Short v. Park Elec. Coop., CV 19-31-BLG-TJC

CourtUnited States District Courts. 9th Circuit. United States District Court (Montana)
PartiesMICHAEL F. SHORT, as TRUSTEE of the MICHAEL F. SHORT LIVING TRUST, and SHORT FR, LTD., a Texas limited partnership, Plaintiffs, v. PARK ELECTRIC COOPERATIVE, INC., and ARTHUN RANCH, INC., Defendants.
Docket NumberCV 19-31-BLG-TJC
Decision Date29 December 2021

MICHAEL F. SHORT, as TRUSTEE of the MICHAEL F. SHORT LIVING TRUST, and SHORT FR, LTD., a Texas limited partnership, Plaintiffs,


No. CV 19-31-BLG-TJC

United States District Court, D. Montana, Billings Division

December 29, 2021



Plaintiffs Michael F. Short, as Trustee of the Michael F. Short Living Trust, and Short FR, LTD., a Texas limited partnership, (collectively, “Short”), bring this action against Defendants Park Electric Cooperative, Inc. (“PEC”), and Arthun Ranch, Inc. (“Arthun”), alleging various causes of action related to the provision of electrical service on Short's property and easements for electrical distribution lines. (See generally Doc. 1.)

Before the Court are PEC's Motion for Summary Judgment (Doc. 39), Arthun's Motion for Summary Judgment (Doc. 43), and Short's Motion for Partial Summary Judgment (Doc. 45). The motions are fully briefed and ripe for the Court's review. Having reviewed the parties' submissions, the Court finds that


Arthun and PEC's motions should be GRANTED, and Short's motion should be DENIED.

I. Factual Background[1]

In 2015, Short purchased two sections of real estate in Meagher County, Montana (“Short property”), with the intent to build a recreational/vacation residence. Arthun is a family ranch in Meagher County, which operates on two sections of land located to the south of the Short property. PEC is a Montana rural electrical cooperative, which provides electrical service to its members in Meagher, Park, Gallatin, and Sweet Grass Counties, including the Arthun property.

The Short and Arthun properties are separated by a section of land owned by the State of Montana (state section). Hence, the state section is sandwiched between the Short property on its northern border, and the Arthun property on its southern boundary.

At the time Short purchased its property, there was no electrical service to the property, and Short did not explore the availability of electrical access before the purchase. After purchasing the property, however, Short sought to establish electrical service.


Short has an easement over the state section which would allow the placement of electrical distribution lines from the Arthun/state section border to Short's property. The Arthun property is also encumbered by easements in favor of both PEC and the Short property, described below.

First, in 1956, Arthun's predecessor in interest granted a right-of-way easement across the Arthun property to PEC (“1956 Easement”). The 1956 Easement gave PEC “the right to enter [the Arthun property] . . . to place, construct, operate, repair, maintain, relocate and replace . . . an electric transmission or distribution line or system.” (Doc. 26-1.) After obtaining the easement, PEC constructed an electrical distribution line on the Arthun property, which provides electricity to the Arthun's residence and outbuildings. The line generally runs in a northerly direction the length of the Arthun property and terminates near the Arthun's residence.

A second easement was granted by Arthun in June 1989 to the Short's predecessors, Gordon Bright and Karen Bright Windecker (“Brights”). For years, Arthun had permitted the Brights to access the Short property via an existing roadway which runs north through the Arthun property to the state section. In 1989, the Brights requested a written easement in contemplation of the sale of the Short property. Arthun granted the Brights a roadway easement for ingress and egress that was “limited to agricultural endeavors only.” (Doc. 26-2.)


This easement was expanded beyond agricultural use in August 1989 to allow “for purposes ordinarily and reasonably associated with the ownership and use of . . . lands including, . . . the installation of utility lines and cables.” (Doc. 26-3.) The location of the easement was not changed.

The 1989 easement erroneously referred to the Short property as the “servient” lands. This scrivener's error was corrected to the “dominant” lands in 2008 (“2008 Easement”). (Doc. 26-4.) The 2008 Easement was otherwise unchanged, and it explicitly superseded the August 1989 easement. (Id.)

The 2008 Easement runs generally north and south across the Arthun property along an existing road, at least a portion of which was a county road known as the Anderson Road. The Anderson Road has a Y-shaped fork south of the Arthun/state section border. One branch of the “Y” continues north for approximately 175 yards before entering the state section. This is the branch of the road used by the Brights to access the state section and the Short property. The other branch of the “Y” diverts to the west and proceeds to the residence and outbuildings on the Arthun property. The 2008 Easement along the Anderson Road is east of, and roughly parallels, the existing distribution line on the Arthun property.


After purchasing the property, Short requested that Arthun allow Short to connect to the electrical line on the Arthun property to bring electrical service to the Short property. Arthun ultimately denied the request.

Short then contacted PEC about obtaining electrical service. Short requested that PEC extend the existing electrical line which services the Arthun property to the border of the Arthun/state section. PEC, in turn, contacted Arthun twice, but was advised on both occasions that Arthun would not grant an easement to connect to the line on the Arthun property. PEC thus informed Short of two options: either (1) obtain an easement from Arthun to connect to the line on Arthun's property; or (2) construct a line along the Anderson road to the state section via the existing 2008 Easement. Short has declined the latter option, and asserts that it already has the right to establish electrical service through the 1956 and 2008 Easements on the Arthun property.

On March 28, 2019, Short filed suit against PEC and Arthun alleging various causes of action related to the 1956 and 2008 Easements. (Doc. 1.) Following this Court's March 16, 2020, Order on the Defendants' motions to dismiss, Short's remaining claims are for declaratory judgment on easement rights (Counts 1 and 2); obstruction of, interference with, and breach of easement (Count 3); and violation of the Montana Consumer Protection Act as to PEC (Count 7). (Doc. 22).


PEC and Arthun have both filed motions for summary judgment as to all of Short's claims. Short has also filed a motion for partial summary judgment on Counts 1 and 2 of its Complaint.

II. Legal Standard

Summary judgment is appropriate where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable factfinder to return a verdict for the nonmoving party. Id. “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving party fails to discharge this initial burden, summary judgment must be denied, and the court need not consider the non-moving party's evidence. Adickes v. S. H. Kress & Co., 398 U.S. 144, 159-60 (1970).

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually


exists. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party must “go beyond the pleadings and . . . by ‘the depositions, answers to interrogatories, and admissions on file,' designate ‘specific facts showing that there is a genuine issue for trial.'” Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). The opposing party cannot defeat summary judgment merely by demonstrating “that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586; Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (“The mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient.”) (citing Anderson, 477 U.S. at 252).

When making this determination, the Court must view all inferences drawn from the underlying facts in the light most favorable to the non-moving party. See Matsushita, 475 U.S. at 587. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he [or she] is ruling on a motion for summary judgment.” Anderson, 477 U.S. at 255.

III. Discussion

PEC moves for summary judgment on all of Short's remaining claims. (Doc. 39.) PEC first argues that it is entitled to summary judgment on Count 1, for


declaratory judgment as to the 2008 Easement, because Count 1 only states a claim against Arthun, not PEC.[2] (Docs. 1 at ¶¶ 41-44; 40 at 9-10.) As to Count 2, PEC asserts that the 1956 Easement does not grant it the right to extend electric service from Arthun's property to Short. (Doc. 40 at 10-16.) With respect to Count 3, PEC argues it did not obstruct, interfere with, or breach either easement because PEC has no right to extend electric service to Short under the 1956 Easement and has not interfered with Short's rights under the 2008 Easement. (Id. at 19, 22-23.) Last, PEC contends it is entitled to summary judgment on Short's claim in...

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