No. 12642
I N T E SUPREME C U T O THE STATE O M N A A
H OR F F OTN
1974
RICHARD P, SHERIDAN, MARILYN L. SHERIDAN, e t a l . ,
P l a i n t i f f s and Respondents,
-vs -
A. E, MARTINSEN and BETTIE H. MARTINSEN,
Defendants 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 D i s t r i c t ,
Honorable E. Gardner Brownlee, Judge p r e s i d i n g .
Counsel of Record:
For A p p e l l a n t s :
Garlington, Lohn and Robinson, Missoula, Montana
George Goodrich argued, Missoula, Montana
For Respondents:
Skelton and Knight, Missoula, Montana
Robert P. S k e l t o n appeared and Robert M. Knight
argued, Missoula , Montana
Submitted: May 21, 1974
Decided : jfi - 8 1911
Filed : -
JUC 8 1974
Mr. Justice Wesley Castles delivered the Opinion of the Court.
This is an appeal from a judgment adopting a previous order
granting a permanent injunction, The action was brought by a
group of lot owners in a subdivision covered by restrictive cove-
nants against an owner of two lots in the same subdivision.
Defendants had purchased their lots in an effort to gain access
to adjoining property. The action was tried by the district court
in Missoula CounCy.
In the order granting the permanent injunction dated October
18, 1972, the district court found:
"* J; *that Pattee Canyon Estates was platted as a
subdivision and that the plat was accepted and
approved by the County Commissioners of Missoula
County, Montana on the 18th day of January, 1968;
thereafter the parties to this action purchased lots
in the subdivision. There are a total of eleven
(11) lots in the subdivision, and each lot will
average about three (3) acres. The lots in Pattee
Canyon Estates are all entered from two roads that
terminate within the exterior boundaries of the
subdivision so that ideally the only motor vehicle
traffic within the subdivision will be directly
related to the dwellings located in the area.
pa he Defendants purchased two of the l o ~ sfor the
primary purpose of constructing a road across the
lots to provide access to lands outside the boundaries
of the subdivision, and which lands the Defendants
intend to develop for residential purposes.
"* * * the Defendants use of the lots to construct
a road to yrovide access to adjoining property vio-
lates the spirit' of the subdivision in that it
destroys the secluded environment assured to purchasers
of the lots. + * * the construction of the road vio-
:
lates the specific terms of the restrictions imposed
upon the lots by virtue of the declaration of restric-
tive covenants accompanying the plat.
" * * * the Defendants are permanently enjoined from
using Lots 9 or 10 of Pattee Canyon Estates for the
purpose of providing road access to adjoining property
outside the boundaries of Pattee Canyon Estates. * * * 1
I
Appeal was taken from the October 18, 1972 order but never
perfected. However, later, on February 8, 1973, new counsel for
defendants appeared in the case by motion under Rule 60(b) (5) ,
>I.R.Civ.P., on the grounds that since the order of October 18, 1972,
defendants had purchased an easement for road purposes which ease-
ment predated the subdivision and the restrictive covenants.
On March 13, 1973 plaintiffs filed a motion to quash.
Hearing was had on March 28, 1973. The court granted time for
briefs.
On that same day, March 28, defendants filed a second or
supplemental motion under Rule 6 ( ) 5 ,
0b() M.R.Civ.P., alleging
the October 18, 1972 order granting permanent injunction was
void in that on August 11, 1972, prior to the injunction order,
the Missoula county commissioners acting on recommendations of
the planning and zoning commission had accepted defendants'
proposed road alignment and plaintiffs had not appealed that
decision.
Again, plaintiffs moved to quash. This second series of
motions were heard on July 5, 1973. Argument of counsel on this
hearing was directed to the issue of whether the matters presented
by the Rule 60(b) motions had been previously presented, con-
sidered and adjudicated during the course of the original trial
on the issue of whether the construction of defendants' roadway
violated certain restrictive covenants. At the conclusion of the
argument, the court stated:
"Well, if I can say this, Mr. Goodrich, I heard the
case originally. The decision was based upon the
fact that there is a restrictive covenant on this
land. I feel that in our system of jurisprudence if
a restrictive covenant is going to be removed from
land that the landowners who own the land where that
covenant is on must have their day in court.
The Planning and Zoning Commission, I don't believe,
gave them that opportunity, I felt that at the time
of the original Court's Judgment. I still feel that,
and I don't believe that there is anything new being
offered at this time by your motion that either was
not considered at the former trial or would serve to
set aside the Judgment because of -- I am sure that
you cannot show that the parties who owned or had the
benefits of this restrictive covenant were advised
adequately that the entire purpose of a hearing was
to remove that restrictive covenant from the land,
and therefore I do not feel that I can properly hear
your motion, and I presume what I an doing is granting
the Motion to Quash summarily."
On July 19, 1973 the court entered its final judgment
denying defendants' motions seeking modification of the per-
manent injunction and adopting the order granting the permanent
injunction as a final judgment.
Defendants Martinsen are husband and wife. I . Hartinsen is
&
a real estate agent. He purchased 120 acres adjoining the Pattee
Canyon Estates with a view to subdividing and selling lots. He
had access to it from an existing county road, but the road would
be about 314 mile, traversing up a hillside. By purchasing two
lots in the Pattee Canyon Estates, in spFte of his knowledge of
the restrictive covenants, he could achieve 2n easier access to
his adjoining property by a 900 foot road. As the trial court
found, he bought the restricted lots for the primary purpose of
building the road, thus violating the restrictive covenants.
After !dartinsen lost the first action, he then went to
some former owners and by quit claim deed purchased an easement
11
in this language: a certain easement for road over and across
the westerly boundary of 2lock Twc(2), Southwest Quarter of the
Southwest Quarter (Sh' 1/4 SW 1/4), Section Two (2) * J; *. I'
(The description of Block Two comes from a plat of a Little Valley
Farms plat previously vacated, but shown to be the same area as
Lots 9 and 10 of Pattee Canyon Estates owned by defendants.)
Armed with this quit claim deed for an easement, defendants
went back to the district court with the aforedescribed Rule 60(b)
motions.
Two issues are presented: First, whether the district court
erred in finding that the deeded easement now owned by defendants
/I f & " & ythem the right to maintain the road in question.
x Second,
whether the court erred in failing to give proper consideration
and weight to actions of the county commissioners regarding the
road..
As to the second issue, the second or supplemental motion
under Rule b ( )
Ob, M.R.Civ.P., was involved. Defendants had sought
to show that the original injunction was void. However, the actions
of the zoning authorities were raised as a matter of defense in
the original proceeding. While an appeal was filed, it was never
perfected. Now, under the guiseof a Rule 60(b) motion, defendants
attempt to raise the same matter. This may not be done. See:
7 ~oore's Federal Practice, 560.26[4]. We shall not develop this
issue further because the record reveals the matter was thoroughly
presented at the original trial, albeit perhaps not to counsel's
taste.
As to the first issue, defendants had the burden of estab-
lishing the existence of an easement, and that the easement autho- -
rized the use proposed by defendants. Keep in mind that defendants
bought their lots with full knowledge of the restrictive covenants;
and only as an afterthought went to the former owners (Carlisles)
to get a quit claim deed.
Defendants here emphasize that plaintiffs do not own the
land over which the easement, if it exists, passes; therefore,
they do not have standing such as would one over whose land an
easement would pass. Admittedly, plaintiffs only have their
rights under the restrictive covenants in Pattee Canyon Estates.
But, by the same token, defendants are bound by those same restric-
tive covenants. We are here dealing with contract rights. The
parties may not violate these rights by way of easements, licenses,
or any other manner of other permits or contracts under circum-
stances such as here. These matters were known to defendants at
the original hearing; the additional fact since that hearing being
that defendants went out and purchased what amounts to a way or
manner to permit them to violate the restrictive covenants. Rule
60(b) motions do not serve to relitigate matters previously de-
termined and we so hold.
The judgment is affirmed.
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 12642
RICHARD P. SHERIDAN. MARILYN L.
V. JUL 11 7974
A.E. MARTINSEN and BETTIE H.
MARTINSEN,
- z m z 5
CLERK
3-~ e
OF SUPREME COURT
a ~
Defendants and Appellants* STATE OF MONTANA
O R D E R
PER CURIAM:
The opinion in the above entitled cause handed down
on July 8, 1974, is hereby amended on page 4 thereof, line
24, by substituting the words "failed to grant" for the word
I1
grants" so that the first issue would now read: "First,
whether the district court erred in finding that the deeded
easement now owned by defendants failed to grant them the
right to maintain the road in question."
DATED this 11th day of July, 1974.