97-062
No. 97-062
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
RICHARD E. REICHLE and LINDA REICHLE,
Plaintiffs and Respondents.
v.
M. McKEE ANDERSON and JUDY Y. ANDERSON,
RICHARD J. RANKIN and DONNA R. RANKIN,
Defendants and Appellants.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
W. Cecil Jones and Calvin J. Erb, Attorneys at Law,
Dillon, Montana (for Andersons)
Mark David Hoffman; Hoffman & Suenram, Dillon,
Montana (for Rankins)
For Respondents:
Christine D. Somers; Haxby & Somers, Butte, Montana
Submitted on Briefs: June 12, 1997
Decided: September 8, 1997
Filed:
__________________________________________
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Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
Appellants M. McKee Anderson and Judy Y. Anderson (Andersons) appeal from
the Judgment of the Fifth Judicial District Court, Beaverhead County, holding that
the
Respondents, Richard E. and Linda Reichle (Reichles), are the owners of a thirty foot
right-of-way easement through Andersons' property. We affirm.
We address the following issues on appeal:
1) Whether the District Court erred when it determined that language in the
Rankin-Anderson contract for deed was sufficient to create an easement?
2) Whether the District Court erred when it refused to allow Andersons to
inspect
or review a file that a witness used on the witness stand to refresh his memory?
Factual and Procedural Background
In June of 1980, Andersons entered into a buy-sell agreement with Richard J. and
Donna R. Rankin (Rankins) to purchase a piece of property in Beaverhead County. The
buy-sell agreement specifically stated as follows:
Sellers are keeping an easement 30' Wide across the South side of this tract
of land for access to property that lies on the west side of the tract being
sold to the Andersons.
The buy-sell agreement called for a survey to be performed to establish the boundary
of
the property to be sold to the Andersons. A certificate of survey was prepared and
recorded but does not contain any reference to, or description of, an easement
reserved
by the Rankins.The Andersons entered into a contract for deed with the Rankins in
November of 1980 (Rankin-Anderson contract for deed). The Rankin-Anderson contract
for deed was ten pages long with an attached Exhibit "A," which described the real
property being transferred. Exhibit "A" stated that the property was purchased "[s]
ubject
however, to reservation of an easement of right of way with ingress and egress by
Richard J. Rankin and Donna R. Rankin, which easement is more particularly described
as follows . . . ." The Rankin-Anderson contract for deed also stated that the
parties
shall be bound by the terms and conditions contained in the buy-sell agreement and
that
the agreement was to be incorporated by reference and made a part of the contract for
deed in all particulars.
A notice of purchaser's interest signed by both Rankins and Andersons and
recorded in the Beaverhead County Clerk's Office also contains the same Exhibit "A,"
describing the real property and including the same "[s]ubject however, to
reservation of
an easement" language. In 1986, a warranty deed from Rankins to Andersons was filed
after Andersons prepaid pursuant to the terms of the Rankin-Anderson contract for
deed.
This deed states that the Rankins reserved an easement of right-of-way for ingress
and
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egress through the Andersons' newly acquired property. At the same time, the
Andersons recorded a homestead exemption for their property that again specifically
reserved a thirty foot right-of-way easement for the Rankins.
In October of 1992, Reichles entered into a buy-sell agreement with the Rankins
to purchase a ten acre piece of land located on the west side of a canal running
between
the ten acre piece of land and property already owned by the Reichles on the east
side of
the canal. The Reichles buy-sell agreement states: "Buyer to receive a 30' easement
from
public railroad crossing to tract A retained by Seller across McKee Anderson south
property line."
The buy-sell agreement also has language typed in under the "special provisions"
section
which states: "Buyer shall be able to use bridge and road on Seller's ground to
reach tract
A until Buyer is able to build own bridge." This language was included because the
Reichles needed use of the Rankins' bridge to access the ten acre piece until they
constructed a bridge from the easement access to the ten acre piece. The ten acre
piece
of property was conveyed to Reichles by warranty deed on March 24, 1993. The
warranty deed specifically describes a private road easement through Andersons'
property
by metes and bounds.
Reichles used Rankins' existing road and bridge from the time of their purchase
until December 1993, when they informed the Andersons that they, Reichles, intended
to fence off the purported easement and graze llamas on the property. Thereafter,
Rankins notified Reichles' attorney that Reichles would not be allowed any further
use
of the easement. Reichles then filed a declaratory judgment action against
Andersons and
Rankins. Reichles' complaint requested judicial enforcement of a right-of-way
easement
for ingress and egress that they claimed was expressly granted to them by the terms
of
their warranty deed. The complaint was answered by both defendants, and cross-claims
were filed by both defendants against each other.
A bench trial was held and judgment was entered on August 10, 1995, in which
the District Court ordered that the Reichles were entitled to a thirty foot right-
of-way
easement for ingress and egress through the southern boundary of Andersons' property
as expressly recited in their warranty deed and as originally reserved by the Rankins
when they sold the property to the Andersons in 1986.
Andersons filed a motion for reconsideration in August of 1996, requesting that
the court reconsider it's judgment based upon this Court's decision in Ruana v.
Grigonis
(1996), 275 Mont. 441, 913 P.2d 1247. The District Court denied the motion, and
Andersons thereafter filed this appeal.
Discussion
1) Whether the District Court erred when it determined that language in the
Rankin-Anderson contract for deed was sufficient to create an easement?
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The District Court's determination that the language in the Rankin-Anderson
contract for deed created an easement is a conclusion of law. The standard of
review of
a district court's conclusions of law is whether the court's interpretation of the
law is
correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898
P.2d 680, 686. In this case, the District Court held that the language in the
Rankin-
Anderson contract for deed, stating that the conveyed property was "[s]ubject
however,
to reservation of an easement," clearly established the reservation of an easement
over
Andersons' property.
Andersons rely on our decisions in Wild Rivers Adventures, Inc. v. Board of
Trustees of School Dist. No. 8 (1991), 248 Mont. 397, 812 P.2d 344 and Ruana, 913
P.2d at 1253, for their proposition that "subject to" language in a deed is not
enough to
create an easement where the certificate of survey does not also contain a
description of
the easement.
However, in both Wild Rivers and Ruana, the actual intent of the grantors was
not
clear from the deed language itself. In Wild Rivers, 812 P.2d at 346, the appellants
claimed the following language in a deed created the alleged easement: "subject to
and
together with a 40 foot private road easement." In determining whether this language
could create an easement, we held:
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 Rivers, 812 P.2d at 346-47. Because the language in the deed purporting to
create
an easement contained no affirmative reservation or retention of rights and because
the
grantors could not have reserved an easement at that time, we held that no easement
had
been reserved. Wild Rivers, 812 P.2d at 347.
We relied on Wild Rivers in Ruana in determining that language in a deed
conveying land "subject to an access easement" did not create an easement. We went
on
to note 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."
Ruana,
913 P.2d at 1253 (emphasis added). We held that an easement had not been granted or
reserved when the original grantors subdivided the land because neither the language
of
the deed nor the certificate of survey established the easement. Ruana, 913 P.2d at
1253.
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In the instant case, although there is no mention of the easement in the
certificate
of survey, the language in Exhibit "A" of the Rankin-Anderson contract for deed
clearly
reserves an easement and states: "Subject however, to reservation of an easement of
right
of way." As we held in Wild Rivers, " ' [a] conveyor who, in terms, "excepts" or
"reserves" an easement, is permitted to have the rights thereby intended to be
enjoyed by
him. . . ." Wild Rivers, 812 P.2d at 346 (quoting 3 Powell on Real Property,
407, pp. 34-39 to 34-42) (emphasis added). Rankins, in terms, reserved an easement
through the language "[s]ubject however, to reservation of an easement right of
way."
In neither Wild Rivers nor Ruana did the deeds in question contain the word
"reservation;" they simply stated that the conveyed property was "subject to" the
purported easement. In these cases, because the deeds themselves did not clearly
reserve
an easement, we looked for other indications that an easement had been created. In
Wild
Rivers, we looked to the grantors' intent; in Ruana, we looked to a certificate of
survey.
In the instant case, we need look no further than the deed itself. Rankins clearly
reserved
an easement when they conveyed the property to Andersons. Therefore, we affirm the
District Court's conclusion that Rankins reserved an easement in the deed to
Andersons
and could thereby convey the easement to Reichles.
2) Whether the District Court erred when it refused to allow Andersons to
inspect or review a file that a witness used on the witness stand to refresh
his memory?
The standard of review of discretionary trial court rulings is abuse of
discretion.
May v. First Nat'l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388.
At trial, Andersons introduced a copy of the contract for deed between themselves and
Rankins. This copy was allegedly made by McKee Anderson at the closing before Judy
Anderson had signed the contract. The material provisions of the contract for deed
"copy" were the same as found in the original, except for the absence of Judy
Anderson's
signature and the absence of any reference to a reservation of an easement by the
Rankins
in Exhibit "A." Andersons claimed that the original contract for deed had been in
the
sole possession of Rankins from 1980 until 1983 and that Exhibit "A" could have been
altered during that time.
During trial, the attorney for Rankins who prepared the contract for deed
testified
and was asked to compare the language in the original contract for deed with the
language
in the Anderson copy. Rankins' attorney referred to a copy of the contract for deed
in
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his possession to refresh his memory. Counsel for Andersons asked to review the
witness' entire "file" for purposes of cross-examination. The District Court denied
the
request. Andersons argue on appeal that the District Court abused its discretion
under
Rule 612, M.R.Evid., in refusing their request to review the file and in failing to
preserve the file for appellate review. Rule 612 governs writings used to refresh
memory
and provides:
If a witness uses a writing to refresh memory for the purpose of testifying,
either
(1) while testifying, or
(2) before testifying, if the court in its discretion determines
it is necessary in the interests of justice, an adverse party is
entitled to have the writing produced at the hearing, to inspect
it, to cross-examine the witness thereon, and to introduce into
evidence those portions which relate to the testimony of the
witness. If it is claimed that the writing contains matters not
related to the subject matter of the testimony the court shall
examine the writing in camera, excise any portions not so
related, and order delivery of the remainder to the party
entitled thereto. Any portion withheld over objection shall be
preserved and made available to the appellate court in the
event of an appeal. If a writing is not produced or delivered
pursuant to order under this rule, the court shall make any
order justice requires, except that in criminal cases when the
prosecution elects not to comply, the order shall be one
striking the testimony or, if the court in its discretion
determines that the interests of justice so require, declaring a
mistrial.
Rule 612, M.R.Evid.
Andersons claim the District Court's decision not to allow them to review the
file
foreclosed their opportunity to effectively cross-examine the witness as to the
contents of
the file. Additionally, they claim the court's failure to preserve the file for
appeal has
forever denied them access to the file.
Questions concerning the admissibility of evidence must be left to the sound
discretion of the trial judge, subject to review only in situations that indicate a
manifest
abuse of discretion. Cech v. State (1979), 184 Mont. 522, 604 P.2d 97. No such
manifest abuse of discretion exists here. The Rankin-Anderson buy-sell agreement, the
notice of purchaser's interest, and the warranty deed each contain a reference to the
easement in question. The "copy" of the Rankin-Anderson contract for deed appeared
only days before trial despite the fact that the notice of purchaser's interest,
which
included the easement language, was recorded fourteen years earlier and the warranty
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deed, also including the easement language, was recorded nine years earlier.
Additionally, at the time the warranty deed was recorded, Andersons recorded a
homestead exemption for their property which included an Exhibit "A" (with the
easement language) identical to the Exhibit "A" that Andersons were challenging at
trial.
Therefore, the District Court could easily have concluded that the "interests of
justice"
did not require inspection of the witness' copies of these documents. Accordingly,
the
District Court did not abuse its discretion in refusing Andersons' request to review
the
witness' file. Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ WILLIAM E. HUNT, SR.
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