Loomis v. Luraski, 01-051.

• Decision Date: 09 November 2001
• Docket Number: No. 01-051.,01-051.
• Citation: 2001 MT 223,306 Mont. 478,36 P.3d 862
• Parties: Jody LOOMIS and Jennifer Loomis, Plaintiffs and Appellants, v. Donald H. LURASKI and Marva M. Luraski, Defendants and Respondents, Larry R. Kolb and Judith P. Kolb, Defendants-Intervenors and Respondents.
• Court: Montana Supreme Court

36 P.3d 862

2001 MT 223

306 Mont. 478

Jody LOOMIS and Jennifer Loomis, Plaintiffs and Appellants, v. Donald H. LURASKI and Marva M. Luraski, Defendants and Respondents, Larry R. Kolb and Judith P. Kolb, Defendants-Intervenors and Respondents.

No. 01-051.

Supreme Court of Montana.

Submitted on Briefs June 14, 2001.

Decided November 9, 2001.

Rehearing Denied December 6, 2001.

Michael J. Uda, Matthew J. Quinn, Doney, Crowley, Bloomquist & Uda, P.C., Helena, MT, For Appellants.

For Respondents: Carl A. Hatch, Small, Hatch, Doubek & Pyfer, Helena, MT.

David B. Cotner, Boone, Karlberg & Haddon, Missoula, MT, For Intervenors. Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 The Plaintiffs, Jody and Jennifer Loomis, brought this action in the District Court for the First Judicial District in Lewis & Clark County to establish an easement across the property of the Defendants, Donald and Marva Luraski. Larry and Judith Kolb intervened because the easement at issue would pass over and across the east thirty feet of the Kolb property. All three parties filed motions for summary judgement which were denied. Following a two-day non-jury trial, the District Court entered Findings of Fact, Conclusions of Law, and an Order in favor of the Luraskis and Kolbs. The Loomises appeal the District Court's judgment. We affirm the judgment of the District Court.

¶ 2 The following issues are presented on appeal:

¶ 3 1. Did the District Court err when it concluded that there was no easement by reservation as a matter of law based upon the documents of record?

¶ 4 2. Did the District Court abuse its discretion when it refused to allow the Loomises to amend their claim and set forth a new theory of recovery?

¶ 5 3. Did the District Court err when it found that the Loomises failed to show strict necessity and concluded there was no easement by necessity?

FACTUAL BACKGROUND

¶ 6 At issue is whether Buffalo Horn Road extends as an easement beyond a cul de sac at the southwest corner of the Luraski parcel and the southeast corner of the Kolb property, to the Loomis parcel on the north. The alleged easement would pass over and across the east thirty feet of the Kolb property and the west thirty feet of the Luraski parcel.

¶ 7 Prior to 1973, the Chevallier Ranch Company owned several thousand acres of property north of Helena in Lewis & Clark County, which included all property involved in this litigation. In two separate transactions, Chevallier sold portions of its property.

¶ 8 On May 1, 1973, Larry Kolb entered into an unrecorded contract for deed to purchase approximately 5440 acres from Chevallier. The property purchased by Kolb included the tract that was ultimately sold to Donald and Marva Luraski, and was located south of the parcel which was later transferred to Jody and Jennifer Loomis. In addition to transferring the 5440 acres, the contract further provided:

It is further understood and agreed that in the event the seller shall be desirous of selling to the buyer acreages included within the new fence on the North boundary, said acreage shall be sold at the rate of Sixty Dollars ($60.00) per acre, and the buyer will be responsible for any survey that may be required to determine that acreage.

¶ 9 The property located directly north of the Kolb property, and described above, is otherwise known as the "option property." The eventual Loomis parcel was part of the option property, while the Kolb and Luraski tracts were created from the property originally transferred to Kolb.

¶ 10 A notice of purchaser's interest describing the conveyance from Chevallier to Kolb was recorded in the records of Lewis & Clark County in Miscellaneous Book 100, Page 373. On May 1, 1973, Chevallier also executed a warranty deed which was placed in escrow pending the satisfaction of all contract terms. Chevallier did not expressly reserve an easement over the Kolb property in either the contract or the deed.

¶ 11 At the time of its sale to Kolb, Chevallier had independent legal access to the remainder of its property from the north via Applegate Drive.

¶ 12 After purchasing the property, Kolb retained Sorenson & Company, Inc., to prepare a certificate of survey relative to the Kolb property. COS No. 243270 was prepared and recorded on May 13, 1974. COS No. 243270 depicted "Roadway A" as extending all the way to the north boundary of Kolb's property, providing access from the Kolb property to the option property. COS No. 243270 also created the Luraski parcel. ¶ 13 On September 19, 1975, the Kolbs sold a parcel of their property to the Luraskis. A warranty deed transferring the property was executed and placed in escrow to be delivered to the Luraskis upon performance of their contractual commitments. In the warranty deed, the Luraski parcel is described as follows:

A tract of land in the Northwest Quarter of the Northwest Quarter (NW¼ NW¼) of Section Two (2), Township Eleven (11) North, Range Four (4) West, further described as Government Lot Four (4).

See Certificate of Survey No. 243270.

SUBJECT, however, to the following:

(1) All reservations, easements, or rights-of-way of every type and nature contained in patents or subsequent deeds of record, actually in place and located on the ground;

(2) A reservation of a right-of-way and easement over and across the West thirty (30) feet of the property conveyed for the purpose of establishing a public road and easement for utilities; ... (Emphasis added.)

The contract was fully performed and the warranty deed was recorded on May 6, 1988, in M Book 8, Page 8638, of the records of Lewis & Clark County.

¶ 14 Larry Kolb testified that the reservation was included in the Kolb Luraski deed to provide access over the Luraski parcel to the option property via Roadway A, now known as Buffalo Horn Road, in the event he was able to acquire the option property from Chevallier.

¶ 15 Following the sale to the Luraskis, the Kolbs realized they were not going to be able to purchase the option property. Based on this determination, the Kolbs again retained Sorenson & Company to prepare an amended certificate of survey. Its purpose was to revise the roads laid out in COS No. 243270. The Kolbs, having been unsuccessful in acquiring the property, no longer needed the reservation across the Luraski parcel to access the option property. On COS No. 262819, Roadway A ended in a cul de sac at the southwest corner of the Luraski tract. COS No. 262819 was recorded on April 8, 1976. Language in the Kolb-Luraski deed, being held in escrow, was never revised to remove the language of reservation over and across the west thirty feet of the Luraski parcel.

¶ 16 On November 1, 1979, Chevallier sold the option property to John Jardine, acting on behalf of C.W. Leaphart, W. William Leaphart, Dr. Cook, Theresa Herzog, and himself (hereafter "Jardine Group"), under the terms of a contract for deed. Although the option property was not yet subdivided into separate parcels, it included the land later carved out as the Loomis parcel.

¶ 17 On March 24, 1981, John Jardine wrote to Larry Kolb and offered to sell the Jardine Group property. He indicated that the property could be accessed along its easterly border. While the offer was rejected by Kolb, the letter indicated Jardine's belief that there was no access to the Jardine Group property through Buffalo Horn Road. The Jardine Group also attempted to obtain an easement from the Luraskis, north of the cul de sac to the option property, but the Luraskis declined.

¶ 18 On April 16, 1991, Jardine prepared COS No. 469162, dividing the Jardine Group property into several tracts. On December 9, 1993, C.W. Leaphart and Jardine requested that an amended certificate of survey by prepared and filed. COS No. 50374 amended COS No. 469162 by changing the access road easements to and within the Jardine Group property, and depicted a sixty-foot access road easement between Tract 3 and 4 to the Loomis parcel.

¶ 19 Another certificate of survey, COS No. 511125, was prepared and filed on or about January 14, 1994, which further changed the access road easements, but maintained the sixty-foot access road easement between Tract 3 and 4 to the Loomis parcel. In August of 1994, the Loomis parcel was purchased by Theresa B. Hartzog, and minor changes were made to the Loomis parcel in COS No. 530534, filed March 16, 1995. COS No. 530534 noted the sixty-foot access road easement shown on COS No. 511125. ¶ 20 On or about March 21, 1995, Hartzog sold the Loomis parcel to Pat Bizzalion by a contract for deed. Bizzalion subsequently assigned the purchaser's interest in this contract for deed to Sandy Stillwell. Stillwell then sold the property to the Loomises by warranty deed on May 8, 1998.

¶ 21 The Loomises have legal access to the sixty-foot easement shown on COS No. 511125, which connects their tract with Diamond Springs Road. No road has ever been built on that easement. The Loomises contend that the easement does not provide practical physical access to their land, given the steepness of the terrain over which it passes. Access to the Loomises property is currently provided over a neighbor's road. However, they have no permanent easement over that road.

¶ 22 Jack Black, an excavating contractor, and the Loomises expert witness, testified at trial that a road could be built on the legal easement and if constructed, emergency vehicles could traverse the easement. The cost of building a road on the easement was estimated at $10,000 to $12,000.

¶ 23 The extension of Buffalo Horn Road along the west thirty feet of the Luraski parcel, and the east thirty feet of the Kolb property has never been constructed by any party. The road ends as a cul de sac at the southwest corner of the Luraski parcel and the southeast corner of the Kolb property.

STANDARD OF REVIEW

¶ 24 We review a district court's conclusions of law to determine whether they are correct. Kelly v. Burlington...