Flynn v. Siren

No. 84-456

I N THE SUPREME COURT O THE STATE O MONTANA
F F

1985

ELMER FLYNN, KATHLEEN M c K I N N O N ,
PATRICIA SINCLAIR and FRANCIS
MCQUADE,
P l a i n t i f f s and R e s p o n d e n t s ,

BRUCE T. SIREN a n d MARY L . SIREN,
husband a n d w i f e ,

D e f e n d a n t s and A p p e l l a n t s .

APPEAL FROM: D i s t r i c t Court of t h e Fourth J u d i c i a l District,
I n and f o r t h e County o f M i s s o u l a ,
The H o n o r a b l e J o h n S . Henson, J u d g e p r e s i d i n g .

COUNSEL OF RECORD:

For Appellant:

M i l o d r a g o v i c h , D a l e & Dye; Lon J . D a l e , M i s s o u l a ,
Montana

For Respondent:

Mulroney, D e l a n e y & S c o t t ; D e x t e r D e l a n e y , M i s s o u l a ,
Montana

--

S u b m i t t e d on B r i e f s : Aug. I., 1985

Decided: January 7 , 1986

JAN 1- 1986
Filed:
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

During a jury trial, the Missoula County District Court
entered a directed verdict adjudging that plaintiffs are
entitled to the ungated, ~nb~rricaded,
unchained, free and
unobstructed use of a right-of-way easement. The jury
returned a verdict finding that the plaintiffs had not
abandoned any portion of the easement. Defendants appeal
both verdicts. We affirm.
The issues on appeal are:
1. Did the District Court err in directing a verdict
that as a matter of law defendants ' obstructions interfered
with plaintiffs' use of their granted private easement?
2. Did the District Court err in granting plaintiffs'
motion to strike defendants' counterclaim for damages?
3. Did the District Court err in giving jury
instructions 4 and 6 on the issue of partial abandonment?
4. Was there sufficient evidence to support the jury
verdict?
In April 1 9 6 0 , defendants' immediate predecessors in
interest executed a Conveyance of Easement for Right of Way
to the plaintiffs. By its terms, this instrument granted. and
conveyed to the plaintiffs the right, privilege and authority
to use a rectangular tract 28 feet wide by 1320 feet long as
a right-of-way . The instrument conta.ined the following:
The Grantees may fence said right of way if they so
desire.
TO HAVE AND TO HOLD the same unto the said
Grantees, their heirs and assigns, forever, as long
as said land is used for right of way purposes, and
if sane is ever abandoned for such purpose, then
this Easement shall be nu1 and void and of no
further force and effect and title shall revert to
the Grantors, their successors or assigns.
The conveyance was properly recorded. The defendants had
actual knowledge of the easement and purchased the property
subject to the same in 1974.
In 1979, the defendants obstructed the easement,
initially by means of a gate and then by locked chains. In
each instance, the obstruction was ta.ken down within two
days. One of the plaintiffs, Elmer Flynn, admitted that on
at least two occasions he dismantled the obstruction blocking
the easement. In October 1979, plaintiffs filed a complaint
against the defendants asking for a free and unobstructed
right-of-way over the easement. Defendants' counterclaimed
that the obstructions did not impair the easement and alleged
that a portion of the easement had been abandoned.
Defendants sought both compensatory and punitive damages.
In City of Missoula v. Mix (1950), 123 Mont. 365, 372,
214 P.2d 212, 216, this Court set forth the limitations on
the right of an owner of land subject to an easement to
interfere with the use of the reserved easement, stating:
The owner of a reserved easement may use it to the
full use of the right retained. The owner of the
servient tenement may make use of the land in any
lawful manner that he chooses, which use is not
inconsistent with and does not interfere with the
use and right reserved to the dominant tenement or
estate.
With regard to any limitation of the use of the right-of-way
easement by the dominant tenement, members of the family and
others, the Court stated:
In the absence of express restrictions in the ...
grant, it see[m] s that all persons who can be
regarded as having permission, express or implied,
to enter on the dominant tenement, may use a way
for the purpose of access to such tenement and of
egress therefrom. Consequently members of the
family of the dominant owner, his servants and
employees, his guests, and tradesmen and other
persons with whom he does business, may do so.
Such persons are not guilty of trespass in using
the way, and the owner of the easement would, it
seems, have a right of action in case there was an
 i n t e r f e r e n c e w i t h t h e u s e o f t h e way by a member of
one o f t h e s e c l a s s e s .

City of M i s s o u l a , 123 Mont. a t 374, 2 1 4 P.2d a t 2 1 7 , q u o t i n g

3 T i f f a n y , Real P r o p e r t y 5 803 (3d e d . 1 9 3 9 ) . The f o r e g o i n g

i s t h e g e n e r a l r u l e w i t h r e g a r d t o easement i n t e r f e r e n c e i n

Montana. See Annot., 52 A.L.R.3d 9 (1973) f o r r e f e r e n c e t o

numerous c a s e s i n v o l v i n g t h e i n s t a l l a t i o n o f g a t e s i n v a r i o u s

s t a t e s d u r i n g t h e p a s t 100 y e a r s .

Did t h e D i s t r i c t C o u r t e r r i n d i r e c t i n g a v e r d i c t t h a t

a s a matter of law d e f e n d a n t s ' obstructions i n t e r f e r e d with

p l a i n t i f f s ' u s e o f t h e i r g r a n t e d p r i v a t e easement?

The law with respect to directed verdicts is well
settled in this state.

Upon a motion f o r a d i r e c t e d v e r d i c t by a p a r t y ,
t h e e v i d e n c e i n t r o d u c e d by h i s opponent w i l l be
c o n s i d e r e d i n t h e l i g h t most f a v o r a b l e t o opponent.
Thereupon, t h e c o n c l u s i o n s o u g h t by t h e moving
p a r t y must f o l l o w a s a ma-tter o f law. ..
G e n e r a l l y , d i r e c t e d v e r d i c t s a r e n o t f a v o r e d by t h e
courts. .. A c a u s e s h o u l d n e v e r be withdrawn from
t h e j u r y u n l e s s t h e c o n c l u s i o n s from t h e f a c t s
advanced by t h e moving p a r t y foll-ow n e c e s s a r i l y , a.s
a m a t t e r o f law, t h a t r e c o v e r y c a n , a s h e r e , o r
c a n n o t be had under any view which can be
r e a s o n a b l y drawn from t h e f a c t s which t h e e v i d e n c e
tends t o establish. .. A corollary rule i s that
where r e a s o n a b l e men might d i f f e r a s t o t h e
c o n c l u s i o n s o f f a c t t o be draw from t h e e v i d e n c e ,
viewed i n t h e l i g h t most f a v o r a b l e t o t h e p a r t y
a g a i n s t whom t h e motion i s made, a j u r y q u e s t i o n i s
presented, and r e s o l u t i o n by way o f directed
v e r d i c t i s improper. [ c i t a t i o n s omitted]

S i s t o c k v . Northwestern T e l . Systems, I n c . (Mont. 1 9 8 0 ) , 615

p.2d 1 7 6 , 178-79, 37 St.Rep. 1247, 1249, q u o t i n g Lawlor v .

F l a t h e a d County ( 1 9 7 8 ) , 177 Mont. 508, 582 P.2d 751, 754.

A f t e r a c a r e f u l review of t h e record, w e conclude t h a t

the evidence submitted in behalf of the plaintiffs

establishes that the placing of the g a t e on t h e easement

c r e a t e d a t r a f f i c hazard; that the gate, as installed, was

t o o s m a l l t o a l l o w t h e p a s s a q e o f some farm machinery; and
that the gate would have reduced the clientele of one
plaintiff's typing business and of another plaintiff's sewing
business. This evidence was uncontradicted by the
defendants.
In its directed verdict, the District Court concluded
that if the easement were gated, barricaded, chained or
obstructed, the plaintiffs' use of the easement would have
been impaired to such an extent as to defeat the purpose of
the easement. The District Court pointed out that the
business invitees, agents, lessees and employees of the
plaintiffs would have been thwarted in using the easement.
Considering the evidence in a light most favorable to
the defendants, we agree with the District Court's conclusion
that a gated easement interferes with the right granted to
the plaintiffs. We affirm the holding of the District Court
that plaintiffs are entitled to an ungated, unbarricaded,
unchained, free and unobstructed use of the right-of-way.
I1
Did the District Court err in granting plaintiffs'
motion to strike defendants' counterclaim for damages?
After the entry of the directed verdict for the
plaintiffs, the District Court also granted plaintiffs'
motion to strike the defendants' counterclaim for damages and
withdrew that issue from the jury. Our standard of review
for removal of an issue from jury consideration is the same
as that of a directed verdict:
... [Aln issue should never be withdrawn from the
jury unless the conclusions from the facts advanced
by the moving party follow necessarily, as a matter
of law, that recovery cannot be had under any view
which can be reasonably drawn from the facts which
the evidence tends to establish.
Dahl v. Petroleum Geophysical Co. (Mont. 1981), 632 P.2d
 Under the facts of this case and our affirmance of the
District Court's conclusion that the obstructions were an
unreasonable interference with the granted right-of-way, we
conclude that defendants had no legal theory by which they
could justify a claim for damages. We affirm the District
Court's withdrawal from the jury of defendants ' counterclaim
for damages.

Did the District Court err in giving jury instructions 4
and 6 on the issue of partial abandonment?
The defendants must show that the instructions were
prejudicial before they constitute reversible error. Gaither
v. Richardson Construction Co. (19691, 152 Mont. 504, 512,
452 P.2d 428, 432. In reviewing jury instructions, this
Court must consider all jury instructions as a whole. As
stated in Rock Springs Corp. v. Pierre (Mont. 1980), 615 P.2d

When determining whether jury instructions are
properly given or refused, this Court considers the
instructions given in their entirety and review[s]
them jn light of the evidence adduced
. ... This
Court has ruled that where the jury instructions,
taken as a whole, state the law applicable to the
case, a party cannot claim reversible error as to
the giving of certain instructions ... [Citations
omitted. ]
The easement in this case was twenty-eight feet wide. A
fence had been installed which divided it into one span
approximately twenty feet in width and another span eight
feet in width. Approximately eighteen feet out of the twenty
foot span was used for rc;a.dbed and shoulders. ~efendants
argued that plaintiffs had abandoned all of the eight foot
width of the easement south of the fence.
The District Court gave the following instructions on
the issue of partial abandonment:
 INSTRUCTION NO. 4
If an easement is specifically described as being a
specific width and length and has not been
abandoned, it is unlawful for the person on whose
land the easement is in existence to reduce the
size of the easement.
INSTRUCTION NO. 5
Since abandonment can extinguish an entire
easement, it can likewise extinguish such portion
of an easement which becomes surplusage to the
intended and executed purpose of the grant.
INSTRUCTION NO. 6
The owner of the property on which an easement is
situated, if he has notice or knowledge of the
existence of the easement, is bound by the terms of
the easement as stated therein.
Defendants argue that instructions 4 and 6 precluded the jury
from finding ahandonment and in substance directed a verdict
for the plaintiffs. We disagree.
Instruction 5, which is not mentioned by the defendants,
states in substance that ahandonment can extinguish a portion
of an easement which becomes surplusage to the intended
purpose of the grant. By considering the three instructions
together, it is clear tha-t the jury was instructed that the
defendants, as owners of the property, were bound by the
terms of the easement, and that if the easement had not been
abandoned, it was unlawful for the defendants to reduce the
size of the easement. In addition, the jury was advised that
abandonment can extinguish the entire easement or such
portion of the easement as might become surplusage to the
intended purpose.
The instructions taken as a whole were not
contradictory. We conclude that the court did not commit
error in giving instructions 4 and 6.
 Was there sufficient evidence to support the jury

verdict?

A j u r y v e r d i c t w i l l n o t be o v e r t u r n e d where t h e r e c o r d

contains substantial credible evidence to support the

verdict.

Sufficiency - - evidence. W e w i l l not reverse a
of t h e
judgment based upon a j u r y v e r d i c t i f t h e r e i s
s u b s t a n t i a l evidence i n t h e record t o support t h e
jury v e r d i c t . ..
W r e v i e w i n t h e l i g h t most
e
favorable t o t h e prevailing p a r t y , reversing only
when t h e r e i s a l a c k of s u b s t a n t i a l e v i d e n c e t o
s u p p o r t t h e judgment based upon t h e j u r y v e r d i c t

The " s u b s t a n t i a l e v i d e n c e " t e s t v a r i o u s l y e x p r e s s e d
a l l o w s r e v e r s a l o n l y i f t h e r e i s a complete a b s e n c e
of p r o b a t i v e f a c t s t o s u p p o r t t h e v e r d i c t ... or
i f t h e e v i d e n c e i s s o overwhelming t h e r e i s no room
f o r an h o n e s t d i f f e r e n c e o f o p i n i o n ... or i f
t h e r e i s a complete a b s e n c e o f any c r e d i b l e
evidence i n support of t h e v e r d i c t . [citations
omitted]

Kleinsasser v. Superior Derrick Service, Inc. (Mont. 1985) ,

Plaintiff, Elmer Flynn, testified that he used and

needed t h e whole right-of-way. A f t e r reviewing t h e record i n

a l i g h t most f a v o r a . b l e t o t h e p r e v a i l i n g p a r t y , w e c o n c l u d e
t h e r e i s s u b s t a n t i a l evidence t o support t h e jury v e r d i c t .

a f f i r m t h e D i s t r i c t Court.

W concur:
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Justices