DeVoe v. State

• Decision Date: 26 March 1997
• Docket Number: No. 96-349,96-349
• Citation: 935 P.2d 256,281 Mont. 356
• Parties: Clayton E. DeVOE, Plaintiff and Appellant, v. STATE of Montana, and the Highway Commission of the State of Montana, Defendants and Respondents, and City of Missoula, Intervenor, Defendant and Respondent.
• Court: Montana Supreme Court

Page 256

935 P.2d 256

281 Mont. 356

Clayton E. DeVOE, Plaintiff and Appellant, v. STATE of Montana, and the Highway Commission of the State of Montana, Defendants and Respondents and City of Missoula, Intervenor, Defendant and Respondent.

No. 96-349.

Supreme Court of Montana.

Submitted on Briefs Oct. 17, 1996.

Decided March 10, 1997.

Rehearing Denied March 26, 1997.

George C. DeVoe, Missoula, for Plaintiff and Appellant.

James Nugent, Missoula City Attorney, Missoula, Peter W. LaPanne, Montana Department of Transportation, Helena, for Defendants and Respondents.

GRAY, Justice.

Clayton E. DeVoe (DeVoe) appeals from the judgment entered by the Fourth Judicial District Court, Missoula County, on its findings of fact, conclusions of law and order dated February 26, 1996, and from earlier orders. We affirm.

We address the following issues on appeal:

1. Did the District Court err in permitting the City of Missoula to intervene?

2. Did the District Court err in granting partial summary judgment to the State of Montana and City of Missoula, and denying summary judgment to DeVoe, on the basis that the 1937 easement had not been abandoned?

3. Is the District Court's finding that the net acreage is currently used for highway purposes clearly erroneous?

In May of 1890, the Missoula County Commissioners granted a petition declaring that a roadway in the Rattlesnake valley area of Missoula was a public highway (1890 public highway). The 1890 public highway proceeded north on Rattlesnake Drive and then turned ninety degrees east where it intersected with Creek Crossing Road.

Approximately fifty years later, C.E. Lucas, Ida Lucas, L.A. Wagoner and Valeria Wagoner (collectively, grantors) granted the State of Montana (State) a right-of-way easement (1937 easement) for the construction of a highway on land adjacent to the 1890 public highway in Missoula. The 1937 easement was formalized by a document entitled "Highway Right of Way Easement" which set forth a metes and bounds description of the property subject to the 1937 easement and described the property as being located in the NW 1/4NW 1/4SE 1/4 of Section 11, Township 13 North, Range 19 West, Missoula County, Montana. It provided that the 1937 easement:

contain[s] in all 1.23 acres, more or less, including, however, 0.56 of an acre herein described which constitutes a part of an existing public highway. (Gross acreage 1.23; present highway acreage 0.56; net acreage 0.67.)

The 1937 easement further provided that the State was "[t]o have and to hold all of the above described and conveyed property ... as long as the same is used as a public highway."

The property at issue in this case is the 0.67 of an acre described in the 1937 easement as the net acreage; at the time the 1937 easement was granted, the net acreage was located on the inside of the ninety degree angle on the 1890 public highway. DeVoe is the successor in interest to the grantors of the 1937 easement.

After the State acquired the 1937 easement, it changed the 1890 public highway's ninety degree turn to a long sweeping curve running northeast across the net acreage. In 1983, the State undertook an intersection improvement project which restored the original ninety degree turn on the 1890 public highway. In 1989, the City of Missoula (City) annexed the portion of the Rattlesnake valley which includes the 1890 public highway and the 1937 easement acreage.

DeVoe filed a declaratory judgment action against the State and the Montana Highway Commission (Highway Commission) in 1992. He alleged that the State's 1983 improvement project, which removed the long curve crossing the net acreage, constituted an abandonment of the 1937 easement and, as a result, that the net acreage had reverted to him. In its answer, the State contended that a highway easement is abandoned only by official action of the Highway Commission at a regularly constituted meeting. Because the Highway Commission had taken no official action in this regard, the State maintained that it had not abandoned the 1937 easement.

The City petitioned to intervene in DeVoe's action, pursuant to Rule 24, M.R.Civ.P., claiming a public interest in continued utilization of the 1937 easement. The District Court granted the City's petition over DeVoe's objection. DeVoe requested reconsideration of the court's decision or, in the alternative, partial judgment on the pleadings dismissing the City from the lawsuit. He argued that the City was not a party to the 1937 easement and, therefore, that it did not have standing to assert any rights thereunder. The District Court denied DeVoe's requests.

DeVoe subsequently moved for summary judgment, claiming that the 1937 easement had terminated via abandonment, extinguishment and reversion, or acts incompatible with the nature of the easement. The City and State opposed DeVoe's motion and filed a joint cross-motion for summary judgment on the basis that affirmative official action indicating an intent to abandon the 1937 easement had not been taken. The District Court granted summary judgment to the City and State on the abandonment issue, and denied DeVoe's motion on the reversion issue.

The City subsequently filed a notice of entry of judgment and DeVoe moved to strike it. He also moved the District Court to reconsider its decision denying his motion for summary judgment on the extinguishment and reversion issues. The District Court granted DeVoe's motion to strike, denied his motion to reconsider and scheduled an evidentiary hearing on all remaining factual issues.

Following the evidentiary hearing, the District Court issued its findings of fact, conclusions of law and order and, thereafter, entered judgment in favor of the City and State. It determined that the 1937 easement had not reverted to DeVoe and that he was not entitled to recover the net acreage or to have title to the net acreage quieted in his favor. DeVoe appeals.

Additional facts are provided below as necessary for our resolution of the issues before us.

1. Did the District Court err in permitting the City to intervene?

DeVoe contends that the District Court erred in permitting the City to intervene in the action pursuant to Rule 24, M.R.Civ.P. The City maintains that it was a proper intervenor in the action and, furthermore, that an order permitting intervention is not an appealable order pursuant to Rule 1(b), M.R.App.P. Thus, we first must determine whether an order allowing intervention is an appealable order.

Rule 1(b), M.R.App.P., authorizes appeals from final judgments and orders and immediate appeals from certain interlocutory orders enumerated therein. Orders permitting intervention are not mentioned in Rule 1(b), M.R.App.P. A matter not specifically denominated in Rule 1(b), M.R.App.P., is not a proper subject of immediate appeal; therefore, an immediate appeal cannot be taken from an order permitting intervention. Continental Ins. Co. v. Bottomly (1988), 233 Mont. 277, 279, 760 P.2d 73, 75.

In the present case, however, DeVoe is not seeking an immediate appeal of the District Court's order allowing the City to intervene. He filed a timely notice of appeal after final judgment had been entered in the case and raised and argued the intervention issue in his opening brief.

Rule 2(a), M.R.App.P., outlines this Court's scope of review in an appeal from a judgment in a civil case. It provides, in pertinent part, that:

the court may review the verdict or decision, and any intermediate order or decision excepted or objected to within the meaning of Rule 46 of the Montana Rules of Civil Procedure, which involves the merits, or necessarily affects the judgment, except a decision or order from which an appeal might have been taken.

Rule 2(a), M.R.App.P. As discussed above, no direct appeal was available from the District Court's order permitting intervention. Thus, the exception clause in Rule 2(a), M.R.App.P., is not applicable here.

We previously have addressed whether an order allowing intervention can be reviewed pursuant to Rule 2(a), M.R.App.P., in the course of an appeal from a final judgment. In In re Custody of R.R.K. (1993), 260 Mont. 191, 859 P.2d 998, we noted that, while an order denying a motion to intervene is not separately appealable under Rule 1, M.R.App.P., the proper appeal from such an interlocutory order lies after entry of final judgment. Custody of R.R.K., 859 P.2d at 1005 (citing Rule 2(a), M.R.App.P.; Bottomly, 760 P.2d at 75-76; Estate of Schwenke v. Becktold (1992), 252 Mont. 127, 130-31, 827 P.2d 808, 810). We also have observed that the only procedure by which an appellant may challenge the propriety of an intervention order is by appeal after entry of final judgment. Estate of Schwenke, 827 P.2d at 810.

Here, DeVoe appealed from the order allowing the City to intervene in the course of his appeal after entry of final judgment. We conclude, therefore, that DeVoe's appeal from the District Court's order allowing intervention is properly before us.

With regard to whether the District Court erred in permitting the City to intervene as of right, Rule 24(a)(2), M.R.Civ.P., states that intervention shall be allowed, upon timely application:

when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

We recently clarified that a mere claim of interest in the property at issue is insufficient to support intervention as of right under Rule 24(a)(2), M.R.Civ.P. Aniballi v. Aniballi (1992), 255 Mont. 384, 386-87, 842 P.2d 342, 343-44. A district court must determine whether the party seeking intervention has made a prima facie showing of a " 'direct, substantial, legally protectable interest in the proceedings.'...