Conway v. Miller

• Decision Date: 05 May 2010
• Docket Number: No. DA 09-0598.,DA 09-0598.
• Citation: 2010 MT 103,232 P.3d 390,356 Mont. 231
• Parties: John H. CONWAY and Hazel A. Conway, Plaintiffs and Appellees,v.Anita R. MILLER, Defendant and Appellant.
• Court: Montana Supreme Court

356 Mont. 231

232 P.3d 390

2010 MT 103

John H. CONWAY and Hazel A. Conway, Plaintiffs and Appellees,v.Anita R. MILLER, Defendant and Appellant.

No. DA 09-0598.

Supreme Court of Montana.

Submitted on Briefs March 24, 2010.

Decided May 5, 2010.

COPYRIGHT MATERIAL OMITTED

For Appellant: Edward P. Nolde, Snyder Law Office, P.C., Bigfork, Montana.

For Appellee: Keith W. McCurdy, McCurdy Law Firm, P.C., Polson, Montana.

Justice MICHAEL E. WHEAT, delivered the Opinion of the Court.

¶ 1 John and Hazel Conway moved for summary judgment, asserting that a building restriction line depicted on Anita Miller's lot on the Redgate Vista subdivision plat restricted where she could build her garage. The Twentieth Judicial District Court, Lake County, granted the Conways' motion for summary judgment, concluding that the plain language of the plat clearly restricted the building's location, and ordered Miller to remove a portion of her garage.

BACKGROUND

¶ 2 John and Hazel Conway own Lots 5 and 6 of Redgate Vista, a platted subdivision in Lake County, Montana. Anita Miller owns the adjoining Lots 7 and 8. The plat of the Redgate Vista subdivision shows a line running north and south across Miller's Lot 7 labeled “building restriction line.” The following figure is a copy of the plat showing the configuration of the lots and the building restriction line.

¶ 3 In 1973, Red Gate, Inc. surveyed and platted the Redgate Vista subdivision. All of the deeds in the chain of title for Lots 5, 6, 7, and 8 expressly referred to the plat depicted above. None of the deeds in the Conways' chain of title mention any easements or the building restriction line. The building restriction line is mentioned in Miller's chain of title. The deed from Red Gate, Inc. to Leland and Judy Hylsop and the deed from the Hylsops to the Walls contain the language: “Also, subject to a building restriction line on Lot Seven (7) according to the Plat of Red Gate Vista.” The deed from the Walls to Smudge, Inc. conveys the property in fee simple, “except easements, restrictions reservations and conditions of record.” The deed from Smudge, Inc. to the Youngs has no mention of an easement or building restriction line. The deed from the Youngs to Alvie and Anita Miller conveys the property “subject to and together with rights of way and easements established or of record.” Finally, the quitclaim deed from Alvie Miller to Anita Miller does not mention an easement or a building restriction line.

¶ 4 Exception 11 in Miller's title insurance policy to Lots 7 and 8 is the “building restriction line across said Lot 7, as shown on the Plat of Redgate Vista on file in the office of the Clerk and Recorder of Lake County, Montana.” Miller admitted that the closing documents made her aware of the building restriction line prior to purchasing Lot 7.

¶ 5 In April 2008, Miller began constructing a garage located on both sides of the building restriction line. In May, the Conways filed their complaint, requesting in pertinent part that the court enjoin Miller from finishing construction of her garage and order her to remove the portion that violated the building restriction line. In November, the Conways filed a motion for summary judgment, arguing that a reasonable interpretation of the plain language “building restriction line” on the plat led to the conclusion they were entitled to judgment as a matter of law because it was undisputed that the garage was located on both sides of the building restriction line.

¶ 6 Miller filed a cross-motion for summary judgment and asserted that, although the Conways failed to frame their argument as enforcement of an easement, this is in fact what they sought from the court. Miller argued that because the Conways were strangers to the deed, an easement was not created because it failed to have express language of the grantor's intent to create an easement. Relying on Blazer v. Wall, 2008 MT 145, 343 Mont. 173, 183 P.3d 84, Miller also asserted that the language “building restriction line” did not create an easement because it did not identify the dominant and servient tenement nor did it give the servient tenement knowledge of its use and necessity.

¶ 7 The District Court granted summary judgment in favor of the Conways. Without addressing whether an easement was created, the court adopted the Conways' arguments and concluded that, “[Miller] herself is charged with knowledge of the building restriction by virtue of the recorded plat and the special exception to the title policy obtained upon the purchase of her Lot 7.” The court rejected Miller's argument regarding identification of the dominant and servient tenement because it was not supported by authority. The court also rejected her argument regarding the use and necessity of the building restriction line because it had “no difficulty concluding from the face of the plat that the restriction is to prohibit buildings on that portion of Lot 7 west of [the building restriction] line.”

¶ 8 On appeal, Miller reasserts her argument that the language “building restriction line” is not adequate to create an easement because it does not identify a dominant and servient tenement and does not give her knowledge of the use and necessity of the easement. She also claims that the Conways extinguished the easement when they built their privacy fence because the fence obstructs their view, and the Conways contend the purpose of the building restriction is to protect their view. Finally, Miller argues that removing her garage is an idle act prohibited by § 1-3-223, MCA, because the Conways' view would still be obstructed by her house even if her garage was removed.

¶ 9 The Conways argue that Blazer is distinguishable and the language “building restriction line” clearly gives Miller notice that she cannot build on that portion of Lot 7 and that the District Court's ruling and order to remove the garage was correct.

¶ 10 We restate the issues on appeal as:

¶ 11 Issue 1: Did the plat's depiction of the “building restriction line” create a negative easement?

¶ 12 Issue 2: Did the Conways extinguish the negative easement by building a privacy fence?

¶ 13 Issue 3: Did the District Court err in ordering removal of Miller's garage because it would be a waste of resources?

STANDARD OF REVIEW

¶ 14 We review a district court's denial of motions for summary judgment de novo. Tacke v. Energy West, Inc., 2010 MT 39, ¶ 16, 355 Mont. 243, 227 P.3d 601. We review a district court's conclusions of law to determine whether they are correct and its findings of fact to determine whether they are clearly erroneous. JTL Group, Inc. v. New Outlook, LLP, 2010 MT 1, ¶ 29, 355 Mont. 1, 223 P.3d 912.

DISCUSSION

¶ 15 Issue 1: Did the plat's depiction of the “building restriction line” create a negative easement?

¶ 16 Miller's argument that the description on the plat was insufficient to create an easement is two-fold. First, she asserts that no easement was created because the language “building restriction line” does not clearly and unmistakably communicate the grantor's intent to create an easement, according to our easement-by-reference rules set forth in Blazer. Second, she contends that the Conways are strangers to the deed and, as such, the easement-by-reference doctrine does not apply. Miller claims that because the deed did not have any language creating an easement, none was created.

A. The developer's intent to create a negative easement is clear and unmistakable.

¶ 17 An easement by reservation must arise from the written documents of conveyance. Halverson v. Turner, 268 Mont. 168, 172, 885 P.2d 1285, 1288 (1994).

A “negative easement” is one the effect of which is not to authorize the doing of an act by the person entitled to the easement, but merely to preclude the owner of the land subject to the easement from doing that which, if no easement existed, he would be entitled to do.

Northwestern Improvement Co. v. Lowry, 104 Mont. 289, 301, 66 P.2d 792, 794 (1937). A grantor may expressly reserve an easement over granted land in favor of retained land by using appropriate language in the instrument of conveyance. Blazer, ¶ 27. An easement may be expressly reserved by referring in the instrument of conveyance to a recorded plat or certificate of survey on which the easement is adequately described. Id. When land is sold with reference to a properly recorded plat, the plat becomes part of the document conveying the interest in land. Section 76-3-304, MCA; Benson v. Pyfer, 240 Mont. 175, 179, 783 P.2d 923, 925 (1989).

¶ 18 None of the deeds at issue contain language creating a negative easement. The parties do not dispute this matter. The parties also do not dispute that the deeds expressly refer to a recorded plat. Thus, we look to the description on the plat rather than the language of the deed to determine if an easement was created and is enforceable.

¶ 19 An easement created by reference in an instrument of conveyance to a plat is an express easement. The intent to create an easement must be clearly and unmistakably communicated on the referenced plat using labeling or other express language. Blazer, ¶ 43. For an easement to be created by reference to a plat, it must be adequately described by being clearly depicted and labeled on the plat. Id. An easement has not been adequately described “when the identity of the dominant tenement has been omitted and cannot be ascertained from the documents of conveyance.” Blazer, ¶ 51. In other words, an easement is not adequately described if the identities of the dominant and servient tenements are not ascertainable with “reasonable certainty” from the referenced plat or certificate of survey. Blazer, ¶ 54.

¶ 20 An adequate description of an easement also gives the servient tenement knowledge of its use or necessity. Blazer, ¶ 36. For example, we held that the depiction and labels of a “public utility easement” and a “private roadway easement” on a certificate of survey was...