September 24 2009
DA 08-0587
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 317
BROADWATER DEVELOPMENT, L.L.C.,
and LEWIS AND CLARK COUNTY,
Plaintiffs and Appellees,
v.
STEPHANIE J. NELSON,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark, Cause No. CDV-2007-944
Honorable Thomas C. Honzel, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Colleen M. Dowdall, Worden Thane P.C., Missoula, Montana
For Appellee Broadwater Development L.L.C.:
Amos Rogers Little, III, Attorney at Law, Helena, Montana
For Appellee Lewis and Clark County:
Leo J. Gallagher, Lewis and Clark County Attorney, K. Paul Stahl,
Jeff Sealey, Deputy County Attorneys, Helena, Montana
Submitted on Briefs: July 8, 2009
Decided: September 24, 2009
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Broadwater Development, LLC filed a Petition for Declaratory Judgment in the
First Judicial District Court, Lewis and Clark County, on December 4, 2007, seeking
declaratory rulings that an alleged 60-foot emergency public access and utility easement
over the property of Stephanie J. Nelson is valid and enforceable against Nelson and that
a Notice of Invalid Easement filed in the Lewis and Clark County Clerk and Recorder’s
Office is invalid and of no legal effect. Nelson answered the petition and denied
Broadwater Development’s allegations. Thereafter, Lewis and Clark County intervened
in the litigation in order “to protect its interest” in the alleged easement. The District
Court ultimately granted summary judgment in favor of Broadwater Development and
the County, determining that the alleged 60-foot easement is a valid and enforceable
express easement and that the Notice of Invalid Easement is itself invalid. Nelson now
appeals. We affirm.
BACKGROUND
¶2 The properties at issue in this case are located west of Helena, Montana, on the
north side of U.S. Highway 12. The westernmost property is owned by Frank and Bonita
Gruber, who in 2002 began the process of subdividing this land to create the Broadwater
Estates Major Subdivision. To the north and east of the subdivision, but not part of the
subdivision, is a parcel (the “Gruber parcel”) which the Grubers owned in 2002 and then
sold to Michael and Gaylynn Wagner in 2003. Finally, the easternmost property (the
“State Nursery property”) was owned by State Nursery & Seed Company until 2003 and
is now owned by Nelson.
2
¶3 Piecing together two surveys of the area provided in the record, the properties are
situated as follows:
Gruber parcel State Nursery property
disputed 60’ easement
Broadwater
Estates Old Broadwater Lane
Subdivision
Broadwater Intersection of Hwy. 12
Estates and the easement
Subdivision Hwy. 12
Intersection of Hwy. 12 and
Old Broadwater Lane
¶4 In July 2002, the County granted preliminary approval for the creation of the
Broadwater Estates Major Subdivision (consisting of 60 lots). The preliminary approval
was subject to 25 conditions that had to be met before the subdivision could receive final
approval. Of relevance here, County regulations required the subdivision to have two
ingress/egress routes meeting County road standards. Because only one such route
existed (Old Broadwater Lane, which runs from Highway 12 through the proposed
subdivision in a northerly direction), the Grubers proposed to create a second route
3
connecting to the highway through land located north and east of the subdivision.
Specifically, the route would begin at the existing terminus of Old Broadwater Lane,
cross the Gruber parcel, enter the adjoining State Nursery property and connect with the
existing State Nursery access road, and then end at the highway. The County agreed with
this proposal and included the following condition in the preliminary approval:
The Applicant shall construct a secondary access road, 20-feet wide
with 6-inches of all-weather surfacing . . . , from Old Broadwater Lane to
connect to the existing State Nursery access road. A 60-foot wide public
access easement shall be placed along the secondary access road from the
end of Old Broadwater Lane, across the Applicant’s property, along the
existing access road to the State Nursery, and along the existing State
Nursery access road to its intersection with US Highway 12 West. The
Applicant shall present legal documentation that has been filed with the
County Clerk and Recorders Office verifying the creation of the easement.
¶5 On July 30 and 31, 2003, the Grubers and Dean Mills (President of State Nursery)
executed a document which purported to create the required easement. This document,
filed with the Lewis and Clark County Clerk and Recorder on July 31, 2003, and
numbered 3046859, is at the center of the present litigation. It was prepared by a licensed
land surveyor and is titled:
60’ EMERGENCY PUBLIC ACCESS & UTILITY EASEMENT
FOR: BROADWATER ESTATES MAJOR SUBDIVISION
The document contains a depiction of the easement, which is labeled “60’ Emergency
Public Access & Utility Ease.” From west to east, the easement is shown beginning at an
“Existing 60’ Easement,” crossing property identified as being owned by the Grubers
followed by property identified as being owned by State Nursery, and terminating at
Highway 12. The easement is also described in metes and bounds. There is a space titled
4
“Certificate of Surveyor,” which is signed by Stephen J. Ries and dated July 30, 2003.
There is also a “Certificate of Land Owners,” which states: “We the undersigned
property owners, hereby create this 60 foot emergency public access and utility easement;
as shown by this exhibit.” The document is signed by Dean Mills, Frank Gruber, and
Bonita Gruber, each of whom is specifically identified as an “Owner.” It is also signed
by the CEO of Mountain West Bank, N.A. In addition, a signature block for Syngenta
Seeds, Inc. is included but is not signed. We shall refer to this document, a copy of
which is attached as an appendix to this Opinion, as the “Easement Agreement.”1
¶6 As noted, Nelson now owns the State Nursery property. She obtained this
property through the following series of events. Between 1999 and 2001, State Nursery
executed several promissory notes which were held by Mountain West Bank and secured
by mortgages on the State Nursery property. On July 23, 2003, Mountain West initiated
1
Broadwater Development has made a bit of an issue about what the document
should be called. Initially, the parties referred to it as “Certificate of Survey 3046859.”
But six days after we announced our decision in Blazer v. Wall, 2008 MT 145, 343 Mont.
173, 183 P.3d 84, Broadwater Development filed a motion in the District Court to amend
its Petition for Declaratory Judgment “to correct all references to the subject document
from ‘Certificate of Survey No. 3046859’ to its appropriate characterization as the
Easement recorded under Reception No. 3046859 at Book M29, p. 322.” Since then, the
parties and the District Court have used various terms, including Certificate of Survey,
easement survey, easement survey diagram, Easement Agreement, 60’ Easement, and the
Easement. Notably, the document bears the indicia of a certificate of survey in that it
contains “a drawing of a field survey prepared by a registered surveyor for the purpose of
disclosing facts pertaining to boundary locations,” § 76-3-103(1), MCA; and as we have
previously observed, if something “looks like a duck, walks like a duck and quacks like a
duck, it must be a duck[,] . . . even if it is holding a piece of paper that says it is a
chicken,” Wild v. Fregein Construction, 2003 MT 115, ¶ 31, 315 Mont. 425, 68 P.3d 855.
On the other hand, the document also contains express language purporting to create an
easement, and it is signed by the landowners. Thus, for the sake of consistency, and
because the document’s label is less important than its contents, we shall use the term
“Easement Agreement.”
5
a foreclosure action against State Nursery naming several individuals and entities as
defendants, including Syngenta Seeds. Syngenta was named because it held a mortgage
on the State Nursery property, and Mountain West alleged that Syngenta’s mortgage was
subordinate to Mountain West’s mortgages. The District Court ordered foreclosure in
December 2003; Mountain West purchased the State Nursery property at public auction
in March 2004; Syngenta exercised its right of redemption in April 2005; and Syngenta
assigned to Nelson its right to receive the Sheriff’s Deed in June 2005. On July 7, 2005,
Mike Nelson (acting as property manager for Syngenta) recorded a document titled
“Notice of Invalid Easement,” in which he asserted that the Easement Agreement was
“invalid due in part by a lack of vital signatures and a blatant disregard for the largest lien
holder of the property in question.” Finally, the Sheriff’s Deed conveying the State
Nursery property to Stephanie Nelson was executed July 11 and recorded July 22, 2005.
¶7 Meanwhile, immediately after signing the Easement Agreement on July 31, 2003,
the Grubers conveyed the Gruber parcel to the Wagners. The following month, the
Grubers granted Broadwater Development (owned by Michael Wagner at the time) an
exclusive right to develop, improve, and sell parcels of the Broadwater Estates Major
Subdivision. According to the parties’ agreement, Broadwater Development was to
complete certain infrastructure development by a specified date and the Grubers were to
provide signed warranty deeds to each parcel, when properly created, for transfer of title
to the ultimate purchaser at closing. Michael Wagner died in October 2005, and Gaylynn
Wagner (as personal representative of his estate) sold Broadwater Development to Joseph
Mueller in October 2006. As part of the purchase agreement, Mueller agreed that
6
Broadwater Development would remain obligated to perform the agreements related to
the development of Broadwater Estates Major Subdivision.
¶8 One such agreement was a Subdivision Improvements Agreement executed by
Broadwater Development, the Grubers, and the County on July 11, 2006, in conjunction
with the final subdivision plat approval. Among other things, Broadwater Development
and the Grubers agreed within a specified timeframe to construct the secondary access
road from Old Broadwater Lane to the existing State Nursery access road. At this point,
Gaylynn Wagner owned the Gruber parcel and Nelson owed the State Nursery property.
Broadwater Development proceeded with construction of the road from the terminus of
Old Broadwater Lane over the Gruber parcel. But Nelson refused to permit construction
of the road across the State Nursery property, and she refused to remove encroachments
within the easement. In addition, her husband apparently threatened to file charges if the
road builder entered the State Nursery property. Consequently, Broadwater Development
commenced the instant action against Nelson in order to establish the validity of the
easement, and the County later intervened, as noted, in order “to protect its interest” in
the easement. In addition, the County extended Broadwater Development’s deadline for
completing the mandates of the Subdivision Improvements Agreement.
¶9 The parties filed cross-motions for summary judgment. Their briefing focused on
whether the Easement Agreement validly created the 60-foot easement. Broadwater
Development and the County argued that the document met all of the formal
requirements for granting an express easement. Furthermore, the County argued that the
easement was an easement in gross held by the public and, as such, did not have a
7
dominant tenement (i.e., did not benefit a particular parcel of land), though the County
also asserted that the residents of Broadwater Estates in particular were “entitled to the
benefit of the easement to ensure their health and safety in case of an emergency.”
¶10 In Nelson’s view, however, the Easement Agreement was deficient in several
respects—namely, it failed to identify the grantor and the grantee, failed to identify the
dominant and servient tenements, did not include language of transfer, did not adequately
describe the servitude being created, and did not contain language of dedication to the
public. Nelson opined that the document was simply “an exhibit” that was designed to be
referred to in a separate instrument of conveyance, but she pointed out that there were no
instruments of conveyance referring to the Easement Agreement. Moreover, invoking
Blazer v. Wall, 2008 MT 145, 343 Mont. 173, 183 P.3d 84, Nelson analogized the
depiction in the Easement Agreement to the depiction in the certificate of survey at issue
in Blazer. She argued that the easement shown in the Easement Agreement could be
across the State Nursery property for the benefit of the Gruber parcel or could be across
the State Nursery property and the Gruber parcel for the benefit of the Broadwater Estates
Major Subdivision (which, she contended, did not exist at the time the Easement
Agreement was executed because it had not yet received final approval from the County).
Nelson contended that this uncertainty as to the identity of the dominant tenement was
fatal under Blazer, and she insisted that Broadwater Development’s and the County’s
reliance on factual information not contained on the face of the Easement Agreement was
inappropriate. Finally, as to the County’s contention that the purported easement was in
gross, Nelson asserted that the easement was not for the general public to use in the same
8
way as Highway 12; rather, “the title [of the Easement Agreement] indicates that
whatever was to be transferred was to benefit the Broadwater Estates Subdivision.”
¶11 In addressing the parties’ contentions, the District Court first decided that this case
does not involve the easement-by-reference doctrine, under which an easement may be
created by referring in an instrument of conveyance to a recorded plat or certificate of
survey on which the easement is adequately described. Blazer, ¶¶ 27, 40. Rather, the
court stated, “the dispositive issue is whether the Grubers and State Nursery created a
valid express easement while using an easement survey diagram, along with a metes and
bounds description to describe the easement.” Nevertheless, the court noted that some of
the principles articulated in Blazer were “guiding” in determining this issue.
¶12 The District Court then considered the requirements for expressly granting an
easement: an instrument in writing that identifies the grantor and the grantee, adequately
describes what is being conveyed, contains language of conveyance, and is signed. See
Kuhlman v. Rivera, 216 Mont. 353, 359, 701 P.2d 982, 985 (1985); §§ 70-20-101, -103,
MCA. Here, the court observed, the Easement Agreement is in writing, the property
owners are identified as the Grubers and State Nursery, the Grubers and State Nursery
signed the document, and it can be reasonably ascertained from the document as a whole
that the Grubers and State Nursery are the grantors and Broadwater Estates Major
Subdivision is the grantee. Next, the court determined that the easement is adequately
described since the Easement Agreement states that the easement is to serve as a public
access and utility easement for the subdivision and since the easement’s course is detailed
in a diagram as well as a metes-and-bounds description. The court further determined
9
that the terms “hereby create” in the sentence “We the undersigned property owners,
hereby create this 60 foot emergency public access and utility easement” constitute
language of conveyance. Lastly, the court noted that the Easement Agreement was
recorded, thus putting Nelson on notice of the easement’s existence.
¶13 In light of the foregoing, the District Court held that “the Grubers and State
Nursery conveyed and created an easement, using an adequately labeled diagram and
express language.” The court thus granted Broadwater Development’s and the County’s
motions for summary judgment and denied Nelson’s motion for summary judgment. The
court entered judgment decreeing that the 60-foot easement is “a valid and enforceable
express easement” and that the Notice of Invalid Easement is invalid.
ISSUES
¶14 Nelson contends that the District Court erred in granting summary judgment in
favor of Broadwater Development and the County. She raises three issues:
1. Did the District Court erroneously rely on facts outside the four corners of the
Easement Agreement, making summary judgment inappropriate?
2. Does the Easement Agreement satisfy the requirements for creating an express
easement?
3. Did the County fail to accept the easement?
STANDARD OF REVIEW
¶15 We review de novo a district court’s ruling on a motion for summary judgment,
applying the criteria set forth in M. R. Civ. P. 56. Arnold v. Yellowstone Mountain Club,
LLC, 2004 MT 284, ¶ 12, 323 Mont. 295, 100 P.3d 137. Summary judgment “shall be
10
rendered forthwith if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of
law.” M. R. Civ. P. 56(c). Whether a fact is “material” depends on the substantive law,
i.e., the elements of the cause of action or defenses at issue. See Arnold, ¶ 15; Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). Only genuine
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248, 106 S. Ct.
at 2510. A dispute is “genuine” if the evidence is such that a reasonable fact-finder could
return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.
Where the material facts are undisputed, the court must simply identify the applicable
law, apply it to the uncontroverted facts, and determine who prevails. See Corporate Air
v. Edwards Jet Center, 2008 MT 283, ¶ 28, 345 Mont. 336, 190 P.3d 1111.
DISCUSSION
¶16 Issue 1. Did the District Court erroneously rely on facts outside the four corners
of the Easement Agreement, making summary judgment inappropriate?
¶17 Nelson contends that in support of their motions for summary judgment,
Broadwater Development and the County presented the District Court with extrinsic
evidence—i.e., “[e]vidence relating to a contract but not appearing on the face of the
contract because it comes from other sources, such as statements between the parties or
the circumstances surrounding the agreement,” Black’s Law Dictionary 578 (Bryan A.
Garner ed., 7th ed., West 1999). Nelson further contends that the District Court relied on
11
this evidence when interpreting the Easement Agreement. She lists a number of
“extrinsic facts” the court considered, including the following: Broadwater Estates Major
Subdivision is located west of Helena off Highway 12; the Grubers own the property
making up the subdivision; the County conditioned final approval of the subdivision on
the creation of an easement and the construction of a road across the Gruber parcel and
the State Nursery property; the Easement Agreement was executed and recorded in 2003
“in accordance with” this condition; the Grubers granted Broadwater Development the
right to develop the subdivision; the Grubers, Broadwater Development, and the County
entered into a Subdivision Improvements Agreement which required the developer to
construct the road by a specified date; Mueller bought Broadwater Development and
assumed responsibility for Broadwater Development’s obligations; and the County has
extended the deadline for completing the road.
¶18 Nelson reasons that the Easement Agreement “alone” must meet the requirements
of an express easement, but the Easement Agreement is deficient in numerous respects,
thus the extrinsic evidence provided by Broadwater Development and the County must
have been a “factor” in the District Court’s determination that the easement is valid.
Citing Blazer, ¶ 49, and Proctor v. Werk, 220 Mont. 246, 250, 714 P.2d 171, 173 (1986),
Nelson argues that the essential elements of an express easement may not be supplied by
extrinsic evidence and that “[w]hen extrinsic evidence is required to determine the
interpretation of a contract, summary judgment is not appropriate.” In other words, she
claims that the District Court erroneously relied on facts outside the four corners of the
Easement Agreement, making summary judgment inappropriate. We disagree.
12
¶19 The construction of a writing granting an interest in real property (such as an
easement) is governed by the rules of contract interpretation. See Van Hook v. Jennings,
1999 MT 198, ¶¶ 10-12, 295 Mont. 409, 983 P.2d 995; Mularoni v. Bing, 2001 MT 215,
¶ 32, 306 Mont. 405, 34 P.3d 497; Mary J. Baker Revoc. Trust v. Cenex Harvest States,
2007 MT 159, ¶ 18, 338 Mont. 41, 164 P.3d 851; Wills Cattle Co. v. Shaw, 2007 MT 191,
¶ 19, 338 Mont. 351, 167 P.3d 397; § 70-1-513, MCA. Those rules, in turn, state that a
contract must be so interpreted as to give effect to the mutual intention of the parties as it
existed at the time of contracting, § 28-3-301, MCA, and that when a contract is reduced
to writing, the intention of the parties is to be ascertained from the writing alone if
possible, § 28-3-303, MCA. Indeed, when the terms of an agreement have been reduced
to writing by the parties, it is to be considered as containing all those terms, and
therefore, as a general rule, there can be between the parties and their representatives or
successors in interest no evidence of the terms of the agreement other than the contents of
the writing. Sections 28-2-905(1), 70-20-202(1), MCA.
¶20 But contracts are not created in a vacuum, and the foregoing rules do not prohibit a
court from hearing the circumstances under which the agreement was made or the matter
to which it relates. See §§ 28-3-402, 28-2-905(2), 70-20-202(2), MCA. As the County
points out, § 1-4-102, MCA, states that “[f]or the proper construction of an instrument,
the circumstances under which it was made, including the situation of the subject of the
instrument and of the parties to it, may also be shown so that the judge is placed in the
position of those whose language the judge is to interpret.” In Baker Revoc. Trust, ¶ 47
n. 5, we noted that there may be several purposes for which evidence is admissible under
13
this statute. For example, objective evidence of the circumstances under which a contract
was made may be shown to aid the court in determining, as a preliminary matter, whether
the contract contains an ambiguity. 2 Baker Revoc. Trust, ¶ 55; accord Richards v. JTL
Group, Inc., 2009 MT 173, ¶ 33, 350 Mont. 516, 212 P.3d 264. Likewise, we recently
considered surrounding circumstances in determining whether a particular interpretation
of an easement agreement would lead to an absurdity. Mattson v. Montana Power Co.,
2009 MT 286, ¶¶ 26-28, 352 Mont. 212, ___ P.3d ___. And, as discussed below, the
determination of whether a given easement is appurtenant or in gross may require
consideration of the circumstances existing at the time of execution. See ¶ 34, infra.
¶21 Still, there are limits on the use of such evidence, particularly when it comes to
written documents of conveyance. Evidence of surrounding circumstances may not be
used to add to, vary, or contradict the terms of the contract. Baker Revoc. Trust, ¶ 21.
Nor may extrinsic evidence be used to supply a property description in the first instance,
to complete a description that is insufficient, or to show the intention with which it was
made. See Blazer, ¶ 71. And it may not be used to show an intention independent of the
instrument. See Hollis v. Garwall, Inc., 974 P.2d 836, 843 (Wash. 1999). As we have
said, good-faith purchasers of real property are entitled to rely on publicly recorded
deeds, plats, and certificates of survey pertaining to the subject property to disclose
accurately all encumbrances, easements, and impediments thereon; they are not required
to track down unrecorded extrinsic evidence in order to ascertain the use or necessity of a
2
The parties do not contend that the Easement Agreement contains ambiguous
terms. In fact, Broadwater Development and the County contend that it is unambiguous,
while Nelson argues that it is simply missing essential terms.
14
purported easement depicted on a plat or certificate of survey in their chain of title.
Blazer, ¶ 74. Requiring subsequent purchasers to investigate not only their chain of title
but also the “context” within which each conveyance in the chain was executed “would
be an impractical burden, perhaps an impossible one, and would virtually destroy the
utility of the real estate recording system.” 3 Olson v. Trippel, 893 P.2d 634, 639 (Wash.
App. Div. 2 1995).
¶22 The sum of all this is that a court is not required to conduct its analysis in a
vacuum. For purposes of interpreting a writing granting an interest in real property,
evidence of the surrounding circumstances, including the situation of the property and the
context of the parties’ agreement, may be shown so that the judge is placed in the
position of those whose language the judge is to interpret. Section 1-4-102, MCA.
However, to comply with the statute of frauds (§ 70-20-101, MCA) and the recording
system (see generally Title 70, chapter 21, MCA), the writing itself must ultimately stand
on its own and meet all of the formal requirements for granting the property interest.
¶23 Here, the District Court was apprised of various facts not contained within the four
corners of the Easement Agreement. The court was allowed to consider this evidence for
purposes of understanding the situation of the parties, the properties, and the easement at
issue. The court recited these “extrinsic facts” as “Background” in its Memorandum and
Order, but it appears that the court’s analysis of the easement’s validity was limited to the
face of the Easement Agreement—Nelson’s speculation to the contrary notwithstanding.
3
For these reasons, we reject Broadwater Development’s and the County’s use of
affidavits provided by Mills and the Grubers in which they state what their intention was
in executing the Easement Agreement.
15
Finally, unlike Proctor, where “the true intent of the parties [was] discernable only with
reference to extrinsic evidence,” Proctor, 220 Mont. at 250, 714 P.2d at 173, we conclude
below in Issue 2 that the Grubers’ and State Nursery’s intent is discernable without
reference to extrinsic evidence. Accordingly, we hold that the District Court did not
erroneously rely on “extrinsic facts.”
¶24 Issue 2. Does the Easement Agreement satisfy the requirements for creating an
express easement?
¶25 Broadwater Development and the County claim an easement created by express
grant in the Easement Agreement. An easement may be expressly granted by using
appropriate language in an instrument of conveyance, see e.g. Kuhlman, 216 Mont. at
359, 701 P.2d at 985, or by referring in an instrument of conveyance to a recorded plat or
certificate of survey on which the easement is adequately described (the easement-by-
reference doctrine), see Blazer, ¶¶ 40-41. Nelson asserts that the Easement Agreement
“combines the elements” of both of these methods, and she relies heavily on Blazer in
arguing that the Easement Agreement is deficient. She asserts that the facts of Blazer are
“similar to” the facts of this case, and she attempts to show that the Easement Agreement
suffers from the same inadequacies that existed in the Blazer certificate of survey.
¶26 At the outset, we do not agree that this is an easement-by-reference case. We are
not presented with an instrument of conveyance that refers to a recorded plat or certificate
of survey on which an easement is depicted and purports by such reference to reserve or
grant an easement. See e.g. Bache v. Owens, 267 Mont. 279, 883 P.2d 817 (1994);
Halverson v. Turner, 268 Mont. 168, 885 P.2d 1285 (1994); Pearson v. Virginia City
16
Ranches Assn., 2000 MT 12, 298 Mont. 52, 993 P.2d 688. The only document at issue
here is the Easement Agreement, which purports by its own express language to create
the easement that is depicted and described on the face of the document. The question is
whether this document is sufficient in itself to create the easement. Nevertheless, we do
agree with Nelson and the District Court that certain principles articulated in Blazer (and
repeated where applicable below) are “guiding” in our analysis.
¶27 An express grant must be in writing, § 70-20-101, MCA, and the grantor’s intent
to create an easement burdening particular property for the benefit of another must be
clearly and unmistakably communicated, Blazer, ¶ 43. The whole of the writing is to be
taken together so as to give effect to every part if reasonably practicable, each clause
helping to interpret the other. Section 28-3-202, MCA. To be a valid conveyance, the
writing must (1) identify the grantor and the grantee, (2) adequately describe what is
being conveyed, (3) contain language of conveyance, and (4) be signed. Kuhlman, 216
Mont. at 359, 701 P.2d at 985 (citing § 70-20-103, MCA). Here, the grantor’s identity,
the language of conveyance, and the signature requirements are easily established;
however, the grantee’s identity and the property description require a more involved
analysis. We address each in turn.
¶28 Identity of the grantor. The Easement Agreement depicts an easement crossing
property identified as being owned by the Grubers and property identified as being
owned by State Nursery. There is a “Certificate of Land Owners,” which states: “We the
undersigned property owners, hereby create this 60 foot emergency public access and
utility easement; as shown by this exhibit.” Beneath this statement, three individuals are
17
identified as “Owner”: Dean Mills, as President of State Nursery & Seed Company Inc.;
Frank D. Gruber; and Bonita M. Gruber. Hence, it seems that State Nursery and the
Grubers are the grantors.
¶29 Nelson points out, however, that the term “grantor” does not appear on the face of
the Easement Agreement. Yet, the statute from which the four Kuhlman requirements
derive does not require the use of any specific words. It states that “[a] grant of an estate
in real property may be made in substance as follows . . . .” Section 70-20-103, MCA
(emphasis added). Nelson’s approach, requiring every conveyance of a property interest
to include the word “grantor,” elevates form over substance, and we reject it. A grantor
is simply “[o]ne who conveys property to another,” Black’s Law Dictionary 707, and it is
sufficiently clear from the depiction of the properties and the easement, the language of
the Certificate of Land Owners, and the fact that the Grubers and State Nursery are
identified as “owners” that they are the ones conveying a property interest to another.
¶30 Nelson also points out that the Easement Agreement does not identify the interests
of Mountain West Bank and Syngenta Seeds (which have their own signature blocks).
She argues that this creates uncertainty as to the identities of the grantors and the
grantees. Yet, there is no language in the Easement Agreement indicating that Mountain
West and Syngenta are conveying property to another or that property is being conveyed
to them. The Easement Agreement shows a “60’ Emergency Public Access & Utility
Easement for: Broadwater Estates Major Subdivision.” Whereas the Grubers and State
Nursery are expressly identified as owners of the tracts over which the easement is
depicted, Mountain West and Syngenta are not so identified. The inference readily
18
drawn from all this is that Mountain West and Syngenta are neither grantors nor grantees.
The failure to specify their interests does not create the uncertainty Nelson claims. We
conclude that the grantors are adequately identified as the Grubers and State Nursery.
¶31 Language of conveyance. An interest in real property can be “created, granted,
assigned, surrendered, or declared.” Section 70-20-101, MCA. Here, the Easement
Agreement states: “We the undersigned property owners, hereby create this 60 foot
emergency public access and utility easement; as shown by this exhibit” (emphases
added). An easement is a nonpossessory interest in land that gives a person the right to
use the land of another for a specific purpose. Taylor v. Montana Power Co., 2002 MT
247, ¶ 11, 312 Mont. 134, 58 P.3d 162. Hence, the Grubers’ and State Nursery’s intent to
convey a property interest over their properties is clear and unmistakable.
¶32 Signatures. The writing must be signed by the party creating, granting, assigning,
surrendering, or declaring the interest in real property. Sections 70-20-101, -103, MCA.
Here, the Easement Agreement is signed by the grantors: State Nursery and the Grubers.
Nelson makes much of the fact that although there is a signature block for Syngenta,
Syngenta did not sign the document. Yet, nothing in the Easement Agreement identifies
Syngenta as an owner of the properties over which the easement is depicted, and
Syngenta in fact was not an owner of the State Nursery property in July 2003 when the
Easement Agreement was executed. Nelson presents no factual or legal basis for
concluding that Syngenta’s signature was essential to the creation of this easement.
¶33 Identity of the grantee, and description of the property interest being
conveyed. As part of our analysis of the grantee’s identity and the adequacy of the
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property description, it is useful to begin by classifying the easement. Indeed, the parties’
briefing reflects some confusion in this regard. As noted, an easement is a nonpossessory
interest in the land of another. Taylor, ¶ 11. The interest may be “appurtenant” or “in
gross.” An easement appurtenant is one that benefits a particular parcel of land, i.e., it
serves the owner of that land and passes with the title to that land. The benefited parcel is
known as the dominant tenement or estate, and the burdened parcel is termed the servient
tenement or estate. Blazer, ¶ 24. An easement in gross, by contrast, benefits the holder
of the easement personally, i.e., not in connection with his or her ownership or use of a
particular parcel of land. Thus, with an easement in gross, no dominant tenement exists
and the easement right does not pass with the title to any land. Blazer, ¶ 24.
¶34 It is not always apparent whether an easement is appurtenant to a certain parcel of
property or personal to a certain individual. Notably, § 70-17-101, MCA, lists a number
of “servitudes upon land [that] may be attached to other land as incidents or
appurtenances,” while § 70-17-102, MCA, lists a number of “servitudes upon land [that]
may be granted and held though not attached to land.” But the servitude with which we
are dealing here—the “right-of-way,” i.e., the right to pass through property owned by
another, Black’s Law Dictionary 1326—is contained in both lists. See §§ 70-17-101(4),
-102(5), MCA. Thus, in the absence of statutory direction, the determination of whether
an expressly created easement is appurtenant or in gross necessarily depends on other
considerations—in particular, the intention of the parties as ascertained from the language
of the instrument and aided, if necessary, by the situation of the properties involved, the
objective circumstances existing at the time of execution, and the purpose to be
20
accomplished by the easement. See Jon W. Bruce & James W. Ely, Jr., The Law of
Easements and Licenses in Land § 2:3, 2-6 (2009) (hereinafter Bruce & Ely); Westland
Nursing Home v. Benson, 517 P.2d 862, 865 (Colo. App. 1974); McLaughlin v. Board of
Selectmen of Amherst, 664 N.E.2d 786, 790 (Mass. 1996); Barrett v. Kunz, 604 A.2d
1278, 1280 (Vt. 1992); Pokorny v. Salas, 81 P.3d 171, ¶ 24 (Wyo. 2003). The fact that
the easement benefits the owner of a particular tract, adds to the enjoyment of another
parcel, or is of no value unless used in connection with particular land suggests
appurtenance. See Bruce & Ely § 2:3, 2-6 to 2-8; Nelson v. Johnson, 679 P.2d 662, 664
(Idaho 1984) (easement was appurtenant since it was “a beneficial and useful adjunct of
the cattle ranch, and it would be of little use apart from the operations of the ranch”);
McLaughlin, 664 N.E.2d at 789-90 (access and utility easement created for “the purposes
for which public ways in the Town of Amherst are now or may hereafter be used” was
appurtenant since it was reserved “for the benefit of other land of the grantor”); Green v.
Lupo, 647 P.2d 51, 53-54 (Wash. App. Div. 2 1982) (grant of easement for ingress,
egress, and utilities purposes to the owners of adjacent land indicates appurtenance); cf.
Mumaugh v. Diamond Lake Area Cable TV Co., 456 N.W.2d 425, 430 (Mich. App. 1990)
(electric company’s easement was in gross since it was not appurtenant to any estate in
land, but was a personal interest to use the servient land for the erection and maintenance
of a utility pole line); Village of Walbridge v. Carroll, 875 N.E.2d 144, ¶ 21 (Ohio App.
6th Dist. 2007) (easement was in gross since it did not benefit the Village’s use of any
particular land). Furthermore, if the granting instrument does not specify whether the
easement is appurtenant or in gross, the court generally begins with the presumption that
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it is appurtenant. Luevano v. Group One, 779 P.2d 552, 555 (N.M. App. 1989); see also
Bruce & Ely § 2:3, 2-10 to 2-11 (noting the strong constructional preference for
easements appurtenant over easements in gross); Skeen v. Boyles, 213 P.3d 531, ¶ 22
(N.M. App. 2009) (same); Nelson, 679 P.2d at 664-65 (“[I]n case of doubt, the weight of
authority holds that the easement should be presumed appurtenant.”); United States v.
Blackman, 613 S.E.2d 442, 446 (Va. 2005) (“[A]n easement is ‘never presumed to be in
gross when it [can] fairly be construed to be appurtenant to land.’ ” (second brackets in
Blackman)); Green, 647 P.2d at 54 (“There is a strong presumption in Washington that
easements are appurtenant to some particular tract of land; personal easements, easements
in gross, are not favored.”).4
¶35 In the present case, the District Court concluded that “the Broadwater Estates
Subdivision is the grantee” of the easement, thus suggesting an easement appurtenant.
On appeal, Broadwater Development asserts on one hand that “the grant language in the
[Easement Agreement] creates a servitude attached to land for the benefit of Broadwater
Estates and the public,” but on the other hand that “[t]he grant language in the [Easement
Agreement] creates a servitude not attached to land for the benefit of the public.” For its
part, the County states that it “support[s]” Broadwater Development’s arguments but is
4
Some rationales for this presumption are that “[c]onstruing doubtful easements
as easements in gross would allow assignment of the easement to strangers to the area
who could then control the use of the property. Such construction could also result in
increased burdens on land beyond that contemplated by the original grantor.” Luevano,
779 P.2d at 556. Thus, “[a]t common law, easements in gross were strongly disfavored
because they were viewed as interfering with the free use of land.” Blackman, 613
S.E.2d at 446. The preference for easements appurtenant also “reflects the traditional
suspicion of easements in gross as interests that burden one parcel of land without
providing a corresponding benefit to another parcel.” Bruce & Ely § 2:3, 2-11.
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limiting its own arguments to “the public’s interest” in the easement. The County then
argues that the “public” is a grantee of the easement and that “[t]he public’s easement is
an easement in gross.”
¶36 Nelson, however, suggests that we cannot know what sort of easement is being
created because the Easement Agreement utterly fails to identify the grantee and the
dominant tenement. In addition, she correctly points out that a landowner cannot hold an
easement in the landowner’s own property. See § 70-17-105, MCA (“A servitude
thereon cannot be held by the owner of the servient tenement.”). If the owner of two
parcels attempts to create an express easement over one of the parcels in favor of the
other, the purported interest is a nullity; at most, the servitude exists only momentarily
before merging into the fee. See Bruce & Ely § 3:11, 3-34 & n. 4; One Harbor Financial
Ltd. v. Hynes Properties, 884 So. 2d 1039, 1044 (Fla. 5th Dist. App. 2004). This rule
“proceeds from the rationale that a person does not need an easement in his or her own
land, because all the uses of an easement are already included in the general right of fee
ownership.” Beyer v. Tahoe Sands Resort, 29 Cal. Rptr. 3d 561, 571 (Cal. App. 3d Dist.
2005). Here, when the Easement Agreement was executed, the Grubers owned both the
Gruber parcel and the land making up the Broadwater Estates Major Subdivision. Thus,
Nelson suggests that the Easement Agreement could not have created an easement over
the Gruber parcel in favor of the subdivision.
¶37 Whether or not this is true, however, is not something we need to resolve here.
This lawsuit was filed to determine the validity of the easement over the State Nursery
property to which Nelson is a successor. Even assuming, for the sake of argument, that
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the Easement Agreement could not have created an easement over the Gruber parcel in
favor of the subdivision, this does not mean that the entire 60-foot easement is void. Our
focus is on what Dean Mills (President of State Nursery) intended when executing the
Easement Agreement. Viewing the Easement Agreement from Mills’ perspective, we
first observe that the easement bears indicia of both an easement appurtenant and an
easement in gross. On one hand, the document states that the easement is “for:
Broadwater Estates Major Subdivision,” which could indicate an easement appurtenant.
On the other hand, the document states that the easement is for “emergency public access
and utility” purposes, which could indicate an easement held by the public and utility
providers personally, i.e., not in connection with their ownership of any particular land.
In Nelson’s view, the existence of these two possibilities precludes summary judgment
for Broadwater Development and the County, and she criticizes the District Court for
“cobbl[ing] together” various parts of the Easement Agreement. Yet, as noted, the whole
of a contract is to be taken together so as to give effect to every part if reasonably
practicable, each clause helping to interpret the other. Section 28-3-202, MCA. Doing so
here, we conclude that notwithstanding the presumption of appurtenance, the terms
“public” and “utility” as used in the Easement Agreement clearly indicate an intention by
Mills to grant an easement in gross—i.e., an easement in favor of the public and utility
providers personally. We further conclude that the “for: Broadwater Estates Major
Subdivision” language was intended to limit the easement’s scope, such that members of
the public may use it to travel between Broadwater Estates Major Subdivision and
Highway 12 in emergency situations and utility providers may use it to provide utilities
24
specifically to the subdivision. Thus, insofar as the State Nursery property is concerned,
the grantees of this easement are the public and utility providers.
¶38 As for the property description, an instrument of conveyance must adequately
describe the property interest being created. See Kuhlman, 216 Mont. at 359, 701 P.2d at
985. More specifically, with respect to an easement, the identities of the dominant and
servient tenements must be ascertainable with reasonable certainty and the owner of the
property burdened by the easement should have knowledge of its use or its necessity. See
Blazer, ¶ 51. Here, the easement is depicted on the face of the Easement Agreement and
is described in metes and bounds. It is labeled “60’ Emergency Public Access & Utility
Ease.,” and because it is in gross, there is no dominant tenement. It is shown crossing
property identified as being owned by the Grubers and property identified as being
owned by State Nursery, which are the servient tenements. It is shown connecting with
an “Existing 60’ Easement” at its west end and Highway 12 at its east end—and for this
reason, Nelson’s analogy to Blazer is unpersuasive. Unlike the Blazer easement, which
ran off the certificate of survey with no identifiable destination, the full extent of the
present easement is shown on the Easement Agreement. Consequently, a person looking
at the document is not left wondering, “Where does this go, who gets to use it, and for
what purpose?” It runs from an existing 60-foot easement to Highway 12; it is for
emergency public access and utility purposes connected with Broadwater Estates Major
Subdivision; and it may be used by individuals and entities engaged in such purposes.
¶39 Nelson points out that the subdivision had received only preliminary approval
when the Easement Agreement was executed in July 2003; however, she provides no
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factual or legal basis for concluding that an easement in gross could be granted to the
public and utility providers only after the subdivision had received final approval.
Nelson also asserts that the Easement Agreement does not impart sufficient knowledge of
the easement’s use and necessity because it does not disclose “the number of emergencies
that need to be accommodated and the extent of the improvements required to serve the
emergencies.” Our cases, however, do not require this degree of specificity in order to
create an easement. Moreover, while it seems that Nelson would have us believe that she
had no way of knowing the purpose and nature of this easement when she obtained the
State Nursery property, we are not persuaded. The Easement Agreement imparts
sufficient knowledge of the easement’s use and necessity.
¶40 Conclusion. The Easement Agreement satisfies the formal requirements for
expressly granting an easement. While Nelson attempts to make this into a Blazer case,
we disagree that this is an easement-by-reference situation or that the principles
articulated in Blazer require the instant easement to fail. We accordingly affirm the
District Court’s conclusion that the “60’ Emergency Public Access & Utility Easement”
is a valid and enforceable express easement.
¶41 Issue 3. Did the County fail to accept the easement?
¶42 Citing § 7-14-2101(2)(b), MCA (which defines “county road”), Nelson contends
that the easement cannot be in favor of the public because the County has not “accepted”
it. In response, the County disagrees that it is required to comply with this statute before
a public easement may come into existence. The County notes that “ ‘a public easement
is not the equivalent of a county road’ ” (quoting Pedersen v. Dawson County, 2000 MT
26
339, ¶ 23, 303 Mont. 158, 17 P.3d 393). Moreover, the County maintains that, in any
event, it did “accept” the easement, whether pursuant to the statute or under the doctrine
of common law dedication (see Heller v. Gremaux, 2002 MT 199, ¶ 19, 311 Mont. 178,
53 P.3d 1259). Specifically, the County points out that it required the easement to be
created as a condition of final subdivision approval.
¶43 Nelson cites no authority for the proposition that a “public easement” (as we have
here), as opposed to a “county road,” requires compliance with § 7-14-2101(2)(b), MCA.
She also fails to respond, with a properly developed argument including citations to
authority, to the County’s assertions regarding common law dedication. For that matter,
the County’s arguments also are rather scant on authority. It is not this Court’s job to
conduct legal research on a party’s behalf or to develop legal analysis that may lend
support to the position the party advances. State v. White, 2008 MT 464, ¶ 29, 348 Mont.
196, 199 P.3d 274; see also M. R. App. P. 12(1)f., 12(2). Under these circumstances, we
will not address this issue further.
CONCLUSION
¶44 The Easement Agreement created a 60-foot emergency public access and utility
easement, which is enforceable against Nelson. The easement is in gross, and it may be
used by members of the public to travel between Broadwater Estates Major Subdivision
and Highway 12 in emergency situations and by utility providers to provide utilities to
the subdivision. Broadwater Development and the County have shown that there are no
genuine issues of material fact and that they are entitled to judgment as a matter of law.
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¶45 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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APPENDIX
29
Broadwater Development v. Nelson
Combined Opinion