Hitshew v. Butte/Silver Bow County, 97-670
| Decision Date | 18 February 1999 |
| Docket Number | No. 97-670,97-670 |
| Citation | 974 P.2d 650,293 Mont. 212 |
| Court | Montana Supreme Court |
| Parties | Kenneth E. HITSHEW and Dorothy J. Hitshew, Petitioners, Appellants, and Cross-Respondents, v. BUTTE/SILVER BOW COUNTY; a political subdivision of the State of Montana, John Doe Corporation; and Ueland Ranches, Inc., a Montana business corporation, Respondents, Respondents, and Cross-Appellants. |
John Leslie Hamner, Butte, Montana, for Appellants.
William M. O'Leary, Corette, Pohlman & Kebe, Butte, Montana (Butte-Silver Bow County); William M. Kebe, Jr., Corette, Pohlman & Kebe, Butte, Montana (Ueland Ranches, Inc.), for Respondents.
¶1 Kenneth E. Hitshew and Dorothy J. Hitshew (the Hitshews) appeal from the March 3, 1997 order of the Second Judicial District Court, Silver Bow County, entering summary judgment in favor of Butte-Silver Bow County (the County), John Doe Corporation, and Ueland Ranches, Inc. (Ueland). The County cross-appeals from the April 16, 1997 order of the District Court denying its request for certain costs. We affirm in part ¶2 We restate the issues as follows:
reverse in part, and remand this cause for further proceedings consistent with this opinion.
¶3 1. Did the District Court err in granting the County's and Ueland's motions for summary judgment and denying the Hitshews' petition for declaratory judgment?
¶4 2. Did the District Court err in denying the County's request for the costs of survey maps and an aerial photograph?
¶5 In July 1993, the Hitshews entered into a contract with Ueland for the purchase of a triangle-shaped tract of real property located in Silver Bow County (hereinafter "Tract A"). German Gulch Road is an undedicated, county-maintained road which travels through the entire length of Tract A in a south-westerly direction. According to the certificate of survey for Tract A, the south edge of German Gulch Road forms the southern property boundary of Tract A. Ueland owns the land to the south of German Gulch Road. When Ueland sold Tract A to the Hitshews, it reserved an easement over German Gulch Road to access its property. Before the sale of Tract A, Ueland had erected a fence thirty feet from and parallel to the southern edge of the road. After purchasing Tract A, the Hitshews erected a fence along the northern edge of the road. A cattle guard is located inside Tract A at the extreme northeast corner of the triangle where German Gulch Road intersects Tract A.
¶6 German Gulch Road has been utilized by the public and referenced on various maps since the turn of the century. Since 1959, the road has been referenced on maps prepared by the State Highway Commission as a road maintained by Silver Bow County. The County's maintenance of German Gulch Road includes spreading and blading gravel to maintain the road's surface, ditch digging, and snow removal. The road has never been gated or fenced to prevent travel over Tract A, and no landowner has denied the County access to the road.
¶7 Sometime after the sale of Tract A, the County approached Ueland about establishing a service road over property owned by Ueland from German Gulch Road to the site of the County's Tax Increment Financing Industrial District Number 2 (TIFID No. 2) where a silicon manufacturing plant was to be built. The County needed this service road for ingress and egress to construct water and sewer facilities in TIFID No. 2. Ueland granted the County use of its existing easement over German Gulch Road, as well as a temporary easement for the period beginning April 25, 1996, and ending August 1, 1996, to construct a service road over its property from German Gulch Road to TIFID No. 2. Ueland and the County agreed that construction of the service road would begin at the extreme northeast corner of Tract A, where German Gulch Road intersects Tract A, and continue in a southeasterly direction approximately one mile to TIFID No. 2.
¶8 On April 26, 1996, the County began construction of the service road. The County removed the cattle guard located at the intersection of German Gulch Road and Tract A, and Ueland assisted in removing a portion of the fence south of German Gulch Road. Thereafter, the Hitshews came upon the construction site and were distressed to find that the cattle guard and a portion of the southern fence had been removed. The Hitshews commenced an action against the County, Ueland, and the unknown corporation slated to build the silicon manufacturing plant for damages arising from the alleged trespass on their property. In the same complaint, the Hitshews sought a declaratory judgment, asking the court to determine the County's rights in and to the use of German Gulch Road.
¶9 The County and Ueland (collectively the Respondents) responded by filing motions to dismiss for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), M.R.Civ.P. Upon submission of the parties' briefs on the motions, the District Court ordered a hearing to take place November 25, 1996. At the hearing, in addition to the pleadings, Respondents presented testimony from Robert Everly, a licensed surveyor in Montana, Don Ueland, co-owner of Ueland Ranches, Inc., and Jim Johnston, the Director of Public Works for ¶10 On March 3, 1997, after a second hearing, submission of the parties' briefs, and oral argument, the court issued an order and memorandum granting the County's motion for summary judgment, granting in part and denying in part Ueland's motion for summary judgment, and denying the Hitshews' petition for declaratory judgment. The court held: no question of fact existed regarding the County's prescriptive easement over German Gulch Road; no question of fact existed regarding Ueland's reserved easement over German Gulch Road; and no question of fact existed regarding Ueland's ownership of the southern fence and strip of land lying in between the fence and the southern edge of German Gulch Road. However, the court held that a question of fact existed regarding the ownership of the cattle guard which had been removed. The dispute over ownership of the cattle guard was the subject of a later summary judgment motion. On this motion, the court granted summary judgment in favor of the Hitshews and awarded them $500 in damages resulting from the unlawful removal of their cattle guard.
the County. Respondents also presented various exhibits including an aerial photograph, a map prepared by the State Highway Commission, and survey maps prepared by Mr. Everly. In accordance with Rule 12(b), M.R.Civ.P., the court converted the pending motions to dismiss to motions for summary judgment and allowed the parties time to brief the matter.
¶11 On March 10, 1997, the County filed with the court a bill of costs including costs incurred for the preparation of survey maps and an aerial photograph used at the hearing. The Hitshews objected to these costs on the ground that they were not incurred in preparation for the hearing. The Hitshews filed a notice of motion to settle bill of costs. On April 16, 1997, the court issued an order and memorandum settling the dispute over costs in favor of the Hitshews.
¶12 The Hitshews appeal the court's March 4, 1997 order granting the Respondents' motions for summary judgment. The County cross-appeals the court's April 16, 1997 order denying its request for costs related to the preparation of survey maps and the aerial photograph.
¶13 Did the District Court err in granting the County's and Ueland's motions for summary judgment and denying the Hitshews' petition for declaratory judgment?
¶14 We review appeals from summary judgment rulings de novo. Axtell v. M.S. Consulting, 1998 MT 64, p 21, 288 Mont. 150, p 21, 955 P.2d 1362, p 21. We apply the same summary judgment evaluation, based on Rule 56, M.R.Civ.P., as the district court. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry:
The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.
Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).
¶15 The Hitshews argue that genuine issues of material fact exist in this case, making summary judgment improper. First, the Hitshews argue that a question of fact exists as to whether the County's use of German Gulch Road is permissive or prescriptive. The Hitshews cite Warnack v. Coneen Family Trust (1994), 266 Mont. 203, 216, 879 P.2d 715, 723, for the rule that the party claiming a prescriptive easement has the burden of proving each and every element of prescription. Without further analysis or citation to the record, the Hitshews assert that the County failed to meet its burden of proving each and every element of prescription. We disagree.
¶16 An easement by prescription is created by operation of law. Rettig v. Kallevig (1997), 282 Mont. 189, 193, 936 P.2d 807, 810. Generally, a party claiming an easement by prescription must establish open, notorious, exclusive, adverse, continuous, and uninterrupted use of the claimed easement for the statutory five-year period. Rettig, 282 Mont. at 193, 936 P.2d at 810. We have applied this same criteria, although worded differently, in the context of public prescriptive easements. In Granite County v. Komberec (1990), 245 Mont. 252, 257, 800 P.2d 166, 169, we held:
That the public may acquire the right by prescription to pass over private land is undisputed and...
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