dissenting.
While I agree with the majority opinion in the conclusion that an exclusive easement is an interest recognized by law, I dissent from the majority holding and disposition. The majority holds and disposes of this case by claiming that the easement is ambiguous and then remands to the trial court to make a finding of fact regarding the intention of the parties.
Assuming that the language of the easement was ambiguous, which I seriously question, I disagree with the majority position that “it appears ... that the trial court considered only the language in the instrument and held as a matter of law that the defendants had the exclusive right to use the easement.” Ante, p. 1051. To me it is clear from the transcript and record that the trial court considered the circumstances and evidence as a whole in reaching its decision. The trial court’s memorandum decision which it had ordered “constitutes the Findings of Fact and Conclusions of Law,” stated that:
“In each of said easements the following language appears.
‘To have and to hold the said easement and right-of-way unto the second parties, exclusively for their use, and unto their successors and assigns forever.’ “Also contained in each of said easements is a warranty of title on the part of the grantor.
“The question presented here for a decision is the extent of the use acquired by *861the defendants herein as opposed to the owner of the land, that is, the plaintiffs.
“It should further be noted that these easements were acquired in 1968 for a valuable consideration; that the defendants constructed the roadway in question and for most of said period have excluded all others from the use of said road by means of chains or gates or other impediments to normal travel. Also defendants have done all the maintenance of said roadway all at considerable expense to them.
“In the case of Reiver, et al., vs. Voshell, et al., (Del.) [18 Del.Ch. 260] 158 Atl. 366, the Court of Chancery of Delaware observed the following:
‘... since a private right-of-way carries with it by implication only such incidents as are necessary to its reasonable enjoyment, the grant of such a right, which is not exclusive in its terms, and which can be reasonably enjoyed without being exclusive, leaves in the grantor the right of user in common with the grantee.’
“This language is found in 9 RCL, page 797.
‘It is expressive of the general rule, the absence of the element of exclusiveness, it is to be noted, is essential for the continuance of the grantor’s dominion as owner of the fee.’ (Emphasis added.)
“In the case of Conover, et al. vs. Atlantic City Sewage Company, et al. [70 N.J.Law 315], 57 Atl. 897, the New Jersey Court of Errors and Appeals observed as follows:
‘The opinion stated the legal rule to be that a grant of the exclusive use of lands, as it excludes the grantor from all benefit in it, is a grant of the soil itself, and not a mere easement.’
“As observed by Professor Thompson in his work on Real Property, 1961 Edition, Volume 2, Section 319 at page 40:
‘A grant of the exclusive use of land is not an easement, for such a grant excludes the grantor, and is in practical effect a grant of the soil itself. So there can be no independent easement of way in the owner of the fee. It has been held that the employment of the word “use” in a conveyance, with the intention to thereby grant and convey the entire use or dominion over the land, creates an estate in fee and not an easement. The conveyance of a strip of land in explicit terms with the •restriction that it should be used for a private way is a grant in fee.’
“Various eases are cited in support of these statements.
“It would therefore appear to be the general rule that the grant of an exclusive easement in effect passes the fee simple title to the grantee; and in this case all the elements of exclusiveness are present as well as the words of conveyance and description.
“However, it is not necessary for the Court to so hold, as the defendants only contend that they acquired an exclusive easement to the exclusion of everyone, including the grantor. Under these circumstances, in the event the easement is abandoned or relinquished, it is possible that the title would revert to the grantor or his successors in interest.
“Furthermore, the nebulous character of the description of the easement across the west half of the northwest quarter of the northeast quarter of said Section 23 was cured by the reference to the attached plat as well as the fact that the road was constructed and maintained in its present location for a period of nine years prior to the time that the plaintiffs herein questioned the right of the defendants and the fact that plaintiffs had knowledge of the road’s location and the instruments in question prior to the time that they entered into the agreement to purchase.
“It is therefore the Court’s conclusion that the rights of the defendant to the exclusive use of the roadway to the exclusion of all others, including the plaintiffs, should be quieted and confirmed in them.”
*862Furthermore, the plaintiff’s motion to set aside the judgment was properly denied by the trial court. The affidavits of the plaintiff and his predecessor, Leischner, offered in support of a motion failed to demonstrate that the judgment should be set aside. Neither demonstrates excusable neglect nor any other reason to set aside the judgment. Plaintiff’s failure to present Leischner as a witness at trial or evidence of her intention at the time the easement was granted is not excusable neglect under I.R.C.P. 60(b)(1). Appellant fails to demonstrate that his neglect is excusable. In the absence of such a showing, to remand for further findings implicitly sanctions a lawyer’s second chance rule. The appropriate time to present evidence as to the grantor’s intention was at trial and not after an adverse judgment.
The trial court decision should be affirmed.