No. 95-421
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
DENNIS RUANA, ROBERT W. BIELBY,
CARLA J. BIELBY, PAM M COY and
C
KARL HEINZ-FINKEN,
Plaintiffs and Respondents,
v
LEONARD GRIGONIS and
KATHY J. GRIGONIS,
Defendants and Appellants.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Don Torgenrud, Attorney at Law, St. IgnatiUS,
Montana
For Respondents:
Zane K. Sullivan; Sullivan & Tabaracci, Missoula,
Montana
j!f c';%% :;;Submitted on Briefs: February I , 1996
?
4% i,. _,i_.~ ii
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
The Grigonises appeal from the Ravalli County, Twenty-first
Judicial District Court's Order and Judgment granting Dennis Ruana,
Robert W. Bielby, Carla J. Bielby, PamMcCoy and Karl Heinz-Finken,
Respondents, summary judgment. The Respondents, Bielby and Ruana,
are the developers of "Paradise Acres," Pam McCoy and Karl Heinz-
Finken are purchasers of one of the "Paradise Acres" lots which
abuts the Grigonis property. Together, the Respondents moved for
summary judgment arguing that they have a reserved sixty-foot
easement crossing the Grigonises' property as a matter of law.
They base their argument on two recent decisions by this Court,
Halverson v. Turner (1994), 268 Mont. 168, 885 P.2d 1285, and Bathe
v. Owens (1994), 267 Mont. 279, 883 P.2d 817. The District Court
granted the Respondents' motion. We reverse.
The following issues are presented by the Grigonises:
1. Did the District Court err in holding, as a matter of law,
that Respondents have an easement by reservation across a
sixty-foot wide private road and public utility easement on
the Grigonises' property, where the certificate of survey for
Respondents' property does not include or depict the easement
nor is it recorded on any other pertinent documents?
2. Are the Grigonises entitled to summary judgment on the issue
of easement by prescription?
3. Are the Grigonises entitled to summary judgment on the issue
of easement by implication?
4. Are the Grigonises entitled to judgment on the issue of
lathes?
5. Are the Grigonises entitled to summary judgment on the issue
of trespass, based on the Respondents' construction of Blue
Sky Lane and the raising of the surface of North Hidden Valley
Road?
2
-.
6. Are the Grigonises entitled to attorney's fees expended in
defense of their land?
The property at issue is located in Ravalli County, Montana,
and is situated north and south of the section line between
Sections 8 and 17 of Township 10 North, Range 19 West, M.P.M. The
Respondents allege that they have rights to two easements. The
first is a sixty-foot private road and public utility easement
running east-west just south of the E-17 section line. North
Hidden Valley Road runs roughly through the center of this easement
continuing east to a dead end, and continuing west until it joins
the East Side Bitterroot Highway. The second potential easement,
Blue Sky Lane, comes off North Hidden Valley Road. Respondents
built Blue Sky Lane to access their 56-lot "Paradise Acres"
subdivision to the north of North Hidden Valley Road. Blue Sky
Lane originates on the Grigonises' property.
The properties owned by the Grigonises and the Respondents
were originally contained in a much larger parcel of property, the
Cook Ranch. In 1976, the Cooks sold a portion of the ranch to
Wilbur and Ila Hensler. The Henslers' property encompassed the
parcels now owned by the Grigonises and the Respondents. In 1977,
the Henslers sold a portion of their property to John Reely,
William Reely, and Delbert Ashmore (Reely-Ashmore). The Henslers
to Reely-Ashmore sale included property south of the 8-17 section
line including within it the property now owned by the Grigonises.
The Henslers retained the property to the north of the 8-17 section
line that is now owned by the Respondents. Thus, it was this 1977
3
sale that split the properties now at issue from single ownership.
In 1988, the Grigonises purchased 10.76 acres south of the 8-17
section line from Reely-Ashmore's successors in interest. In 1990,
the Henslers sold Respondents approximately 133 acres north of the
B-17 section line, including the land just to the north of the
Grigonises. The northern border of the Grigonis property abuts the
property of the Respondents.
When the Grigonises purchased their property, there was a
grassy strip extending southward approximately fifteen feet from
the northern border of their property. The grassy strip contains
public utility lines. North Hidden Valley Road abuts the grassy
strip to the south and runs roughly down the center of the sixty-
foot wide public utility, private road easement. North Hidden
Valley Road is a dirt road, approximately twenty to twenty-five
feet wide that runs east-west. Both the grassy strip and North
Hidden Valley Road fall within the "private road and public utility
easement" that extends south sixty feet from the B-17 section line
into the Grigonises' property (see diagram).
m %fPorJDErJTS’ PRd’E’i2.~7’
The Grigonises acknowledge that when they bought their
property it was plainly subject to the North Hidden Valley Road
east-west easement. This easement allowed homeowners to the east
to access their properties. However, they argue that this easement
does not extend north, that is, no easement to the north off of
North Hidden Valley Road such as Blue Sky Lane was ever reserved or
created.
A fence separates the Respondents' and Grigonises' properties.
In 1991, without the Grigonises' permission, Bielby, one of the
Respondents, took down the fence and constructed a dirt road, Blue
Sky Lane. Blue Sky Lane originates from North Hidden Valley Road
in the Grigonises' property and heads north through the grassy
strip into Respondents' property. Blue Sky Lane provides access
onto North Hidden Valley Road for the 56-lot "Paradise Acres"
subdivision.
The Grigonises were unhappy with the construction of Blue Sky
Lane on their property and offered to sell Respondents easement
rights. Respondents did not reply to the Grigonises' offer and
there were no further negotiations. Leonard Grigonis re-erected
the fence and posted signs stating that use of Blue Sky Lane was
unpermitted trespass. Bielby removed the signs and a portion of
the fence and Respondents continued to use Blue Sky Lane as their
access to North Hidden Valley Road.
Respondents sought and obtained an injunction to prevent the
Grigonises from interfering with Respondents' use of Blue Sky Lane.
Respondents asserted easement rights based on a number of theories:
5
easement by reservation, easement by grant, public road by
prescription, and easement by necessity, all with the accompanying
right to build an access road, i.e., Blue Sky Lane. The Grigonises
asserted that Respondents have no easement rights in North Hidden
Valley Road, have no right to build an access road to intersect
North Hidden Valley Road, and that in building Blue Sky Lane,
Respondents wrongfully occupied, trespassed, converted, and
physically damaged the Grigonises' property. The Grigonises sought
Rule 11, M.R.Civ.P., sanctions against Respondents in the form of
attorney's fees and costs, as well as damages under the tort
theories of wrongful occupation, trespass, conversion and property
damage. The parties filed numerous motions and cross-motions for
summary judgment on the following grounds: public prescriptive
easement, tortious interference with easement rights, easement by
estoppel, trespass, wrongful occupation, easement by grant,
easement by reservation, easement by necessity, lathes and Rule 11,
M.R.Civ.P., sanctions.
Initially, the court denied summary judgment to either party
for easement by grant and/or reservation and for public road by
prescription; denied both parties summary judgment for lathes,
tortious interference, trespass and/orwrongfuloccupation; granted
summary judgment in favor of the Grigonises on Respondents' claim
of easement by estoppel; dismissed Respondents' claim of easement
by necessity and substituted a claim of easement by implication in
its place; granted summary judgment to Respondents as to whether
any rights to use North Hidden Valley Road automatically included
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rights to use and build within the entire sixty-foot easement area
thereby limiting argument at trial to whether Respondents have
rights in the sixty-foot easement containing North Hidden Valley
Road, and; granted summary judgment to Respondents for the
Grigonises' claims of Rule 11, M.R.Civ.P., violations and abuse of
process. The Grigonises sought and were denied a Motion for
Reconsideration.
Respondents subsequently filed another motion for summary
judgment based on this Court's recent decisions in Halverson v.
Turner (1994), 268 Mont. 168, 885 P.2d 1285, and Bathe v. Owens
(1994), 267 Mont. 279, 883 P.2d 817. After reconsideration, and
relying on Halverson and Bathe
-I the District Court granted
Respondents' Motion for Summary Judgment on their claim of easement
by grant or reservation. The court ruled that Respondents have:
as a matter of public record, a sixty (60') foot road/
utility easement by reservation which crosses Defendants'
[Grigonises'] property and lies adjacent to Plaintiffs'
[Respondents'] property as described in Certificate of
Survey 1733. Such easement right includes the
accompanying right to build access roads or drive ways,
such as Blue Sky Lane, in order to exercise their
easement right to use North Hidden Valley Road which lies
within the north and south boundaries of their sixty foot
easement and any other use consistent with the road and
utility purposes of the easement.
The Grigonises appeal the District Court's grant of summary
judgment as well as its prior rulings denying their cross-motions
for summary judgment.
1. Did the District Court err in holding, as a matter of law,
that Respondents have an easement by reservation across a
sixty-foot wide private road and public utility easement on
the Grigonises' property, where the certificate of survey for
Respondents' property does not include or depict the easement
nor is it recorded on any other pertinent documents?
7
Our standard of reviewing a grant of summary judgment is the
same as that used by the district court. Halverson, 885 P.2d at
1288; Wild River v. Board of Trustees (1991), 248 Mont. 397, 399-
400, 812 P.2d 344, 345. Summary judgment is proper when there are
no genuine issues of material fact and the moving party is entitled
to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Bathe, 883
P.2d at 820. Thus, we determine whether a genuine issue of
material fact exists and whether the moving party is entitled to
judgment as a matter of law. Motarie v. Northern Mont. Joint
Refuse Disposal Dist. (Mont. 1995), 907 P.2d 154, 156, 52 St.Rep.
1209, 1210.
An easement is a non-possessory interest in land, a right
which one person has to use the land of another for a specific
purpose or a servitude imposed as a burden upon land. Kuhlman v.
Rivera (1985), 216 Mont. 353, 358, 701 P.2d 982, 985 (citations
omitted). "in 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." Wild River, 812 P.2d
at 846 (quoting Prentice v. McKay (1909), 38 Mont. 114, 118, 98 P.
1081, 1083). An easement by reservation must arise from the
written documents of conveyance. Halverson, 885 P.2d at 1288. In
determining the existence of an easement by reservation in
documents of conveyance, it is necessary that the grantee of the
property being burdened by the servitude have knowledge of its use
or its necessity. Halverson, 885 P.2d at 1288.
8
Concerning North Hidden Valley Road, the District Court noted
that:
the public record clearly evidenced the long term
existence of the 60' private road/public utility easement
dating at least as far back as the 197Os, and that the
public record, as well as testimony before the Court,
evidenced the existence of the road which lies within the
boundaries of the easement dating as far back as the
early 1900s. However, there did not appear to be any
instruments of conveyance containing specific language
"creating" the easement of record and/or the road.
Because an easement by reservation must arise from the written
documents of conveyance, we examine the chains of title in
question. Halverson, 885 P.2d at 1288. Examination of the chain
of title to the Grigonises' property reveals when the North Hidden
Valley Road easement was created for the properties at issue.
Property must be divided between or among separate owners for an
easement to be created because it is fundamental that one property
owner cannot have an easement across his or her own land. Wild
River, 812 P.2d at 347. The first time the properties that are
now the Grigonises' and the Respondents' were divided from a singly
owned property was in 1977, when the Henslers sold part of their
property to Reely-Ashmore. Thus, this transfer of title is
decisive in establishing the granted or reserved easement rights as
between the Respondents and the Grigonises. The Henslers retained
the part of their property to the north of the 8-17 section line
that they ultimately sold to Respondents in 1990. The 1977 deed
from the Henslers to Reely-Ashmore, which included the 10.76 acres
south of the 18-7 section line now owned by the Grigonises, stated:
SUBJECT TO an access easement being sixty (60) feet wide
and lying south of and adjacent to the following
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continuous line; the north line of the NEi/4NWi/4 of
Section 17; the north line of the NEi/4 of Section 17;
and the north line of the Nw1/4 of Section I6 [i.e.,
North Hidden Valley Road].
The deed also stated:
Section 17: All of the NEi/4 except that land as recorded
on Certificate of Survey No. 1316; also all of the NW1/4
except that land as recorded on Certificate of Survey No.
1316.
Certificate of Survey (COS) number 1316 does not depict the sixty-
foot private road (North Hidden Valley Road) and public utility
easement just south of the 8-17 section line.
Reely-Ashmore assigned the parcel of land to Hidden Valley
Ranches in 1977. The deed to Hidden Valley Ranches contained the
same "subject to" language and reference to COS number 1316 stated
above. In 1978, Hidden Valley Ranches sold twenty-one and one-half
acres to John Reely. However, rather than the "subject to"
language and reference to COS number 1316, the deed from Hidden
Valley Ranches to John Reely recited the property description and
stated "[alccording to survey data, monuments and easements as
shown on Certificate of Survey No. 1503." Certificate of Survey
number 1503 clearly depicts the sixty-foot private road and public
utility easement just south of the 8-17 section line.
In 1978, John Reely, in anticipation of splitting his acreage
further, had COS number 1733 prepared. Certificate of Survey
number 1733 also clearly depicts the sixty-foot private road and
public utility easement just south of the 8-17 section line.
Neither COS number 1503 nor COS number 1733 depict any property
north of the 8-17 section line, they only portray property south of
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the section line. The subsequent deeds that continued to split the
property into smaller parcels up and until the 1988 sale to the
Grigonises, included a reference to COS number 1733.
In Wild River, we held that, normally, the words "subject to"
do not create an easement. Wild River, 812 P.2d at 346.
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.
Wild River, 812 P.2d at 346-47 (citations omitted). Thus the
"subject to" clause in the 1977 Hensler to Reely-Ashmore deed did
not create or reserve easement rights in North Hidden Valley Road.
On the other hand, we held in Bathe and Halverson that an
easement by reservation can be established when, in conjunction
with a division of land, the subject easement is shown on the
certificate of survey and the certificate of survey is referred to
and incorporated in the deed of conveyance. Halverson, 885 P.2d at
1289; Bathe, 883 P.2d at 822. Halverson concerned two tracts of
land, originally owned by one person, Dahlia Halverson. Halverson
filed and recorded a COS subdividing her land with the office of
the clerk and recorder. The COS concerning the tracts in question
showed an easement providing access to a street. This Court held
that Dahlia Halverson created an easement by reservation when she
quitclaimed one of the tracts and made reference to the COS which
showed the easement in question. We concluded that the reference
in the document of conveyance to a recorded COS which adequately
11
described the easement was sufficient to establish the easement.
Halverson, 805 P.2d at 1289.
In the instant case, COS number 1316, filed in June 1977 in
conjunction with the Hensler to Reely-Ashmore deed when the
properties in question were split, does not depict the sixty-foot
wide private road and public utility easement just south of the 8-
17 section line. However, COS number 1503, filed in July of 1978
in conjunction with the Hidden Valley Ranches to John Reely deed,
clearly shows the sixty-foot wide private road and public utility
easement just south of the 8-17 section line. Certificate of
Survey number 1503 identifies the easement clearly and
specifically. Bathe, 883 P.2d at 822. Certificate of Survey
number 1733, prepared for John Reely in 1978, splitting his twenty-
one and one-half acres into two 10.76 acre lots, also clearly
depicts the sixty-foot wide, east-west easement.
Based on Wild River, Bathe and Halverson, the North Hidden
Valley Road easement was not granted or reserved as to the
Grigonises' property until there was a reference in a document of
conveyance to a recorded COS adequately describing the easement.
Accordingly, the easement was not granted or reserved when the
Henslers sold to Reely-Ashmore because neither the language of the
deed nor COS number 1316 established the easement. Thus, the
easement was not granted or reserved when what are now the
Griyonises' and Respondents' properties were split from single
ownership. The Griyonis property was not subjected to the easement
until 1978 when Hidden Valley Ranches sold twenty-one and one-half
12
acres to John Reely. It WAS granted by the 1978 deed which
described the property according to the data, monuments and
easements shown on COS number 1503. Certificate of Survey number
1503 clearly depicts the east-west private road and public utility
easement just south of the 8-17 section line. This easement by
reservation could only apply to east-west travel on North Hidden
Valley Road because the parcels of land being divided were to the
east and west of each other, and because the land to the north of
section line 8-17, i.e., the Respondents' property, had been split
off earlier without reservation of an easement. Additionally, both
COS number 1503 and COS number 1733 only depict property south of
the 8-17 section line, neither portray nor refer to property north
of the 8-17 section line. Consequently, under Wild River, Bathe
and Halverson, the conveying documents in the Grigonises' chain of
title establish that their property cannot be servient to an
easement by grant or reservation held by the Respondents to the
north because Respondents' predecessors in interest, the Henslers,
did not reserve or create any easement rights in North Hidden
Valley Road when they sold that portion of their property south of
the 8-17 section line. The Grigonises' property is only servient
to the east-west easement created by the 1970 deed from Hidden
Valley Ranches to John Reely.
The Respondents' chain of title supports this conclusion that
the Henslers did not grant or reserve any easement rights to North
Hidden Valley Road or Blue Sky Lane. In 1990, the Henslers sold
Respondents 133 plus acres north of the 8-17 section line. The
13
August 2, 1991, deed from the Henslers to the Respondents granting
the 133 plus acres did not contain any language referring to the
claimed easements at issue. Subsequent to the filing of this
lawsuit, on October 29, 1993, the Henslers executed an Amended Deed
expressing their intent to replace and supersede the August 2, 1991
deed. The Amended Deed from the Henslers to Respondents included
the following provision:
8. An easement for access over the 60 foot private road
and public utility easement known as North Hidden Valley
Road, to the extent of those rights reserved by the
Grantors.
However, as explained above, the Henslers had not created or
reserved easement rights to North Hidden Valley Road when they
retained the property to the north of the 8-17 section line in
their 1977 conveyance to Reely-Ashmore. The Hensler to Reely-
Ashmore deed did not create or reserve an easement because the
language "subject to" is insufficient to grant or reserve an
easement. Wild River, 812 P.2d at 347. Additionally, COS number
1316 referred to in the Hensler to Reely-Ashmore deed did not
delineate the easement. It was not until Hidden Valley Ranches
sold the property to John Reely, with the deed's reference to COS
number 1503 clearly describing the easement, that the easement was
granted or reserved. Halverson, 885 P.2d at 1289. This grant or
reservation was after the Hensler to Reely-Ashmore sale and thus
could not inure to the Henslers' benefit. Consequently, the
Henslers could not convey easement rights to Respondents because
the Henslers did not have any easement rights to convey. Their
amended deed could not remedy the failure to reserve an easement in
14
1977. Therefore, we hold that the District court erred in
determining that Respondents have, as a matter of public record, a
sixty-foot road/utility easement by reservation as described in COS
number 1733.
Appellate review of the remainins issues:
Having reversed the District Court's 1995 Final Order and
Judgment, a question arises as to whether the court's earlier
rulings on various motions for summary judgment are now also
reviewable. Once a final judgment has been entered, all
nonappealable intermediate orders or decisions, to which there has
been a proper objection, are reviewable on appeal from the final
judgment. Kirchner v. Western Mont. Mental Health Ctr. (1993), 261
Mont. 227, 230, 861 P.2d 927, 929; Brown v. Midland Nat'1 Bank
(1968), 150 Mont. 422, 435 P.2d 878. In -, we established that
Brown
although a motion for summary judgment is a non-
appealable order at the time it is made because of its
interlocutory character . . all non-appealable
intermediate orders or decisions properly excepted or
objected to which involve the merits or necessarily
affect the judgment are reviewable on appeal from a final
judgment. . . . This review includes reviewing an order
denying a motion for summary judgment.
Brown, 435 P.2d at 881-82 (citations omitted).
In its order of May 1994, the District Court granted summary
judgment with regard to the following issues:
1. easement by estoppel
2. Rule 11, M.R.Civ.P., violations and abuse of
process.
15
Since these issues have not been appealed, we need not discuss
them. The court denied summary judgment as to the following
issues:
1. easement by public prescription
2. lathes
3. tortious interference
4. trespass and/or wrongful occupation.
The court dismissed Respondents' claim of easement by
necessity and, sua sponte, substituted a claim of easement by
implication in its place. The court also granted Respondents
summary judgment as to whether any rights to use North Hidden
Valley Road automatically included rights to build within the
entire sixty-foot easement area. The Grigonises appeal from the
court's denial of summary judgment in their favor as to the above
issues.
Our standard of reviewing a grant, or in the present case,
denial, of summary judgment is the same as that used by the
district court. Halverson, 885 P.2d at 1288; Wild River, 812 P.2d
at 345. Summary judgment is proper when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Bathe, 883
P.2d at 820. Thus, we determine whether a genuine issue of
material fact exists and whether the moving party is entitled to
judgment as a matter of law. Motarie, 907 P.2d at 156.
Easement bv Prescriotion:
We agree with the District Court that material questions of
fact remain as to whether Respondents have an easement by
16
prescription, including the issue of whether the construction of
Blue Sky Lane exceeds the use allegedly made of North Hidden Valley
Road during the period of prescription. We remand for trial on
this issue.
Easement bv Imolication:
We note that the District Court made no ruling on the issue of
easement by implication. Rather, in its May, 1994 Order and
Opinion addressing Respondents' claim of easement by necessity, the
District Court found sufficient evidence to support a claim of an
implied easement over the Grigonises' property based on this
Court's decision in Graham v. Mack (1985), 216 Mont. 165, 699 P.2d
590. The District Court stated “easement by implication, rather
than easement by necessity, is the proper claim." The court
ordered that Respondents' Amended Complaint be conformed to the
evidence by substituting a claim of easement by implication in
place of Respondents' claim of easement by necessity. See Rule
15(b), M.R.Civ.P. Sua sponte, the court found material questions
of fact regarding the intent of the parties and whether an easement
by implication had been created.
The Grigonises argue that Respondents cannot meet the high
standard of establishing an easement by implication. They argue
that Respondents cannot produce evidence to show manifest, obvious
or permanent use of what is now Blue Sky Lane prior to 1977.
Graham, 699 P.2d at 596. We agree with the Grigonises that this is
the burden Respondents must meet, however, they must be granted the
17
opportunity to do so. Because the District Court has not ruled on
this theory, we remand for a trial on the issue of easement by
implication including the issue of whether or not the evidence
supports a finding that, in the 1977 separation of title, Reely-
Ashmore (Grigonises' predecessors) bought the property with notice
that the Henslers (Respondents' predecessors) had an easement that
included north bound traffic on what is now Blue Sky Lane.
Do riahts to use the sixtv-foot easement containins North Hidden
Vallev Road automatically include rishts to build an access road
such as Blue Skv Lane?
The District Court holding that any easement rights
Respondents might have in the sixty-foot easement containing North
Hidden Valley Road automatically include the right to build Blue
Sky Lane is in error. Based on our discussion of easement by
prescription and easement by implication, it is apparent that any
right Respondents may have to use North Hidden Valley Road does not
automatically include a right to build Blue Sky Lane to the north.
"No use may be made of the right of way, different from that
established at the time of creation so as to burden the servient
estate to a greater extent than was contemplated at the time of the
grant." Titeca v. State, Dep't of Fish & Game (1981), 194 Mont.
209, 214, 634 P.2d 1156, 1159; see also Sampson v. Grooms (1988),
230 Mont. 190, 195, 748 P.2d 960, 963. Similarly, for prescriptive
easements, the use of a roadway cannot exceed the use made of it
during the prescriptive period. Warnack v. Coneen Family Trust
18
(1994), 266 Mont. 203, 218, 879 P.2d 715, 723. Further, the extent
of an easement is governed by § 70-17-106, MCA, which states:
The extent of a servitude is determined by the terms of
the grant or the nature of the enjoyment by which it was
acquired.
Consequently, assuming Respondents can establish an easement
to use North Hidden Valley Road, they must then either: 1)
establish that construction and use of Blue Sky Lane is encompassed
within and does not exceed the scope of their easement, whether by
implication or prescription, on North Hidden Valley Road, or; 2)
establish that, in addition to their easement on North Hidden
Valley Road, they have an easement by prescription or implication
on Blue Sky Lane.
The ouestions of lathes, tresoass, and attorney's fees:
Concerning the issues of lathes, trespass, and attorney's
fees, the District Court, in its May 1994 Order and Opinion,
stated:
Until the issues are resolved as to whether Plaintiffs
[Respondents] have any rights in the easement, ruling on
issues regarding damages for interference with or
trespass on property rights is premature.
We agree. The issues of lathes, trespass, and the propriety of
attorney's fees must await determination of the easement question.
Accordingly, we remand for trial on all remaining issues.
Reversed and remanded for proceedings consistent with this opinion.
/rc%hxa
Justice /
19
Jus iEes
20