Clark v. Heirs and Devisees of Dwyer

• Decision Date: 18 September 2007
• Docket Number: No. DA 06-0399.,DA 06-0399.
• Citation: 2007 MT 237,170 P.3d 927,339 Mont. 197
• Parties: Robert A. CLARK and Leslie Clark, Plaintiffs and Respondents, v. HEIRS AND DEVISEES OF Larry J. DWYER, Deceased, Dwyer Family Trust, and George L. Byrum and Virginia Byrum, Defendants and Appellants, and Northwest Farm Credit Services, ACA, Defendant.
• Court: Montana Supreme Court

170 P.3d 927

2007 MT 237

339 Mont. 197

Robert A. CLARK and Leslie Clark, Plaintiffs and Respondents, v. HEIRS AND DEVISEES OF Larry J. DWYER, Deceased, Dwyer Family Trust, and George L. Byrum and Virginia Byrum, Defendants and Appellants, and Northwest Farm Credit Services, ACA, Defendant.

No. DA 06-0399.

Supreme Court of Montana.

Submitted on Briefs March 7, 2007.

Decided September 18, 2007.

Rehearing Denied October 24, 2007.

For Appellants: Lori A. Harshbarger, JD Law Firm, P.C., Tucson, Arizona, (Dwyers), William P. Driscoll, Franz & Driscoll, PLLP, Helena, Montana, (Byrums).

For Respondents: Stephanie Gehres Kruer, Kruer Law Firm, P.C., Sheridan, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellants George and Virginia Byrum and the heirs and devisees of Larry Dwyer and the Dwyer Family Trust appeal from an order of the Fifth Judicial District Court, Madison County, granting a prescriptive easement to Robert and Leslie Clark. We affirm.

¶ 2 We consider the following issues on appeal:

¶ 3 1. Did the District Court err by entering findings of fact related to "public use" of the disputed portion of roadway?

¶ 4 2. Did the District Court err in declaring a private prescriptive roadway easement for "subdivision or residential access" to tracts created by subdivision in the 1960s?

¶ 5 3. Should the Clarks be awarded costs and damages for having to defend this appeal?

BACKGROUND

¶ 6 The disputed roadway and prescriptive easement in question here is located in Section 33, Township 1 South, Range 5 West (Section 33) of Madison County. Section 33 is divided by the Burlington Northern Railroad that runs northeast and southwest across the land. The Jefferson River also divides Section 33, meandering through the northern half and southwest quadrant. Robert and Leslie Clark (the Clarks) are the present fee simple owners of real property located in Section 33 along the Jefferson River comprising of Parcel A, Tract A, Tract F, and Tract H as depicted by the Certificate of Survey filed for record on September 7, 2004, in Book 7 of Surveys, Page 1706-BA, of the records of Madison County. The Clarks acquired this property over a seven-year period beginning in 1979.

¶ 7 In 1979, the Clarks entered a contract to purchase, including an option to purchase, land in the southwest quadrant of Section 33 from Edward and Vivian Judd (the Judds). From 1979 to 1986, the Clarks lived in the old Judd farmhouse. Pursuant to the contract to purchase, the Judds executed and delivered a warranty deed to the Clarks for a twenty-acre tract of the original Judd property known as Parcel A, for the purpose of building a house thereon. Parcel A is a triangular tract of land with its hypotenuse adjoining the western side of the railroad. The Clarks recorded the deed on September 11, 1986. Also in 1986, the Clarks assigned the right they held to purchase the remaining Judd property, including the original Judd farmhouse, to Donald and Charlene Shriver (the Shrivers). The Shrivers subsequently assigned the right to George and Virginia Byrum (the Byrums), who purchased the property.

¶ 8 Prior to assigning the right to purchase the Judd property to the Shrivers, the Clarks purchased the subdivided Tracts A, F, and H from Al and Joy Goodwin (the Goodwins) in 1984. These tracts were subdivided in the 1960s and the subdivision was recorded in the official records of Madison County on July 14, 1970. The Clarks recorded their deed to these tracts on November 21, 1989. Connected from east to west, respectively, Tracts A, F, and H are located in the northern half of Section 33 and attach to the northern boarder of Parcel A and run to the Jefferson River. The Clarks later built their current home on Tract A and have resided there since 1991. They did not build a home on Parcel A as originally planned.

¶ 9 Larry and Marlene Dwyer (the Dwyers) purchased certain real property in Section 33 and recorded a warranty deed on August 28, 1971. At the time the complaint was filed, the Dwyer land was owned in undivided one-half interests by the Dwyer Family Trust and the heirs and devisees of Mr. Dwyer. However, by a transfer recorded on September 27, 2004, John Joseph Dwyer became the owner of the Dwyer property.

¶ 10 The Dwyer property is a semi-triangular tract of land with the hypotenuse adjoining the eastern side of the railroad in Section 33. As such, the Dwyer property and Parcel A border each other with the railroad acting as a visible property line. The Dwyer property is bordered on the east by a county road named "Waterloo Road" and on the north by a roadway known as "Byrum Lane." Byrum Lane extends from Waterloo Road, across the Dwyer property, and across the northern border of the Clarks' Parcel A, which lies between the Dwyer and Byrum properties, before continuing onto the Byrums' property lying to the southwest of the Clarks' Parcel A. In essence, Byrum Lane dissects Parcel A from the Clarks' northern adjoining Tracts A, F, and H.

¶ 11 The Byrums utilize Byrum Lane by virtue of two recorded easements in their favor. The portion of Byrum Lane crossing the Clarks' Parcel A is a recorded sixty-foot wide roadway and utility easement. The portion of Byrum Lane traveling from Waterloo Road over the Dwyer property is a road and utility easement executed by Larry Dwyer on September 15, 1998, and recorded in favor of the Byrums on September 16, 1998. The recorded easement is described as

[a] 30 foot wide roadway easement located in the N1/2SE1/4 of Section 33, Township 1 South, Range 5 West, P.M.M., said easement being 30 feet southerly of and parallel with the following described line: Beginning at the East¼ corner of said Section 33, thence S89°40°59"W 883.85 feet more or less on the east-west mid section line of said Section 33 to the southeasterly boundary line of the right of way of the Burlington Northern Railroad as said railway is located in and surveyed across the mid section line of said Section 33; said mid section line being the north boundary of the herein described easement.

This portion of Byrum Lane crosses the Dwyer property from Waterloo Road for a distance of approximately 834 feet before reaching the Clarks' property.

¶ 12 Historically, Byrum Lane was used by the Clarks and their predecessors to access what has been referred to as the "Judd" and "Goodwin" tracts which the Clarks purchased. During the period of 1979 to 1986 when the Clarks lived in the old Judd farmhouse, Byrum Lane served as the Clarks' "sole access to [their] property" and residence. From the period of 1986 to 1991 the Clarks used Byrum Lane to access their properties to feed livestock, load hay, and move equipment, and in 1988 the Clarks began constructing their home on Tract A, taking up residence there in 1991. Since then they have continuously used Byrum Lane to access Parcel A and Tracts A, F, and H, although they also have access to their house by way of a roadway from Waterloo Road. As such, the Clarks claim a prescriptive easement along the portion of Byrum Lane legally described above, allowing them access over the Dwyer property to their Parcel A and Tracts A, F, and H. Accordingly, the Clarks filed an action seeking declaration of a private prescriptive right-of-way easement on the recorded access easement owned by the Byrums and crossing the Dwyer property.

¶ 13 Following a two-day bench trial, the District Court entered findings of fact that included:

18. The disputed road in question has been used by the public and Clarks' predecessors in interest since, at least, the early 1900s, and has served several residences since that time.

19. The county road department has maintained the road on occasion.

20. That the disputed road was generally knows [sic] as a public road and no permission was asked for or granted to use the road.

21. That the public had a right to use the road and used the road long before defendants Dwyers purchased the property.

22. During the time defendants Dwyers has [sic] owned the property surrounding the disputed road, the public, including plaintiffs, did not seek defendants Dwyers' permission to use the road, and defendants Dwyers' contention that said use was permissive is unsupported by the record. Dwyers never formally gave anyone permission to use the roads.

23. Plaintiffs, the public, and their predecessors in interest have used the road for access to their property located in Section 33. The past use of the road has included access for: A. Livestock purposes; B. Irrigation purposes; C. Hauling livestock supplies; D. Farming purposes; E. Residential purposes; F. Subdivision purposes; G. Repairing fence; H. Cutting and hauling firewood; I. Spraying weeds; J. Movement of equipment; K. Hunting; L. Fishing/river access; M. Burning brush; N. Fire control; O. Private roadway crossing at railroad tracks.

. . . .

23. [sic] That defendants Dwyers failed to establish any persuasive evidence that the use of the road was permissive.

24. All owners of the road were put on notice in the 1960s that the road was intended to service residences when the subdivision of the property into various tracts took place.

. . . .

33. While defendant Dwyer has concerns about additional burdens on the easement, there is no evidence that there is any additional burden planned or that additional subdivisions of the property, beyond that done in the 1960s, is going to take place. The property was subdivided and of record prior to defendants Dwyers' purchase of the property. They can not [sic] now claim surprise.

¶ 14 The court concluded as a matter of law that the Clarks established the elements of a prescriptive easement, to wit: open, notorious, exclusive, adverse, continuous, and uninterrupted use of the roadway for at least five years. The District Court issued judgment granting the Clarks a prescriptive easement of the portion of Byrum Lane crossing the Dwyer property. The judgment determined the scope...