July 21 2010
DA 09-0644
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 160N
BARRY GRAY and DAWN GRAY, and
WAYNE FINCH and BRENDA FINCH,
Plaintiffs and Appellants,
v.
ROBERT R. WILSON and HEATHER E. WILSON,
Defendants and Appellees.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and For the County of Lincoln, Cause No. DV 09-80
Honorable Michael C. Prezeau, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kim T. Christopherson, Christopherson Law Office, P.C.,
Kalispell, Montana
For Appellee:
Amy N. Guth, Attorney at Law, Libby, Montana
Submitted on Briefs: June 23, 2010
Decided: July 20, 2010
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2006, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number, and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 The instant lawsuit concerns a road (the Wilson Access Road) that runs through
properties owned by plaintiffs Barry Gray, Dawn Gray, Wayne Finch, and Brenda Finch
(the Neighbors). In July 2008, the Nineteenth Judicial District Court, Lincoln County,
ruled in a separate lawsuit that defendants Robert R. Wilson and Heather E. Wilson (the
Wilsons) have an easement on this road, which the Forest Service granted to the Wilsons
in 1950. The court further ruled that the easement “is limited to the historical width of
the roadbed, plus three feet on each side of the road to accommodate road maintenance
and snow removal.” In its conclusions of law, the court “estimate[d]” that at its
maximum width, the easement is 21 feet in width with a driving surface of 15 feet.
Neither party appealed from these rulings.
¶3 The Wilsons then submitted plans to the Lincoln County Planning Department to
develop two small subdivisions (10 lots total) on their 110-acre property. In conjunction
with the proposed development, the Wilsons hired a surveyor who determined that the
historical roadbed of the Wilson Access Road exceeds 15 feet in many places.
2
¶4 In May 2009, the Neighbors filed the present action against the Wilsons, seeking
to enjoin them from improving the Wilson Access Road or using it for development
purposes. The Neighbors contend that under the District Court’s July 2008 order, the
Wilsons’ easement is limited to a width of 21 feet total, which includes a 15-foot driving
surface and 3 feet on each side for maintenance and snow removal. They further contend
that the Wilsons’ easement is limited to their personal use and is not available for use by
purchasers of lots within the Wilsons’ proposed subdivisions. The District Court granted
a preliminary injunction on August 3, 2009, and the parties thereafter filed cross-motions
for summary judgment.
¶5 In considering these motions, the District Court reviewed its July 2008 order and
concluded that the relevant language therein, as far as the width of the easement is
concerned, is the statement limiting the easement to “the historical width of the roadbed.”
The court characterized its “estimation” of the easement’s width as obiter dictum—i.e.,
“something said in passing”—and, as such, not controlling. Rather, the court decided
that the “final” width of the road had to be determined “by on-the-ground measurement,
based upon empirical evidence of historical use.” Noting that the Wilsons’ surveyor had
employed such a process, the court said it was “satisfied that by basing his determination
of the width of the roadbed on the historical driving surface, the Court’s previous Order is
being complied with.” Finally, the court concluded that the Wilsons’ intended use of the
easement (for primary access to the two subdivisions) was permissible. Accordingly, the
court denied the Neighbors’ motion for summary judgment, granted the Wilsons’ motion
for summary judgment, and dissolved the preliminary injunction.
3
¶6 On appeal, the Neighbors dispute the District Court’s conclusions concerning the
width and use of the Wilson Access Road easement. However, having reviewed the
record and the parties’ briefs on appeal, we have determined to decide this case pursuant
to Section I, Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2006,
which provides for memorandum opinions. The Neighbors have failed to demonstrate
that they are entitled to reversal of the District Court’s decision. In addition, however, we
conclude that this appeal was not frivolous. Thus, the Wilsons’ request for costs and
attorney’s fees on appeal is denied.
¶7 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
4