Myers v. Dee

• Decision Date: 04 October 2011
• Docket Number: No. DA 11–0190.,DA 11–0190.
• Citation: 2011 MT 244,362 Mont. 178,261 P.3d 1054
• Parties: Gary MYERS, Plaintiff and Appellant,v.W. Stephen DEE, Victoria R. Dee and all other Persons Unknown, claiming or who might claim any right, title, estate, or interest in, or lien or encumbrance upon, the real property described in the Complaint or any thereof, adverse to the Plaintiff's ownership, Defendants and Appellees.
• Court: Montana Supreme Court

362 Mont. 178

261 P.3d 1054

2011 MT 244

Gary MYERS, Plaintiff and Appellant,

v.W. Stephen DEE, Victoria R. Dee and all other Persons Unknown, claiming or who might claim any right, title, estate, or interest in, or lien or encumbrance upon, the real property described in the Complaint or any thereof, adverse to the Plaintiff's ownership, Defendants and Appellees.

No. DA 11–0190.

Supreme Court of Montana.

Submitted on Briefs Aug. 17, 2011.Decided Oct. 4, 2011.

For Appellant: David B. Gallik, Gallik Law Office, PLLC, Helena, Montana.For Appellee: Rick Pyfer, Patrick T. Fox, Doubek & Pyfer, LLP, Helena, Montana.Justice JAMES C. NELSON delivered the Opinion of the Court.

[362 Mont. 179] ¶ 1 Gary Myers filed this action in the District Court for the First Judicial District, Lewis and Clark County, seeking to condemn a strip of land owned by Stephen and Victoria Dee (the Dees) to create a private road allowing access to property owned by Myers. The court granted the Dees' Motion for Summary Judgment and Myers appeals. We affirm.

¶ 2 Myers raises two issues on appeal which we have restated as follows:

¶ 3 1. Whether § 70–30–102(36), MCA, requires proof of an existing farm or residence.

¶ 4 2. Whether the existence of a farm or residence and the necessity of a road to access that farm or residence are determinations for the jury.

Factual and Procedural Background

¶ 5 George Vincent inherited a 160–acre parcel of mountainous property near Canyon Creek in Lewis and Clark County (tract B in the diagram below). His three sisters inherited the contiguous 160–acre parcel as tenants in common (tract A in the diagram below). Myers purchased a one-third interest in tract A from one of the sisters, while Vincent purchased the remaining two-thirds interest in tract A from the other two sisters.

¶ 6 In April 2000, Myers brought a partition action against Vincent regarding tract A. While the partition action was pending, Vincent sold tract B and his two-thirds interest in tract A to the Dees. The Dees were then added as real parties in interest in the partition action. Over the next several years, the District Court issued numerous orders in the matter, one of which was appealed to this Court. See Myers v. Vincent, 2004 MT 176N, 323 Mont. 534, 2004 WL 1506576, 2004 Mont. LEXIS 343.

¶ 7 Eventually, on January 23, 2008, the District Court entered an order awarding the southernmost one-third of tract A to Myers and the northernmost two-thirds of tract A to the Dees. The court also denied Myers access from the county road (also referred to as Empire Road or Lost Horse Creek Road) to his property. Since the county road runs through tract B, which is owned entirely by the Dees, this access would have required Meyers to travel across 62 feet of the Dees' tract B property to reach Myers' portion of tract A. The District Court denied Myers access to his property across tract B because tract B was outside of the parcel of property partitioned. The court also determined that Myers had not established that either an easement by necessity or an implied easement existed across the Dees' property. This ruling of the court has not been appealed.

Image 1 (2.67" X 2.58") Available for Offline Print

¶ 8 Myers filed the present action against the Dees on July 10, 2009. In his Complaint, Myers asked the court to grant him access to his property across the Dees' tract B property based on the right of eminent domain. Myers' property contains several dilapidated buildings including a historic cabin in which no one has lived for decades. Myers alleged that the cabin qualifies as a residence, and that pursuant to §§ 70–30–102(36) and –107, MCA, the right of eminent domain may be exercised to create a private road leading from a highway to a residence or farm.

¶ 9 On May 20, 2010, the Dees moved for summary judgment arguing that because the historic cabin is uninhabitable, no residence or farm exists on Myers' property, and the eminent domain statutes cannot be applied. After a hearing on the matter, the District Court determined that Myers was required to make a prima facie showing under § 70–30–102(36), MCA, as to the current existence of a residence or farm on the property before he was entitled to a jury trial under § 70–30–107, MCA, relating to the necessity and value of the property to be taken. Because Myers failed to make such a showing, the court granted the Dees' Motion for Summary Judgment and awarded the Dees their costs. Myers appeals.

Standard of Review

¶ 10 We review a district court's grant or denial of a summary judgment motion de novo. Lee v. Great Divide Ins. Co., 2008 MT 80, ¶ 9, 342 Mont. 147, 182 P.3d 41 (citing Farmers Union Mut. Ins. Co. v. Horton, 2003 MT 79, ¶ 10, 315 Mont. 43, 67 P.3d 285). Under M.R. Civ. P. 56(c), summary judgment is proper only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Moreover, the party moving for summary judgment has the initial burden of proving that no genuine issues of material fact exist. See Roy v. Blackfoot Telephone Co–op., 2004 MT 316, ¶ 11, 324 Mont. 30, 101 P.3d 301. The burden then shifts to the non-moving party to prove by more than mere denial and speculation that a genuine issue of material fact does exist. Roy, ¶ 11.

Issue 1.

¶ 11 Whether § 70–30–102(36), MCA, requires proof of an existing farm or residence.

¶ 12 Eminent domain is the right to take private property for public use. Richter v. Rose, 1998 MT 165, ¶ 15, 289 Mont. 379, 962 P.2d 583 (citing § 70–30–101, MCA). We noted in Richter, that the procedures for taking property pursuant to eminent domain are entirely statutory in Montana. Richter, ¶ 15 (citing Title 70, chapter 30, MCA). And, under Montana's eminent domain statutes, a private right exists to create a road leading from a highway to landlocked property containing a residence or farm. Richter, ¶ 15 (citing § 70–30–102(6), MCA (now § 70–30–102(36), MCA)).

¶ 13 In this case, Myers contends that the historic cabin on his property is a residence for purposes of § 70–30–102(36), MCA. He argues that the statutes governing eminent domain do not require proof that a farm or residence is presently in use before eminent domain may be applied. Hence, Myers contends that the District Court erred in reading that requirement into the statutes and in granting the Dees' Motion for Summary Judgment.

[362 Mont. 182] ¶ 14 The Dees argue on the other hand that the eminent domain statutes require a showing of a presently-used farm or residence. The Dees maintain that on the facts before us here, because there is no presently-used farm or residence on Myers' property, the District Court was correct in granting their Motion for Summary Judgment.

¶ 15 There are no cases in Montana that define the term “residence” for purposes of § 70–30–102(36), MCA. There are, however, two cases that define the term “farm” as used in that statute.

¶ 16 In Groundwater v. Wright, 180 Mont. 27, 588 P.2d 1003 (1979), the plaintiff owned a tract of land with no access, so he sought to condemn an access route from a county road to his property over defendant's land using the eminent domain statutes.¹ The evidence produced at trial showed that plaintiff's property was not being farmed or used as a residence at that time, although the plaintiff did testify that he would like to build a home on the property when he retires. Because the jury found that there presently was no necessity for the road, as there was no farm or residence on the property, the court entered judgment for defendants. Groundwater, 180 Mont. at 28–30, 588 P.2d at 1004–05.

¶ 17 On appeal, this Court stated that in order to prevail, plaintiff must show that eminent domain would be exercised to provide necessary access from a highway to a residence or farm. The Court held that because the evidence presented showed that the land was not presently being farmed or used as a residence, plaintiff failed to establish that his proposed condemnation was necessary. Groundwater, 180 Mont. at 29–30, 588 P.2d at 1004–05.

¶ 18 Similarly, in the Richter case, plaintiffs sought a declaration that a public right-of-way had been established across defendants' property in the early 1900s or, alternatively, a condemnation order granting plaintiffs an easement across the property. The district court rejected the public right-of-way claim, but entered a preliminary condemnation order and judgment in plaintiffs' favor. Richter, ¶ 1.

¶ 19 On appeal, we analyzed the term “farm” to determine whether the facts in that case fit within the requirements of the eminent domain statutes. We noted in Richter that while “farm” is not defined in Title 70, chapter 30, MCA, it is defined in several other chapters of the MCA. We rejected each of those definitions, however, because they are limited in their application to the particular statutory scheme in which they are found. Richter, ¶¶ 17–20. “[W]hen a word is defined in any part of the MCA, the same definition applies wherever the word appears unless ‘a contrary intention plainly appears.’ ” Richter, ¶ 17 (quoting § 1–2–107, MCA) (emphasis added).

¶ 20 Because “farm” was not defined for purposes of § 70–30–102(6), MCA (now § 70–30–102(36), MCA) and because other definitions of the term in the MCAs were not applicable to this statute, we concluded in Richter that we must construe the term according to its plain meaning. Richter, ¶ 21 (citing § 1–2–106, MCA; State v. Nye, 283 Mont. 505, 510, 943 P.2d 96, 99 (1997)). And, based on the plain meaning of the term “farm,” we held in Richter that because plaintiffs had not prepared, fertilized, tilled or otherwise cultivated their property for agricultural purposes, the property could not be considered a “farm.” Richter, ¶ 22. Consequently, we reversed the district court's condemnation order because plaintiffs failed to establish a public use on behalf of which eminent domain could be exercised. Richter, ...