No. 88-589
I N THE SUPREME COURT O F THE STATE O F MONTANA
1989
J O H N W. STRAHAN, EVELYN STF!AHAN,
and LTERRY b7. STRAHAN,
P l a i n t i f f s and R e s p o n d e n t s ,
-vs-
DAVID W. BUSH a n d PAMELA F . RUSH,
et al.,
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 C o u r t of t h e T h i r d J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e C o u n t y of G r a n i t e ,
T h e H o n o r a b l e T e d T,. M i z n e r , LTudge p r e s i d i n g .
COUNSEL OF RECORD:
F o r Appel-].ant :
S o l & Wolfe; Michael S o l , M i s s o u l a , Montana
For Respondent:
Boone , K a r l b e r g & Paddon; David 3. Dietrich, M i ssoul.a,
I -
r.. Montana
---- -
S u b m i t t e d on B r i e f s : March 23, 1989
Decided: May 3 1 1 9 8 9
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Defendants, David FJ. and. Pamela F. Bush (the Pushes),
appeal from a permanent injunction granted in the District
Court, Third ,Tu.dicial District, Granite County, Montana, the
Honorable Ted L . Mizner presiding, to the plaintiffs, John W.
Strahan, Evelyn Strahan an2 Jerry Strahan (the Strahans).
The injunction ordered the Rushes to refrain from interfering
with the Strahans' ingress and egress from their property.
We affirm.
The property involved in the matter is located in
Granite County, south of Tnterstate 90 near Drummond,
Montana. In 1977, the parties purchased their respective
properties from a common owner, Maxine Rurruss. Contained in
the conveyance to the Rushes, Rurruss reserved an easement
" [flor purposes of providing ingress and egress to the above
described land which easement shall be over and across the
existing road ...
" The easement right granted by virtue
of the deed provided the Strahans the only access to their
sole residence.
At the time of the conveyances, a locked gate existed
on the road easement. Burruss controlled the gate and
provided the owners access with a combination to the lock.
In 1979, the Strahans replaced the combination lock with a
key-lock and provided other property owners with keys. The
Strahans notified all concerned parties and asked for their
cooperation. Shortly thereafter, the Strahans opened the
gate. Except for the 1980 and 1981 hunting seasons, the
gate remained open for approximately four years without
objection from other property owners who used the road.
Additionally, the gate was closed when no one was in
attendance on any of the properties. As to the operation of
the gate, the other property owners testified. to a
"gentl-eman's acrreement," stating that what was best for the
Strahans was best for them. In 1984, the Rushes unilaterally
closed the gate, initiating the present dispute.
The Strahans reside on the property year-round and have
maintained the private road, including snow removal during
the winter months. Also, Evelyn Strahan suffers from a back
condition which makes opening the gate extremely difficult,
if not impossible.
The Bushes are residents of Arizona and spend a few
weeks during the summer camping on their property and lease
the property to 1-ocal ranchers for cattle grazing purposes.
At trial, David Bush testified that the gate is a necessary
part of the grazing operation to prevent cattle from straying
and is also needed to protect against acts of vandalism on
their property.
On july 2, 1987, the Strahans filed a verified
complaint in the Pistrict Court, requesting a temporary
restraining order and a permanent injunction to enjoin the
Bushes from closing the gate. The temporary restraining
order was granted on July 31, 1987. After the hearing, the
District Court, on July 25, 1988, issued an order permanently
restraining the Bushes from interfering with the Strahans"
unrestricted access to their property. The court's order
stated that the Rushes may install a cattle guard at their
own expense under the gate controll-ed by the Stra-hans.
We rephrase the Rushes' issues as follows:
1. Did the District Court err in construing the terms
of the easement which granted the Strahans' ingress and
egress?
2. Were all necessary parties joined?
3. Does the cattle guarcl. impose an additional burden
not contemplated by the easement?
On appeal, we limit our review to the question of
whether the District Court abused its discretion in granting
the injunction. Sampson ~ 7 . Grooms (Mont. 19E38), 748 P . 2 d
960, 45 St.Rep. 133; Madison Fork Ranch v. T & f? T,odge Pole
Timber Products (1980), 189 Mont. 292, 615 ~ . 2 d900. To
determine if an abuse is present, we review the scope of the
injunction. The extent of an easement is governed by
§ 70-17-106, MCA:
The extent of a servitude is determined
by the terms of the grant or the nature
of the enjoyment by which it was
acquired.
In other words,
[wlhere an easement is claimed under a
grant ... the extent of the rights
granted depends upon the terms of the
grant, ... properly construed ... If
it is specific in its terms, it is
decisive of the limits of the easement.
Titeca v. State By And Through Dept. Of ~ i s h(~ont.1981),
634 P.2d 1156, 1159, 38 St.Rep. 1533, 1537, citing 25
Am.Jur.2dI Easements and Licenses, Sec. 73, at 479. However,
the instant case involves an easement described generally as
"an easement for purposes of providing ingress and egress to
the above described land which easement shall be over and
across the existing road ... " Given the ambiguous nature
of the easement, the court must exercise a different role:
If the easement is not specifically
defined, it need only be such as is
reasonably necessary and convenient for
the purpose for which it was created. It
is sometimes held . . . where the grant
or reservation of an easement is general
in its terms, that an exercise of the
right, with the acquiescence and consent
of both parties, in a particular course
or manner, fixes the right and limits it
to that particular course or manner.
25 Arn.Jur.2dI Easements and Licenses, Sec. 73, at 479. What
may be considered reasonable is determined in light of the
situation of the property and the surrounding circumstances.
Historically, the gate remained closed to discourage
trespassers and, in fact, existed when the parties purchased
their properties, subject to the mutual lock agreement. The
Bushes allege that the Strahans continued the key-lock
arrangement in 1979, and coordinated the cooperation of other
landowners to keep the gate closed. Because of their use,
the Bushes contend that the Strahans waived any claim of a
restricted access and are therefore estopped from asserting
that the gate should remain open. Finally, the Bushes desire
to use the property for cattle grazing, necessitating a
closed qate.
On the other hand, the Strahans assert that they took
control of the gate in 1979, and continued to monitor access
to the easement. The gate was closed during the 1980 and
1981 hunting seasons, or during periods when the Strahans
were away from the property for an extended period of time.
Further, the other property owners agreed to allow the
Strahans to control the gate because the Strahans reside on
the property year-round. In addition, the Strahans assert
that Evelyn Strahan cannot open the gate due to her back
condition.
In City of Missoula v. Mix (1950), 123 Mont. 365, 372,
2 1 4 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.
See also, Flynn v. Siren (19861, 219 Mont. 359, '. P . 2 d
11
1371, and Titeca, supra. While we acknowledge the Rushes'
interest of leasing their property for a cattle grazing
operation, nonetheless, the gate unreasonably interferes with
the Strahans' reserved easement rights. As found by the
lower court, Evelyn Strahan cannot open the gate without
assistance, and is therefore restricted in her movement from
the property. Also, the gate must be kept open during the
winter months to facilitate snow removal and for maintenance
of the road. Because the road is the only access to the
Strahans' sole residence, t.he District Court denied the
Rushes' contention that the gate should remain closed.
Accordingl-y, the District Court fashi.oned an injunction which
allowed the Strahans' ingress and egress from their property,
and ordered an appropriate solution to address the Bushes'
interest of leasing the property for a cattle grazing
operation. To further minimize the impact of his decision,
the District. Court admonished the Strahans to respect the
rights of the Bushes and cooperate by closing the gate
whenever it is reasonable to do so. We find the scope of the
injunction is proper.
Next, the Bushes contend the court did not join all
parties necessary to the controversy. Rule 19(a),
M.R.Civ.P., provides:
A person who is subject to service of
process shall be joined as a party in the
action if ( 1 ) in his absence complete
relief cannot be accorded among those
already parties, or (2) he claims an
interest relating to the subject of the
action and is so situated that the
disposition of the action in his absence
may (i) as a practical matter impair or
impede his ability to protect that
interest or (ii) leave any of the persons
already parties subject to a substantial
risk of incurring double, multiple, or
otherwise inconsistent obligations by
reason of his claimed interest. ..
Whenever feasible, persons materially interested in the
subject of an action should be joined as parties so they may
be heard and a complete disposition made. See, Commission
Comments, Rule 19(a), M.R.Civ.P. However, no evidence exists
to support the Bushes' assertions that the other property
owners are indispensable. The easement subiect to this
action lies completely within the perimeter of the !and owned
only by the Eushes and. the Strahans. We find that the
District Court rendered a binding decision between the
part5 es.
Finally, the Bushes argue the cattle guard provided for
by the District Court's order imposes an additional burden
not contempl-ated by the original easement. While it may be
that the easement did not specifically contemplate the
construction of a catt1.e guard, nonetheless, we note that a
court sitting in equity causes is empowered to determine the
questions involved in the case and do complete justice.
Hames v. City of Polson 11950), 123 Mont. 469, 215 P.2d 950.
"The court has all of the power requisite to render justice
between the parties. ..
I' F.ase v. Castle Mountain Ranch,
Tnc. (Mont. 1981), 631 P . ? d 680, 687, 38 St.Rep. 992, 1000.
Affirmed .
We concur: ,'
+ ,/
ef Justice /