In re Estate of Shirran

• Decision Date: 09 August 1999
• Docket Number: No. 97-270.,97-270.
• Parties: In the Matter of the ESTATE OF George D. SHIRRAN. George T. (Tom) Shirran, Appellant (Petitioner), v. James D. Shirran, Appellee (Respondent).
• Court: Wyoming Supreme Court

987 P.2d 140

In the Matter of the ESTATE OF George D. SHIRRAN.

George T. (Tom) Shirran, Appellant (Petitioner), v. James D. Shirran, Appellee (Respondent).

No. 97-270.

Supreme Court of Wyoming.

August 9, 1999.

Representing Appellant: Michael S. Messenger and Mary L. Scheible of Messenger & Jurovich, Thermopolis, Wyoming.

Representing Appellee: John P. Worrall of Davis, Worrall, Bancroft & Greear, P.C., Worland, Wyoming.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and HILL, JJ.

MACY, Justice.

The district court granted Appellee James D. Shirran an implied easement across Appellant George T. (Tom) Shirran's property. Tom appeals from the district court's order denying his motion for reconsideration, alteration, or amendment of the judgment.

We affirm.

ISSUES

Tom presents several issues for our consideration:

I. Whether the trial court erred as a matter of law when it failed to address the release language and ascribed to it the parties' intentions to settle their differences.

II. Whether the trial court erred as a matter of law when it held that Appellee has an implied easement across Appellant's property.

III. Whether the trial court erred as a matter of law when it relied on evidence not properly before it.

IV. Should this Court reverse, whether on remand, this Court should instruct the district court to award a reasonable sum for attorney fees and costs to appellant.

FACTS

George D. (George) Shirran and his brother, Charles Shirran, owned the Paintrock Hereford Ranch in Big Horn County. Tom and James were George's sons. George died on August 14, 1992, and, shortly thereafter, his estate was admitted to probate.

Tom and James were the beneficiaries of George's estate, and they initially could not agree on the distribution of the assets of the estate. The parties were able, however, to enter into a Stipulation and Agreement Regarding Distribution of Estate Assets (the settlement agreement) on December 10, 1993. The settlement agreement included a provision dividing some property located in the Big Horn Mountains (the mountain property). The parties agreed that James would receive the southern one-third of the mountain property, together with a cabin located on that parcel, and Tom would receive the northern two-thirds of the property.

On March 15, 1994, the personal representative of George's estate filed a Final Report, Accounting, and Petition for Distribution. The personal representative requested that the district court distribute the assets pursuant to the terms of the settlement agreement. The district court subsequently entered an Order Approving Final Report and Accounting and Decree for Distribution.

On February 28, 1996, Tom petitioned the district court for an order setting forth the ownership of the estate property because James refused to execute the quitclaim deeds that were necessary for the division of the property. James apparently refused to sign the deeds because Tom indicated that James could no longer use a road which crossed Tom's portion of the mountain property to access his parcel. Tom insisted that James use a U.S. Forest Service road to access his portion of the mountain property.

Tom and James stipulated as to the facts of the controversy, and the parties submitted memoranda outlining their respective legal positions. The district judge held a hearing and issued his decision. He concluded that James had demonstrated the elements for establishment of an implied easement and, accordingly, granted him an easement over Tom's property. Tom filed a motion for reconsideration, alteration, or amendment of the judgment. The district court denied Tom's motion, and Tom appealed to the Wyoming Supreme Court.

Tom filed his brief with this Court on November 12, 1997. On December 10, 1997, James filed a statement of the evidence with the district court, and he filed his brief with this Court on December 22, 1997. Tom filed an objection in the district court to James' statement of the evidence and a motion to strike the statement. The district court entered an order on January 8, 1998, which approved James' statement of the evidence, noticed certain facts, denied Tom's motion to strike, and supplemented the record on appeal.

On January 20, 1998, Tom filed a motion with this Court to strike the district court's January 8, 1998, order approving the statement of the evidence. The Supreme Court vacated the oral argument setting and remanded the case to the district court to settle the record. The district court ordered Tom to prepare and file a statement of the evidence, and Tom complied. James responded by submitting his statement of the evidence, and the district court held a hearing on October 1, 1998, to settle the record. The district court entered an order striking its original statement of the evidence and modifying the same. The parties subsequently submitted their respective briefs to this Court.

DISCUSSION

A. Effect of Settlement Agreement

Tom maintains that the district court erred by granting James an implied easement across his land because the settlement agreement precluded such a grant. James argues that the district court's decision was correct. We agree with James.

Wyoming law recognizes that, under certain circumstances, one person may be entitled to have an implied easement across another person's property. Beaudoin v. Kibbie, 905 P.2d 939, 941-42 (Wyo.1995); Corbett v. Whitney, 603 P.2d 1291, 1293 (Wyo.1979). The elements which must be satisfied in order to establish an implied easement are:

(1) Common ownership followed by a conveyance separating the unified ownership;

(2) before severance, the common owner used part of the property for the benefit of the other part, a use that was apparent, obvious, and continuous; and (3) the claimed easement is necessary and beneficial to the enjoyment of the parcel previously benefitted.

Beaudoin, 905 P.2d at 941-42.

Tom maintains that the terms of the settlement agreement precluded the implication of an easement in favor of James. The settlement agreement stated in pertinent part:

1. The parties hereby stipulate and agree that there have been differences by and between them as respects the division of certain lands of the estate, as well as division of a Farm Loan Board Mortgage, cattle, grazing permits and personal property.

2. It is the intention of the parties hereto to resolve each and every one of those differences and to release, quitclaim and forever discharge from each to the other any claim that they might have against assets received under the estate by the other.

....

13. The parties hereby stipulate and agree to divide the parcel of real estate specifically identified as follows:

Township 49 North, Range 87 West, 6th P.M. Section 23: E½NW¼, E½SW¼

Excepting therefrom lands described in right-of-way deed to the United States of America for a road and recorded in Book 167 Page 8 of the Big Horn County Records.

The parties hereto stipulate and agree that James D. Shirran shall receive the south one-third of the above described parcel and that George T. Shirran shall receive the north two-thirds of the above described parcel. Said lands will be transferred to the individual ownership of each party as set forth above and will be properly fenced with each party bearing one-half of the cost of said fencing. Should a survey be necessary to properly delineate the boundary line between the two properties, both parties agree to be responsible for one-half of the cost of such survey.

. . . .

15. This Agreement shall constitute the entire understanding of the parties as respects the distribution of assets under the above estate and incorporates herein all prior memoranda, understandings, negotiations and agreements by and between them as respects the assets set forth herein.

The settlement agreement did not address the means by which James would access his portion of the mountain property.

Tom argues that the settlement agreement clearly and unambiguously stated that it was meant to settle all the parties' differences concerning the estate assets. He claims, therefore, that, if the parties intended for James to have an easement across his property, they would have expressly provided for an easement in the settlement agreement.

We agree that the language of the settlement agreement clearly reflects the parties' shared intention to resolve their differences concerning the estate assets. Nevertheless, the very notion of an implied easement recognizes the failure of the parties to a property transfer to address the issue of access to a severed parcel.

[C]reation of easements by implication is an attempt to infer the intention of the parties to a conveyance of land and "the `inference drawn represents an attempt to ascribe an intention to parties who had not thought or had not bothered to put the intention into words, or perhaps more often, to parties who actually had formed no intention conscious to themselves.'" [United States v. O'Connell, 496 F.2d 1329,] 1332 [(2d Cir.1974)], citing Restatement of Property, § 476, comment A, at 2978 (1944).

Corbett, 603 P.2d at 1293. In recognizing implied easements, courts often presume that "the parties contracted [for the transfer of the property] with a view to the condition of the property as it actually was at the time of the transaction." 25 Am.Jur.2d Easements and Licenses in Real Property § 29, at 600 (1996); see also Lutz v. Krauter, 553 N.W.2d 749, 752-53 (N.D.1996)

. The condition of the property at the time of the transaction may include an obvious preexisting use of one part of the property to benefit another part. See Lutz, 553 N.W.2d at 753.

The parties to a conveyance can, however, prevent the implication of an easement upon severance of the property by entering into an agreement which clearly states that an easement will not pass when the property is transferred. 25 Am.Jur.2d, supra, at § 29; see also Cox v. Trustmark National Bank, 733 So.2d 353, 357 (Miss.Ct...