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No. 00-152
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 278
DOUGLAS M. BURLESON,
Plaintiff and Respondent,
v.
SUZAN D. KINSEY-CARTWRIGHT,
GALE P. CARTWRIGHT, and FAY L.
HOFFMAN,
Defendants and Appellants.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Musselshell,
The Honorable John R. Christensen, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Matthew J. Sisler, Attorney at Law, Missoula, Montana
For Respondent:
David Wagner, Crowley, Haughey, Hanson, Toole, & Dietrich, P.L.L.P.,
Billings, Montana
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Submitted on Briefs: June 29, 2000
Decided: November 9, 2000
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the opinion of the Court.
¶1 This is an appeal from an order granting summary judgment in the Fourteenth Judicial
District, Musselshell County. This case arose from a dispute regarding the existence of an
easement across Defendants', Suzan D. Kinsey-Cartwright, Gale P. Cartwright, and Fay L.
Hoffman, (hereinafter Kinsey-Cartwright) property. The Plaintiff, Douglas Burleson
(Burleson), filed this action on June 5, 1998, to enjoin the Defendants from refusing him
access to an easement across the Kinsey-Cartwright property. Both Plaintiff and
Defendants moved for summary judgment. On September 3, 1999, the District Court filed
its order granting Burleson summary judgment and denying Kinsey-Cartwright's motion
for summary judgment. Kinsey-Cartwright appeals. We affirm the order of the District
Court.
BACKGROUND
¶2 This case originates from the sale, purchase, and subsequent subdivision of a ranch
located in Musselshell County, formerly owned by Carl and Evelyn Eliason. The original
ranch consisted of Section 29 and parts of Sections 31 and 32 of Township 7 North, Range
26 East, M.P.M., Musselshell County, containing approximately 1100 acres. In March and
April 1972, a local investment group purchased the property, formed a corporation entitled
Timber Tracts, Inc., and drafted a plat to divide the real property into equal parts for the
purpose of resale as recreational and residential tracts.
¶3 Timber Tracts, Inc., was formally incorporated on April 26, 1972. The Eliason Ranch
was transferred to Timber Tracts, Inc., by warranty deed dated May 20, 1972, and
recorded with the Musselshell County Clerk and Recorder on May 23, 1972.
Subsequently, Timber Tract, Inc., recorded a right-of-way easement with the Musselshell
County Clerk and Recorder's office on August 14, 1972.
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¶4 The original plat for Timber Tracts, Inc., included a series of roads connecting the
subdivision tracts to U.S. Highway 87, which bordered the subdivision. The right-of-way
easement filed described two graveled roads that would provide access from U.S.
Highway 87 through the subdivision.
¶5 Individual tracts were to be serviced by lesser roads referred to as "summer access
roads." Only the main roads described in the county right-of-way easement were to be
graveled and constructed to specifications required for a county road. These roads became
known as Ambush and Canyon. Approximately one-third of the subdivision tracts have
direct access to these gravel roads. The other two-thirds of the tracts are provided access
via a "summer access road" before connecting with one of the two main graveled roads
built through the subdivision.
¶6 After purchasing the Eliason property in 1972, Timber Tracts, Inc., through its agents,
immediately built the current access road system throughout the subdivision. When the
investment group developed roads through the subdivision, culverts were installed for all
roads, including summer access roads. The culvert system and subdivision roads,
including summer access roads, were in place prior to the fall of 1972.
¶7 On October 19, 1972, Theodore J. Hoffman and Marie Hoffman purchased tracts Nos.
45/50 and 51 within the Timber Tracts, Inc., subdivision, more accurately described as
Township 7 North, Range 26 East, M.P.M., Section 29: W½ SE¼ SW¼, SE¼ SE¼ SW¼.
The contract for deed between Timber Tracts, Inc., and the Hoffmans describes the
following easements and restrictions:
Together with a perpetual easement to cross the road as now constructed in the S1/2
of Section 29, Township 7 North, Range 26 East, M.P.M., AND reserving to the
grantor an easement for county roads and summer access roads as now constructed
over and across said tract to a full width of 60 feet and an easement for all utilities.
....
RESTRICTIONS: Said land shall not be occupied or used for any commercial or
business purposes including any commercial cattle feeding, hog raising, poultry or
any other animal; nor for any noxious or offensive activity and nothing shall be
done or permitted to be done on said land which is a nuisance or might become a
nuisance to the owner or owners of any surrounding land including the disposal of
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trash and junk cars. All domestic animals must be fenced within the boundaries of
said property.
(Emphasis added.)
¶8 Additionally, the Hoffmans' title insurance policy identified the following easement
reservation: "Easements for summer access roads and for County Roads as now
constructed over and across said lands, AND reserving to the vendor, its successors and
assigns, a 60 foot easement over all roads and easement for utilities." On February 1,
1980, the Hoffmans recorded their special warranty deed to the property which included
the same reservations as described in their contract and title insurance policy. The
Hoffman tracts were subsequently transferred within the family several times pursuant to
deeds and deeds of distribution. Ultimately on August 23, 1993, Fay Hoffman received
full ownership of the property through a deed of distribution from the estate of her
deceased husband Theodore Hoffman, "subject to reservations, restrictions and easements
of record." Suzan Kinsey-Cartwright and her husband Gale Cartwright subsequently
purchased the property by a contract for deed from Fay Hoffman, Kinsey-Cartwright's
mother. The conveyancing documents by which Kinsey-Cartwright purchased the property
stated that the property was subject to "visible easements, easements of record and rights
of way." Kinsey-Cartwright inspected the property before she purchased it.
¶9 In March 1998 Douglas Burleson purchased a tract within the Timber Tracts, Inc.,
subdivision, lying east of the Kinsey-Cartwright tract. Burleson's property is more
accurately described as "Township 7 North, Range 26 East, P.M.M. [sic], Section 29:
SW¼ SW¼ SE¼ ." In order to access his property (tract 52), Burleson would travel the
lower graveled county road (Canyon Road) within the subdivision. He would then travel
over summer access roads through tracts 45/50 and tract 51 (all owned by Kinsey-
Cartwright) to access his property. This summer access road, which stretches between
Canyon Road and U.S. Highway 87, also provides the only access for several other tracts
within the subdivision. In addition, Kinsey-Cartwright uses this summer access road to
access her own year-round residence. Although theoretically Burleson could access his
property from the summer access road via U.S. Highway 87, uncontroverted testimony
indicated that this section of road was inaccessible for much of the year due to the steep
angle of the road.
¶10 In attempting to access his property through the property of Kinsey-Cartwright,
Burleson was required to cross several cattle guards and was often required to open and
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close gates on the Kinsey-Cartwright property. In several conversations with Burleson,
Kinsey-Cartwright informed him that the road was private, and that he must seek
permission from her to access his property. Eventually, Kinsey-Cartwright informed
Burleson that he must contact her lawyer regarding access to his property. Burleson sought
legal counsel. Burleson and his counsel attempted to access Burlesons's property on May
15, 1998. A heated exchange ensued between counsel and Kinsey-Cartwright. Kinsey-
Cartwright then informed Burleson that he would not be allowed access to the property
without specific permission each time from her attorney. Burleson subsequently filed for
permanent injunctive relief and other remedies. On September 8, 1998, Kinsey-Cartwright
filed an answer and counterclaim. On February 26, 1999, Kinsey-Cartwright filed a
motion for summary judgment. On April 7, 1999, Burleson filed a cross-motion for
summary judgment. On September 3, 1999, the District Court entered an order granting
summary judgment in favor of Burleson, and denying summary judgment to Kinsey-
Cartwright. Kinsey-Cartwright appeals.
STANDARD OF REVIEW
¶11 Our standard of review in appeals from summary judgment rulings is de novo.
Federated Mut. Ins. Co. v. Anderson, 1999 MT 288, ¶ 55, 297 Mont. 33, ¶ 55, 991 P.2d
915, ¶ 55; Motarie v. Northern Montana Joint Refusal Disposal Dist. (1995), 274 Mont.
239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc., (1994), 264 Mont 465, 470, 872 P.2d
782, 785. When we review a district court's grant of summary judgment, we apply the
same criteria as the district court, based on Rule 56, M.R.Civ.P. Federated, ¶ 55.
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. Motarie, 274 Mont. at 242, 907
P.2d at 156. We look to the pleadings, depositions, answers to interrogatories, admissions
on file, and affidavits to determine the existence or nonexistence of material fact. Motarie,
274 Mont. at 242, 907 P.2d at 156.
DISCUSSION
¶12 Did the District Court properly grant summary judgment to plaintiff Douglas
Burleson, and hold that a valid easement attached to his property?
¶13 Kinsey-Cartwright makes various overlapping arguments attacking the creation of the
easement, contending that the easement did not pass to subsequent purchasers, that the
easement was somehow extinguished and that she was not provided notice of the
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easement. None of her arguments have merit. Burleson counters that the granting
document is clear on its face and, therefore, summary judgment as to the easement's
existence and nature was properly entered by the District Court.
¶14 An easement is a nonpossessory 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 the
land. Ruana v. Grigonis (1996), 275 Mont. 441, 447, 913 P.2d 1247, 1251; Kuhlman v.
Rivera (1985), 216 Mont. 353, 358, 701 P.2d 982, 985. An easement cannot be created,
granted, or transferred except by operation of law, by an instrument in writing, or by
prescription. Ruana, 275 Mont. at 447, 913 P.2d at 1251; Wild River v. Board of Trustees
(1991), 248 Mont. 397, 400, 812 P.2d 344, 346.
¶15 Kinsey-Cartwright argues that no easement was ever created, and Burleson should be
prohibited from crossing her land. Burleson contends that an easement by reservation was
created by the original documents of conveyance when the Eliason ranch was subdivided
and sold by parcel. The District Court found that an easement by reservation was created
by the original documents. We agree.
a. Creation of an Easement
¶16 An easement by reservation is created by written documents of conveyance. Ruana,
275 Mont. at 447, 913 P.2d at 1251; Halverson v. Turner (1994), 268 Mont. 168, 172, 885
P.2d 1285, 1288. Montana recognizes servitudes that attach to the land. Section 70-17-
101, MCA. A servitude or burden such as a right-of-way that attaches to other land as an
incident or appurtenance is called an easement. Section 70-17-101(4), MCA. The land to
which an easement attaches is the dominant tenement. The land over which the easement
attaches is the servient tenement. Section 70-17-103, MCA. An easement reserved with
the dominant tenement is retained for subsequent purchasers. Michaelson v. Wardell
(1980), 186 Mont. 278, 280, 607 P.2d 100, 101. A transfer of real property passes all
easements attached to it. Section 70-20-308, MCA. Thus, the valid conveyance of real
property conveys all easements that attach to the property. Ludwig v. Spoklie (1996), 280
Mont. 315, 317, 930 P.2d 56, 57.
¶17 It is evident that Timber Tracts, Inc., intended to provide legal access to all tracts
within the original subdivision. To accomplish its goal, it developed two main all weather
graveled roads, together with a series of ungraveled "summer access roads" to provide
access to all of the subdivision's tracts. Timber Tracts, Inc., included clear language
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reserving an easement for the road system in the instruments of conveyance. Thus a valid
easement was created.
¶18 Kinsey-Cartwright argues that no easement exists, but even if the easement was
properly created when the subdivision originated, it did not attach to the tracts that were
subsequently transferred. This ignores Montana easement law. An easement attaches to
property when the dominant tenement is partitioned or subdivided. The easement is
apportioned according to the division of the dominant tenement, as long as it does not
increase the burden on the servient tenement. Section 70-17-107, MCA. Tracts 45/50 and
51 (the Kinsey-Cartwright property) were conveyed by Timber Tract, Inc., to the
Hoffmans with the reservation "for an easement for county roads and summer access roads
as now constructed over and across the said tract to a full width of 60 feet and an easement
for all utilities." The special warranty deed, recorded on February 1, 1980, and the
ancillary conveyancing documents all contained specific language expressly reserving the
easement. Thus, when Timber Tracts, Inc., conveyed the property to the Hoffmans,
Kinsey-Cartwright's predecessor in title, the summer access roads were clearly defined
right-of-ways that were easements that attached to the remaining parcels in the
subdivision. See § 70-17-101, MCA. The servient tenement was Hoffmans' (now Kinsey-
Cartwright's) property. When Timber Tracts, Inc., partitioned and sold the dominant
tenement in separate parcels to different persons, subsequent purchasers such as Burleson
acquired the right to use the easement appurtenant to the property. See § 70-17-107, MCA.
b. Notice of Easement
¶19 Kinsey-Cartwright argues that she had no notice of the easement on her property. She
also argues that the plat should have been recorded with the county clerk and recorder.
Burleson contends that Kinsey-Cartwright had both constructive and actual notice of the
easement. The District Court found that Kinsey-Cartwright had sufficient notice of the
easement. We agree.
¶20 Each purchaser of land in the subdivision received notice of the easements through the
specific language in the contracts, deeds, and title insurance. The easement was
specifically defined in the original Hoffman deed which was properly recorded and,
therefore, provided Kinsey-Cartwright with constructive notice. Fay Hoffman acquired her
husband's interest in the property by deed which stated that the property was "SUBJECT
TO reservations, restrictions and easements of record." Likewise, Kinsey-Cartwright's
deed stated that her interest was subject to "visible easements, easements of record, and
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rights-of-way." The previous deeds of record as well as her deed provided Kinsey-
Cartwright adequate constructive notice of the easement.
¶21 In addition, Kinsey-Cartwright had actual notice of the existence of an easement when
she inspected the property before purchase. Undisputed evidence in the record indicates
that all roads, including summer access roads, were developed and in place before any
tract of land within the subdivision was sold. Consequently, an onsite inspection of
property before purchasing the land put Kinsey-Cartwright on actual notice of the
easements through her property. In addition, prior to the commencement of litigation, it is
undisputed that Kinsey-Cartwright herself, in a letter to the residents of neighboring
property, expressly recognized that the summer access roads on her property provided
(1)
easements for the landowners beyond her property.
¶22 As to Appellant's protestations regarding the lack of recording of the plat, we note that
the platting and road construction took place prior to the legislative revisions to the
Montana Subdivision and Platting Act (Section 76-3-101, MCA), which took effect on
July 1, 1973, and thus, Timber Tracts, Inc., was exempt from the requirement that all plats
be filed with the local clerk and recorder. See §§ 76-3-301 and -206, MCA.
c. Definition of Summer Access Road
¶23 Kinsey-Cartwright contends that the term "summer access road" which was used in
the documents of conveyance merely describes the time of year that the roads may be
utilized by the dominant tenement. Burleson argues that "summer access road" is a
nomenclature for the type of road in the subdivision; one that has not been maintained to
county road standards yet is still accessible throughout the year. We agree with the District
Court's conclusion that documents are sufficiently clear and indicate that the summer
access roads were intended to be available to subdivision owners for full-time access to
their property.
d. Extinguishment or Abandonment
¶24 Kinsey-Cartwright further argues that, if an easement existed at the time of creation of
the subdivision, the easement has been extinguished or abandoned. An easement can be
extinguished only if the servitude owner and servient tenement owner are the same person,
the servient tenement is destroyed, the servitude is acquired by enjoyment, or the owner of
the servitude performs an act or assents to an act which is incompatible with its nature or
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exercise. Section 70-17-111, MCA.
¶25 Kinsey-Cartwright presents no evidence to support this claim. The owner of the
servitude and the servient tenement are not the same person. She alleges that the easement
was extinguished because parcels 45/50 and 51 are adjacent and, therefore, the easement
crossing them does not benefit the other parcel. There is no unity of ownership here. Even
though her parcels are adjacent, the easement still benefits Burleson and Kinsey-
Cartwright's neighbors. The servient tenement has not been destroyed. There is no
evidence that the owner of the servitude performed or assented to an act which was
incompatible with the nature of the easement. Thus she has not satisfied the elements of §
70-17-111, MCA. Furthermore, she does not properly allege or satisfy the necessary
elements of extinguishment through adverse use for the full statutory period of five years.
See Halverson, 268 Mont. at 174, 885 P.2d at 1290.
e. Alternative easement argument
¶26 Kinsey-Cartwright argues that Burleson does not have an easement across her
property because he can access his property via an "alternative easement" that begins at U.
S. Highway 87. Actually, the easement she is referring to is simply the eastern portion of
the easement at issue. Her argument actually supports Burleson's position. If he has an
easement for U.S. Highway 87, he also has the right to use the complete length of the
easement including the section that extends through Kinsey-Cartwright's property.
¶27 On the basis of the record presented, we conclude the District Court properly granted
summary judgment to Burleson, permanently enjoining Kinsey-Cartwright from
obstructing the easement.
Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ WILLIAM E. HUNT, SR.
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/S/ W. WILLIAM LEAPHART
1. In a letter dated March 16, 1998, and forwarded to Sandy and Paul Smith, Kinsey-Cartwright stated,
"The county's portion of Canyon Road on our property extends only to our quarter-section line, which is
part way up the hill on the road that goes through our property. From there on, Canyon Road is a private
road, which is an easement for the landowners beyond our property."
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