May 24 2011
DA 10-0435
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 112
DAVID W. and JOANN A. GIBSON, and the
PRAIRIE DRIVE SUBDIVISON HOME OWNER’S
ASSOCIATION, a Montana corporation,
Plaintiffs and Appellants,
v.
PARAMOUNT HOMES, LLC, a MONTANA LLC,
UNITED STATES SEAMLESS OF SW MONTANA,
Inc., a Montana corporation,
Defendants, Appellees and Cross-Appellants.
APPEAL FROM: District Court of the Sixth Judicial District,
In and For the County of Park, Cause No. DV 06-69
Honorable Wm. Nels Swandal, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
J. Troy Redmon; Redmon Law Firm, P.C., Bozeman, Montana
For Appellees:
Karl Knuchel, Attorney at Law, Livingston, Montana
Submitted on Briefs: May 13, 2011
Decided: May 24, 2011
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 David and Joann Gibson and the Prairie Drive Subdivision Home Owner’s
Association (collectively referred to as Gibsons) sued Paramount Homes and U. S.
Seamless (collectively referred to as the Developers) to enforce their easement over
Prairie Drive in Park County, Montana, near the City of Livingston. Gibsons appeal from
the District Court’s Findings of Fact, Conclusions of Law and Order dated August 4,
2010.
BACKGROUND
¶2 The property now owned by Gibsons and Developers was at one time owned by
Petersons, who subdivided it and sold larger multi-acre lots. In 1993 and 1994, Petersons
recorded certificates of survey depicting an express 60-foot wide easement for ingress
and egress to their subdivision over a road called Prairie Drive. In July, 1994, Petersons
and other adjacent land owners who used Prairie Drive entered an “Agreement for
Maintenance of Roads and Establishment of Home Owner’s Association.” This
established and recognized their rights to use Prairie Drive as a private easement, and that
future purchasers of tracts in Petersons’ subdivision would have the same rights. The
agreement provided that all future purchasers of Peterson lots became members of the
Home Owner’s Association with easement rights to Prairie Drive. In 1995 Park County,
as part of its approval of the subdivision, required Petersons to dedicate Prairie Drive to
the public for access.
2
¶3 The Developers purchased one of the tracts of the Peterson subdivision, to have it
annexed by the City of Livingston with the intent to further subdivide it into smaller lots.
In a May, 2000, letter the developers stated that their project contemplated 58 single-
family lots and 19 multi-family lots on 29 acres. Since Gibsons’ property and the
Developers’ property were parts of the original Peterson subdivision, they are all
members in the Home Owner’s Association. They are thereby parties to the maintenance
agreement originally executed in 1994. Prairie Drive and Gibsons’ easement crossed the
Developers’ land and Developers acquired the land subject to the easement and to
membership in the Home Owner’s Association. Gibsons operate a large ranch and, along
with other property owners in the largely rural area, used the easement over Prairie Road
for a number of years to move vehicles, trailers, and heavy equipment in and out of the
area.
¶4 After annexation of their land into the City of Livingston, the Developers
successfully completed the process to subdivide their property into small lots with paved
streets bordered by curbs and gutters. The City Commission approved the preliminary
plat for the Ridgeview Subdivision on August 15, 2005. The staff report recommending
approval noted that the subdivision will extend the City’s street network to serve the
project and that each lot would be added to the City’s street maintenance district and be
assessed in the same manner as other lots in the City. The Developers recorded the final
subdivision plat on May 6, 2006, which provided the location of specific streets and lots.
Even though parts of it are relocated, Prairie Drive continues to exist after construction of
the Developers’ subdivision, but it is now paved, narrower, and bordered by curbs and
3
gutters. The Developers also replaced a previous gradual sweeping “S” curve in Prairie
Drive with two essentially right-angle corners. See illustration below showing Prairie
Drive as relocated by the Developers, depicted with diagonal shading, and the original
location depicted with dashed-line borders.
¶5 Gibsons sued both the City of Livingston and the Developers seeking recognition
and enforcement of their easement. The case was tried to the District Court without a
jury in February, 2010.1 The District Court entered its Findings of Fact, Conclusions of
1
Gibsons originally sued the City but settled during the litigation for a modest amount of
cash and the City’s agreement to “paint curbs” and place no-parking signs along the new
Prairie Road in the subdivision.
4
Law and Order in August 2010. Referring to the reconfiguration of the two gradual
curves, the District Court found that the Developers’ reconstruction of Prairie Drive for
the subdivision created a “permanent obstruction” to Gibsons’ easement in two locations,
“effectively obliterating the easement and making passage by vehicle impossible.”
¶6 The District Court found that the new street alignment decreased the quality of
Gibsons’ access; has created safety and access quality issues; and was not an adequate
replacement for Gibsons’ easement based upon their prior use and the applicable
engineering standards. The District Court found that longer and larger vehicles that could
easily negotiate the former “S” curve on Prairie Drive could not easily negotiate the two
new right-angle turns required to get through the subdivision.
¶7 The District Court held that Gibsons’ easement existed independently of any
public right to use the Prairie Drive right of way, but concluded that while the Developers
had obstructed and obliterated Gibsons’ easement, the new road through the subdivision
“is superior in construction to the historic Prairie Drive.” Consequently, the District
Court ordered that the Developers bear the cost of a new certificate of survey showing
Gibsons’ platted easement to be in the location of the new road through the subdivision,
and permanently enjoined the Developers from any further obstruction of the easement.
The District Court also ordered the Developers to re-build the two new right-angle turns
to “increase the radii of the road so that all vehicles, including those oversized vehicles
utilized for recreation and business of the [Gibsons] may proceed without having to go
off the roadway or cross lanes.”
5
¶8 In explanatory comments the District Court stated that the interference with
Gibsons’ easement “can be remedied by widening or eliminating the curbs and other
obstructions” in the new road. The District Court determined that further relief was
stymied by the fact that the road is now the property of the City of Livingston and any
alterations in the road require the City’s prior approval. Since the City had been
dismissed as a party, the District Court concluded that it had no authority to order the
City to re-locate the streets in the annexed subdivision. Last, the District Court ordered
that each party bear its own costs and attorney fees.
¶9 Gibsons agree with the District Court’s findings of fact and conclusions of law,
but contend that the District Court erred in refusing to restore their “historical” easement
rights in Prairie Drive and in failing to award them attorney fees and costs as the
prevailing party in the litigation. Developers cross-appeal contending that the District
Court erred in not dismissing the Home Owner’s Association for lack of standing; that
the 1995 dedication of Prairie Drive as a public road extinguished any grant of easement
to Gibsons; that the annexation of their subdivision and dedication of Prairie Drive as a
city street extinguished the easement; that Gibsons’ settlement with the City extinguished
all their claims; and that they, the Developers, prevailed and are entitled to attorney fees.
STANDARD OF REVIEW
¶10 This Court reviews a district court’s conclusions of law to determine whether they
are correct, while findings of fact will be upheld unless they are clearly erroneous.
Omimex Can., Ltd. v. State of Montana, 2008 MT 403, ¶ 16, 347 Mont. 176, 201 P.3d 3.
A decision on a request for an award of attorney fees is reviewed for abuse of discretion
6
unless a contract requires an award of fees, in which case a district court lacks discretion
to deny the request. Emmerson v. Walker, 2010 MT 167, ¶ 20, 357 Mont. 166, 236 P.3d
598; In re Szafryk, 2010 MT 90, ¶ 19, 356 Mont. 141, 232 P.3d 361. In that case we
review the district court’s construction and interpretation of the contract to determine
whether it is correct. Szafryk, ¶ 19.
DISCUSSION
¶11 Issue One: Whether the District Court erred in refusing to enforce Gibsons’
historical easement rights.
¶12 The District Court found that Gibsons had a valid easement over Prairie Drive that
could not be moved and otherwise altered as the Developers did without Gibsons’
consent. Gibsons argue that since the easement was altered and obstructed by the
Developers’ subdivision, it was error for the District Court to conclude that the new road
was “superior in construction” to the old one and to allow the two new turns to remain in
the new location. They contend that it was error to not require that the new Prairie Drive
be re-built to the same width and alignment of the former Prairie Drive.
¶13 Gibsons correctly note that the owner of the servient estate (here, the Developers)
may not ordinarily change the location of a right of way without the consent of the
easement holder (here the Gibsons). This is the law in Montana. Parker v. Elder, 233
Mont. 75, 80, 758 P.2d 292, 295 (1988). Nevertheless, the rights of the servient
landowner to reasonably use the land must be considered along with the right of the
easement holder to reasonably use the easement. Tungsten Holdings, Inc. v.
Kimberlin, 2000 MT 24, ¶ 40, 298 Mont. 176, 994 P.2d 1114 (servient landowner
7
failed to establish that a gate across an easement was reasonably necessary for the
enjoyment of the land).
¶14 One of Gibsons’ primary concerns about routing their easement through the
subdivision was that the corners were aligned and restricted so that the larger vehicles
and towed equipment they often used could not safely make required turns. Gibsons
presented evidence at trial concerning the width and radii of turns that would be required
to accommodate their uses. In response, the District Court ordered the Developers to
“increase the radii of the road so that all vehicles, including those oversized vehicles
utilized for recreation and business by the Plaintiffs may proceed without having to go off
of the roadway or cross lanes.” This was responsive to Gibsons’ objection to the new
alignment, and implemented technical evidence on roadway geometry that Gibsons
presented at trial.
¶15 We adhere to and adopt the rule quoted above from Parker, that a servient
landowner may not ordinarily change the location of an easement without the consent of
the easement owner. In a case like the present one, when a district court is presented with
evidence that a servient owner has relocated and interfered with an easement, the issue is
what relief should be fashioned to restore the rights of the easement owner. On its face,
the relief ordered by the District Court in this case expressly requires that Prairie Drive be
altered to accommodate the use that Gibsons had historically made of it by easing the
angle of the corners. We construe the District Court’s order to require that the
Developers restore the curves on Prairie Drive to accommodate the reasonable uses made
by Gibsons prior to the alterations made by the Developers. This is a reasonable
8
accommodation of the desire of the Developers to provide a paved road through the
subdivision and Gibsons’ rights to continue to use their historic easement. If the
Developers comply with the relief ordered by the District Court, Gibsons should be able
to move their vehicles and equipment in and out of their property, using the Prairie Drive
easement, as they did prior to the development of the subdivision.
¶16 Gibsons have failed to demonstrate that the relief ordered by the District Court, if
properly implemented, will not allow them to use their easement essentially as they did
prior to construction of the Developers’ subdivision. Therefore, the District Court both
recognized and upheld Gibsons’ easement rights and ordered relief specifically designed
to address their complaints. The re-configuration of the road, in addition to the District
Court’s confirmation of Gibsons’ easement, the requirement that it be re-surveyed and
recorded by the Developers, and a permanent injunction against future interference
adequately recognized and protected Gibsons’ interests. We find no error.
¶17 Issue Two: Whether the District Court erred in ordering that each party bear its
own attorney fees and costs.
¶18 Gibsons and the Developers each contend that they are entitled to an award of
attorney fees and costs. Any entitlement to an award of fees arises from paragraph 6 of
the Home Owner’s Agreement, which provides that it may be enforced by an action for
damages or for an injunction, “and the prevailing party shall be entitled to his costs and
reasonable attorney’s fees.” The District Court did not apply this provision, but held that
each party should bear its own fees and costs.
9
¶19 Since both sides claim the right to fees under this provision, there is no dispute
that it applies. A determination of the prevailing party requires consideration of all the
facts and circumstances of a case. Doig v. Cascaddan, 282 Mont. 105, 113, 935 P.2d
268, 272-73 (1997). Gibsons brought this action to enforce their easement rights under
the Agreement, and clearly under the circumstances they were the prevailing party. This
is not a case in which there was no prevailing party so as to negate entitlement to fees.
See Whipps v. Kaufman, Vidal, Hileman & Ramlow, 2007 MT 66, ¶ 9, 336 Mont. 386,
156 P.3d 11. The District Court found Gibsons’ easement valid and enforceable in the
face of the Developers’ contentions that it had been extinguished; found that the
Developers had interfered with the easement; ordered specific physical alterations to the
road to accommodate the easement; ordered the Developers to re-survey and record the
easement; and entered permanent injunctive relief in favor of Gibsons.
¶20 There is no factual support for the Developers’ argument that they were actually
the prevailing party. While Gibsons did not obtain the full extent of the relief they
wanted, they prevailed on all substantive issues. Therefore, Gibsons are entitled to
attorney fees and costs, and this issue will be remanded to the District Court for a
determination of Gibsons’ costs and reasonable attorney fees.
¶21 When entitlement to costs and attorney fees arises from contract, that entitlement
includes costs and attorney fees on appeal. In the Matter of the Estate of Burrell, 2010
MT 280, ¶ 41, 358 Mont. 460, 245 P.3d 1106; Boyne USA, Inc. v. Lone Moose
Meadows, LLC, 2010 MT 133, ¶ 26, 356 Mont. 408, 235 P.3d 1269. Again, considering
all the circumstances of the appeal, Gibsons are the prevailing parties. They prevailed on
10
the attorney fee issue and they prevailed against the Developers’ arguments on appeal
and cross-appeal that the easement was invalid and unenforceable. If Gibsons had not
prevailed on the fundamental issue of the validity of the easement they would have lost
the entire case. Therefore, they are also entitled to costs and attorney fees on appeal.
¶22 Issue Three: The Developers argue that the District Court erred by not dismissing
the Home Owner’s Association as a party for lack of standing.
¶23 At the time of the trial in this case the Association had been involuntarily
dissolved as a corporation by the Secretary of State for failure to file its annual report.
The Association subsequently cured the defect and its standing as a corporation was
reinstated. The District Court held that under Montana law the reinstatement of the
Association as a corporation related back to the date it was involuntarily dissolved. A
reinstated corporation is “considered to have been an existing legal entity from the date of
its original incorporation.” Section 35-6-202, MCA; Valley Victory Church v. Sandon,
2005 MT 72, ¶ 17, 326 Mont. 340, 109 P.3d 273. The District Court’s conclusions on
this issue are correct and the Association had standing to participate in this case.
¶24 Issue Four: Whether the Petersons’ dedication of Prairie Drive as a public road
extinguished any easement claim by Gibsons.
¶25 The Developers argue that when Petersons dedicated Prairie Drive for public
access as part of the Park County subdivision approval process, they did not reserve any
rights to grant further easements and that “any further grants” were “meaningless.”
¶26 The easement rights in Prairie Drive that are now at issue were memorialized in
July, 1994 when Peterson and other area landowners entered the “Agreement for
11
Maintenance of Roads and Establishment of Home Owner’s Association.” Peterson and
the other parties to that agreement held easements over Prairie Drive from the date the
agreement was executed. The following year Petersons, to meet conditions for approval
of their subdivision, dedicated Prairie Drive “to Park County, Montana, to be used as a
public road. . . . ” Clearly the dedication to public use occurred after the establishment of
the easement rights held by Peterson and the other signatories to the Agreement.
Assuming that Peterson’s dedication of Prairie Drive as a public road was consistent with
the terms of the prior Agreement, nothing in the dedication provided that the public right
was exclusive or expressly provided for the extinguishment of any of the prior easement
rights.
¶27 Moreover, this Court long ago adopted the rule that private and public easement
rights in the same road can coexist and that alteration of the public right does not affect
the private easement. McPherson v. Monegan, 120 Mont. 454, 460-61, 187 P.2d 542,
545 (1947). See also Tungsten Holdings, Inc. v. Kimberlin, 2000 MT 24, ¶ 21, 298 Mont.
176, 994 P.2d 1114. There is no evidence that Gibsons’ private property right in the
easement has been taken or extinguished. The District Court correctly concluded that
Gibsons’ private easements exist independently of any public right to use the right of
way.
¶28 Issue Five: Whether the annexation and subdivision review process for the
Developers’ subdivision extinguished or altered Gibsons’ easement rights.
12
¶29 The Developers argue that because Gibsons did not challenge the annexation of
the subdivision into the City of Livingston, they are precluded from complaining about
the design and layout of the streets in the subdivision, including Prairie Drive.
¶30 In this case, the relevant City of Livingston subdivision documents, including the
plat, acknowledge the existence of Gibsons’ easement rights over Prairie Drive. The
City, therefore, clearly annexed this area subject to and with recognition of Gibsons’
prior easements. Further, in May, 2006, the Livingston City Attorney wrote the
Developers a letter specifically acknowledging Gibsons’ easement rights, and warning
that those rights were not extinguished by “the mere fact that you have provided
alternative routes.” The City Attorney concluded that “it is the City’s position that
approval of your preliminary plat has no legal effect upon the pre-existing easements.
These 60 foot pre-existing easements still appear to exist as a matter of law.”
¶31 Gibsons are not challenging the annexation or the nature of Prairie Drive as a city
street. The Developers have cited nothing in the annexation or subdivision process or in
the law that extinguished Gibsons’ easement rights. Clearly, the City of Livingston
recognized the continuing validity of those rights and specifically warned the Developers
that the rights had to be acknowledged and accounted for. Gibsons were not required to
do any more in this regard to protect their interests.
¶32 Issue Six: Whether Gibsons’ settlement with the City of Livingston absolves the
Developers of any liability.
¶33 Gibsons originally sued the City of Livingston on a claim that the City’s street
standards had caused the inverse condemnation of their easement. The complaint
13
contained separate claims on other grounds against the Developers. Gibsons and the City
subsequently reached a settlement that was reduced to writing in April, 2008. That
agreement specifically settled Gibsons’ claims against the City only, as reflected in the
District Court’s subsequent order dismissing Gibsons’ claims against the City. There is
nothing in the settlement agreement or in the court’s order that can be construed as also
disposing of Gibsons’ claims against the Developers.
¶34 There is no indication that the Developers ever raised this issue in the District
Court proceedings and they make no cogent argument on appeal to support their position
that the settlement “tangentially” released all claims against them. There is no merit in
this argument.
¶35 The District Court is affirmed except as to the matter of Gibsons’ entitlement to
attorney fees and costs. This matter is remanded to the District Court for a determination
of Gibsons’ reasonable attorney fees and costs, including their fees and costs on appeal.
/S/ MIKE McGRATH
We concur:
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
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Justice James C. Nelson, specially concurring.
¶36 I concur in the Court’s decision. With respect to Issue One, however, my
concurrence is with the following caveats.
¶37 The basic facts are as follows. Gibsons possess historical easement rights over
land owned by the Developers. The District Court and this Court have recognized those
easement rights. Also, the City of Livingston annexed the area in question subject to and
with recognition of Gibsons’ prior easements; in other words, the annexation did not
extinguish or alter Gibsons’ easement rights. Notably, the diagram attached to the
Developers’ May 24, 2005 Petition for Annexation depicts Gibsons’ easement in its
historical location across the land to be annexed, and the City’s June 20, 2005 Resolution
No. 3641 annexes the land “as depicted on S/D #253,” which likewise shows Gibsons’
easement in its historical location. Gibsons never consented to the relocation of all or a
part of their easement by the Developers. Nevertheless, the Developers unilaterally
relocated a portion of Gibsons’ easement, in violation of Montana law.1 And now the
question, as stated by the Court, is “what relief should be fashioned to restore the rights
of the easement owner.” Opinion, ¶ 15.
1
At trial, the Developers justified this action on the ground that “[annexation] by
the City, in our mind, gave us the ability to move this street down here, if we needed to.”
This was not the view of the City, however, which sent a letter to the Developers dated
May 8, 2006, stating: “[I]t is the City’s position that approval of your preliminary plat
has no legal effect upon the pre-existing easements.” The City also observed that “[f]rom
a brief review of the record, it does appear that when you purchased the property you
should have been on notice that the property was subject to these easements. The mere
fact that you have provided alternative routes does not extinguish these pre-existing
easements.”
15
¶38 Ideally, the District Court should have ordered that Prairie Drive be returned to its
precise historical location. However, the court believed it was constrained from doing so
due to the fact that Gibsons had settled with the City, and correspondingly dismissed their
claims against the City, earlier in the litigation. The court thus reasoned in its Order that
[t]he problem the Court face[s] is that this road now belongs to the City of
Livingston and the remaining defendants cannot alter or improve Prairie
Drive without obtaining approval and permits from the City. Since the City
was dismissed from this suit, the Court has no authority to order the City to
do anything about the streets in the annexed area at issue.
Given these circumstances, the District Court fashioned a remedy designed to best
approximate the relief sought by Gibsons. It ordered the Developers to restore the curves
in Prairie Drive to accommodate Gibsons’ historical use of their easement.
¶39 On the specific facts presented here, I believe this remedy will sufficiently restore
the easement. As reflected in the diagram following ¶ 4 of the Opinion, the Developers
took a 550-foot stretch of Gibsons’ easement (the arch running from Lot 66A, through
Lots 65A and 65B, over to Lots 69A, 69B, and 70A) and replaced it with the 450-foot
straight stretch running west-east across the diagram. In order to comply with the District
Court’s order, the Developers will have to reconfigure Lot 66A or Lot 77A (or both) on
the west side, and Lot 69B (and perhaps other neighboring lots) on the east side, of the
west-east stretch of Prairie Drive. The end result will be that the road is configured
substantially the same as it was before—albeit, with the middle of the west-east stretch
located roughly 150 feet south of where it had been.
¶40 However, while I conclude that this remedy is sufficient to restore Gibsons’
easement, I categorically reject the “don’t ask permission; ask forgiveness” approach
16
followed by the Developers in this case. And I do not believe that our decision should be
read as countenancing the sort of flagrant violation of easement rights that occurred here.
¶41 As Gibsons point out in their brief, and as the Court reaffirms in ¶¶ 13 and 15 of
the Opinion, the law in Montana is that neither the owner of the dominant estate, nor the
owner of the servient estate, may ordinarily change the location of all or part of a right-
of-way, without consent of the other. Parker v. Elder, 233 Mont. 75, 80, 758 P.2d 292,
295 (1988); see also e.g. Anderson v. Stokes, 2007 MT 166, ¶ 46, 338 Mont. 118, 163
P.3d 1273 (holding that the location of the easement was fixed to its historical location
and could not be unilaterally relocated by the owner of the dominant estate). As a matter
of fact, this no-unilateral-relocation rule is the majority rule in the United States. See Jon
W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land § 7:13, 7-31
(Thomson Reuters 2011) (“As a general rule, once the location of an easement has been
established, neither the servient estate owner nor the easement holder may unilaterally
relocate the servitude.” (citing numerous cases)); Stamatis v. Johnson, 224 P.2d 201,
202-03 (Ariz. 1950); Herren v. Pettengill, 538 S.E.2d 735, 736 (Ga. 2000); Davis v.
Bruk, 411 A.2d 660, 664 (Me. 1980); Everdell v. Carroll, 336 A.2d 145, 155 (Md. Spec.
App. 1975); A. Perin Dev. Co., LLC v. Ty-Par Realty, Inc., 667 S.E.2d 324, 326-27 (N.C.
App. 2008); MacMeekin v. Low Income Hous. Inst., Inc., 45 P.3d 570, 575-76 (Wash.
App. Div. 1 2002); Thompson on Real Property vol. 7, § 60.04(c)(1)(ii), 538 (2d Thomas
ed., Matthew Bender 2006).
¶42 One reason for prohibiting unilateral relocation is that treating the location of the
easement as variable “would introduce considerable uncertainty into land ownership and
17
incite litigation.” R.C.R., Inc. v. Rainbow Canyon, Inc., 978 P.2d 581, 588 (Wyo. 1999)
(citing Stamatis, 224 P.2d at 203); accord Crisp v. VanLaeken, 122 P.3d 926, ¶ 14
(Wash. App. Div. 2 2005) (“Judicial relocation of established easements . . . would
introduce uncertainty in real estate transactions.”). Moreover, “the easement holder could
be subject to harassment by the servient owner’s attempts to relocate to serve his own
conveniences.” R.C.R., Inc., 978 P.2d at 588 (citing Davis, 411 A.2d at 665); accord
Bruce & Ely, The Law of Easements and Licenses in Land § 7:13, 7-32 (“The
no-unilateral-relocation general rule also protects the easement holder from such
developments as capricious adjustments of the easement route by the servient estate
owner.”). “[T]he traditional approach—which effectively requires servient landowners to
purchase, or obtain by consent, the right to relocate a legally established right-of-way—
‘favors uniformity, stability, predictability and property rights.’ ” Sweezey v. Neel, 2006
VT 38, ¶ 24, 904 A.2d 1050 (quoting MacMeekin, 45 P.3d at 579).
¶43 A handful of courts have fashioned an exception to the no-unilateral-relocation
rule, permitting the owner of the servient estate to relocate the easement if the original
termini are retained and the easement holder is not materially inconvenienced. See Bruce
& Ely, The Law of Easements and Licenses in Land § 7:16, 7-37 to 7-38. However, as
the Supreme Judicial Court of Maine pointed out, such an exception
would definitely introduce considerable uncertainty into land ownership, as
well as upon the real estate market, and serve to proliferate litigation which
the general rule as prevails in Maine has tended to prevent. Indeed, the
owner of the dominant estate would be deprived of the present security of
his property rights in the servient estate and could be subjected to
harassment by the servient owner’s attempts at relocation to serve his own
conveniences. A unilateral relocation rule could confer an economic
18
windfall on the servient owner, who presumably purchased the land at a
price which reflected the restraints existing on the property. Such a rule
would relieve him of such restraints to the detriment of the owner of the
dominant estate whose settled expectations would be derailed with
impunity.
Davis, 411 A.2d at 665.
¶44 Similarly, the Supreme Court of Georgia observed that
[a]llowing unilateral avoidance of the contract by the owner of the servient
estate not only would violate fairness principles, it also would create
uncertainty in real property law by opening the door for increased litigation
over “reasonableness” issues based on today’s conditions rather than those
considered in the original bargain. No doubt, when the servitude was first
created both parties considered all market factors, including their respective
costs and benefits, before agreeing on the consideration for the transaction.
If the benefits of relocation become substantial enough, it is the market that
should ultimately bring the parties together again, not the courts.
Herren, 538 S.E.2d at 736. Hence, few courts recognize such a standard exception to the
no-unilateral-relocation general rule. Bruce & Ely, The Law of Easements and Licenses
in Land § 7:16, 7-39. And no such exception exists under Montana law.
¶45 Of course, absent an express provision to the contrary in the grant or reservation of
the easement, the servient landowner may utilize the established easement area “in any
manner and for any purpose that does not unreasonably interfere with the rights of the
easement holder.” Bruce & Ely, The Law of Easements and Licenses in Land § 8:20,
8-61 to 8-63; see also Sampson v. Grooms, 230 Mont. 190, 196-97, 748 P.2d 960, 964
(1988). The servient landowner may even impede the easement with a gate if doing so
“is necessary for the reasonable use of the servient estate,” “does not interfere with
reasonable use of the right-of-way,” and “is not expressly prohibited by the grant [or
reservation] of an easement or impliedly prohibited by the surrounding circumstances.”
19
Gabriel v. Wood, 261 Mont. 170, 177, 862 P.2d 42, 46 (1993). But the right to make
reasonable use of the servient estate does not include the right to unilaterally relocate the
easement, as the authorities cited above establish. See also Bruce & Ely, The Law of
Easements and Licenses in Land § 7:13, 7-31, § 7:17, 7-46 to 7-48.
¶46 Again, unilateral relocations are disallowed for the following reasons:
1. treating the location of the easement as variable would introduce considerable
uncertainty into land ownership, as well as upon the real estate market, and
serve to proliferate litigation;
2. the easement holder would be deprived of the present security of her property
rights in the servient estate, her settled expectations could be derailed with
impunity, and she could be subjected to harassment by the servient owner’s
attempts at relocation to serve his own present conveniences;
3. the traditional approach—which effectively requires servient landowners to
purchase, or obtain by consent, the right to relocate a legally established right-
of-way—favors uniformity, stability, predictability, and property rights;
4. a rule allowing unilateral relocations could confer an economic windfall on the
servient owner, who presumably purchased the land at a price which reflected
the restraints existing on the property; and
5. allowing unilateral avoidance of the contract by the owner of the servient estate
would open the door for increased litigation over “reasonableness” issues
based on today’s conditions rather than those considered in the original
bargain.
As the Georgia Supreme Court pointed out, “when the servitude was first created both
parties considered all market factors, including their respective costs and benefits, before
agreeing on the consideration for the transaction. If the benefits of relocation become
substantial enough, it is the market that should ultimately bring the parties together again,
not the courts.” Herren, 538 S.E.2d at 736.
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¶47 Notably, we already have a rule that “prescriptive easements cannot be relocated
by verbal or tacit consent.” Leisz v. Avista Corp., 2007 MT 347, ¶ 16, 340 Mont. 294,
174 P.3d 481 (citing Glenn v. Grosfield, 274 Mont. 192, 196, 906 P.2d 201, 204 (1995)).
Rather, the parties must mutually agree in writing to relocate the easement. See Glenn,
274 Mont. at 195-96, 906 P.2d at 203-04. The same rule should apply with even greater
force to an easement created in writing, as in the present case.
¶48 Harassment of dominant landowners and breaches of contract through unilateral
relocations of easements by servient landowners are contrary to established Montana law
under Parker and cannot be tolerated. However, because the remedy ordered by the
District Court here will result in Prairie Drive’s being configured substantially the same
as it was before, I agree with the Court’s decision to affirm the District Court under Issue
One.
¶49 With the foregoing caveats, I specially concur.
/S/ JAMES C. NELSON
Justices Jim Rice and Michael E Wheat join in the Special Concurrence of Justice James
C. Nelson.
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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