No. 94-227
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
JACK J. HALVERSON,
Plaintiff and Respondent,
SHIRLEY J. TURNER and
HAROLD TURNER,
Defendants and Appellants.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeffrey T. Renz, Missoula, Montana
For Respondent:
James R. Halverson, Herndon, Hartman, Sweeney &
Halverson, Billings, Montana
Submitted on Briefs: August 25, 1994
Decided: December 1, 1994
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Defendants appeal the Order of the District Court of the
Thirteenth Judicial District, Yellowstone County, which granted
plaintiff's motion for summary judgment declaring that Dahlia
Halverson, predecessor in interest of both parties' tracts, had
created an easement across defendantst property by reservation and
necessity for purposes of ingress and egress. The District Court
also denied defendants' subsequent Motion to Reconsider, Amend or
Vacate the summary judgment order. We affirm.
We restate the issues as follows:
I. Did the District Court err by finding that Dahlia
Halverson created an easement when she conveyed a portion of her
p r o p e r t y to dafandants?
11. Did the District Court err in determining that the
easement over defendants' property was not extinguished by
defendantst actions in keeping a fence in place across the access
location?
The two adjacent properties owned by plaintiff Jack Halverson
and Shirley J. and Harold Turner (Turners) were once owned by
Dahlia Halverson, the mother of Jack Halverson and Shirley Turner.
In 1963, Dahlia Halverson filed and recorded Certificate of Survey
No. 646 (COS 646) establishing a subdivision located in an area of
Yellowstone County known as the Blue Creek area. The tracts from
COS 646 with which we are concerned were known as Tract B-1 and
Tract B-2. Tract B-2 bordered Tract B-1 on its eastern boundary
line.
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Dahlia Halverson transferred title to Tract B-2 to Jack
Halverson, who in turn recorded a Certificate of Survey (COS)
dividing Tract B-2 into Tract B-2A, which was the northern portion,
and B-2B, which was the southern portion. In 1982, Halverson
reconveyed Tract B-2A to Dahlia Halverson, who still owned Tract B-
1, the adjoining tract. In May of 1987, Dahlia Halverson recorded
Certificate of Survey No. 646 2nd Amd. (Amended Tract B-lA), which
is referred to as COS 646, 2nd Amd. COS 646, 2nd Amd. divided
Tract B-1 (also referred to as B-1A) into two tracts with the
northern tract called Tract B1A-1 and the southern tract called
Tract B1A-2. COS 646, 2nd Amd. also showed a 30-foot road easement
extending from the northeast corner of Tract B1A-1 westerly for a
distance of 188.52 feet. This easement was to provide access to a
street running to the north from the northerly boundary line of
Tract B1A-1.
In June 1987, Dahlia Halverson transferred Tract B1A-1 to
Shirley Turner by quitclaim deed, which described the tract as
follows:
Tract B1A-1 of Amended Tract B-1A CERTIFICATE OF SURVEY
NO. 646, 2nd Amd., Yellowstone County, Montana, according
to the official plat thereof on file and of record in the
office of the Clerk and Recorder of said County, under
Document No. 1442776.
On August 30, 1991, Dahlia Halverson's estate transferred
ownership of Tract B-2A back to Jack Halverson. COS 646, 2nd Amd.
shows a 30-foot road easement at the northern edge of Tract B1A-1
presently owned by the Turners to allow access to Tract B-2A
presently owned by Halverson. Without the easement shown on COS
646, 2nd Amd., Tract B-2A is landlocked. Following is a diagram
which illustrates the relevant tracts as well as the easement
claimed by Jack Halverson over Tract BlA-1:
(fence)
30' easement
Tract B1A-1 Tract B-2A
3.160 Acres Gr.
3.030 Acres Net
Tract B1A-2 Tract B-2B
1 times pertinent to this action, the northern edge
Tract BlA-1 has been fenced. The easement in question, which has
never been used by either Dahlia Halverson or Jack Halverson,
wouici of necessity nave to pass through a point where tne existing
fence is located on the northern boundary of Tract B1A-1. Sometime
in 1992, the Turners caused another fence to be erected on the
eastern boundary of their property which borders HalversongsTract
B-2A. No suggestion was ever made prior to the erection of this
fence in 1992 that there was no valid road easement over BlA-1 to
access Halversongs property. Halverson brought this action to
judicially establish the existence of a road easement over the
Turnersg property. The District Court granted summary judgment to
Jack Halverson, determining that an easement was established by
Dahlia Halverson when she conveyed Tract BlA-1 to the Turners in
June of 1987.
Our standard for reviewing a grant of summary judgment is the
same as that used by the district court. Wild River Adventures,
Inc. v. Board of Trustees (1991), 248 Mont. 397, 399-400, 812 P.2d
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344, 345. Summary judgment is proper when there are no genuine
issues of material fact, as in this case. Rule 56(c), M.R.Civ.P.
The parties agree on the material facts of this case. Therefore,
our review is limited to a determination of the law applicable to
the facts.
ISSUE I
Did the District Court err by finding that Dahlia Halverson
created an easement when she conveyed a portion of her property to
defendants?
The District Court determined that Dahlia Halverson created an
easement by reservation when she quitclaimed Tract BlA-1 to Shirley
Turner in 1987 by making reference to COS 646, 2nd Amd. The court
further stated that when Jack Halverson received Tract B-2A from
the Estate of Dahlia Halverson, he also received the easement in
favor of Tract B-2A over Tract BlA-1.
The June 1987 quitclaim deed from Dahlia Halverson to Shirley
Turner referred to COS 646, 2nd Amd., as above-mentioned, and
included in that reference Document No. 1442776, under which the
COS had been recorded. COS 646, 2nd Amd. clearly shows the 30-foot
road easement, 188.52 feet in length from east to west across Tract
BlA-1. No other easements are shown on this document.
The purpose of a land description which is a necessary
inclusion in an instrument conveying title is to describe the land
so that the extent of the claim to the property may be determined.
see City of Missoula v. Mix (l95O), 123 Mont. 365, 383-84, 214 P.2d
212, 222. A reference to a map or plat is generally included to
express, confirm, or amplify a description. 1 M. Friedman,
Contracts and Conveyances of Real Provertv S 4.9 (1) (5th ed. 1991).
Although the description of the property being conveyed by the
quitclaim deed in this case contains no language expressly
reserving an easement to Dahlia Halverson, it does refer to Tract
B1A-1 of COS 646, 2nd Amd. and includes the document number for
that COS.
An easement by reservation must arise from the written
documents of conveyance. In determining the existence of an
easement by reservation in documents of conveyance, it is necessary
that the grantee of the property being burdened by the servitude
have knowledge of its use or its necessity. Graham v. Mack (1985),
216 Mont. 165, 174, 699 P.2d 590, 596. In this case, the reference
in the quitclaim deed to Document No. 1442776 gave notice to
Shirley Turner that the property was being conveyed pursuant to a
particular recorded document. It also put her on "inquiry noticew
of the easement and the need for a reservation of a way of ingress
and egress. "Knowledge of the existence of a claim will be imputed
to a party who has sufficient information to put it on inquiry
notice of that claim." Benson v. Pyfer (1989), 240 Mont. 175, 180,
783 P.2d 923, 926.
Although the District Court's Order did not allude to an
easement by operation of law, Jack Halversonlsmotion for summary
judgment contended that an easement was created by operation of
law, according to 76-3-304, MCA, which provides in pertinent
part:
Where lands are conveyed by reference to a plat, the plat
itself or any copy of the plat properly certified by the
county clerk and recorder as being a true copy thereof
shall be regarded as incorporated into the instrument of
conveyance and shall be received in evidence in all
courts of this state.
Pursuant to § 76-3-304, MCA, reference in documents of conveyance
to a plat which describes an easement establishes the easement.
Benson, 783 P.2d at 925. Moreover, according to $ 76-3-304, MCA,
when land is sold with reference to a properly recorded plat, that
plat becomes part of the document conveying the interest in the
land.
While the deed to Shirley Turner referred to COS 646, 2nd
Amd., it also stated "according to the official plat thereof on
file and of record . . . under Document No. 1442776." Under the
provisions of the Montana Subdivision and Platting Act, §§ 76-3-101
to -614, MCA, there is a significant difference between
certificates of survey and plats, although both "certificates of
surveyw and "official platsM are filed in the office of the clerk
and recorder. We do not conclude that the distinction between
"official platsu and "certificates of surveyw is controlling here.
While the term "official plat1' was used in the above description,
the tract is described as being Tract B1A-1 of the COS under
Document No. 1442776. The description is sufficient to accurately
refer to the COS even though the term 'vplatlt incorrectly used.
is
We conclude that the reference in the document of conveyance to a
recorded COS which adequately described the easement was sufficient
to establish the easement.
This Court's recent opinion in Bache v. Owens (Mont. 1994),
- P.2d , 51 St.Rep. 1001, held that documents of conveyance
which incorporated a COS by reference established an easement in
favor of the grantors as described in the COS. Our conclusion in
this case is consistent with the Bache holding that the
incorporation of a COS was sufficient to establish an easement.
Dahlia Halverson had an amended COS prepared pursuant to her
division of Tract B-1A into two smaller tracts. She recorded the
COS prior to her conveyance of Tract BlA-1 to Shirley Turner. Her
conveyance of this tract to Shirley Turner included a land
description and a reference to the recorded Second Amended COS 646
as required by Montana law. Dahlia Halverson created an express
easement of reservation for Tract B2-A over Tract B1A-1 when she
conveyed Tract B1A-1 to Shirley Turner and retained Tract B-2A.
This easement runs with the land, was not personal to Dahlia
Halverson and, therefore, entitles Jack Halverson, as successor in
interest of Tract B-2A, to the benefit of the easement.
We hold that the District Court correctly concluded that
Dahlia Halverson created an easement when she conveyed a portion of
her property to defendants.
ISSUE I1
Did the District Court err in determining that defendantst
actions in keeping a fence in place across the northern boundary of
Tract B1A-1 did not extinguish the easement over defendants'
property?
The easement over the Turnerst property has never been
improved and has not been used. The Turners contend that any
easement created in favor of Tract B-2A has since been extinguished
by adverse possession. Jack Halverson contends that he was unaware
that the Turners contested the easement until the 1992 construction
of another fence on the boundary between Tracts B1A-1 and B-2A. At
that time, Halverson objected to the new fence and then learned
that the Turners contested his easement.
The Turners, however, contend that by keeping and maintaining
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the fence on the northern boundary of their property since Shirley
Turner acquired the property in 1987, the easement has continuously
been blocked by the fence. The District Court did not find their
maintenance of this fence sufficiently adverse to Jack Halverson's
dominant tenement.
Extinguishment of an easement through adverse use by the owner
of the servient tenement is determined by applying the principles
that govern acquisition of title by adverse possession and
acquisition of an easement by prescription: open, notorious,
exclusive, adverse, continuous and uninterrupted use for the full
statutory period. Shors v. Branch (l986), 221 Mont. 390, 398, 720
P.2d 239, 244; Warnack v. Coneen Family Trust (Mont. 1994), 879
P.2d 715, 723, 51 St.Rep. 739, 744. A permanent easement by
express reservation which is not used is not lost by prescription
during a period of nonuse no matter how long it remains unused
unless there is adverse use which is clearly inconsistent with the
dominant tenement's future use of the easement. City of Billings
v. 0. E. Lee Co. (1975), 168 Mont. 264, 268, 542 P.2d 97, 99.
Moreover, the owner of the dominant tenement is not required to
make use of the easement as a condition to retaining his interest
in the easement. Billinas, 542 P.2d at 99. Thus, where an
easement has been created but no occasion has arisen for its use,
the owner of the servient tenement may fence the land and this will
not be deemed adverse until such time as the need for the right-of-
way arises and the owner of the dominant tenement demands that the
easement be opened and the servient tenement owner refuses to do
so. City of Edmond v. Williams (Wash. App. 1989), 774 P.2d 1241,
1244, citinq Castle Assocs. v. Schwartz (N.Y.1978), 407 N.Y.S.2d
717, 723.
Prior to erecting the boundary fence between the parties'
property, both tracts were apparently used as a common pasture.
The District Court correctly concluded that the maintenance of the
northern boundary fence was not an adverse use and that the newly-
constructed fence between the properties at most impeded the use of
the easement for a little less than two years. Therefore, the
Turners' claim that the easement was extinguished fails.
We hold the District Court correctly determined that
defendants1 actions in keeping a fence in place across the northern
boundary of Tract B1A-1 did not extinguish the easement over
defendants1 property.
Affirmed.
Justices
Justice Karla M. Gray, specially concurring
I specially concur in the Court's opinion. My disagreements
and concerns over the Court's approach were set forth fully and
recently in my dissent in Bache v. Owens (Mont. 1994), P.2d
_I 51 St.Rep. 1001. They need not be repeated here; suffice it
to say that those disagreements and concerns have not decreased.
Having failed to persuade a majority of the Court of my views
in Bache, however, that decision is now the applicable law. For
that reason, and that reason alone, I specially concur in the
Court's opinion in this case.