Tanner v. Dream Island, Inc.

• Decision Date: 11 April 1996
• Docket Number: No. 95-094,95-094
• Citation: 275 Mont. 414,913 P.2d 641,53 St. Rep. 208
• Parties: Jack R. TANNER and Patricia L. Tanner, Frederick McFarland, Sherrie McFarland, and Thomas J. Farrell, Plaintiffs, Respondents, and Cross-Appellants, v. DREAM ISLAND, INC., a Nevada Corporation, and Juanita Daly, Defendants, Appellants, and Cross-Respondents.
• Court: Montana Supreme Court

Page 641

913 P.2d 641

275 Mont. 414

Jack R. TANNER and Patricia L. Tanner, Frederick McFarland Sherrie McFarland, and Thomas J. Farrell Plaintiffs, Respondents, and Cross-Appellants, v. DREAM ISLAND, INC., a Nevada Corporation, and Juanita Daly Defendants, Appellants, and Cross-Respondents.

No. 95-094.

Supreme Court of Montana.

Submitted on Briefs Jan. 25, 1996.

Decided March 21, 1996.

Rehearing Denied April 11, 1996.

Appeal from the District Court of the Twentieth Judicial District, In and for the County of Lake; The Honorable Ed McLean, Judge presiding.

John M. Morrison, Meloy & Morrison, Helena, for Appellants.

James A. Manley, Manley Law Offices, Polson, for Respondents.

ERDMANN, Justice.

Defendants appeal from jury findings incorporated into a judgment, order, and permanent injunction issued by the Twentieth Judicial District Court, Lake County. The District Court adopted the jury's special verdict concerning disputed road easements and permanently enjoined defendants from obstructing plaintiffs' use and enjoyment of the easements. Plaintiffs cross-appeal on the issue of attorney fees. We affirm in part and reverse in part.

The issues on appeal are as follows:

1. What is the effect of the District Court's injunction, issued during the trial, which prevented Daly from obstructing plaintiffs' use and enjoyment of Indian Boulevard?

2. Was there substantial credible evidence to support the jury verdict which found road easements by grant, prescription, and necessity?

3. Did the District Court err in instructing the jury regarding prescriptive easements?

4. Did the District Court abuse its discretion in concluding that an equitable award of attorney fees was not proper for either party in this case?

FACTS

The parties are adjoining landowners of lake front property on Flathead Lake. The properties are part of Lot 4, Block 2, of the Armo Villa townsite near the town of Big Arm. When the United States government platted the villa sites in 1910 it reserved a forty-foot boulevard called Indian Boulevard between the lots and the lake shore. This boulevard, like others around the lake, has historically been used for vehicular and foot traffic. In some places the boulevard has been used by adjacent lot owners as a lawn area or for cabin sites or boat houses.

In 1932 Lot 4, Block 2, was divided in half. The Mueller Realty Company conveyed the north half to Eugenia Rochester (who also owned a nearby island named Dream Island) and the south half to Harry Mueller. Plaintiffs' title derives from Mueller and defendants' title derives from Rochester. The indenture to Rochester reserved:

[A] right-of-way for road purposes over and upon the premises herein conveyed, to Harry J. Mueller of Butte, Montana, and to his heirs and assigns, forever, over and upon any and all roads now laid out and heretofore traveled over upon and across said premises, or any portion thereof.

The transfer of the south half of Lot 4 to Mueller contained an identical easement reservation over and upon the land conveyed to Rochester.

In 1959 Juanita Daly and her late husband, Marcus Daly III, purchased the north half of Lot 4 and Dream Island (the Daly property) from the Kirks who then owned the Rochester property. In 1964 the Dalys conveyed the property to Dream Island, Inc., a solely owned private corporation. In 1965 Ross and Delores Young purchased the south half of Lot 4 from the Boetchers who then owned the Mueller property. The Youngs subdivided the property into three smaller lots. These sublots were purchased by plaintiffs' predecessors and later conveyed to plaintiffs for summer homes.

In 1971 Jack and Patricia Tanner purchased the sublot adjacent to the Daly property (the Tanner property). In 1981 Frederick and Sherrie McFarland purchased the sublot adjacent to the Tanner property (the McFarland property). In 1971 Thomas Farrell purchased the third sublot which lies adjacent to the Tanner and McFarland properties (the Farrell property). In 1974 Farrell conveyed his property to the United States to be held in trust for him as a tribal member.

The Daly property lies north of the plaintiffs' property except for a small triangle of the McFarland property which is situated north of the Daly property. The Tanner property lies adjacent to and south of the Daly property. The McFarland property lies adjacent to and south of the Tanner property. The Farrell property lies adjacent to and southeast of both the Tanner and McFarland properties. The roads at issue are designated as A, A1, A2, B, C, D, E, F, and G.

No witnesses were found who remembered the property in 1932 but two nearby landowners remembered the property as far back as 1934 or 1935. Sid Walker clearly remembers that the Rochesters and others, including the Tanners' predecessors, used roads A and G. Red Tucker bought nearby property in the mid-1930s and identified road B as the old county road. He and other landowners used road A to get down to road G on the boulevard. He testified that the public, as well as the parties' predecessors, used roads A, B, and G. Other testimony established that prior residents used roads A, G, and E.

Tanner testified that he has used roads A, A2, D, E, and G. Mrs. McFarland testified that she and her husband have used roads A, B, F, and G and Farrell testified that he has used roads A, A1, A2, and G. The Tanners and Farrells testified that they have used the roads for over twenty years and all parties stated they never sought permission from Daly to use the roads, as they believed permission was not necessary. Although Daly objects to plaintiffs using road A across her property, she admits that she uses road A across other people's property without their permission.

In 1989 Daly's attorney wrote a letter to the plaintiffs acknowledging that plaintiffs had an easement over her property for those roads which were in existence in 1932--roads A and G--but that she intended to rescind her alleged permission to use other roads running across her property. Daly indicated in her letter that she intended to install a fence down the south boundary of her property, thereby blocking use of roads B, C, and D.

In the fall of 1992, after the plaintiffs had left their property for the season, Daly erected a fence around her property. The fence extended nearly to the water, cutting off access to the Farrell property and to McFarlands' lake front property, as well as to their source of water. The fence made access to the Tanners' cabin difficult and cut Tanners off from their boat house, dock, and barbecue pit. The fence was constructed of iron fence posts and chicken wire and the east end was nailed to the Tanners' boat house. When Mr. Tanner returned to the property in May 1993, he hired a crew to remove the section of the fence which crossed the boulevard.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In March 1993 the Tanners and McFarlands filed a complaint in District Court claiming easements by grant and prescription and seeking an injunction to prohibit Daly from obstructing the use of their property or their egress and ingress. Plaintiffs requested a jury trial to determine compensatory, emotional distress, and punitive damages. In September 1993 the District Court granted plaintiffs' motion to join Farrell as a plaintiff who alleged easements by grant, prescription, and necessity.

On June 13, 1994, Daly filed a motion for partial summary judgment on the issues of emotional distress, compensatory damages, and punitive damages. On July 20, 1994, Daly filed a motion for partial summary judgment on the issue of attorney fees. Plaintiffs subsequently withdrew their claim for emotional distress and on July 22, 1994, the District Court denied Daly's motion for summary judgment on compensatory and punitive damages. The claims for compensatory and punitive damages went to trial on August 30 and 31, 1994. In an August 30, 1994, opinion and order, the District Court concluded as a matter of law that attorney fees were not available to either party.

During trial the District Court issued an injunction prohibiting Daly from blocking road G which sits on Indian Boulevard. However, because there was still an issue of the reasonableness or maliciousness of Daly's actions in erecting the fence across the boulevard, the District Court did not want the jury contaminated or Daly prejudiced by knowledge of the injunction. The parties and the court agreed that the jury's special verdict form would therefore include the issue of easements over road G, even though that issue had already been decided by the court as a matter of law.

The jury returned a special verdict for the plaintiffs and on September 12, 1994, the District Court entered its judgment and order incorporating the jury verdict. The jury determined that all plaintiffs had an easement by grant over roads A, A1, A2, B, and G. The jury found that Tanner had a prescriptive easement over roads D, E, and G, and that McFarland had a prescriptive easement over roads E and G. In addition, the jury found that Farrell had a prescriptive easement over road G, as well as an easement by necessity over roads A, A1, and G. The jury awarded compensatory damages in the amount of $166.25 (costs to remove the fence) and determined that no punitive damages should be awarded. On November 2, 1994, the District Court issued its final opinion, order, and permanent injunction denying the defendants' motion for judgment notwithstanding the verdict and upholding the jury verdict. This appeal and cross-appeal followed.

ISSUE 1

What is the effect of the District Court's injunction, issued during the trial, which prevented Daly from obstructing plaintiffs' use and enjoyment of Indian Boulevard?

Ownership of Indian Boulevard is a complex issue with a number of different parties, including individual landowners, Lake County, the Confederated Salish and Kootenai Tribes, and the United States...