of
easements created by operation of law: easements by prescription,
by necessity and by implication. The requisite elements and proofs
necessary to establish the creation of such easements, as
summarized in Woods, relate in large part to non-writings-related
facts and circumstances not discussed or relied on by either the
District Court or this Court in resolving the limited issues
presented in this case. See Woods, 766 P.2d at 252-53.
The Court's determination that an easement was created here at
least implicitly establishes a new species of easement not
supported by Montana law. It is an easement which does not fit
within the categories of creation by an instrument in writing or
creation by operation of law, as we have recognized those concepts.
Rather, the Court appears to establish--its *tholding"
notwithstanding--a llcombined"version of these recognized methods
of creating an easement by relying on written instruments and then
applying a statute to--or, stated differently, having the "law
operate uponv8--those
instruments. Even assuming our willingness to
recognize such an easement, the premise for such an approach
necessarily would require the existence of a statute applicable to
such facts and intended by the legislature to accomplish such a
result. No such statute currently exists.
The simple fact is this: 5 76-3-304, MCA, has no application
here. Section 76-3-304, MCA, is part of MontanansSubdivision and
Platting Act (the Act). It provides in pertinent part:
Effect of recording complying plat. The recording of any
plat ... shall serve to establish the identity of all
lands shown on and being a part of such plat. Where
lands are conveyed by reference to a plat, the plat
itself ... shall be regarded as incorporated into the
instrument of conveyance ....
We previously have determined that plats and certificates of survey
are not the same. In Dep't of Health v. Lasorte (1979), 182 Mont.
267, 270, 596 P.2d 477, 480, we observed that the Act separately
defines the terms "certificate of surveyw and "plat. A
certificate of survey is a l8drawing of a field survey prepared by
a registered surveyor for the purpose of disclosing facts
pertaining to boundary locationsrWwhereas a plat is a "graphical
representation of a subdivision showing the division of land into
lots, parcels, blocks, streets, alleys, and other divisions and
dedications." Section 76-3-103(1) and (9), MCA. In addition, the
15
purposes and use to be made of the two are different. Lasorte, 596
P.2d at 480-81. Based on these distinctions between a certificate
of survey and a plat, we declared void an administrative regulation
equating the two. Lasorte, 596 P.2d at 481. Thus, it is clear
from the Act and case law that certificates of survey and plats are
different instruments. Without so much as a fond farewell, the
Court bids adieu to both the legislature's enactment of separate
and distinct definitions and purposes relating to certificates of
survey and plats, and its own case law. I cannot agree.
More specifically, I disagree with the Court's reliance on
Benson v. Pyfer (1989), 240 Mont. 175, 179, 783 P.2d 923, 925, for
any purpose whatsoever in this case. Benson is factually and
legally irrelevant to the case now before us. It involved a
seller's use of representations in a u,
regarding roadways and
open common areas, as inducements to purchasers of lots and whether
such representations were enforceable by the purchasers against the
seller. Neither the facts nor the legal issues of that case have
any bearing here. Benson clearly involved a plat to which 76-3-
304, MCA, was indisputably applicable.
Moreover, our reliance in Benson on Maiers, also relied on by
the Court here, is equally without relevance. The Court correctly
reiterates our Maiers statement that the reservation of an easement
in a subdivision wlat creates a covenant enforceable against the
seller. Again, the case before us does not involve a plat.
Furthermore, the Court concedes the more fundamental irrelevance of
Maiers here by conceding that Maiers predated the legislature's
enactment of the statutory definition of a plat.
Throughout its opinion, the Court focuses on refuting Owensr
arguments. Via this focus, the Court may hope that the reader will
what it does here. The
miss the total lack of authority to suw~ort
lack of authority is too clear to be missed.
In this case, the Court ignores both statute and case law to
reach its result. While we are free to "amend" our own cases where
the law allows or requires it, we ought never to ignore it. Doing
so creates enormous difficulties for district courts and practicing
lawyers. More importantly, we are free to ignore valid
legislative enactments or twist them beyond recognition to suit
ourselves in reaching a result in a particular case.
Finally, the effects of the Court's decision today will be
far-reaching with regard to the confusion it produces in the
vitally important area of property rights and the creation of
interests in real property. The Court here creates a situation
where whether a certificate is a certificate of survey or a plat
necessarily will be decided by courts on a case-by-case basis,
rather than clearly and cleanly determined pursuant to rules
established by the legislature. I cannot agree. I dissent.
Justice James C. Nelson joins in the
Karla M. Gray.
RPy'~b\x \ CHTiIFlCATE OF SURVEY
PREPARED FOR AND
. OWNERS OF RECORD
LLOYD El VIRGINIA M. BACHE
E.
October 19, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
1. James Heckathorn
MURPHY, ROBINSON, HECKATHORN & PHILLIPS, P. C.
P. 0.Box 759
KalispelI, MT 59903-0759
Lon J . Dale
MILODRAGOVICH, DALE & DYE
P. 0. 4947
Box
Missoula, MT 59806-4947
Gary Kalkstein
QUANE, SMITH,HOWARD & HULL
619 SW Higgins Avenue, Suite L
Missoula, MT 59803
John K. Tabaracci, Esq.
Sullivan & Tabaracci
430 Ryman
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA