Clark v. Pennock

August 31 2010

DA 10-0068

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 192

JOAN Y. CLARK and VICTORIA
LYNNE SMITH,

Plaintiffs and Appellees,

v.

ROBERT ROY PENNOCK, MARILYN
FROST, formerly known as MARILYN
PENNOCK, DONALD R. BERNARD,
ELIZABETH P. BERNARD, JAMES C.
KOCH AND THOMAS A. KOCH,

Defendants and Appellants.

APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Jefferson, Cause No. DV 07-10689
Honorable Loren Tucker, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Alanah Griffith, Pape & Griffith, Bozeman, Montana

For Appellees:

James A. McLean, Drysdale, McLean & Willett, Bozeman, Montana

Submitted on Briefs: July 28, 2010
Decided: August 31, 2010

Filed:

__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1 After a bench trial, the Fifth Judicial District Court, Jefferson County, concluded

that the owners of Tract 15, Joan Clark and Victoria Smith, had a road easement over

Scenic Drive, which ran through the defendant landowners’ property. The court

concluded that the easement language was ambiguous, and Scenic Drive provided the

only reasonably necessary and convenient access to the building site on Tract 15. The

defendant landowners appeal on several grounds. The issues are as follows:

¶2 Issue 1: Did the District Court err when it concluded that Clark and Smith could

use Scenic Drive to access Tract 15?

¶3 Issue 2: Did the District Court abuse its discretion when it allowed Dave Albert, a

surveyor, to testify about septic regulations?

¶4 Issue 3: Did the District Court err when it ordered Marilyn Frost to remove her

gate from Scenic Drive?

BACKGROUND

¶5 In 1987, Yellowstone Basin Properties (YBP) purchased Pipestone, a large parcel

of land. YBP subdivided Pipestone into twenty-plus acre parcels. YBP filed Certificate

of Survey (COS) No. 139926, which depicts the tracts of land at issue in this case. The

COS does not depict any roads.

¶6 Two weeks after YBP filed the COS, it created and recorded a Declaration of

Covenants, Conditions and Restrictions (covenants). Paragraph 7 of the covenants

provides:

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 All Tract owners covenant, agree and understand that [YBP] is reserving a
sixty-foot (60’) easement for general ingress and egress and a general
easement for public utilities across the above-described real property along
the road routes set forth in the attached Exhibits, A-1, A-2, and A-3. . . .
The road easement shall be thirty feet (30’) on each side of the centerline of
the road system to be constructed by [YBP] on said property during the
calendar years 1987, 1988 and 1989, along the approximate routes set forth
in the attached [exhibit].

¶7 A near copy of the exhibit is included below.1

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¶8 Joan Clark and Victoria Smith own Tract 15. The defendant landowners’

ownership of the tracts is as follows: Robert Pennock and Marilyn Frost (Frost) own

Tracts 11 and 13; James and Thomas Koch own Tract 12; and Donald and Elizabeth

Bernard own Tracts 7 and 10. The dashed lines running up to and along the western

boundary of Tract 15 illustrate the approximate route of Prospector’s Loop. The dashed

lines running up to the eastern boundary of Tract 15 illustrate the approximate route of

Scenic Drive. Although the map exhibit shows Scenic Drive terminating at the southern
1
This copy has been altered slightly for labeling purposes; however, the arrangement of the
tracts and roads has not been altered. The names of the tract owners and road names were added
for this Opinion.
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boundary of Tract 12, the road as built extends south past the boundary of Tract 12, runs

along the western edge of Tract 13, and terminates in a cul-de-sac at the southwestern

boundary of Tract 13. With the permission of the Kochs, Frost built a gate across Scenic

Drive on Tract 11 for the purpose of keeping hunters off the property.

¶9 In addition to recording the covenants, YBP included language in the deeds that

created an easement for ingress and egress for all tract owners in Pipestone. The deed

conveys the property to the purchaser, then grants an easement with the following

language:

TOGETHER WITH all tenements, hereditaments and appurtenances
thereto belonging, including any water rights appurtenant to this property,
including a general non-exclusive sixty-foot (60’) easement for ingress to
and egress from the above-described lot or tract and a general easement for
public utilities across other lots or tracts described in Certificate of Survey
Numbers 139926, Folio 296B for public utilities.

¶10 Next, the deed reserves an easement to YBP, providing:

EXCEPTED FROM THIS CONVEYANCE AND RESERVED UNTO
[YBP] AND [YBP]’S SUCCESSORS AND ASSIGNS, a general non-
exclusive sixty-foot (60’) road easement for ingress and a general easement
for public utility lines across the above-described land.

The location of all road easements shall be thirty feet (30’) on each side of
the center line of the road system to be constructed by [YBP] during the
calendar years 1987-1988-1989. . . . The location of said roads providing
ingress and egress are set forth and governed by the Declaration of
Covenants, Conditions, & Restrictions and Exhibits thereto.

(Emphasis added.) Therefore, each deed grants the purchaser an easement for ingress

and egress to their property and then reserves an easement to YBP and its successors to

access the property. Neither the deed nor the covenants include language that limits a

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tract owner to one road to access a tract. In fact, several tracts currently have more than

one access road.

¶11 When Clark and Smith attempted to use Scenic Drive to access Tract 15, the

defendant landowners denied them access, claiming that the language of the easement

specifically limited access to Tract 15 over Prospector’s Loop. The defendant

landowners asserted that the previous owners had complied with this language by never

using Scenic Drive to access the property.

¶12 Clark and Smith filed for a declaratory judgment in February 2007, requesting the

District Court to declare that the deeds and covenants created an easement for access to

Tract 15 over Scenic Drive. They requested the court to enjoin Frost from blocking or

denying access to Tract 15 and order her to remove the gate from Scenic Drive. Clark

and Smith also moved for summary judgment, claiming that the conveying documents

clearly granted to all successors-in-interest a general, nonexclusive sixty-foot easement,

thereby allowing them to use all existing roads to access Tract 15. Frost filed a cross-

motion for summary judgment, to which the remainder of the defendant landowners

joined, claiming that the conveying documents specifically granted access to Tract 15

only over Prospector’s Loop. The District Court denied summary judgment for both

parties from the bench, and the case proceeded to trial.

¶13 At trial, Frost testified that the prior owners of Tract 15 never used Scenic Drive to

access Tract 15. In her summary judgment affidavit, Frost stated that no roads existed on

Tract 11 when she bought it in 1987. At trial, Frost testified that when she bought Tract

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11, Scenic Drive ran through Tracts 11 and 12 and terminated at the southern boundary of

Tract 12. Frost also said that the portion of Scenic Drive that extended into Tract 13 was

a private driveway and not built by YBP; therefore, the deeds and covenants could not

have created an easement for that portion of the road. Wayne Joyner, YBP’s founder and

president, testified that his intention was that Prospector’s Loop would provide the only

access to Tract 15, but he never told his salespeople about his intent. He could not

remember whether YBP constructed the southern portion of Scenic Drive. The District

Court did not find Frost’s or Joyner’s trial testimony credible.

¶14 Dave Albert, the land surveyor for YBP, testified that he designed the tracts to

provide a building site on each tract. Albert testified that he designed the building site on

the eastern portion of Tract 15 because the western portion was too steep and rocky and

no good location existed for a septic system. He also said that if access to Tract 15 was

limited to Prospector’s Loop, he would have included that information in the covenants

and on the map exhibits to protect YBP from legal claims. He testified that he would

have had Scenic Drive constructed further away from Tract 15 to clearly indicate to a

buyer that access was not available from Scenic Drive.

¶15 Albert also explained his methodology in locating the centerline of Scenic Drive

and in determining that the eastern boundary of Tract 15 is located within thirty feet of

the centerline. The defendant landowners presented testimony from their own expert,

Matthew Mayberry, who testified that the centerline was not within thirty feet of Tract

15. However, Mayberry testified that he was not present when the survey was done, did

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not draw the survey exhibit, and that Frost’s survey contained a number of mistakes.

The District Court found Albert’s testimony credible and found that Mayberry did not

locate the road as constructed.

¶16 When the District Court issued its Findings of Fact, Conclusions of Law, and

Order, it found that Albert had designed Tract 15’s building site on the eastern portion of

the tract because there were no reasonable building sites on the westerly two-thirds of the

tract due to steep terrain, large rocks, and the inability to install a septic tank drain field.

The District Court found that, based on photographs of Scenic Drive, YBP built the

entirety of Scenic Drive, including the portion that extends into the southwestern corner

of Tract 13. The court found that the eastern boundary of Tract 15 was within thirty feet

of the centerline of Scenic Drive.

¶17 The District Court concluded that an ambiguity existed (i.e., the easements were

not specific) regarding access to the building sites because the determining terms were

“appropriate” and “as built.” Citing Mason v. Garrison, 2000 MT 78, 299 Mont. 142,

998 P.2d 531, the District Court concluded that Prospector’s Loop was not reasonably

convenient access to the building site on Tract 15 and Scenic Drive was the only

reasonably necessary and convenient access. The court permanently enjoined the

defendant landowners from interfering with, obstructing, or blocking access to Tract 15

over Scenic Drive. The court ordered Frost to remove the gate from Scenic Drive and

enjoined her from interfering with, obstructing, or blocking access to Scenic Drive by

gates, fences, or otherwise.

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¶18 The defendant landowners appeal, arguing that the District Court erred when it

concluded that Scenic Drive provided ingress and egress to Tract 15. Initially, the

defendant landowners contend that the easement language is specific in nature and

provides access to Tract 15 only over Prospector’s Loop. In the alternative, should we

affirm the District Court’s conclusion that the easement language was not specific, the

defendant landowners argue that the District Court misstated and misapplied Mason and

erroneously concluded that Scenic Drive was the only reasonably necessary and

convenient access to Tract 15. The defendant landowners argue that the District Court

erred by not reviewing the historic use of the easement, which would reveal that allowing

Clark and Smith access over Scenic Drive would cause a significant increase in the

burden on their property.

¶19 The defendant landowners also appeal the District Court’s decision to allow Dave

Albert to testify regarding septic permit requirements because, according to the defendant

landowners, Albert is not an expert in that field.

¶20 Finally, the defendant landowners argue that the District Court erred when it

ordered Frost to remove the gate from Tract 11 because it concluded she had violated the

covenants by blocking access to Tract 15.

STANDARD OF REVIEW

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¶21 We review a district court’s findings of facts to ascertain whether they are clearly

erroneous. Combs-Demaio Living Trust v. Kilby Butte Colony, Inc., 2005 MT 71, ¶ 9,

326 Mont. 334, 109 P.3d 252. A finding is clearly erroneous if it is not supported by

substantial evidence, if the trial court misapprehended the effect of the evidence, or if our

review of the record convinces us that a mistake has been committed. Id. The district

court is in a better position than this Court to observe the witnesses and judge their

credibility. Id. We review a district court’s conclusions of law as to whether the court’s

interpretation of the law is correct. Id.

¶22 A district court has broad discretion in ruling on the admissibility of oral

testimony, and without a showing of abuse of discretion, we will not disturb the district

court’s ruling on appeal. Jacobsen v. Allstate Ins. Co., 2009 MT 248, ¶ 26, 351 Mont.

464, 215 P.3d 649.

¶23 Finally, a district court’s interpretation of a restrictive covenant is a conclusion of

law which we review to determine whether the court’s conclusion is correct. Czajkowski

v. Meyers, 2007 MT 292, ¶ 12, 339 Mont. 503, 172 P.3d 94.

DISCUSSION

¶24 Issue 1: Did the District Court err when it concluded that Clark and Smith could

use Scenic Drive to access Tract 15?

¶25 Section 70-17-106, MCA, governs how a servitude is to be construed and provides

that “the extent of a servitude is determined by the terms of the grant or the nature of the

enjoyment by which it was acquired.” If an easement is specific in nature, the breadth

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and scope of the easement are strictly determined by the actual terms of the grant.

Mason, ¶ 21. Where the granting language is not specific in nature, the court must look

beyond the plain language of the grant in defining the breadth and scope of the easement.

Id. at ¶ 22. “If the easement is not specifically defined, it need only be such as is

reasonably necessary and convenient for the purpose for which it was created.” Id.

(quoting Strahan v. Bush, 237 Mont. 265, 268, 773 P.2d 718, 720 (1989)). What may be

considered reasonably necessary and convenient is determined with a view to the

situation of the property and the surrounding circumstances. Id. In addition, we have

consistently held that:

[I]n the absence of clear specifications defining scope, no use may be made
of a right-of-way different from the use established at the time of the
creation of the easement so as to burden the servient estate to a greater
extent that was contemplated at the time the easement was created . . . .
One formula articulated by the authors of a treatise suggests that as
conditions change, so too may the use by the dominant tenement so long as
the changes are evolutionary but not revolutionary.

Guthrie v. Hardy, 2001 MT 122, ¶ 48, 305 Mont. 367, 28 P.3d 467 (internal citations and

quotations omitted).

¶26 The defendant landowners dedicate a substantial portion of their opening appellate

brief to the argument that the easement language is specific in nature and the District

Court erred by looking beyond the plain language to determine what is reasonably

necessary and convenient. Then, the defendant landowners shift gears and state, “the

granting language is not specific,” thus the court “must look at the historical use of the

property to determine if the proposed use creates an additional burden on the servient

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estate.” (Emphasis added.) The defendant landowners cite no authority for this assertion

regarding historic use. Moreover, this argument directly contradicts their previous

assertion that the easement language is specific. It is not clear whether the defendant

landowners’ position is that the easement is specific or nonspecific. It is not this Court’s

obligation to guess as to an appellant’s precise position or develop legal analysis that may

lend support to their position. Pankratz Farms, Inc. v. Pankratz, 2004 MT 180, ¶ 82, 322

Mont. 133, 95 P.3d 671.

¶27 The District Court determined that the language of the easements was ambiguous.

However, upon careful review of the record, we conclude that the easement language

specifically creates a road easement over Scenic Drive for access to Tract 15. The deeds

and covenants provide that road easements shall be thirty feet “on each side of the center

line of the road system to be constructed by [YBP] during the calendar years 1987-1988-

1989.” The District Court found that the centerline of Scenic Drive, as built by YBP in

1988, was within thirty feet of Tract 15. Therefore, from the language of the deeds and

covenants, it is clear that YBP contemplated that all tract owners would have access to

their property over the roads as built. It is also clear that because Tract 15 is within thirty

feet of the centerline of Scenic Drive as built, Clark and Smith, as tract owners in the

Pipestone subdivision, may access their property over Scenic Drive. If YBP wanted to

limit tract owner’s access to one road, it would have said as much in the deeds and

covenants.

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¶28 Although we differ in our reasoning as to why an easement was created over

Scenic Drive for access to Tract 15, we affirm the District Court’s conclusion that Clark

and Smith may access their property via Scenic Drive. See Wells Fargo Bank v.

Talmage, 2007 MT 45, ¶ 23, 336 Mont. 125, 152 P.3d 1275 (stating “[w]e will not

reverse a district court when it reaches the right result, even if it reached that result for the

wrong reason”).

¶29 Issue 2: Did the District Court abuse its discretion when it allowed Dave Albert, a

surveyor, to testify about septic regulations?

¶30 The defendant landowners claim that the District Court abused its discretion when

it allowed Dave Albert to testify about the placement of septic systems and septic

regulations when he designed the building site on Tract 15, asserting that Albert had no

specialized knowledge regarding septic requirements. They assert that if Albert’s septic

system testimony is excluded, the District Court’s findings regarding the easement are

clearly erroneous because they are not supported by substantial evidence.

¶31 Dave Albert’s testimony regarding septic systems is irrelevant to our conclusion

that an easement was created over Scenic Drive for access to Tract 15; thus, we will not

address the defendant landowners’ argument that the District Court abused its discretion

when it allowed him to testify.

¶32 Issue 3: Did the District Court err when it ordered Frost to remove her gate from

Scenic Drive?

¶33 Paragraph 11 of the covenants states: “Tract owners covenant and agree that no

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gates, fences or other obstructions shall be placed upon or block any access road. This

restriction shall not prevent a Tract owner from placing a gate on an access road if the

road terminates on that Tract owner’s property.” The defendant landowners assert that

because Frost owns Tract 13, a termination tract, along with Tract 11, her placement of

the gate on Tract 11 does not conflict with paragraph 11 of the covenants because she had

the consent of the owners of Tract 12.

¶34 Frost’s gate on Tract 11 violates paragraph 11 of the covenants. Tract 11 is not a

termination tract. Nothing in the covenants excepts owners of more than one tract from

the rule prohibiting obstructions on an access road. The District Court correctly ordered

Frost to remove her gate.

CONCLUSION

¶35 The District Court correctly determined that Clark and Smith had a road easement

over Scenic Drive to access Tract 15. Tract 15 is within thirty feet of the centerline of

Scenic Drive as built; therefore, according to the plain language of the deed and

covenants, an easement was created for ingress and egress. The District Court did not err

when it ordered Frost to remove her gate from Tract 11 because it violates the covenant

prohibiting tract owners from blocking access to the tracts.

¶36 Affirmed.

/S/ MICHAEL E WHEAT

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We Concur:

/S/ MIKE McGRATH
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS

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