Blazer v. Wall

• Citation: 343 Mont. 173,183 P.3d 84,2008 MT 145
• Decision Date: 29 April 2008
• Docket Number: No. 05-386.,05-386.
• Parties: Harry BLAZER, Plaintiff and Appellee, v. Lyle WALL, Trustee of the Sugar Land Trust Dated 04/09/01; Elaine Comfort-Waldher; and Kevin Waldher, Defendants and Appellants.
• Court: Montana Supreme Court

183 P.3d 84

343 Mont. 173

2008 MT 145

Harry BLAZER, Plaintiff and Appellee, v. Lyle WALL, Trustee of the Sugar Land Trust Dated 04/09/01; Elaine Comfort-Waldher; and Kevin Waldher, Defendants and Appellants.

No. 05-386.

Supreme Court of Montana.

Submitted on Briefs February 8, 2006.

Decided April 29, 2008.

For Appellants: James C. Bartlett, Attorney at Law, Kalispell, Montana.

For Appellee: Randall S. Ogle, Ogle & Worm, PLLP, Kalispell, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Lyle Wall, as trustee of the Sugar Shack Land Trust, Elaine Comfort-Waldher, and Kevin Waldher (collectively, "the Waldhers") appeal from the final judgment entered by the District Court for the Eleventh Judicial District, Flathead County, in favor of Harry Blazer. We reverse.

BACKGROUND

I. The Properties

¶ 2 The properties at issue in this case are located along Whitefish Stage Road between Kalispell and Whitefish, Montana. They formerly were part of a larger parcel of land purchased by Jack L. Davis and James McCready in 1972. In 1979, Davis and McCready subdivided a portion of the land into seven tracts as described and depicted on Certificate of Survey No. 4446 ("COS 4446"), which was filed January 12, 1979, as Instrument No. 620, records of Flathead County, Montana. Davis assumed ownership of the two westernmost tracts (Tracts 1 and 4), and McCready assumed ownership of the remaining five tracts. An excerpt of COS 4446, depicting Tracts 1, 2, 3, and 4, is attached as an appendix to this Opinion.

¶ 3 Tract 1 lies directly north of Tract 4. A dotted line is depicted on COS 4446 30 feet south of the northern boundary of Tract 1 and running parallel thereto. Thirty feet from the western boundary of Tract 1, the dotted line turns south and runs parallel to the western boundaries of Tracts 1 and 4. The dotted line continues to a point 30 feet south of Tract 4 and then turns west. The area between the dotted line and the aforementioned boundaries of Tracts 1 and 4 is labeled "30' EASEMENT ROAD."

¶ 4 The seven tracts and the dotted line depicted on COS 4446 are arranged as follows (not to scale):

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

¶ 5 Historically, Davis used the 30-foot-wide strip of land as a farming road for accessing the western part of Tract 4 and other property he owned to the south and west of Tract 4. He preferred this route due to the sandy soil and steep grade of Tract 4. However, the historical road has since become overgrown. The portion of the road traversing Tract 4 is presently being farmed; and, with a number of exceptions noted below, the portion of the road traversing Tract 1 has pine trees and grass growing on it.

II. The Conveyances

¶ 6 In October 1987, Davis conveyed Tract 1 of COS 4446 to Robert H. and Connie L. Lockman. The face of the Davis-Lockman deed contains the following description of the real property being conveyed:

A tract of land located in Government Lot 4, Section 33, Township 30 North, Range 21 West, Principal Meridian, Montana, Flathead County, Montana, and more particularly described as follows:

[Description in metes and bounds.]

Tract 1 of Certificate of Survey No. 4446.

SUBJECT TO 30 foot road easement as shown on Certificate of Survey No. 4446, records of Flathead County, Montana.

No other property and no explicit reservations are recited in the deed.

¶ 7 Through a series of subsequent conveyances, title to Tract 1 passed to Elaine Comfort-Waldher in April 1999 and, ultimately, to Lyle Wall, as trustee of the Sugar Shack Land Trust, in April 2001.¹ All of the deeds in these conveyances refer to "Tract 1 of Certificate of Survey No. 4446." The Waldhers, whose living trusts are the beneficiaries of the Sugar Shack Land Trust, have resided on Tract 1 since 1999.

¶ 8 In March 1989, Davis conveyed Tract 4 of COS 4446 to Ronald E. and Lavera M. Foster. In May 2003, the Fosters conveyed the western five acres of Tract 4 to Blazer in exchange for five acres owned by Blazer to the south of Tract 4. Both the Davis-Foster deed and the Foster-Blazer deed refer to COS 4446.

¶ 9 Davis also owned property located to the south and west of, and contiguous to, Tract 4. This "southwest property" is not depicted or identified on COS 4446. Davis conveyed the southwest property to Blazer in August 1989. The Davis-Blazer deed refers to Certificate of Survey No. 4268 and Certificate of Survey No. 2078.

¶ 10 The properties purchased by Blazer from Davis and the Fosters are arranged as follows (not to scale):

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

III. The Instant Action

¶ 11 Shortly after purchasing Tract 1 in 1999, the Waldhers placed a manufactured home near the southwest corner of the property. Then, over the next two years, they constructed a large metal shop and two retaining walls just west of their home. They also built a gravel driveway from Whitefish Stage Road to their home and shop. (The course of this driveway roughly tracks the dotted line depicted on Tract 1 of COS 4446.) According to a December 2003 encroachment survey prepared at Blazer's request, both of the retaining walls and approximately half of the shop, as well as an electric transformer and a propane tank, lie within the 30-foot-wide strip of land along the western boundary of Tract 1.

¶ 12 Blazer initiated the instant action on September 23, 2003, seeking a declaration that he has an express easement for ingress and egress purposes along the northern and western boundaries of Tract 1. He also requested an injunction requiring the Waldhers to remove all obstructions interfering with his use of the easement. The Waldhers answered the complaint and denied that such an easement exists. They also raised estoppel, waiver, statute of limitations, laches, acquiescence, and unclean hands as defenses, alleging that Blazer and his predecessors in interest (the Fosters) had watched and observed the construction of the shop in the vicinity of the alleged easement. Finally, the Waldhers asserted a counterclaim based on adverse possession.

¶ 13 Blazer filed a motion for summary judgment, arguing that under this Court's decisions in Bache v. Owens, 267 Mont. 279, 883 P.2d 817 (1994), Halverson v. Turner, 268 Mont. 168, 885 P.2d 1285 (1994), and Ruana v. Grigonis, 275 Mont. 441, 913 P.2d 1247 (1996), an easement was reserved over Tract 1 along the 30-foot-wide strip of land depicted on COS 4446 when, in 1987, Davis conveyed Tract 1 to the Lockmans by a deed which referenced COS 4446. Blazer initially asserted that this easement was for the benefit of Tract 4 and Davis's property to the south and west of Tract 4. However, in his reply brief in support of his motion for summary judgment, Blazer clarified that his right to enforce an easement across Tract 1 "is not dependent on, or derivative of" the Foster-Blazer land swap by which Blazer acquired the western five acres of Tract 4. He took the position that his present ownership of a portion of Tract 4 is "immaterial to the analysis" and "[not] the basis of this lawsuit," since his easement rights as successor in interest to Davis's property to the south and west of Tract 4 "are plenty enough to sustain his position in this action." As noted above, Davis's southwest property is not depicted or identified on COS 4446; however, Blazer posited that the reference to COS 4446 in the Davis-Lockman deed was sufficient to reserve an easement across Tract 1 for the benefit of "the property [Davis] retained to himself" — including property not identified on COS 4446 or in the Davis-Lockman deed—and that this easement passed to Blazer when he purchased the southwest property from Davis in 1989.

¶ 14 The Waldhers responded that, "looking at COS 4446, it is impossible to decide, as a matter of law, than an easement exists for the benefit of any one or more particular tracts." They argued that in order to reserve an easement under Bache, Halverson, and Ruana, the grantee of the servient estate must have knowledge of the easement's use or necessity, and the identities of the dominant and servient estates, therefore, must be included on the certificate of survey.

¶ 15 The District Court ruled that the Davis-Lockman deed and COS 4446 "create[d] the easement alleged by [Blazer]." The court reasoned that "[t]he COS was properly recorded, and it identifies the easement clearly and specifically." However, the court concluded that there were genuine issues of material fact as to whether the easement had been extinguished by adverse possession. Accordingly, the court denied Blazer's motion.

¶ 16 The case proceeded to a nonjury trial on September 28, 2004, at which time the District Court heard testimony from Davis, the Fosters, Blazer, the Waldhers, and the surveyor who had created the December 2003 encroachment survey. Davis testified that he had intended to create an easement across Tract 1 and Tract 4 to provide access, "predominately for farming [purposes]," to "the top of the hill" (which he explained was at or about the southwest corner of Tract 4) and his property to the south and west of Tract 4. He further testified that he had entrusted his attorneys to prepare documents using the language appropriate under the law to accomplish this result. Blazer testified, among other things, as to his use of the easement road depicted on COS 4446. He stated that in the past, he was able to walk, ride a mountain bike or a motorcycle, and drive a vehicle on this route from Whitefish Stage Road to the upper portion of Tract 4, but that he no longer could drive a vehicle along the western boundary of Tract 1 due to the Waldhers' shop and the other obstructions. He indicated, however, that he can still drive a vehicle up to Tract 4 from the other direction, i.e., he comes up from the southwest property. On the matter of farming Tract 4 in recent years, the Fosters both testified that the farmer has accessed Tract 4 using the...