Mary Ellen Duke Trust Dated Mar. 13, 1997 v. Lee Lou, LLC

• Docket Number: DA 23-0054
• Decision Date: 20 September 2023
• Citation: 413 Mont. 356,535 P.3d 1133
• Parties: The MARY ELLEN DUKE TRUST DATED MARCH 13, 1997, Millard Cox, Mina Cox, and Trout Creek Ranch, Plaintiffs and Appellees, v. LEE LOU, LLC, a Montana Limited Liability Company, Defendant and Appellant.
• Court: Montana Supreme Court

413 Mont. 356

535 P.3d 1133

The MARY ELLEN DUKE TRUST DATED MARCH 13, 1997, Millard Cox, Mina Cox, and Trout Creek Ranch, Plaintiffs and Appellees,

v.LEE LOU, LLC, a Montana Limited Liability Company, Defendant and Appellant.

DA 23-0054

Supreme Court of Montana.

Submitted on Briefs: August 2, 2023

Decided: September 20, 2023

For Appellant: W. Scott Green, Patten, Peterman, Bekkedahl & Green, PLLC, Billings, Montana

For Appellees: Brandon Hoskins, Moulton Bellingham PC, Billings, Montana

Justice Laurie McKinnondelivered the Opinion of the Court.

¶1 Lee Lou, LLC(Lee Lou) appeals the denial of its partial motion for summary judgment and the granting of Plaintiff's motion for summary judgment entered in the Twenty-Second Judicial District Court, Stillwater County.We affirm.

¶2We restate the issue on appeal as follows:

Whether the District Court erred in determining Tract 3 was the servient estate and Tracts 1 and 2 were the dominant estates regarding a 30’ easement.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In 1989, the Trout Creek Ranch Partnership(TCRP) sought to buy a parcel of land in Stillwater County from A. Joe Jenni, Jr., Callie W. Jenni, and Robert W. Jenni(the Jennis).The land was to be collectively owned by TCRP with three individual tracts being carved out from the Jennis’ land for separate ownership by each of the three TCRP owners: Millard Cox and Mina J. Cox(Coxes), A. St. George B. Duke and Mary Ellen Duke(Dukes) and R.A. Roehder(Roehder).Before purchasing the property, TCRP commissioned Certificate of Survey 260286 (COS 260286) that created the three individual tracts.The COS 260286 also depicted three different easements, including the 30’ easement that is the subject of this litigation.The COS 260286 was filed with the Clerk and Recorder in Stillwater County on January 22, 1990.

¶4 On April 17, 1990, the Jennis conveyed the Trout Creek Ranch Property to TCRP and conveyed Tract 1 to the Coxes, Tract 2 to the Dukes, and Tract 3 to Roehder.At the conclusion of these transactions, in addition to the property owned by TCRP itself, each of these TCRP owners possessed their own individual tracts.The warranty deed conveying the Trout Creek Ranch Property provides the property is given "TOGETHER with thirty foot (30’) wide easements for ingress and egress as shown on [COS 260286]."The warranty deeds from the Jennis to the Coxes and Dukes also contain the same "together with" language which included a 30’ wide easement.However, the deed to Roehder from the Jennis for Tract 3 did not contain any mention of a 30’ easement, and simply conveyed the property "subject to existing rights-of-way, easements, reservations and exceptions of record," which was standard language also contained in the other two deeds.

¶5 Subsequently, the three TCRP owners executed a series of quitclaim deeds to each other in May and June of 1990, disclaiming any interest the parties had in each other's assigned tracts.Similar to the original warranty deeds, the quitclaim deeds for Tracts 1 and 2 contained the phrase "together with a thirty foot (30’) wide easement for ingress and egress[,]" while the deeds for Tract 3 only contained the standard language of "subject to existing rights-of-way, easements, reservations and exceptions of record."

¶6 A few years after the transactions, Roehder sold his interest in the TCRP but continued to own Tract 3 until his death.Tract 3 was then acquired by Zinvest, LLC(Zinvest) by tax deed after Roehder's estate defaulted on the taxes for the property.Zinvest then conveyed the property to Lee Lou.Tracts 1 and 2 continue to be held by the original parties or their successors.Lee Lou alleged that a historical access road follows the path of the 30’ easement and provides access to the only residential structure on Tract 3.

¶7 On September 27, 2021, Trout Creek Ranch, the Coxes, and the Dukes (collectively "Partnership) filed a complaint to quiet title with two counts: (I) a declaratory judgment that Lee Lou owns no interest in the 30’ easement and only the Partnership has an interest in the easement and (II) a permanent injunction preventing Lee Lou from using any roads across the Partnership's lands, including the easements depicted on COS 260286.On October 12, 2021, Lee Lou filed an answer and counterclaim, opposing the Partnership's claims and pleading three counts of its own: (I) a quiet title action for Tract 3 against the Partnership and third-party defendants(II) declaratory relief to determine the parties’ rights related to the easements and rights-of-way depicted in COS 260286, and (III) temporary and permanent injunctive relief preventing the Partnership from interfering with Lee Lou's use of the easements and rights-of-way to access Tract 3.The Partnership then filed their answer, opposing such relief.

¶8Lee Lou filed a motion for partial summary judgment on Count II on May 13, 2022, and the Partnership opposed that motion and responded with their own motion for summary judgment on their two counts.The parties did not assert there were any issues of material fact although they disagreed on some collateral issues, and the District Court considered these motions without a hearing.The District Court first found that COS 260286 could not on its own have created any easement rights since it contains no granting language and was completed while all the property was still under singular ownership.The Court further explained COS 260286 did not describe the easement adequately enough for it to be established by the easement-by-reference doctrine since it is not clear from the survey itself what the easement's intended uses were, or which estates are dominant and servient.The Court then found there was an easement created by the deeds, but that they established Tracts 1 and 2 as the dominant estates and Tract 3 as the servient estate as alleged by the Partnership.Lastly, the Court found the relevant extrinsic evidence supported the Court's conclusions, although it was not necessary to use extrinsic evidence to reach its conclusions.The Court granted summary judgment in favor of the Partnership, concluding that Tract 3 is burdened by the 30’ easement and cannot benefit from it.

¶9Lee Lou timely appealed the decision.

STANDARD OF REVIEW

¶10We review district court grants or denials of summary judgment de novo, applying the same criteria as the district courts.Hudson v. Irwin , 2018 MT 8, ¶ 12, 390 Mont. 138, 408 P.3d 1283.Summary judgment is appropriate when "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."M. R. Civ. P. 56.We review conclusions of law for correctness and the district court's findings of fact to determine if they are clearly erroneous.Hudson , ¶ 12.

DISCUSSION

¶11 Whether the District Court erred in determining Tract 3 was the servient estate and Tracts 1 and 2 were the dominant estates regarding a 30’ easement.

¶12 An easement is a right to use the land of another for a specific purpose.Blazer v. Wall , 2008 MT 145, ¶ 24, 343 Mont. 173, 183 P.3d 84.An easement can be created by an express grant or reservation in a written instrument of conveyance, by operation of law, or by prescription.Blazer , ¶ 26.An easement appurtenant benefits a particular piece of land, and the benefited piece of land is called the dominant estate, while the burdened piece of land is called the servient estate.Burleson v. Kinsey-Cartwright , 2000 MT 278, ¶ 16, 302 Mont. 141, 13 P.3d 384.This Court has recognized the easement-by-reference doctrine, where "an express easement may be created by referring in an instrument of conveyance to a recorded plat or certificate of survey on which the easement is adequately described."

Yorlum Props. v. Lincoln County , 2013 MT 298, ¶ 16, 372 Mont. 159, 311 P.3d 748.For an easement to be considered adequately described, the dominant and servient estates must be "ascertainable with reasonable certainty" from the transaction documents and the transaction documents must give the owner of the servient estate "knowledge of its use or its necessity."Yorlum , ¶ 18(citations omitted).The instrument of conveyance and the referenced plat or certificate of survey together must show "clear and unambiguous grantor intent" to convey an easement and must describe "with reasonable certainty the intended dominant and servient estates, use, and location of the easement."O'Keefe v. Mustang Ranches HOA , 2019 MT 179, ¶ 18, 396 Mont. 454, 446 P.3d 509.

A. COS 260286 does not describe the easement with the required specificity to fulfill the requirements of the easement-by-reference doctrine.

¶13COS 260286 does not adequately describe the easement so that the dominant and servient estates, the easement's use, and its scope can be ascertained with reasonable certainty.The easement at issue is labeled "30’ Access Esm't" on COS 260286 and it is depicted by a thin line that appears to run from Stillwater Road across Trout Creek Ranch property, touches Tract 1, traverses Tract 2, and connects to the western border of Tract 3.However, for an undetermined distance, the easement appears to track the eastern boundary of Tract 1 and the western boundary of Tract 3, and it is unclear how far, if at all, the easement continues along those boundaries.The ambiguity is reinforced by the parties debating about the location of the easement on appeal, with Lee Lou maintaining that the easement ends at the boundary of Tract 3 and the Partnership alleging that the easement continues along the boundary of Tract 3 until it connects to BLM land to the north.¹

¶14 It is unclear from COS 260286 alone which are the intended dominant and servient estates.This Court has required that the identities of the dominant and the servient estates must be "ascertainable with reasonable certainty from the referenced plat or certificate of survey" to fulfill the easement-by-reference doctrine.Blazer , ¶ 54.In Blazer , this Court found...