Callsen v. Missoula Cnty.

• Decision Date: 07 July 2020
• Docket Number: DA 19-0696
• Citation: Callsen v. Missoula Cnty., 2020 MT 176, 400 Mont. 383, 467 P.3d 580 (Mont. 2020)
• Parties: Tyler L. CALLSEN, Plaintiff and Appellant, v. MISSOULA COUNTY, State of Montana, Defendant and Appellee.
• Court: Montana Supreme Court

400 Mont. 383

467 P.3d 580

2020 MT 176

Tyler L. CALLSEN, Plaintiff and Appellant,

v.MISSOULA COUNTY, State of Montana, Defendant and Appellee.

DA 19-0696

Supreme Court of Montana.

Submitted on Briefs: June 10, 2020

Decided: July 7, 2020

For Appellant: Sean M. Morris, Worden Thane P.C., Missoula, Montana

For Appellee: Kirsten H. Pabst, Missoula County Attorney, John W. Hart, Deputy County Attorney, Missoula, Montana

Justice Ingrid Gustafsondelivered the Opinion of the Court.

¶1AppellantTyler Callsen(Callsen) appeals the November 12, 2019 Order of the Fourth Judicial District Court, Missoula County, granting Missoula County(County) summary judgment and declaring that the right-of-way next to Callsen's property extends from Rio Vista Drive to the Bitterroot River (River) as depicted on the subdivision plat and provides legal access for the public to the River from Rio Vista Drive.We affirm.

¶2We restate the issues on appeal as follows:

Whether the District Court correctly determined that the public right-of-way from Rio Vista Drive extends to the banks of the Bitterroot River.

FACTUAL AND PROCEDURAL BACKGROUND

¶3The parties do not dispute the facts set forth by the District Court:¹

PlaintiffTyler L. Callsen(Callsen) owns and lives on Lot 3 of Block 3 of Rio Vista Addition, a platted subdivision of Missoula County.He also owns portions of the SW1/4NE1/4 of Section 1, Township 12 North, Range 20 West, MPM, Missoula County Montana, excluding many parcels, including the Rio Vista Addition and a parcel described in Book 149 of Missoula County Micro Recordsat Page 999 and as shown on Deed Exhibit 990.Both the Rio Vista Addition Plat, dated 1960, and Deed Exhibit 990, dated 1961, were prepared by professional land surveyor Vernon Peterson(Peterson).

A predecessor in interest on some or perhaps all of the above-described land was Ida Muller McPherson(McPherson).On August 31, 1960she platted the Rio Vista Addition Subdivision(subdivision) and on the plat donated various rights-of-way to the public.The subdivision plat has two pages.On the first page of the plat, a map depicts an unnamed right-of-way from Rio Vista Drive to the banks of the Bitterroot River (river).On the second page of the plat, McPherson signed the plat and stated her intent to donate, dedicate and grant the right-of-way "to the public forever."The Missoula County Board of Commissioners also signed and accept[ed] the right-of-way on page two.Taken together, based upon Mont. Code Ann. § 76-3-307, the Court finds both pages of the plat constitute an instrument of conveyance or deed of a right-of-way from McPherson to Missoula County, to hold in trust for the public.

The map on the first page of the plat illustrates the public right-of-way between Block 2 and 3 extending from Rio Vista Drive to and beyond the banks of the river.Although unnamed on the plat, this right of way is referred to by Plaintiff Callsen as the "Rio Vista Alley."The Court will also refer to this right-of-way as "Rio Vista Alley."The plat map also depicts all of Block 3 and the western terminus of Briggs Street being adjacent to the banks of the river, as shown below on an excerpt of page one of the plat:

McPherson resided on and owned Lot 3 of Block 3 of the subdivision(Lot 3) until she died in 1994.Callsen purchased Lot 3 in December 2012.

In 2015, because his house, as constructed by McPherson, was an encroachment into the Rio Vista Alley right-of-way, at Callsen's request the Board of County Commissioners of Missoula County abandoned the northerly 20 feet of Rio Vista Alley by Resolution 2015-011.

...

In 2015, Plaintiff Callsen hired Ken Jenkins(Jenkins), a professional surveyor, to find the original monuments set by Peterson when preparing the Rio Vista plat and Deed Exhibit 990.

Jenkins’ findings were memorialized in Missoula County Certificate of SurveyNo. 6471, a portion of which is shown below as taken from Callsen's brief pointing out the germane found monuments:

Note that Jenkins concluded that the northwest corner of Lot 1, Block 2, Rio Vista Addition is located 31.40 feet from the Bitterroot River but that he set his pin for the southwest corner of his Tract 2 ten feet back from river and the described actual southwest corner.

¶4 Callsen contends the metes and bounds description included with the plat map establishes a fixed boundary and thus Rio Vista Alley stops at least 21.40 feet from the River and he owns the land between the end of the alley and the River by virtue of his purchase of Tract 2 of Certificate of Survey (COS) 6471.Missoula County contends the right-of-way conveyed by McPherson—generally known as Rio Vista Alley—extends to the River because it was granted to the public via the plat conveyance, the plat map shows the alley extending into the River, the metes and bounds description included with the plat map is a meander line setting the River as the boundary, and the pins were deliberately set back to avoid them being swept away by the meanderings and water level fluctuations of the River.The District Court granted summary judgment to Missoula County, determining the metes and bounds description included in the subdivision plat is a meander line, not a fixed boundary, and the subdivision plat thus donates the right-of-way from Rio Vista Drive to the River and the Commissioners’ acceptance of that right-of-way constitutes an instrument of conveyance or deed of a right-of-way to Missoula County to hold the conveyance in trust for the public.Callsen appeals.

STANDARD OF REVIEW

¶5We review a district court's grant of summary judgment de novo, applying the criteria outlined in Mont. R. Civ. P. 56.Ash v. Merlette , 2017 MT 305, ¶ 8, 389 Mont. 486, 407 P.3d 304;Bardsley v. Pluger , 2015 MT 301, ¶ 11, 381 Mont. 284, 358 P.3d 907.

DISCUSSION

¶6Whether the District Court correctly determined that the public right-of-way from Rio Vista Drive extends to the banks of the Bitterroot River.

¶7 Callsen contends the Rio Vista subdivision is set back a distance from the River such that a strip of land exists between the Rio Vista Addition subdivision and the River.He asserts the District Court inaccurately determined Peterson's survey description contains distances that extend to the River² and the survey does not specifically provide that Rio Vista Alley does not extend to the River.Callsen recorded COS 6471, a retracement survey, he commissioned in 2015.He asserts that by retracing the original survey, COS 6471 shows that if the distances—the metes and bounds—are retraced, none of the distances extend into the River.He contends the original monuments—located 21.4 feet back from the River—take precedence or are paramount over lines pursuant to § 70-20-201, MCA.

¶8 The County asserts that in 1960 McPherson granted a right-of-way with River access to be held by Missoula County in trust for the public.It was McPherson's intent that Rio Vista Alley extend to the River consistent with the map on the first page of the plat such that the graphic illustration of her intent takes precedent over the written survey description.McPherson did not expressly exclude any land above the low water mark of the River from Rio Vista Alley or state any such intent on the subdivision plat as would be required if her intent was to end the Rio Vista Alley right-of-way some distance before the River.The County further asserts any grant of an interest in property, like the Rio Vista Alley right-of-way from McPherson, must be interpreted in favor of the grantee public pursuant to § 70-1-516, MCA.Finally, the County asserts § 70-2-201, MCA, is a codification of surveying principles used to construe written descriptions, not principles for interpreting an instrument of conveyance itself.The County asserts § 70-20-201, MCA, does not apply as there are other sufficient circumstances to determine the conveyance of the real property here—namely, the plat map.

¶9"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."Ash , ¶ 11.Construction of an instrument of conveyance, including the question of whether its terms are vague or ambiguous, is a question of law.Ash , ¶ 11.Courts, to the extent lawful and reasonably ascertainable, must construe instruments of conveyance to give full effect to the intent of the grantor at the time of the conveyance.Ash , ¶ 13.

¶10 On August 31, 1960, McPherson donated a right-of-way—generally referred to as the Rio Vista Alley—to the public by way of the Rio Vista Addition Subdivision.The subdivision plat consists of two pages.The first page is a map of the subdivision, which depicts a public right-of-way from Rio Vista Drive to just beyond the banks of the River.The second page containing the plat survey description and dedication is signed by McPherson, states her intent to donate the right-of-way, and dedicates and grants the Rio Vista Alley right-of-way "as shown on the accompanying plat."Page two also contains the acceptance of the right-of-way by the Missoula County Board of Commissioners.The District Court correctly determined the two-page subdivision plat and dedication to constitute the instrument of conveyance or deed of the Rio Vista Alley right-of-way from McPherson to Missoula County.³See§ 76-3-307, MCA.From this document, the intent of McPherson, the grantor, was clearly to provide the public an ongoing, unending access to the River along the Rio Vista Alley right-of-way.

¶11 In an attempt to create ambiguity related to McPherson's intent, Callsen conflates surveying principles used to construe written descriptions with principles for interpreting an instrument of conveyance itself, asserting the southwest boundary of the subdivision is a fixed boundary as no calls or reference is made in the plat survey description to the River.We agree with the District Court there is no ambiguity in regard...