concurring in part.
Appellate disposition of the single issue presented has been particularly troublesome to the Court, making it appropriate that I briefly delineate the reasons which bring me to join Justice Bakes in reversing, although I find merit in the views expressed in the dissents of Justice Donaldson and Justice Shepard. It is proper that we should also be heavily influenced by the views of Judge Towles, which are set forth verbatim in Justice Donaldson’s dissenting opinion. Judge Towles pointed to authority standing for the proposition that a grant of an exclusive easement does not merely create an easement but is a “grant in fee.” His view was that although he was justified in holding that here the fee passed rather than that an easement was created, it was permissible to recognize the creation of an exclusive easement solely to protect the possibility of reversion in the event of abandonment or relinquishment.
The various opinions discuss the issue of ambiguity of the instrument. Other ambiguity upon which the Court is in disarray has to do with the decision of Judge Towles, of which it is said by Justice Bakes that Judge Towles simply made a legal interpretation of an instrument ambiguous on its face, with which Justice Donaldson disagrees, finding it “clear” that Judge Towles’ decision was based upon a consideration of “the circumstances and evidence as a whole.” Justice Shepard joins that view of Justice Donaldson, and points to that portion of Judge Towles’ decision giving mention to the facts that defendants constructed the road, maintained the roadway at considerable expense, and attempted to exclude all others by means of chains or gates. Justice Shepard himself throws in the equitable proposition that “[pjlantiff could have obtained the use of that road by contributing a share of the cost of the construction and maintenance of the road,” but did not do so.
These facts are acknowledged in the opinion of Justice Bakes, and therein properly designated as “uncontroverted.” Such, to my mind, simply demonstrate the heart of the controversy. Defendants acted consistently with their view that the instrument in question conferred upon them the sole right to the use of the easement roadways — even as against the plaintiff. Plaintiff’s actions and contentions simply were consistent with his contrary view. While it might have been more conscionable for the plaintiff (or his predecessor-in-interest) to have contributed to the expense of construction and maintenance of the roadway transversing the easement area, see George v. Tanner, (Idaho 1982), it equally might have been more conscionable for the defendants to have paid considerably more than the nominal sum of $540.00 for an instrument, the legal effect of which is thereafter contended to have deprived the grantor of all future rights to the use of the easement roadway — notwithstanding that pursuant to such legal argument the grantor’s property is neatly bisected and the roadway is not only of no benefit, but presumably creates a considerable detriment in value to the grantor’s property. For my part, I put aside uncontroverted facts which are merely self-serving of the parties’ respective contentions, and likewise put aside appellate notions of equity. I return to the ambiguity, if any, of the instrument in question, keeping in mind that a nominal sum was the consideration given in exchange for the same.
A beginning point is the language of Justice Shepard wherein he states that “[tjbe owner of a servient estate which is burdened with an easement ordinarily has a *860right to use the easement in the absence of an express agreement to the contrary.” I endorse that view as a sound general statement of the law, and call attention to the fact that it is well fortified by supporting authority set forth in his opinion. The document in question does not contain “an express agreement to the contrary.” Accordingly, then, the owner of the servient estate, here the plaintiff, “has a right to use the easement,” and I am at a loss to understand the basis of Justice Shepard’s dissent, unless it is his view that the uncontroverted extrinsic evidence — largely equitable considerations both pro and con — mandate that we uphold the trial court. For reasons pointed out earlier, I am not so persuaded.
Nor am I persuaded to the view of Justice Bakes that on remand following reversal a second trial should be had. Justice Donaldson “seriously questions” that the language of the easement is ambiguous. I tend toward that same view, but am necessarily tempered therein where the highest appellate court in Idaho is unable to find unanimity in the legal effect of the language used.
For certain, I agree with Justice Shepard that an instrument should contain an express agreement prohibiting the owner of the servient estate from using the easement if it is later to be held that the easement granted is solely the property of the grantee — even to the exclusion of the servient estate. Here, there is no such express agreement. At best, a very poor best, there is whatever implication can be drawn from the language used, but from it I find nothing which persuades me that the grantor was, in effect, conveyancing away the fee to a strip of property which divided his land into two parts, with the result that he would no longer have any right to cross over the easement area from one parcel to the other or go on to and use it for any purpose. The language, coupled with the conceded fact of the nominal consideration, is better understood as an intendment that the grantees and owners of the dominant estate were given that estate “exclusively for their use” and not at liberty to in turn let third parties use the road and easement area unless such third parties were successors-in-interest to ownership of the dominant estate. While I tend to agree with Justice Shepard and Justice Donaldson that there is no need for any further proceedings on remand, I do not join their opinions or so vote. I concur in reversing the trial court, but would direct entry of judgment for plaintiff. The vote being as it is, it seems that the issue of a second trial will now be left open to the discretion of the trial court as was the case in Dinneen v. Finch, 100 Idaho 620, 603 P.2d 575 (1979).