NO. 94-404
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
WILLIAM E. BRIDGER and MARY A. BRIDGER
Plaintiffs and Respondents,
and
ROGER C. TODD, JUDITH N. TODD and JEAN L. TODD, ROBERT EVANS, GLEN
M. HARGROVE, BETTY RAE HARGROVE, MICHAEL WOLD, LORENIA M. WOLD, and
EARL WESLEY HARGROVE,
Plaintiffs by Intervention and Respondents,
-v-
JACKSON L. LAKE, JR., LYNNE M. BLACKBURN, a/k/a LYNN M. M DONALD,
C
BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware corporation,
MONTANA RAIL LINK, INC., a Montana corporation,
Defendants,
and
THE STATE OF MONTANA, ALICE MINA LAKE, The Personal Representative
of the ESTATE OF JOHN LUDWELL LAKE, Deceased, and All Persons
Unknown.
Defendants and Respondents.
and
JACKSON L. LAKE, JR.,
Third Party Plaintiff and Respondent,
-XT_
LYNNE M. BLACKBURN, a/k/a LYNNE M. M DONALD,
C
Third Party Defendant and Appellant. %c!! i ,A&~L
9 ia
CLERK OF s:~i'~~w~z COURT
sp*rri Ew: axiTANA
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron L. Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Brenda Riley Cole, Swandal, Douglass, Frazier &
Cole, Livingston, Montana
For Respondent:
Leanne M. Schraudner, Schraudner &Hillier, Bozeman,
Montana (Bridgers, Evans, Hargroves and Weld); Karl
Knuchel, Livingston, Montana (Lakes); David W.
DePuy, DePuy Law firm, Livingston, Montana (Todds)
Submitted on Briefs: January 26, 1995
Deciaed: May 17, 1995
Filed:
--
Justice Fred J. Weber delivered the Opinion of the Court.
This matter came before the District Court of the Sixth
Judicial District, Park County, on motion for summary judgment.
The court granted summary judgment to plaintiffs. We affirm.
We restate the issues as follows:
I. Did the District Court err in granting summary judgment on the
issue of whether an easement had been created?
II. Did the District err in concluding that the easement had not
been extinguished?
III. Did the District Court err in concluding that McDonald had
actual and constructive knowledge of the claimed easement?
IV. Did the District Court err in basing its decision upon an
unrequested private viewing of the property in question?
In May of 1979, Lynn McDonald (McDonald) purchased a 4.592
acre parcel of real property located approximately ten miles west
of Livingston, Montana, from Gerald R. Stafford, Frances R.
Stafford, Alfred Mack Stiff, and Vivian Stiff. Due to the
construction of I-90, the property was subject to a highway right
of way easement granted in 1975 to the State of Montana for a
"Dozer Road."
McDonald did not view the property before she bought it, nor
was she represented by counsel during the sale. McDonald claims
that she had no actual notice that any landowner claimed any right
under the 1975 "Dozer Document" or under any other agreement or
document. She contends that when she purchased the property, she
2
believed the Dozer Road to be abandoned and terminated at the
eastern boundary of the property. Since purchasing the land, she
was informed by the seller that the seller had given the Todds
permission to cross the property. Also since purchasing the land,
McDonald herself has given various parties permission to cross over
the property in the vicinity of the disputed easement.
Landowners William Bridger and Mary Bridger (the Bridgers)
filed a complaint dated December 12, 1990, when their use of the
easement was denied. The complaint also involved disputes relating
to the use of railroad crossings and breach of warranty claims
against the seller of the land which the Bridgers purchased near
the property. The action was bifurcated and the present action
deals exclusively with the contested easement across McDonald's
land.
Subsequent to the filing of the Bridger complaint, the court
granted leave for the following landowners to intervene in the
action: Roger C. Todd, Judith Todd, Jean Todd, Robert Evans, Glen
Hargrove, Betty Rae Hargrove, Michael Wold, Lorenia Wold, Earl
Hargrove (referred to along with plaintiffs and Jackson Lake Jr. as
landowners). The following parties were named as defendants in the
action: Jackson L. Lake, Jr., Alice Lake, the personal
representative of the Estate of John Ludwell Lake, deceased, the
State of Montana, Burlington Northern Railroad, Montana Rail Link.
Jackson Lake, Jr. also filed a cross-claim against McDonald.
On February 25, 1994, the court heard arguments on the motions
for partial summary judgment filed by plaintiffs, plaintiffs by
3
intervention, and defendants Jackson L. Lake, Jr., Alice Lake, and
the personal representative of John Ludwell Lake, deceased. The
court entered an order on May 6, 1994, granting summary judgment to
all parties against McDonald.
In its May 6, 1994 and July 8, 1994 orders, the District Court
determined that the State of Montana held an access easement across
McDonald's property for the benefit of the public as well as the
adjoining landowners. The court determined that McDonald had both
constructive and actual notice of an easement and could not now
object to its use. McDonald appeals the court's judgments.
Did the District Court err in granting summary judgment on the
issue of whether an easement existed?
Summary judgment is only appropriate if there are no genuine
issues of material fact and the movant is entitled to judgment as
a matter of law. Rule 56, M.R.Civ.P. Appellant argues that a
genuine issue of material fact exists as to whether an easement was
created and to what extent the servient estate is burdened.
Respondent landowners argue that the granting document is clear on
its face and, therefore, summary judgment as to the easement's
existence and nature is appropriate.
A review of the record in this case reveals a granting
document filed May 9, 1975. This document grants to the State of
Montana a "right of way easement.” The grantors of this easement
are McDonald's predecessors in interest. That instrument states:
Gerald R. Stafford, Frances L. Stafford, Alfred M. Stiff,
and Vivian E. Stiff of Bozeman. Montana for and in
4
consideration of the sum of ONE DOLLAR ($1.00) lawful
money of the United States to THEM in hand paid by the
State of Montana, the receipt whereof is hereby
acknowledged, do hereby grant, bargain, sell and convey
unto the State of Montana, an easement and right of way
for the construction, of a Dozer Road, over, across, and
the right of entry upon and occupation of lands, and the
right to take therefrom such earth, gravel, stones, trees
and timber as may be necessary in the construction of
said Dozer Road covering and embracing the following
described land, to-wit:
.
In consideration of the grantors granting this easement,
the Grantees shall construct the dozer road as above
described and the grantees shall not be obliged to
maintain the same . .
. .
TO HAVE AND TO HOLD all of the above described and
conveyed property unto the State of Montana, and its
successors in interest as long as the same is used as a
public highway.
The extent of a servitude is determined by the terms of the
grant . . . by which it was acquired. Section 70-17-106, MCA. In
other words, the breadth and scope of an easement are determined
upon the actual terms of the grant. Titeca v. State of Montana
(1981), 194 Mont. 209, 634 P.2d 1156. Here the "TO HAVE AND TO
HOLD" language determines the breadth and scope of the easement to
be that of a "public highway."
While McDonald argues that the granting document is ambiguous
because of its use of the word "Dozer Road" when describing the
easement, she presented nothing to the District Court to prove that
the easement was anything other than an easement for a public
highway as stated in the granting document. McDonald presented
only her own affidavit which says she talked to experts and that
5
they told her that a dozer road was a temporary construction.
McDonald had the burden to overcome the terms of the 1975 granting
document. She had to show that issues of material fact existed.
She did not meet her burden but produced only hearsay evidence
contained in her own affidavit.
We hold that the District Court did not err in granting
summary judgment to the landowners on the existence of the
easement.
Did the District err in concluding that the easement had not
been extinguished?
McDonald argues that if an easement existed it had long since
been abandoned. The landowners contend that the easement is a
public one and cannot be extinguished through non-use.
Section 60-4-208, MCA, clearly states that "[elvery
state highway once established must continue until abandoned or
vacated by operation of law or by judgment of a court of competent
jurisdiction or by a proper order of the commission.ll Mere non-use
of the roadway will not cause it to cease to exist as a public
roadway:
Landowners contend that the County abandoned all but 60
feet of the right-of-way. . One of the elements
necessary to prove abandonment of public property by
governmental entities is a showing of a clear intent to
abandon. The conduct claimed to demonstrate this intent
must be of character so decisive and conclusive as to
indicate a clear intent to abandon . . The conduct
must be some affirmative official act, and not mere
implication. Mere nonuse, even for extended periods of
time, is generally insufficient by itself, to indicate an
intent to abandon. . . [Ilt has been held that the
rights of the public in its highways cannot be lost by
6
acquiescence in the use or occupation thereof by
individuals, even though such highways have not been
opened or used.
Baertsch v. County of Lewis and Clark (1992), 256 Mont. 114, 845
P.2d 106, 110-111.
McDonald presented no evidence to the District Court to
support her contention that the easement was abandoned. McDonald
failed to meet her burden of showing that questions of material
fact existed.
We hold the District Court did not err in granting summary
judgment that the easement had not been extinguished.
III.
Did the District Court err in concluding that McDonald had
actual and constructive knowledge of the claimed easement?
McDonald argues that she bought the land in May of 1979 but
did not know that an easement was alleged to exist until 1986. The
landowners argue that she had constructive and actual notice of the
easement.
The 1975 granting document was filed and constituted
constructive notice to all subsequent owners of the Stafford and
Stiff lands:
Every conveyance of real property acknowledged or proved
and certified and recorded as prescribed by law, from the
time it is filed with the county clerk for record, is
constructive notice of the contents thereof to subsequent
purchasers and mortgagees.
Section 70-21-302(l), MCA.
The District Court referred to other documents that also
evidence an easement, including McDonald's own deed to the land
7
which clearly references an easement to the State of Montana. Her
warranty deed specifically referred to the certificate of survey on
file which plainly outlined the easement and stated the conveyance
was subject to it. McDonald's title policy stated that her
property was subject to a:
16. Right of Way Easement dated April 15, 1975, granted
to the State of Montana for the right to construct a
Dozer Road over, across, and the right of entry upon and
occupation of lands, and the right to take therefrom such
earth, gravel, stones, trees, and timber as may be
necessary in the construction of said Dozer Road across
a tract of land in W1/2SE1/4 of Section 11, Township 2
South, Range 8 East, M.P.M., Park County, Montana; by
instrument recorded May 9, 1975, at 1:13 P.M. in Roll 11,
Pages 1280-1282, records of Park County, Montana.
McDonald had notice at least from May 30, 1979 when the
aforementioned title policy was issued. Even if, as McDonald
argues, she purchased the property before she obtained the title
policy, she at least had notice of the easement in 1979, many years
before the activities concerned in this action.
McDonald testified in her own deposition that when she viewed
the property on May 4 or 5, 1979, at the time she paid Gerald
Stafford for the property, she saw the road and the fence. A
subsequent purchaser of a servient tenement is bound to take notice
of rights that may be evident upon an inspection of the premises as
well as those that may be learned by an inspection of the records.
Shalimar Association v. D.O.C. Enterprise, Ltd. (1984), 142 Ariz.
36, 688 P.2d 682.
We conclude that the landowners met their burden to show that
McDonald knew or should have known that an easement existed.
McDonald has provided no facts to refute this. We, therefore, hold
8
that the District Court did not err in granting summary judgment
that McDonald had constructive as well as actual notice of the
easement.
IV.
Did the District Court err in basing its decision upon an
unrequested private viewing of the property in question?
McDonald argues that the judge should not have viewed the
property in question without having been requested to do so by the
parties. However, this was not raised at the District Court level.
Failure to object to issues at the District Court will prevent
appellants from raising the issue on appeal. Matter of Certain
Justice Court Expenses (1994), 264 Mont. 510, 872 P.2d 795.
We do not consider the issue on appeal.
Affirmed.
We Concur:
Justices
Justice W. William Leaphart, dissenting.
I respectfully dissent from the Court's opinion. In affirming
the grant of summary judgment, the Court ignores questions of fact
regarding the language in the easement document. The Court
examines the granting document's establishment of "an easement and
right of way for the construction, of a Dozer Road . . as long
as the same is used as a public highway" but does not further
consider the meaning of this grant or whether the property was used
as a public highway. Because these questions of fact must be
answered in order to resolve issues one and two, summary judgment
was improper.
The easement in question was granted to the state for
construction of a "Dozer Road." The Court concludes that "McDonald
presented nothing to the District Court to prove that the easement
was anything but an easement for a public highway as stated in the
granting document." The granting document states:
Gerald R. Stafford, Frances L. Stafford, Alfred M. Stiff,
and Vivian E. Stiff of Bozeman, Montana for and in
consideration of the sum of ONE DOLLAR ($1.00) lawful
money of the United States to THEM in hand paid by the
State of Montana, the receipt whereof is hereby
acknowledged, do hereby grant, bargain, sell and convey
unto the State of Montana, an easement and right of way
for the construction, of a Dozer Road, over, across, and
the right of entry upon and occupation of lands, and the
right to take therefrom such earth, gravel, stones, trees
and timber as may be necessary in the construction of
said Dozer Road covering and embracing the following
described land, to-wit:
. . .
TO HAVE AND TO HOLD all of the above described and
conveyed property unto the State of Montana, and its
successor or successors in interest as ions as the same
10
is used as a oublic hiqhwav. [Emphasis added.]
The Court relies upon 5 60-4-208, MCA, for the proposition
that state highways, OIlCtZ established, must continue until
intentionally abandoned or vacated by operation of law. However,
the Court fails to recognize that this particular granting document
clearly abrogates that statutory rule by providing that the
easement exists only so long as the road "is used as a public
highway."
The legal effect of the "Dozer Road" document cannot be
determined until two questions of fact are resolved by a jury: 1)
what is a "Dozer Road" --is it permanent or temporary in nature?
2) Has the road, in fact, been used as a public highway? If not,
then, by the terms of the document, the easement has ceased to
exist.
I would reverse the summary judgment and remand for a jury
trial on these questions of fact.
Justice Terry N. Trieweiler joins in the foregoing dissent of
Justice W. William Leaphart.
Stice
Justice Karla M. Gray joins in the foregoing dissent of
Justice W. William Leaphart.
11