Leichtfuss v. Dabney

No. 04-537

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 271

RONALD LEICHTFUSS,

Plaintiff, Counterdefendant and Appellant,

v.

CYNTHIA DABNEY,

Defendant, Counterclaimant and Respondent.

APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park, Cause No. DV 2001-113
The Honorable Wm. Nels Swandal, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Karl Knuchel, Attorney at Law, Livingston, Montana

For Respondent:

Kevin S. Jones, Christian, Samson, Jones & Chisholm, PLLC, Missoula,
Montana

Submitted on Briefs: May 31, 2005

Decided: November 1, 2005

Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 Ronald Leichtfuss (hereinafter, “Leichtfuss”) appeals the judgment of the District

Court for the Sixth Judicial District, Park County, which found that Respondent Cynthia

Dabney (hereinafter, “Dabney”) has a prescriptive easement over and across real property

owned by Leichtfuss. We affirm.

¶2 Leichtfuss raises two issues on appeal:

¶3 1. Did the District Court err in determining that the creation of Dabney’s parcel of

real property and the subsequent sale and recording of a deed to Dabney did not constitute

an increased burden on the prescriptive easements owned by Dabney’s predecessors in

interest?

¶4 2. Did the District Court err in determining that Dabney could have availed herself

of § 70-30-107, MCA (private eminent domain), as a fallback position in the event no

prescriptive easement was available for her?

¶5 Because we affirm the judgment of the District Court on Issue 1, we do not address

Issue 2.

FACTUAL AND PROCEDURAL BACKGROUND

¶6 This dispute involves parcels of land and easements appurtenant located in Section

30 of Township 5 South, Range 9 East, P.M.M., Park County.1 See Appendix A for a

1
An easement appurtenant is “one whose benefits serve a parcel of land. More exactly, it
serves the owner of that land in a way that cannot be separated from his rights in the land. It in
fact becomes a right in that land and . . . passes with the title.” Roger A. Cunningham et al., The
Law of Property § 8.2, at 441 (2d ed. 1993). The benefitted parcel is referred to as the “dominant

2
depiction of these tracts. Leichtfuss owns two parcels--the E 1/2 of the NW 1/4 (hereinafter,

“Parcel 1”) and the N 1/2 of the SE 1/4 (hereinafter, “Parcel 2”)--which are non-adjoining:

the southeast corner of Parcel 1 meets the northwest corner of Parcel 2 at a “dead corner.”

To the immediate south of Parcel 1 and west of Parcel 2 lie four parcels, one owned by

Dabney and the other three by Martin and Gayleen Malone, Dabney’s predecessors in

interest. The Malones’ parcels (hereinafter, the “Malone Property”) are contained within and

encompass the entirety of the SW 1/4 of Section 30, less ten acres owned by Dabney in the

E 1/2 of the SW 1/4.2 (The Malones’ parcels are labeled on Appendix A as “E 1/2 SW 1/4,”

“Lot 3,” and “Lot 4.” Dabney’s parcel is labeled on Appendix A as “The Briggs Tract.”)

Dabney’s parcel is bounded on its west, south, and east sides by the Malone Property, and

on its north side by Leichtfuss’ Parcel 1; thus, the northeast corner of the Malone Property

shares the dead corner with Leichtfuss’ parcels. The real property located to the northeast

of the dead corner is owned by Montana Land Resources, Ltd. Co., which is not a party to

this action.

¶7 From approximately 1930 to 1980, the SW 1/4 of Section 30 was owned by Leo and

Ethel Briggs. The Briggs maintained a homestead (house, barn, and other outbuildings) near

tenement,” and the burdened parcel is the “servient tenement.” By contrast, an easement in gross
benefits the holder of the easement “only personally, not in connection with his ownership or use
of any specific parcel of land.” Cunningham, § 8.2, at 441. With an easement in gross, there is no
dominant parcel; thus, “the easement right cannot pass with the title to any land.” Cunningham, §
8.2, at 441-42.
2
Leichtfuss and the Malones own additional parcels in Section 30; however, those
properties are not relevant to this case.

3
the northern boundary of the E 1/2 of the SW 1/4 and used the rest of the land for

farming/agricultural purposes. In 1980, they sold the property (i.e., the entire SW 1/4) to the

Malones on a contract for deed in which the Briggs retained a life estate in the N 1/2 of the

N 1/2 of the SW 1/4, which encompassed their homestead and forty surrounding acres

(hereinafter, the “Briggs Life Estate”). The Malones immediately constructed a residence

in “Lot 4” (the SW 1/4 of the SW 1/4). Thus, beginning in 1980, the SW 1/4 of Section 30

comprised two separately owned properties--the Malone Property and the Briggs Life

Estate--and two separate residences.

¶8 The Briggs passed away in the mid-1990s,3 at which time their life estate reverted to

the Malones. Two to four years later, in 1999, the Malones commissioned a retracement

survey and boundary adjustment of the former life estate and then sold the reconfigured tract

to Dabney in fee simple. This ten-acre parcel--labeled “The Briggs Tract” on Certificate of

Survey No. 1553, Park County, Montana, although the Briggs no longer lived there--includes

the Briggs’ old house, outbuildings, and surrounding acreage. The Malones and Dabney

have continued to use their properties for residential and farming/agricultural purposes.

¶9 At issue in this case is a small portion of the road used by Dabney and the Malones

for ingress and egress to their respective properties. Historically, the SW 1/4 of Section 30

was accessible at two points of entry. Both entry routes departed from a north-south

easement known as “Rigler Road,” which ran the length of the western edge of the NE 1/4

3
It appears from the record that the life estate ended in 1995, 1996, or 1997.

4
of Section 30 (the parcel now owned by Montana Land Resources) and intersected a county

road to the north. (This easement is represented by a dashed line labeled “Rigler Road” on

Appendix A.)

¶10 The first access route--termed the “Cut Across Road”--took off from Rigler Road in

a southwesterly direction, traversed the southeastern quarter of Leichtfuss’ Parcel 1, and

terminated at the Briggs’ house. (This route is labeled “A” on Appendix A.) In December

1993, the Malones granted Leichtfuss a Release of Easement by which they relinquished any

claim to the Cut Across Road effective upon the termination of the Briggs Life Estate. This

release, negotiated with Mr. Tavner Walker (Leichtfuss’ predecessor in interest) was a

condition to Leichtfuss’ purchasing Parcel 1 and Parcel 2. Accordingly, the Cut Across Road

has not been in use since the mid-1990s.

¶11 The other access route--the “Dead Corner Road”--was a dirt road that extended from

the terminus of Rigler Road (at the SW corner of the NE 1/4 of Section 30), across the dead

corner, and onto the northeast portion of the SW 1/4. As it traversed the dead corner, the

road encroached on both of the parcels now owned by Leichtfuss, though it favored the

northwest parcel. (This route is labeled “B” on Appendix A.)

¶12 Prior to 1980, it appears that the Cut Across Road was the favored route for reaching

the Briggs’ residence, while the Dead Corner Road was used primarily to reach their barn.

However, several witnesses testified that the Dead Corner Road was used to access the

residence as well. In 1980, following the sale of the SW 1/4 to the Malones, the terminus

of the Dead Corner Road was relocated to the south, and the road was improved for regular

5
ingress and egress to the Malones’ new residence. In addition, a stretch of the original road

running west to the Briggs’ barn and home was left intact so that the Briggs could continue

to use it to access their property. Several witnesses testified that the Briggs and their guests

in fact used this route on occasion to access the homestead after 1980. In other words, from

1980 to the mid-1990s, the Dead Corner Road was used, to some degree, as a route of access

to the Malones’ residence and the Briggs’ home and barn.

¶13 Presently, the Dead Corner Road proceeds south and then southwest from the dead

corner to the Malone ranch. In 1999, Dabney improved the westerly stretch of the original

road, which now serves as her driveway and, because the Malones abandoned the Cut Across

Road, as the exclusive route for ingress and egress to her parcel.

¶14 In October 2001, Leichtfuss filed the instant action seeking to quiet title to the dead

corner and to permanently enjoin Dabney and the Malones from using the Dead Corner Road

where it crosses his property. Leichtfuss eventually conceded the existence of a prescriptive

easement across the dead corner in favor of the Malones; however, he maintained that the

Malones had no right to grant Dabney the right to use the easement, that Dabney had no right

in herself to use the easement, and that Dabney’s use of the Dead Corner Road to access her

property exceeds the scope of the Malones’ easement, which he claimed is to access one

residence (the Malones’ ranch house) on one piece of property (the Malone Property). He

further contended that the release signed by the Malones not only extinguished their interest

in the Cut Across Road, but also “contemplated no further expansion” of the Dead Corner

Road.

6
¶15 Dabney filed a counterclaim, seeking a judicial declaration that the existing

roadway--in particular, the portion that crosses Leichtfuss’ parcels--provides legal access to

her property, and that she therefore has an easement over Leichtfuss’ parcels for the benefit

of the Briggs Tract. In her amended counterclaim, she advanced an alternative theory

pursuant to the eminent domain statutes (§§ 70-30-101 to -323, MCA).

¶16 Following a hearing on April 20, 2004, the District Court issued a decision in favor

of Dabney. The court found that the Briggs had used both the Cut Across Road and the

Dead Corner Road for ingress and egress to their single tract from the 1930s to 1980, and

that they had continued to use both of these routes to access their life estate from 1980 to the

mid-1990s when they died. In addition, the court found that the Briggs’ use of the Dead

Corner Road was open, notorious, exclusive, hostile, continuous, and uninterrupted from no

later than 1973 (when Mr. Walker purchased the two parcels now owned by Leichtfuss) to

the mid-1990s. The court therefore concluded that by 1978, the Briggs had established a

prescriptive easement over Parcel 1 and Parcel 2 at the dead corner for residential, farming,

and agricultural purposes on the SW 1/4, including access to the Briggs’ house and barn.

The court further concluded that by 1985, the scope of the prescriptive easement had been

expanded to include ingress and egress to two residences: the Briggs’ homestead and the

newly-constructed Malone ranch headquarters.

¶17 With respect to the formation of the Briggs Tract in 1999, the court found that this

event “did not act to extinguish the easement established by the Briggs to the house and barn

now owned by Dabney” and that “the use of the road by Dabney does not change the

7
character or the use of the easement or expand its use in any manner.” Accordingly, the

court held that Dabney’s property continues to benefit from the prescriptive easement

established by the Briggs no later than 1978 and expanded by the Briggs and the Malones

by 1985. Lastly, the court clarified that the prescriptive easement in favor of Dabney’s

property is “limited to a single residential and agricultural use.”

¶18 In an alternative holding based on private eminent domain, the District Court observed

that “[a]mong the public uses on behalf of which the right of eminent domain may be

exercised is private roads leading from highways to farms or residences.” Here, “necessity

exists to provide access to Dabney’s residence and land”; “[a]ccess off of Pray Road, an

existing county road, to Defendant Dabney’s property requires access over [Leichtfuss’]

properties at the dead corner”; and any damages to Leichtfuss resulting from a private

condemnation are “non-existent or nominal,” since the road already exists, its future use

would not be expanded beyond its historical use, and the area of Leichtfuss’ properties

affected by the road is very small. Accordingly, the court held that even if the creation of

the Briggs Tract “did somehow result in an expansion of the historic prescriptive easement

over [Leichtfuss’] properties at the dead corner, Defendant Dabney would have an

appropriate private eminent domain claim over [Leichtfuss’] properties at the dead corner .

. . .”

¶19 Leichtfuss appeals the foregoing findings of fact and conclusions of law.

STANDARD OF REVIEW

¶20 We will affirm the factual findings of a trial court sitting without a jury unless those

8
findings are “clearly erroneous.” Rule 52(a), M.R.Civ.P.; Interstate Production Credit v.

DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 1287. In Interstate Production Credit,

we adopted a three-part test for determining whether a finding is clearly erroneous:

First, the Court will review the record to see if the findings are supported by
substantial evidence. Second, if the findings are supported by substantial
evidence we will determine if the trial court has misapprehended the effect of
evidence. Third, if substantial evidence exists and the effect of the evidence
has not been misapprehended the Court may still find that a finding is “clearly
erroneous” when, although there is evidence to support it, a review of the
record leaves the court with the definite and firm conviction that a mistake has
been committed.

Interstate Production Credit, 250 Mont. at 323, 820 P.2d at 1287 (internal citations and

quotation marks omitted).

¶21 With respect to the District Court’s conclusions of law, our standard of review is

plenary, and we must determine whether the court’s interpretation of the law is correct.

Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603;

Blackwell v. Lurie (1997), 284 Mont. 351, 355, 943 P.2d 1318, 1321.

DISCUSSION

¶22 1. Did the District Court err in determining that the creation of the Briggs Tract and
the subsequent sale and recording of a deed to Dabney did not constitute an increased
burden on the prescriptive easements owned by the Malones?

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¶23 A. The District Court correctly concluded that Dabney has an easement over the
dead corner by virtue of her predecessors’ prescriptive use and the Malones’
transfer of the prescriptive easement when she purchased the Briggs Tract.

¶24 Dabney maintains that she “and her predecessors in interest established a prescriptive

easement over Leichtfuss’ property for the benefit of both the Malone property and what is

now Dabney’s property.” The burden at trial on a party seeking to establish an easement by

prescription is to show, by clear and convincing evidence, each of the following elements:

open, notorious, exclusive, adverse, continuous, and uninterrupted use of the claimed

easement for the full statutory period of five years. See Wareing v. Schreckendgust (1996),

280 Mont. 196, 204, 206, 930 P.2d 37, 42, 43; Bonnie M. Combs-DeMaio Liv. Trust v.

Colony, 2005 MT 71, ¶ 14, 326 Mont. 334, ¶ 14, 109 P.3d 252, ¶ 14; § 70-19-401, MCA.

Because only two years had elapsed between her purchasing the Briggs Tract in 1999 and

Leichtfuss’ filing the instant action in 2001, Dabney could not have established a prescriptive

easement over the dead corner on her own. However, she could have gained such an

easement either (1) because it already existed when she purchased the Briggs Tract and was

conveyed to her by the Malones at that time or (2) through the doctrine of “tacking,”

pursuant to which she could have added her use of the Dead Corner Road from 1999 to 2001

to her predecessors’ use of the road from 1996 to 1999 (for a total of five years).4

4
The doctrine of tacking involves “[t]he joining of consecutive periods of possession by
different persons to treat the periods as one continuous period; esp., the adding of one’s own
period of land possession to that of a prior possessor to establish continuous adverse possession
for the statutory period.” Black’s Law Dictionary 1465 (7th ed. 1999). It is long established in
this State that “tacking of prescriptive periods is permissible when there is a privity between the
successive users of the easement.” Groshean v. Dillmont Realty Co. (1932), 92 Mont. 227, 241,
12 P.2d 273, 276.

10
¶25 The District Court ordered briefing from the parties on the issue of tacking. In his

supplemental brief, Leichtfuss asserted that “ ‘tacking’ attaches to the legal description of

the dominant tenement. It would be impossible to ‘tack’ to a legal description prior to its

existence,” a reference to the fact that the Briggs Tract did not exist until the retracement

survey in 1999.

¶26 Dabney, for her part, argued that “[t]he ‘tacking’ of Dabney’s ownership interest in

the property to her predecessors in interest is not necessary for the establishment of her

prescriptive easement claim in this case,” because

[l]ong before Defendant Dabney owned the property, Briggs’ and Malones’
use of the road over what is now [Leichtfuss’] property clearly established a
prescriptive easement for the benefit of both home sites. An extinguishment
of that prescriptive easement requires the exact same elements for the statutory
five year period as establishing a prescriptive easement. [Citation.] [¶] The
short time between Briggs’ occupation of the property, its reversion to
Malones after termination of the Briggs’ life estate, and Malones’ sale to
Defendant Dabney would not be sufficient time for [Leichtfuss] to have
extinguished the prescriptive easement long since established by Briggs,
Malones, and their guests and invitees.

In conformity with the foregoing argument, Dabney presented no information or affidavits

concerning the Malones’ use of the stretch of road that is now Dabney’s driveway during the

two- to four-year period beginning with the Briggs’ deaths in 1995, 1996, or 1997 and

ending with the sale of the Briggs Tract to Dabney in 1999.

¶27 Not surprisingly, therefore, the District Court entered no findings on the issue of

tacking. Rather, having been persuaded by Dabney’s argument, the court adopted the first

position outlined above: that Dabney gained the prescriptive easement because it already

11
existed when she purchased the Briggs Tract and was conveyed to her by the Malones at that

time. Specifically, the court concluded as follows: (1) by 1978, the Briggs had established

a prescriptive easement over Leichtfuss’ parcels at the dead corner “for residential, farming

and agricultural purposes, including access to Briggs’ home and barn”; (2) the continued and

concurrent use of the Dead Corner Road by the Briggs and the Malones beginning in 1980

expanded the scope of the original easement which, by 1985, “include[d] not only the two

properties originally owned by Briggs and sold to Malones[5] and the original Briggs’ home

site and barn, but also the newly-constructed Malone residence”; and (3) Dabney’s property

“continues to benefit from the prescriptive easement first established in the 1930’s and, at

the very latest, by 1978,” and “expanded [in scope] by 1985, following five years of open,

notorious and hostile use by both Malones and Briggs.”

¶28 The District Court did not cite authority in its Findings of Fact and Conclusions of

Law for conclusion #3 above. Granted, the court observed that “[a] prescriptive easement,

once established, is not divested by subsequent transfer of the servient estate. Lemont Land

[Corp.] v. Rogers, [sic] (1994), 269 Mont. 180, [183,] 887 P.2d 724[, 726].” (Emphasis

added.) However, the transfer to Dabney was of a portion of the dominant estate.

¶29 Still, “[a] transfer of real property passes all easements attached to it. Section

5
“[T]he two properties originally owned by Briggs and sold to Malones” appears to be a
reference to the SW 1/4 of Section 30 (now comprising the Malone Property and the Briggs
Tract) and the S 1/2 of the SE 1/4 of Section 30 (labeled “C-S 1/16” on Appendix A). As
mentioned above (see footnote 2, supra), this latter parcel is not relevant to the issues discussed
herein.

12
70-20-308, MCA. Thus, the valid conveyance of real property conveys all easements that

attach to the property.” Burleson v. Kinsey-Cartwright, 2000 MT 278, ¶ 16, 302 Mont. 141,

¶ 16, 13 P.3d 384, ¶ 16. The District Court referred to this rule in its Order granting the

Malones’ motion for summary judgment and denying Dabney’s motion for summary

judgment:

It is well-established law that a transfer of real property passes all easements
. . . attached thereto and creates in favor thereof an easement to use other real
property of the person whose estate is transferred in the same manner and to
the same extent. [Albert G.] Hoyem Trust v. Galt, 1998 MT 300, [¶ 30,] 292
Mont. 56, [¶ 30,] 968 P.2d 1135, [¶ 30 (quoting § 70-20-308, MCA)].

Accordingly, we hold that the District Court’s conclusion that Dabney gained a prescriptive

easement over the dead corner because the easement already existed when she purchased the

Briggs Tract and was conveyed to her by the Malones at that time was a correct application

of Montana law governing the transfer of easements appurtenant.

¶30 This does not end the inquiry, however. Section 70-17-107, MCA, provides that “[i]n

case of partition of the dominant tenement, the burden must be apportioned according to the

division of the dominant tenement but not in such a way as to increase the burden upon the

servient tenement.” (Emphasis added.) Furthermore, the scope of an easement gained by

prescription is constrained by--i.e., may not exceed--the character and extent of the use made

of it during the prescriptive period. See Warnack v. Coneen Family Trust (1994), 266 Mont.

203, 217-18, 879 P.2d 715, 724; Kelly v. Wallace, 1998 MT 307, ¶ 31, 292 Mont. 129, ¶ 31,

972 P.2d 1117, ¶ 31, and cases cited therein; § 70-17-106, MCA. See also Restatement

(Third) of Property, Servitudes (hereinafter, “Rest. 3d”) § 4.10 illus. 15, at 599-600 (2000).

13
¶31 Concerning the scope of the dead corner easement and the burden on the servient

tenement, the District Court concluded that “[t]he boundary relocation and survey [which

resulted in the creation of the Briggs Tract in 1999] did not expand the scope of the

prescriptive easement over [Leichtfuss’] properties and did not increase the burden of the

prescriptive easement over [Leichtfuss’] properties, the servient estates.” The court also held

that “the use of the [Dead Corner Road] by Dabney does not change the character or the use

of the easement or expand its use in any manner.”

¶32 Leichtfuss asserts that these conclusions are “clearly erroneous under the facts and

the law.” He contends that the burden upon his parcels has in fact increased because

(1) Dabney’s ongoing use of the Dead Corner Road for ingress and egress to the Briggs Tract

is beyond the easement’s scope as established during the prescriptive periods, and (2) the

creation of the Briggs Tract constitutes, in and of itself, an increased burden on the servient

tenement. As support for these theories, he points to an “increase in the number of properties

sought to be served” by the easement and an “increase in traffic” over the dead corner. For

the reasons which follow, however, we hold that the District Court correctly concluded that

Leichtfuss’ parcels are not being impermissibly burdened.

¶33 B. The scope of the Dead Corner Road easement already encompassed ingress
and egress to two tracts of land when the Briggs Tract was created in 1999.

¶34 Whether the burden upon a servient tenement has increased as the result of a partition

of the dominant tenement depends in part on the easement’s pre-partition scope, which “is

determined by . . . the nature of the enjoyment by which it was acquired.” Section 70-17-

14
106, MCA. As explained above, the Briggs established the prescriptive easement over the

dead corner for residential and farming purposes on the SW 1/4 of Section 30 no later than

1978, and the easement passed by operation of § 70-20-308, MCA, to the Malones in 1980

when they purchased the property from the Briggs in fee simple. Yet, the scope of the

easement did not change as a result of this sale. See Gibbens v. Weisshaupt (Idaho 1977)

570 P.2d 870, 876 (“[T]he extent and scope of a prescriptive easement cannot be enlarged

unless the increased use has occurred for the entire statutory period required by law.”).

Rather, by virtue of the Briggs’ retaining a life estate and continuing to use the easement, a

new prescriptive period began in 1980 and the scope of the easement was effectively

expanded by 1985 to benefit two dominant tenements: the Malones’ fee simple estate and

the Briggs’ life estate. However, because a life estate is a real property interest of limited

duration, see 2 Thompson on Real Property, Thomas Edition § 19.02, at 511 (David A.

Thomas ed., 1994), the critical question is whether this expanded scope survived the

termination of the Briggs’ life estate in the mid-1990s. If it did, then Dabney’s present use

of the Dead Corner Road is within the scope of the easement as established during the

relevant prescriptive period, and the burden on Leichtfuss’ parcels has not increased.

¶35 Leichtfuss asserts that “until the Dabney tract was created, the road which became the

easement for Malones by virtue of a prescriptive use . . . served one (1) tract of land.” He

explains that “[d]uring the time period that Malones owned their property, they established

an easement by prescription over the ‘dead corner’. The road serviced just their parcel of

15
property. The Briggs gave up their life estate some time in 1996.”6 (Emphasis added.)

Thus, in his view, the easement’s scope reverted upon the Briggs’ deaths in 1996 to the use

established during the original pre-1980 prescriptive period. Restated, the Dead Corner Road

benefitted two separately-owned property interests until 1996 only; at that time, the benefit

to the Briggs Life Estate terminated, leaving only a single parcel benefit for the SW 1/4 of

Section 30 (the original dominant tenement), then owned in its entirety by the Malones in

6
Leichtfuss’ statement that “[t]he road serviced just [the Malones’] parcel of property,”
when read in context, is a characterization of the portion of the dead corner easement that
benefitted the Malone Property, as distinguished from the portion that benefitted the Briggs Life
Estate. In other words, his argument here is not that as of 1980, the Dead Corner Road served
just the Malone Property (and not the Briggs Life Estate). Such an argument necessarily would
imply that the Cut Across Road became the exclusive route for ingress and egress to the Briggs
Life Estate. Yet, Mr. Malone, Mrs. Malone, David Rigler (a former owner of the parcel now
owned by Montana Land Resources), and Harold Marchington (a cousin of Ethel Briggs) all
testified that the Briggs, and sometimes their guests, used the Dead Corner Road to access their
house and/or barn both before and after 1980. Thus, the District Court’s conclusion that “[b]y
1985, the scope of the prescriptive easement had been expanded to include . . . the original
Briggs’ home site and barn, [and] the newly-constructed Malone residence” is supported by
substantial evidence in the record, and any assertion to the contrary would lack merit.

16
fee simple.7 For this reason, Leichtfuss maintains, Dabney’s use of the Dead Corner Road

is beyond the easement’s scope.

¶36 Dabney counters that

Malones and Briggs used the prescriptive easement over the Leichtfuss
property to access two pieces of property before the boundary relocation.
Malones, and now Malones and Dabney, are using the same prescriptive
easement to access the same two properties, albeit with different legal
descriptions, following the boundary relocation. [¶] . . . The roadway
historically was used, and has continued to be used, to access two separate
properties and two separate residences.

7
This was not Leichtfuss’ original theory. At the April 20, 2004, hearing, his counsel
posed the following question to Mr. Malone: “[W]hen you and your family purchased this
property in 1980, that was one ownership, wasn’t it, your family?” And he later asked Mrs.
Malone, “from 1980 until 1999, Lot 3, Lot 4, the Briggs Tract, and the Malone Tract were all
what you and Marty owned.” The implication of these questions is that the Malones owned the
entirety of the SW 1/4 of Section 30 outright and simply “allowed the Briggs’ [sic] to reside in
their homestead.” Yet, the record establishes that the Briggs were not mere guests of the
Malones for fifteen years, but instead held a separate property interest in their homestead. For
this reason, Leichtfuss has not advanced this theory on appeal.
Similarly, because Leichtfuss is claiming that the benefit afforded the Briggs’ life estate by
the easement terminated as a matter of law upon their deaths in 1996, his position is not a
continuation of his argument in the District Court that the release signed by the Malones in 1993
terminated all easements serving the Briggs’ house, barn, and surrounding acreage upon the
extinguishment of their life estate. Indeed, he now acknowledges that after he bought his parcels
in 1993, the Malones “continued to use [the Dead Corner Road] as the driveway to their home”
and “[t]his driveway also serviced the Briggs Tract, as the western-most driveway [the Cut
Across Road] had become obliterated” (as a result of the release). Moreover, he has not
challenged the District Court’s finding that “it was not the intent of either party that the access at
the dead corner be affected in any manner [by the release],” which, in any event, is supported by
substantial evidence in the record. For instance, the terms of the release reference only the Cut
Across Road, and the record reflects that neither Leichtfuss’ predecessor in interest (Mr. Walker)
nor the Malones had the Dead Corner Road in mind during their negotiations. Accordingly,
Leichtfuss now characterizes the release as “cover[ing] the westerly driveway into the Briggs
Tract area [i.e., the Cut Across Road]” only.

17
This analysis is similar to Dabney’s argument in the District Court that “[l]ong before

Defendant Dabney owned the property, Briggs’ and Malones’ use of the road over what is

now [Leichtfuss’] property clearly established a prescriptive easement for the benefit of both

home sites. An extinguishment of that prescriptive easement requires the exact same

elements for the statutory five year period as establishing a prescriptive easement.”

(Emphasis added.) Thus, in Dabney’s view, the easement established for the benefit of the

Briggs’ homestead endured beyond the Briggs’ life estate.

¶37 The precise issue, therefore, is whether an easement established by prescription for

the benefit of a dominant tenement held as a life estate terminates as a matter of law upon

the extinguishment of that life estate.8 As a general rule, an easement appurtenant attaches

8
It is fair to say that the briefing in this case--and on this issue in particular--is not
particularly artful. Indeed, the same could fairly be said about some aspects of the case while it
wended its way through the District Court. Be that as it may, our job is to address the issues
presented by the parties on appeal.
Here, Leichtfuss asserts as one of his “increased burden” arguments that the District Court
“erred by determining Dabney’s use of the prescriptive easement[] . . . did not constitute an
increased burden to the servient tenement held by Leichtfuss.” As explained above, in order to
reach a conclusion on this question, it is necessary first to determine the scope of the easement
transferred to Dabney by the Malones when she purchased the Briggs Tract. This, in turn,
requires an examination of the Malones’ and the Briggs’ use of the easement between 1980 and
1985 and a determination as to whether the scope established during that period passed to
Dabney.
Integral to this latter determination is the issue of whether the extinguishment of the
Briggs’ life estate caused the easement to revert to the single parcel use established before 1980.
In other words, did the expanded scope of the Dead Corner Road continue after their life estate
ended, or not? The parties’ arguments on this question are, at best, underdeveloped. As a
general rule, “we will not consider unsupported issues or arguments,” since “this Court is under
no obligation to locate authorities or formulate arguments for a party in support of positions taken
on appeal.” In re Marriage of McMahon, 2002 MT 198, ¶ 6, 311 Mont. 175, ¶ 6, 53 P.3d 1266,
¶ 6. On the other hand, this case presents an unusual situation in that we cannot answer the

18
to, passes with, and is an incident of ownership of the particular land to which it is

appurtenant. See 7 Thompson, supra, § 60.07(b)(1), at 470. In other words, such an

easement “runs with land,” which means that the benefit or burden passes automatically to

successors. See Rest. 3d § 1.5 cmt. a, at 31. Yet, a number of courts have held that an

easement burdening or benefitting an estate less than a fee simple ends when that estate

expires. See Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in

Land, § 10:15, at 10-28 (2001), and cases cited therein. As such, it may be more precise to

ultimate question of whether Dabney’s use of the easement constitutes an increased burden on
Leichtfuss’ servient parcels, as he claims, without first addressing the issue of whether an existing
prescriptive easement can be permanently expanded in scope by a second prescriptive use
benefitting an estate of limited duration.
In this regard, we observe that “a court may consider an issue ‘antecedent to . . . and
ultimately dispositive of’ the dispute before it, even an issue the parties fail to identify and brief.”
United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc. (1993), 508 U.S.
439, 447, 113 S.Ct. 2173, 2178, 124 L.Ed.2d 402. Similarly, “[w]hen an issue or claim is
properly before the court, the court is not limited to the particular legal theories advanced by the
parties, but rather retains the independent power to identify and apply the proper construction of
governing law.” United States Nat. Bank of Ore., 508 U.S. at 446, 113 S.Ct. at 2178 (internal
quotation marks omitted) (alteration in original). Indeed, as we have previously recognized, “ ‘ *
* * If the court were limited to the arguments and reasoning of counsel in its decisions of cases, to
the exclusion of its own observations, many cases would lead us far from what we understand to
be the true object of the court.’ ” Kudrna v. Comet Corp. (1977), 175 Mont. 29, 51, 572 P.2d
183, 195. Moreover, if the boundaries of our opinions were circumscribed by the inadequacies of
the briefs submitted on appeal, then in many cases we would be issuing opinions that set bad
precedent and confuse, rather than clarify, the law.
Resolution of the particular “increased burden” theory presently under consideration is not
“ultimately dispositive of” the entire dispute, since we must also consider Leichtfuss’ other
“increased burden” theory, see Part 1.C., infra; however, the entire dispute cannot be resolved
without consideration of both theories and the issues integral thereto. Accordingly, while we use
this approach sparingly, we determine in this case that even though the parties did not present the
issue related to the termination of the Briggs’ life estate artfully or develop the corresponding
argument fully, it is appropriate for us to address the issue since it is an integral step in our
analysis.

19
say that an easement runs with the estate in land to which it is appurtenant, or that it follows

ownership of the estate for as long as that estate exists.

¶38 The foundation for this principle is easily understood where the servient tenement is

held in less than fee simple: a person can convey no more or greater title than he holds. See

Rest. 3d § 4.3 cmt. e, at 526 (“The duration of a servitude is normally limited to the duration

of the estate of the creator of the servitude because the creator cannot burden a greater estate

than he or she has.”) (emphasis added). In other words, a life tenant or a lessee generally

cannot impose upon his land a burden that passes to the remainderman or the reversioner.9

¶39 Where the dominant tenement is held in less than fee simple, however, the basis for

the foregoing rule--which prevents the benefit of an easement from running to the

remainderman or reversioner--is less obvious. A number of courts have ruled that an

easement granted to a life tenant or lessee terminates as a matter of course with the life estate

9
See, e.g., Newhoff v. Mayo (N.J. 1891), 23 A. 265, 267 (The lessee of the servient
tenement granted to the lessee of the dominant tenement “a right of passage or way . . . which had
all the qualities of an easement; but it was imposed upon an estate for years in favor of a like
estate, and would terminate whenever the dominant or servient estate ceased to exist in persons
entitled to or affected by creation of the right.”); Williams v. Southern Bell Tel. & Tel. Co.
(N.C.App. 1980), 266 S.E.2d 700, 702 (“As a life tenant, [the grantor] could not create an estate
or interest [in the servient tenement] to endure beyond the term of her own estate.”); Gowan v.
Crawford (Ala. 1992), 599 So.2d 619, 623 (“[Grantor] was only a life tenant on the property and
any contract she made concerning the land was enforceable only during her life.”); Martin v. Sun
Pipe Line Co. (Pa. 1995), 666 A.2d 637, 639 (“[Life tenant] could only grant the easement for
the duration of his life estate.”); 7 Thompson, supra, § 60.03(a)(4), at 412 (“[A]nyone who is the
possessor of [] land may burden it with an easement; [however,] that easement cannot last any
longer than the possessor’s possessory estate in the land.”). But see Rest. 3d § 4.3 cmt. e, at 527
(“Prescription can operate against the holder of a future interest[, but] only if the use is open or
notorious as to that person and only if the holder of the future interest has the right to sue to
terminate the use as to the future interest.”).

20
or lease.10 Yet, there is nothing inherent in a future estate that would preclude its benefitting

from a servitude. To the contrary, a servitude may be created to burden or benefit any estate

in land, including present possessory estates and future estates. See Rest. 3d § 2.5 & cmt.

a, at 99. In a factual scenario analogous to the case at hand, the Restatement posits the

following illustration:

O, the owner of a fee simple in Blackacre, granted an easement to A, the
owner of a 10-year lease term in Whiteacre, to use the driveway across
Blackacre for access to Whiteacre. The deed states that the easement is
intended to benefit the term and the reversion in Whiteacre. The servitude
burdens the fee-simple estate in Blackacre and benefits both the leasehold
estate and the reversion in Whiteacre.

Rest. 3d § 2.5 illus. 3, at 100 (emphasis added). As this illustration demonstrates, the

termination of a dominant estate held in less than fee simple does not automatically

extinguish an easement appurtenant thereto. Rather, it is the intent or expectations of the

parties to the servitude which determine the duration thereof.

¶40 Indeed, a careful reading of the opinions of each of the aforementioned courts which

held that an easement granted to a life tenant or a lessee terminates with the life estate or

lease reveals that the results in those cases were grounded, to some extent, on a presumption

10
See, e.g., Hoffman v. Savage (Mass. 1818), 15 Mass. 130, 131 (right of way
appurtenant to the dominant estate of a dowager expired with that estate); Leuthold v. John A.
Stees Co. (Minn. 1918), 169 N.W. 709, 710-11 (“An estate for years may be a dominant estate or
a servient estate; but there cannot be created in favor of an estate for years an easement extending
beyond its life and binding the reversion or the servient estate.”); I.R.T. Property Co. v. Sheehan
(Fla.App. 2 Dist. 1991), 581 So.2d 591, 592 (easement granted to lessee in lease agreement
expired with lease); Bruce & Ely, supra, § 2:9, at 2-20 to 2-21 (“An easement . . . made
appurtenant to a dominant estate that is less than a fee simple . . . exists only for the period of the
dominant owner’s interest; it may not be enjoyed by the reversioner.”).

21
that the grantor of the easement was aware of the terminable nature of the grantee’s estate

and intended the easement to exist only for that limited duration, or that the life tenant or

lessee did not intend to permanently burden the servient estate. The Third Restatement has

succinctly described this approach in the following terms: “A servitude should be interpreted

to give effect to the intention of the parties ascertained from the language used in the

instrument, or the circumstances surrounding creation of the servitude, and to carry out the

purpose for which it was created.” Rest. 3d § 4.1(1), at 496-97 (emphasis added).

¶41 Having considered the foregoing authorities in the context of the facts of the case at

hand, we conclude that rigid application of a rule that prevents the benefit of an easement

from running to a remainderman or reversioner is unsound. To hold that the Dead Corner

Road easement’s scope reverted to a single parcel use based solely on the fact that the

Briggs’ property interest beginning in 1980 was held as a life estate would attach undue

significance to the legal classification of their estate at the expense of the expectations of the

Briggs, the Malones, and Mr. Walker (who owned the servient parcels during the second

prescriptive period of 1980 to 1985). Moreover, it would impair the utility of the easement,

which had been effectively expanded to serve both residences, without any support in the

record for limiting the easement’s utility. See Rest. 3d § 5.2 cmt. a, at 16 (“Because

servitudes are used to create relatively permanent arrangements with respect to property by

tying rights and obligations to the property, their utility would be impaired if the burdens and

benefits of the servitudes did not generally run to subsequent possessors, as well as

subsequent owners.”).

22
¶42 Accordingly, to ascertain the duration of the expanded scope of the Dead Corner Road

easement, we must examine the record for evidence of the intent or expectations of the

parties during the second prescriptive period. See Rest. 3d § 4.1(1) & cmt. a, at 496-98. The

easement here was created not by express grant from Mr. Walker, but rather by prescriptive

use on the part of the Malones and the Briggs. As such, there are no written terms from

which we can discern the intent of the parties. For this reason, the relevant focus of our

inquiry is on “the expectations the circumstances should reasonably have engendered in the

parties,” rather than on their intention. See Rest. 3d § 4.1 cmt. a, at 498. In this regard, it

is appropriate to consider “what a landowner in the position of the owner of the servient

estate should reasonably have expected to lose by failing to interrupt the adverse use before

the prescriptive period had run.” See Rest. 3d § 4.1 cmt. h, at 502.

¶43 Applying these principles, it is clear from the circumstances shown in the record that

the parties should reasonably have expected the establishment of a permanently expanded

scope of the Dead Corner Road easement. First, as of 1980 both the Briggs and the Malones

resided on the original dominant tenement (the SW 1/4 of Section 30), and they did so with

separate property interests. Significantly, Mr. Walker, who was aware that both families

were using the easement, took no legal action with respect to the expanded use. To the

contrary, it appears that he acquiesced in the expansion of the easement’s scope to benefit

the two estates. Accordingly, Mr. Walker should have expected to incur the additional

burden of a second homeowner using the Dead Corner Road for ingress and egress purposes

to the SW 1/4 of Section 30.

23
¶44 Furthermore, because the Malones held the reversion in the Briggs’ life estate, all

present and future interest holders participated in the prescriptive use that expanded the

scope of the easement between 1980 and 1985. It follows, therefore, that the Malones

reasonably expected to receive the benefit of the expansion upon the Briggs’ deaths. Indeed,

there is not even a hint in the record that the Malones ever intended to abandon or raze the

Briggs’ homestead or that Mr. Walker expected them to do so. Rather, the record reflects

precisely the opposite, as evidenced by the Malones’ creation of the Briggs Tract and Mrs.

Malone’s testimony that she never would have signed the release abandoning the Cut Across

Road “had [she] known there was then going to be subsequent dispute over whether [she]

could access the Briggs’ home site over [the] dead corner.”

¶45 Accordingly, we conclude that the scope of the easement established by prescription

for the benefit of the SW 1/4 of Section 30 and expanded by a second prescriptive use from

1980 to 1985 for the benefit of two estates--the Malone Property and the Briggs Life

Estate--within the SW 1/4 of Section 30 did not revert to the pre-1980 scope upon the

termination of the Briggs’ life estate. In light of this conclusion, we hold that Leichtfuss’

contention that Dabney’s ongoing use of the Dead Corner Road for ingress and egress to the

Briggs Tract is beyond the scope of the easement, as established during the prescriptive

periods, is contrary to the record.

¶46 C. The creation of the Briggs Tract did not constitute an increased burden on
Leichtfuss’ parcels.

24
¶47 Leichtfuss’ other “increased burden” argument focuses on the impact the creation of

the Briggs Tract in 1999 had on his parcels. He asserts that

until the Dabney tract was created, the road which became the easement for
Malones by virtue of a prescriptive use . . . served one (1) tract of land. When
COS 1553 was filed and the deed recorded transferring the Briggs Tract to
Dabney a second tract was created. The road was now being used to service
two (2) tracts of land, clearly an increase of the burden on the servient
tenement.[11]

Underlying this argument is the premise that the extent of an easement increases due to

nothing more than the carving out and selling of a piece of the benefitted property. In other

words, Leichtfuss maintains that subdividing a dominant tenement in and of itself constitutes

an increased burden on the servient tenement, irrespective of whether the use of the easement

actually changes.12 He is mistaken.

¶48 In Mularoni v. Bing, 2001 MT 215, 306 Mont. 405, 34 P.3d 497, we observed that

if a “dominant tenement is transferred in separate parcels to different persons, each grantee

acquires a right to use easements appurtenant to the dominant estate, provided the easements

can be enjoyed as to the separate parcels without any additional burden on the servient

11
As noted above (see ¶ 35, supra), Leichtfuss’ contention that the easement “served one
(1) tract of land” “until the Dabney tract was created” is based on the theory that the benefit to
the Briggs Life Estate was separate from the benefit to the Malone Property and the former
terminated upon the Briggs’ deaths in 1996.
12
Leichtfuss argued this position in the District Court in his Response to Defendants’
Motion for Summary Judgment: “The Briggs Tract was created in order to have a piece of
property to sell to defendant Dabney. This in and of itself expanded the use beyond that which
had been established by the Malones’ and their predecessor’s use of the road. It is apparent that
now there are two (2) separate pieces of property, and Dabney’s use is an expansion of the
Malones’ use.”

25
tenement.” Mularoni, ¶ 27 (internal quotation marks omitted) (quoting 7 Thompson, supra,

§ 60.07(b)(3), at 472). Similarly, in Burleson, supra, we stated that under Montana easement

law, “[a]n 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.” Burleson, ¶

18 (citing § 70-17-107, MCA). See also 7 Thompson, supra, § 60.04(a)(1)(i), at 452

(“Subdivision and conveying away of portions of a dominant estate does not, in and of itself,

mean that an additional burden is imposed upon the servient estate.”) (internal quotation

marks omitted); Bruce & Ely, supra, § 8:12, at 8-34 (“Unless restricted by the terms or

manner of its creation, the right to use an easement appurtenant extends to each subdivided

portion of the dominant estate.”).

¶49 Notwithstanding these authorities, Leichtfuss directs our attention to Leffingwell

Ranch, Inc. v. Cieri (1996), 276 Mont. 421, 916 P.2d 751, in which a landowner had divided

its property (the dominant tenement) into 174 individual parcels with the intent of developing

and selling the smaller parcels. With respect to the landowner’s plan to access these 174

parcels via easements (granted to one of the landowner’s predecessors in interest) that

historically had been used to access only two or three homesteads, we affirmed the District

Court’s conclusion that such use would constitute an improper burdening of the easements.

¶50 Leffingwell Ranch, however, does not stand for the proposition advanced by

Leichtfuss. As we explained in Kelly, supra, to which Leichtfuss also cites, the landowners

in Leffingwell Ranch “could not broaden their use to include subdivision access because the

26
use was ‘not contemplated by the original parties to the easements [and] would be

inconsistent with the historical use of the easements . . . .’ ” Kelly, ¶ 33 (quoting Leffingwell

Ranch, 276 Mont. at 432-33, 916 P.2d at 758). While the number of parcels to be benefitted

by the easements certainly informed our analysis of the extent of the landowner’s planned

use thereof, nowhere did we state that subdivision of the dominant tenement into multiple

parcels constituted, in and of itself, an increased burden on the servient tenements. Rather,

we compared the historical use of the easements with the intended and anticipated

consequences of the subdivision and concluded that the District Court’s finding of an

increased burden was correct.

¶51 In another subdivision case, Guthrie v. Hardy, 2001 MT 122, 305 Mont. 367, 28 P.3d

467, Hardy acquired the dominant tenement and corresponding easement by deed in 1977.

In 1981, he subdivided the parcel into eight 20-acre parcels and eventually sold two parcels

each to Miller (in 1986) and Arno (in 1995). However, it was not until 1995, when Hardy

and Miller sought to improve a portion of the easement, that a dispute arose with the owners

of the servient tenement, who “voiced their concern that the Appellants wished, in fact, to

extensively improve the easement road to accommodate further residential development as

well as logging in the [dominant tenement].” Guthrie, ¶ 12.

¶52 The District Court found that Hardy’s use of the easement “changed beginning in

1995 to the detriment of the servient owners . . . .” Guthrie, ¶ 40 (emphasis added). We

affirmed this holding, noting that Hardy presently sought to alter the “historic nature” of the

easement. Guthrie, ¶ 32. Specifically, he planned “to improve the existing road so that it

27
would provide year-around primary access to, at the very least, [his, Miller’s, and] Arno’s

parcels,” Guthrie, ¶ 35, “and thereby undisputedly alter the nature of his 17 years of use,”

Guthrie, ¶ 33. Furthermore, Hardy had already cleared two new home sites on the dominant

tenement, see Guthrie, ¶ 36, suggesting that he intended to further develop the parcel which

he had subdivided fourteen years earlier. Thus, it was Hardy’s actual and planned uses of

the easement in 1995, not his subdivision of the dominant tenement in 1981, that exceeded

the scope thereof. In other words, we were concerned with the consequences of the

subdivision, which in 1981 were nothing but in 1995 were overly burdensome on the servient

tenement.

¶53 Our reasoning in both Leffingwell Ranch and Guthrie is consistent with our approach

in Lindley v. Maggert (1982), 198 Mont. 197, 645 P.2d 430, which involved an easement in

gross. The owners of the servient tenement argued that the holders of the easement should

not be allowed to use the easement, which to that point had not been used, “until the District

Court determines whether use of the easement . . . will increase the burden on the [servient

tenement] beyond that contemplated when the easement was established.” Lindley, 198

Mont. at 199, 645 P.2d at 431-32. We rejected this argument, explaining that “[t]his Court

cannot declare that the proposed use will be inconsistent with the reserved easement on the

basis of speculation as to possible future uses.” Lindley, 198 Mont. at 199, 645 P.2d at 432

(emphasis added). Simply put, we will not assume an increased burden; there must be

evidence supporting the servient owner’s claim.

28
¶54 Here, the record reflects that the Malones did not subdivide their property with the

intent of developing the smaller parcel. Rather, they intended to sell the Briggs Tract as is.

Indeed, the ten acres sold to Dabney included the Briggs’ preexisting house, barn, and other

outbuildings; and the anticipated consequences of this sale, with respect to the Dead Corner

Road, were that the character and extent of the use of the easement would remain unchanged.

With the exception of the improvements made by Dabney to her driveway, this has been the

case.

¶55 Moreover, the record is devoid of any evidence that the land constituting the Briggs

Tract and the structures thereon have changed to any material extent since they were owned

by the Briggs. Leichtfuss asserts that there has been an “increase in traffic” across the dead

corner as a result of Dabney’s presence; however, he provides no frame of reference for this

vague assertion. Does he mean an increase compared with the period between the

termination of the Briggs Life Estate in the mid-1990s and the sale of the Briggs Tract to

Dabney in 1999? Does he mean an increase compared with the period when the Briggs were

using the road to reach their house and barn? The relevant time period for comparison

purposes would be the prescriptive periods, which in this case were 1973-1978 for the

establishment of the easement and 1980-1985 for the expansion of the easement’s scope. We

have already concluded that Dabney’s using the Dead Corner Road for ingress and egress

to the Briggs Tract is not beyond the easement’s scope as established during these

prescriptive periods. See Part 1.B., supra. And the District Court found that Dabney uses

her property for the same purposes (residential and farming/agricultural) and to the same

29
extent as did the Briggs and the Malones. This finding is supported by substantial evidence

in the record. Accordingly, we reject Leichtfuss’ argument that the creation and conveyance

in fee simple of the Briggs Tract in and of itself constituted an increased burden on his

properties.

¶56 D. Conclusion.

¶57 In sum, the expanded scope of the Dead Corner Road easement did not revert to a

single parcel use upon the termination of the Briggs’ life estate in the mid-1990s. Rather,

it is clear from the circumstances surrounding the expansion of the easement’s scope during

the second prescriptive period (1980-1985) that the Malones, the Briggs, and Mr. Walker

reasonably expected the establishment of an easement permanently benefitting two separately

owned properties within the SW 1/4 of Section 30. Thus, Leichtfuss’ characterization of the

scope of the Dead Corner Road as a single parcel use is inaccurate.

¶58 Furthermore, the District Court’s finding that Dabney’s use of her property is the

same as her predecessors’ use thereof is amply supported by substantial evidence in the

record. Hence, this is not a case in which an easement is suddenly being used to serve

additional land or additional residences, or in which the character of the easement’s use has

changed. Unlike Leffingwell Ranch, in which 171 to 172 new families would have used the

easement in question for ingress and egress to their homes, the same number of families

(two) are using the Dead Corner Road presently as used it between 1980 and 1985.

Leichtfuss is concerned with the number of separately owned fee simple estates being served

by the easement since 1999, as opposed to the actual uses to which the easement historically

30
has been, and is now being, put. This position is based on an incorrect interpretation of our

case law, and his suggestion that subdivision of a dominant tenement in and of itself

constitutes an increased burden on the servient tenement is rejected.

¶59 2. Did the District Court err in determining that Dabney could have availed herself
of § 70-30-107, MCA (private eminent domain), as a fallback position in the event no
prescriptive easement was available for her?

¶60 In light of our holding under Issue 1 that Dabney has an easement appurtenant

benefitting her property, it is unnecessary to reach Issue 2.

¶61 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY

/S/ BRIAN MORRIS
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE

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