Ash v. Merlette

• Decision Date: 12 December 2017
• Docket Number: DA 17-0160
• Citation: 407 P.3d 304,389 Mont. 486,2017 MT 305
• Parties: Brenda M. ASH, Individually and as Trustee of the Brenda M. Ash Revocable Trust, Plaintiff and Appellee, v. John B. MERLETTE, Individually and as Trustee of the John B. Merlette, Sr. Living Trust; Gladys A. Merlette, Individually and as Trustee of the Gladys A. Merlette Living Trust, Defendants and Appellants.
• Court: Montana Supreme Court

389 Mont. 486

407 P.3d 304

2017 MT 305

Brenda M. ASH, Individually and as Trustee of the Brenda M. Ash Revocable Trust, Plaintiff and Appellee,

v.John B. MERLETTE, Individually and as Trustee of the John B. Merlette, Sr. Living Trust; Gladys A. Merlette, Individually and as Trustee of the Gladys A. Merlette Living Trust, Defendants and Appellants.

DA 17-0160

Supreme Court of Montana.

Submitted on Briefs: August 2, 2017

Decided: December 12, 2017

For Appellant: Paul A. Sandry, Johnson, Berg, & Saxby, PLLP; Kalispell, Montana.

For Appellees: Renee L. Coppock, Crowley Fleck PLLP; Billings, Montana, Richard W. Casey, Ashley A. Di Lorenzo, Crowley Fleck PLLP; Kalispell, Montana

Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 John B. Merlette and Gladys A. Merlette (Merlette) appeal an order of the Montana Eleventh Judicial District Court granting summary judgment declaring that Brenda M. Ash (Ash) owns certain disputed land between the high-and low-water marks of a small lake located in Flathead County, Montana. We affirm and address the following issue on appeal:

Did the District Court correctly conclude that Ash owns the land bordering her property between the high- and low-water marks of Parker Lake?

BACKGROUND

¶2 In 1986, Larry and Serena Streeter (Streeters) acquired approximately 43 acres of property surrounding a small lake in Flathead County known as Parker Lake No. 1.¹

In 1991, Streeters subdivided the property by internal boundary line relocation into an approximately 5.66 acre tract (Parcel A) and a 37.17 acre remainder (Tract 1).² Both tracts included lake frontage on Parker Lake. In 1992, Streeters sold the 37.17 acre remainder to John Bradshaw (Merlette Property)³ but retained the previously created 5.66 acre tract (Ash Property) for themselves. In 2000, Brenda Ash (formerly Olson) jointly acquired the Ash Property with her then-husband via a mesne conveyance originating from Streeters.⁴

¶3 As created and particularly described by Streeters' 1991 COS 10404, the 5.66 acre Ash Property included approximately 577 feet of frontage on Parker Lake. COS 10404 described the Ash Property boundary along Parker Lake by a particularized metes and bounds plot running from a referenced starting point on the high-water mark and then "on and along" the high-water mark three specified courses marked by pin locations. Streeters' subsequent 1992 deed to Bradshaw conveyed the Merlette Property by reference to COS 10120 but expressly excluded the retained Ash Property from the conveyance by reference to COS 10404, which cut the Ash Property out of COS 10120 prior to the Bradshaw conveyance. The 1992 Bradshaw deed expressly excluded the Ash Property by reference to COS 10404 and a redundant metes and bounds description lifted verbatim therefrom. The 2000 Olson-Ash deed (Ash deed) described the Ash Property by reference to COS 10404 and a redundant metes and bounds plot running from a referenced point on the high-water mark "on and along" the high-water mark three specified courses, "577 feet more or less."⁵

¶4 In 2002, construction workers retained by Merlette excavated fill from Parker Lake to level a site for a new residence on the Merlette Property. Ash complained to the U.S. Army Corps of Engineers that Merlette's fill excavation violated § 404 of the federal Clean Water Act prohibiting unpermitted dredging in streams, lakes, and wetlands subject to the Act.⁶ After a site visit, the Corps issued correspondence, dated January 21, 2003, declaring Parker Lake as a non-navigable intrastate body of water beyond the Corps' jurisdiction pursuant to Solid Waste Agency v. U.S. Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (federal jurisdiction limited to waters susceptible to interstate commerce and immediately adjacent wetlands).

¶5 Later in 2002, Ash placed a boat dock on the Parker Lake shoreline in front of her home. Merlette objected, asserting that he owned all of the land below the high-water mark around the entire lake. He accused Ash of trespass and insisted that she remove the dock immediately. Ash eventually acquiesced and removed the dock. In 2015, Ash again installed a dock on the lake in advance of listing her property for sale. Merlette again protested on the asserted ground that he owned all of the land below the high-water mark around the lake. The dispute escalated when Merlette pounded metal fence posts along the high-water mark bordering Ash's property and Ash removed and stacked them on Merlette's driveway.

¶6 After the parties exchanged correspondence through counsel, Ash filed suit on November 12, 2015, asserting claims for declaratory judgment and in tort based on alleged trespass and nuisance. Ash further sought a temporary restraining order and preliminary injunction enjoining Merlette from interfering with her lake access pending final judgment. Merlette counterclaimed in trespass, asserting ownership of all land between the high- and low-water marks on the lake. On November 24, 2015, the District Court granted Ash's request for a temporary restraining order and, following hearing on December 1, 2015, issued a preliminary injunction enjoining Merlette from interfering with Ash's lake access. On December 28, 2016, Ash filed an amended complaint adding counts of intentional interference with her contractual relationship with her realtors and slander of title based on Merlette's alleged misrepresentations to third parties regarding his asserted ownership of all lake frontage on Parker Lake.

¶7 In January 2016, the parties filed cross-motions for summary judgment. On the ground that extrinsic evidence was not necessary or proper to construe the clear and unambiguous language in Ash's deed, the District Court denied Merlette's M. R. Civ. P. 56(f) motion to stay summary judgment and for further discovery. On November 7, 2016, the District Court granted summary judgment that Ash owned the land between the high- and low-water marks of Parker Lake bordering Ash's property. On February 22, 2017, the District Court certified its summary judgment order for immediate appeal pursuant to M. R. Civ. P. 54(b). We affirm and remand for further proceedings.

STANDARD OF REVIEW

¶8 We review summary judgment rulings de novo for conformance to M. R. Civ. P. 56. Dick Anderson Constr., Inc. v. Monroe Prop. Co., 2011 MT 138, ¶ 16, 361 Mont. 30, 255 P.3d 1257. Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). Whether a genuine issue of material fact exists or whether a party is entitled to judgment as a matter of law are conclusions of law subject to de novo review for correctness. Ereth v. Cascade County, 2003 MT 328, ¶ 11, 318 Mont. 355, 81 P.3d 463.

DISCUSSION

¶9 Did the District Court correctly conclude that Ash owns the land bordering her property between the high- and low-water marks of Parker Lake?

¶10 As matters of federal and federally-derived state sovereignty over beds and banks of navigable waters, conveyances of land bordering navigable waters, as defined by federal law, cannot convey title below the high-water mark unless otherwise authorized by state law. See PPL Montana, LLC v. Montana, 565 U.S. 576, 589-91, 132 S.Ct. 1215, 1227-28, 182 L.Ed.2d 77 (2012) (riparian ownership acquired by western states on admission under federal "equal footing" doctrine); Montana v. United States, 450 U.S. 544, 551, 101 S.Ct. 1245, 1251, 67 L.Ed.2d 493 (1981) (ownership of land between the high-water marks of navigable waters generally adhered to the states upon statehood subject only to any retained federal easement and federal constitutional authority to regulate interstate commerce); United States v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 312 U.S. 592, 597, 61 S.Ct. 772, 775, 85 L.Ed. 1064 (1941) (federal authority to regulate interstate commerce between high-water marks of navigable waters); § 70-1-202(1), MCA (state owns "all land below" water of navigable lakes and streams). Subject to Montana's limited public trust easement over state waters for fishing and recreational use between the high-water marks, see Mont. Const. art. IX, § 3 ; §§ 23-2-302(1), 70-1-202(1), and 87-2-305, MCA ; Galt v. State, 225 Mont. 142, 147-48, 731 P.2d 912, 915-16 (1987), parties other than the state may acquire title to the midline of non-navigable waters and to the low-water mark of navigable waters. Section 70-16-201, MCA.⁷ Thus, unless the source instrument of conveyance clearly and unequivocally provides otherwise, conveyances of land bordering on non-navigable waters convey title to the underlying land to the midline of the water body, while conveyances of land bordering on navigable waters convey title to the low-water mark. Section 70-16-201, MCA. Since Montana's public trust easement is not at issue here and a conveyance of land bordering on a water body conveys at least to the low-water mark unless otherwise provided by the conveyance, we need only address whether the District Court correctly construed the pertinent instruments of conveyance without consideration of whether Parker Lake is navigable or non-navigable.

¶11 Other than by operation of law, transfers of real property may occur only by written conveyance expressing the grantor's intent to convey particularly described property to another. Sections 70-1-501, 70-2-101, and -102, MCA. Except as otherwise provided by law, the language of an instrument of conveyance determines the nature and extent of title conveyed. Anderson v. Stokes, 2007 MT 166, ¶ 32, 338 Mont. 118, 163 P.3d 1273. Conveyance of real property by reference to a certificate of survey, as defined by §§ 76-3-103(1), -302(1), -401, -402, MCA, incorporates the referenced certificate of survey, including all notes, certifications, lines, descriptions, land marks, and depictions therein, into the deed as if set forth on the face of the deed. John Alexander Ethen...