Ashby v. MAECHLING, DA 09-0115.

• Citation: 229 P.3d 1210,2010 MT 80
• Decision Date: 15 April 2010
• Docket Number: No. DA 09-0115.,DA 09-0115.
• Parties: Perry ASHBY and Katherine Ashby, Plaintiffs and Appellants, v. Phillip MAECHLING, Sandra Alcosser, and Harve L. Dalton, Defendants, Appellees and Cross-Appellants.
• Court: Montana Supreme Court

229 P.3d 1210

2010 MT 80

Perry ASHBY and Katherine Ashby, Plaintiffs and Appellants, v. Phillip MAECHLING, Sandra Alcosser, and Harve L. Dalton, Defendants, Appellees and Cross-Appellants.

No. DA 09-0115.

Supreme Court of Montana.

Argued and Submitted January 20, 2010.

Decided April 15, 2010.

COPYRIGHT MATERIAL OMITTED

For Appellants: Darrel L. Moss (argued); Moss & Associates, P.C., William K. VanCanagan; Datsopoulos, MacDonald & Lind, P.C., Missoula, Montana.

For Appellees and Cross-Appellants: Martin S. King (argued); Worden Thane, P.C., Missoula, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 This case arises from a dispute in which the Ashbys seek an easement by necessity across properties owned by Maechling, Alcosser and Dalton (referred to collectively as Maechlings). The District Court of the Twenty-First Judicial District held that Ashbys had an easement by necessity and defined the scope of the easement. Both sides appeal and we affirm.

¶ 2 Ashbys present issues for review that we restate as follows:

¶ 3 Issue One: Whether the District Court erred in determining the scope of the easement.

¶ 4 Issue Two: Whether the District Court erred in failing to award Ashbys damages based upon a claim of interference with the easement.

¶ 5 Maechlings present issues for review that we restate as follows:

¶ 6 Issue Three: Whether the District Court erred in declaring that an implied easement by necessity exists across property of Maechlings to reach property owned by Ashbys.

¶ 7 Issue Four: Whether the District Court erred in determining that West County Line Road is a public road.

¶ 8 Issue Five: Whether the District Court erred in determining that the easement by necessity allows access to Ashbys' property for one residence. We deem this to be related to the scope of the easement.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 9 The property at issue is west of U.S. Highway 93 in northern Ravalli County, Montana, and is bordered on the north by Missoula County. In 1932 Ravalli County acquired tax deed title to a large tract of land that included all of the property now owned by the parties. At that time the West County Line Road, which runs east-west along the Ravalli-Missoula County line, entered the east end of the large Ravalli County tract and provided access to it. In 1934 the County sold to George Jones the property now owned by Maechlings. The County retained the property now owned by Ashbys and sold it to Robert McKenzie in 1935.¹ The Ashbys' tract is 120 acres and lies to the west of Maechlings' property. Maechling and Alcosser own and reside on 30 acres immediately east of Ashbys' land, and Dalton owns and resides on a tract immediately east of Maechling and Alcosser.

¶ 10 No established roads have ever entered the Ashbys' property and no permanent residence or agricultural use was ever established there. There is an irrigation ditch that crosses the parcel, but it has not been developed other than three episodes of logging, one in the 1800s, another in the 1970s and another conducted by Ashbys in 2007.

¶ 11 Ashbys bought their property in late 2004 along with a separate 150 acre parcel from the same seller. They knew at the time of purchase that there was no established access to the property and that their title insurance policy excepted access. Maechlings had for some time prior to 2004 maintained a locked gate on their property at the end of West County Line Road. The Road did not and apparently never has extended to the property now owned by Ashbys. In 2005 Ashbys wrote Maechling and Alcosser claiming an easement by necessity across their land for purposes of logging and offering not to sue them if Maechling and Alcosser sold Ashbys a perpetual non-exclusive easement for $10. Maechlings declined the offer, and this event precipitated Ashbys' claim for interference with the easement.

¶ 12 Ashbys sued in July 2005 seeking to establish that they had an easement by necessity across Maechlings' property to reach their 120-acre parcel, and for damages based upon Maechlings' alleged interference with the claimed easement. In February, 2006 Ashbys moved for summary judgment on the easement issue. In October, 2006 the District Court denied Ashbys' motion on the ground that they had not met their burden to show by clear and convincing evidence that the easement by necessity existed.

¶ 13 In March, 2007 Ashbys again moved for summary judgment, and in June Maechlings also moved for summary judgment. On August 31, 2007 the District Court denied Maechlings' motion for summary judgment and granted summary judgment to Ashbys, holding that West County Line Road is a public road, and that Ashbys have an easement by necessity across Maechlings' land to reach the road. Immediately after the District Court ruling, Ashbys arrived on Maechlings' land at the end of West County Line Road, removed the locked gate and constructed a road to their property across Maechlings' property. Maechlings have not blocked the access since the August 31, 2007, District Court ruling.

¶ 14 In March, 2008, Ashbys moved for partial summary judgment on the issue of the scope of the easement, requesting that the "Court determine, as a matter of law, that the scope of the easement that arose in 1934 is unlimited other than that such use must be in accordance with laws that govern the normal use and development of real property in Ravalli County and the State of Montana."² Maechlings also moved for reconsideration of the August 31, 2007 order regarding the existence of an easement by necessity.

¶ 15 In July, 2008, the District Court denied Maechlings' motion for reconsideration, denied Ashbys' motion on the scope of the easement and granted summary judgment for Maechlings and against Ashbys on the claim for interference with the easement. The District Court then held an evidentiary hearing in September, 2008 on the scope of the easement. Witnesses testified and exhibits were received.

¶ 16 The District Court entered Findings of Fact, Conclusions of Law and Judgment in November, 2008, and amended findings in January, 2009.

STANDARDS OF REVIEW

¶ 17 This Court reviews a district court's decision on a motion for summary judgment de novo, using the same standards provided in M.R. Civ. P. 56. Spinler v. Allen, 1999 MT 160, ¶ 14, 295 Mont. 139, 983 P.2d 348.

¶ 18 A district court's findings of fact will be upheld if they are supported by substantial credible evidence. Steiger v. Brown, 2007 MT 29, ¶ 16, 336 Mont. 29, 152 P.3d 705. This Court reviews a district court's conclusions of law to determine whether they are correct. Id.

DISCUSSION

¶ 19 We first consider the pivotal issue of whether the District Court properly held that an easement by necessity exists across Maechlings' land to access the Ashby land. Montana law has long recognized the existence of easements by necessity as a species of implied easements. At the same time, easements by necessity are "considered with extreme caution" because they deprive the servient tenement owner of property rights "through mere implication." Graham v. Mack, 216 Mont. 165, 174, 699 P.2d 590, 596 (1984) (emphasis in original). Easements by necessity arise from a legal fiction that the owner of a tract of land would not isolate a portion of it without having intended to leave a way of access to the parcel over the lands being severed. Wolf v. Owens, 2007 MT 302, ¶ 16, 340 Mont. 74, 172 P.3d 124. Two essential elements of an easement by necessity are unity of ownership and strict necessity. Watson v. Dundas, 2006 MT 104, ¶ 32, 332 Mont. 164, 136 P.3d 973. The proponent of the easement by necessity must prove the necessary elements by clear and convincing evidence. Watson, ¶¶ 33, 40-41.

¶ 20 Unity of ownership exists where the owner of a tract of land severs part of the tract without providing an outlet to a public road. Watson, ¶¶ 32, 33. A single owner must at one time have owned both the tract to be benefited by the easement and the tract across which the easement would pass. Loomis v. Luraski, 2001 MT 223, ¶ 49, 306 Mont. 478, 36 P.3d 862. Unity of ownership can originate decades before the judicial determination of whether there is an easement by necessity. Kelly v. Burlington Northern, 279 Mont. 238, 244-45, 927 P.2d 4, 7-8 (1996) (unity of ownership traced to 1891). The easement by necessity is created by operation of law at the time of severance of the parcels of land. Albert G. Hoyem Trust v. Galt, 1998 MT 300, ¶ 17, 292 Mont. 56, 968 P.2d 1135.

¶ 21 In this case it is undisputed that in 1932 Ravalli County owned a tract of land referred to as the tax deed parcel that included the land now owned by all parties to this litigation. It is also undisputed that in 1934 the County severed parts of the larger tract to Maechlings' predecessors in interest and then to Ashbys' predecessors in interest. Therefore, the unity of ownership requirement was clearly met.

¶ 22 The element of strict necessity requires that there is no practical access to a public road from the landlocked parcel. Kelly, 279 Mont. at 244, 927 P.2d at 7. Strict necessity must exist at the time the tracts are severed from the original ownership and at the time the easement is exercised. Watson, ¶ 32.³ A developed way of access to the landlocked parcel need not actually exist at the time of severance, and an easement by necessity is "distinguished from other implied easements on the simple ground that a developed way need not be in existence at the time of conveyance...." Schmid v. McDowell, 199 Mont. 233, 237, 649 P.2d 431, 433 (1982).⁴

¶ 23 In this case the District Court concluded upon a review of the evidence that there was no evidence of any practical road to connect Ashbys' parcel to a public road. Severance of the parcel now owned by Maechlings' landlocked the parcel now owned by Ashbys. No substantial evidence appears to contradict that conclusion.

¶ 24 Maechlings contend that the...