Graham v. Mack

• Decision Date: 23 May 1985
• Docket Number: No. 84-310,84-310
• Parties: James F. GRAHAM, Plaintiff and Respondent, v. Margaret E. MACK and Milferd Siefke, Defendants and Appellants.
• Court: Montana Supreme Court

Page 590

699 P.2d 590

216 Mont. 165

James F. GRAHAM, Plaintiff and Respondent, v. Margaret E. MACK and Milferd Siefke, Defendants and Appellants.

No. 84-310.

Supreme Court of Montana.

Submitted Oct. 11, 1984.

Decided Dec. 31, 1984.

Rehearing Granted Feb. 22, 1985.

On Rehearing May 23, 1985.

Sverdrup & Spencer, Lawrence H. Sverdrup, Libby, for defendants and appellants.

Douglas & Bostock, Thomas R. Bostock, Libby, for plaintiff and respondent.

GULBRANDSON, Justice.

This is an appeal from an order quieting title to real property. Plaintiff instituted the action to quiet title and defendant answered claiming an easement of access, by prescription, implication or necessity over plaintiff's land. The District Court of the Nineteenth Judicial District, in and for Lincoln County, Montana, entered an order quieting title and denying defendant the easement. We affirm.

The following diagram will help in explaining the facts giving rise to this action:

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

Testimony at trial indicated that the following facts were not in substantial dispute. Dr. James F. Graham, plaintiff below and respondent herein, purchased land in Sections 26 and 35, Township 31 North, Range 31 West, M.P.M. from Charles Collingson in 1964 and 1966. In 1964, he purchased lot 9 in Collingson Tracts, a subdivided area in section 35. In 1966, he purchased fifteen acres in section 26. Running along the southern boundary of section 25, and the section 26 lot was an old railroad grade. At that time, the grade was overgrown with brush and not passable. It was occasionally used by hunters and others at various times of the year, but never on a continual basis, and was totally impassable to vehicular traffic in the winter. Graham occasionally put obstructions such as logs, cables or fences across the road to discourage its use.

In the early 1960's, Charles Collingson developed a subdivision, known as Collingson Tracts, in sections 35 and 36, adjacent to the section 26 lot. At that time, Collingson also owned the section 26 lot, but did not subdivide it.

Collingson had planned to develop the railroad grade along the southern edge of section 25 and the road that connected it to Highway 37 into an access road for lots 17-21, and reserved a sixty foot strip adjacent to lot 17 (cross-hatched on the map) to allow a road to be built into lots 22-25. The owner of the section 25 lot, Boothman, had given Collingson permission to develop the grade into a road because it had actually been used as such in years past. The section 26 lot had originally been purchased from the St. Regis Corporation by Collingson's parents in the 1930's. The Collingson family ran a school bus route on the grade until 1937. Subsequently, it had been used occasionally as a shortcut to a nearby dump, by hunters and berry-pickers, and at least one logger.

In the early 1960's, Collingson actually did blade and gravel the portion of the grade in section 25, and did some work on the access road to Highway 37. The access road to Highway 37 (dark shaded area on the map) went across some Boothman land and some Forest Service land. It is very steep, and in the winter, virtually impassable. Around the same time, though, he abandoned the plan to build a road into lots 22-25. This he did because R.E. and Illa Roberts had bought all of the bottom lots (22-25) with the intention of buying the upper ones (17-21), and had indicated to Collingson that a road would not be necessary.

When Collingson sold the section 26 lot to Graham, both were aware of the sixty foot strip along lot 17. Graham specifically requested assurances that the section 26 portion of the grade was not to be used for a way of access to lots 17-25. Collingson assured Graham that no such access was intended. Nonetheless Graham, from 1966 on, continually put obstructions such as a fence and logs across the grade to prevent its use. The obstructions, though, would occasionally be moved and the grade used in the manner it had been before.

In 1977, Boothman sold the section 25 lot to the Macks. Along with the lot, they sold the Macks all their rights in the Forest Service road connecting the lot to Highway 37. In 1978, Mrs. Mack and Milferd Siefke, her son, purchased lots 19-22 from the Robertses, and held those lots as joint tenants. They moved onto the section 25 lot and from the beginning had difficulty getting into it. For three months of the year the road was impassable. The Macks began to come in from the west, across Graham's lot; removing any obstructions that had been placed along it. They used Graham's lot in this manner until 1981.

In June of that year, Graham became aware of the Macks' use of the grade on his property. He was concerned that they were trying to ripen a prescriptive easement. To prevent that he had his attorney, William A. Douglas of Libby, Montana, write to the Macks demanding they stop using his property in that manner. Graham also had cables strung across the grade to prevent its use.

The next winter, in 1982, Mr. Sverdrup, the attorney for the Macks, contacted Graham. Sverdrup told him that the Macks were having great difficulty getting to their house with the grade on section 26 blocked as it was. Graham told Sverdrup that it was alright for the Macks to use the road that winter, but that it was not to be a permanent situation. Shortly thereafter, the cables came down, and Mrs. Mack had the grade across section 26 bladed and levelled. When Graham learned that Mrs. Mack had work done on the grade, he promptly hired a contractor to dig several large ditches across the road. Mack then had to get to her house by foot.

This action arose in 1983. Graham had attempted to sell the section 26 lot and lot 9 in the Collingson Tracts. A deal was almost reached, but the buyers balked when they became aware of the possible servitude on the land. The deal fell through, and Graham instituted this action to quiet title. He also asked for damages from Mrs. Mack for the lost sale. The action was filed against Mrs. Mack and Milferd Siefke, joint tenant with Mrs. Mack in Collingson lots 19-22.

Mrs. Mack was personally served on January 30, 1984. Mr. Bostock, Graham's attorney, attempted to gain service on both Mack and Siefke through Mr. Sverdrup, her attorney. Siefke had moved to Alaska to work and was difficult to locate. Despite repeated assurances to Bostock that he would accept service and file an answer, Sverdrup failed to do so. Default was had against Mrs. Mack on February 22, 1984. On March 8, 1984, Siefke was dismissed from the lawsuit and judgment was rendered against Mack upon her default on March 12, 1984. Four days after judgment had been entered, Mrs. Mack, through Mr. Sverdrup, moved to set aside the default and default judgment. Mr. Sverdrup also accepted service for both Mrs. Mack and Siefke by filing an answer and counterclaim. On the 21st of March, the District Court set aside the default, and also granted Mrs. Mack's motion that she be named guardian ad litem for the minor Siefke.

Trial was had on April 3, 1984, before the Honorable Robert M. Holter, District Judge, who heard evidence and viewed the area in dispute. In her answer and counterclaim, Mack alleged she had a right-of-way over Graham's land by a public prescriptive easement, or, alternatively, an easement by necessity. At the close of evidence, the District Court asked the parties to brief the legal questions presented by the evidence. On June 1, 1984, the District Court entered a judgment for Graham, quieting title in his favor, enjoining Mack from further use of Graham's property, and awarding damages.

From the judgment Mack appeals, citing the following as error:

(1) That the District Court erred in not finding a prescriptive public easement;

(2) That the District Court erred in not finding an easement by implication;

(3) That the District Court erred in not finding an easement by necessity; and

(4) That the District Court erred in awarding damages to Graham.

Graham raises by cross-appeal the following:

(1) That the District Court erred in vacating the default judgment.

We will address Graham's specification of error first.

A District Court may, within its discretion, vacate a previously entered default judgment. It is given that power by Rule 55(c) of the Montana Rules of Civil Procedure, which states: "For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b) ..." Rule 60(b) provides, in pertinent part: "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect ..."

This Court has consistently ruled that a determination to set aside a default judgment is within the sound discretion of the trial court, to be determined on a case by case basis, Williams v. Superior Homes, Inc. (1966), 148 Mont. 38, 417 P.2d 92. Although it is clear that much of the delay leading to the entry of default was attributable to Mr. Sverdrup's inattention to the case, his affidavit in support of setting aside the default provided the District Court adequate grounds to do so. Sverdrup stated that some of the delay was caused by his efforts to contact the minor Siefke, who was, according to the affidavit, living in Washington state at the time; and to have Mrs. Mack appointed his guardian. Sverdrup also stated that he had no knowledge that Mrs. Mack had been served directly because she did not tell him that she had, and that the reason she failed to do so was her belief that Mr. Sverdrup would take care of it. He finally stated that Mrs. Mack would be able to present a defense and good cause of action should the default and judgment be set aside.

It appears from a review of the record that Mr....