Titeca v. State By and Through Dept. of Fish, Wildlife, and Parks

• Decision Date: 15 September 1981
• Docket Number: No. 80-396,80-396
• Citation: 634 P.2d 1156,194 Mont. 209,38 St.Rep. 1533
• Parties: John H. TITECA and Clara L. Titeca, Individually and as husband and wife, Plaintiff and Appellant, v. STATE of Montana, Acting By and Through the DEPARTMENT OF FISH, WILDLIFE, AND PARKS, Defendant and Respondent.
• Court: Montana Supreme Court

Page 1156

634 P.2d 1156

194 Mont. 209

John H. TITECA and Clara L. Titeca, Individually and as husband and wife, Plaintiff and Appellant, v. STATE of Montana, Acting By and Through the DEPARTMENT OF

FISH, WILDLIFE, AND PARKS, Defendant and

Respondent.

No. 80-396.

Supreme Court of Montana.

Submitted on Briefs July 9, 1981.

Decided Sept. 15, 1981.

J. Brian Tierney, Butte, for plaintiff and appellant.

F. Woodside Wright, Helena, for defendant and respondent.

SHEEHY, Justice.

Plaintiffs, John H. Titeca and Clara L. Titeca, appeal from the summary judgment granted in the District Court, Sixth Judicial District, Sweet Grass County, to defendant, the State of Montana, acting by and through the Department of Fish, Wildlife and Parks (hereinafter department).

The property involved in this matter is located on the Boulder River within Section 15, Township 2 South, Range 13 East, Sweet Grass County, Montana. The site is approximately 20 miles south of Big Timber, Montana, and approximately 3 miles east of McLeod, Montana.

In 1954, by a recorded document entitled "Deed of Right of Way over Existing Road", W. T. Rule, Jr. and Edith Rule, his wife, predecessors in interest to the department, transferred an interest in property to Annice B. Abarr (Somers), predecessor in interest to plaintiffs and appellants, John H. Titeca and Clara L. Titeca. The document states:

"(T)he said parties of the first part ... do hereby grant and convey unto said party of the second part, her heirs and assigns; a permanent right of way, twenty feet wide, for use as a private road across and over a strip of land in Sweet Grass County, Montana, more particularly described as that land now being used as a private road over and across a twenty foot strip of land ..."

This right of way over the Rule property provided access to the Abarr property. The road still provides the only access to Titeca's property (formerly Abarr's property).

Through various mesne conveyances, the department acquired the Rule property (servient estate) and Titeca acquired the Abarr property (dominant estate). The department intends to pave the road and open it to the public. The road will serve a dual purpose: it will provide a route to the Titeca property and to the proposed Boulder Forks fishing access site, located on the department's land.

Titeca brought an action seeking damages of $500,000 and an injunction to prevent the department from developing and using the department's property as a public fishing access site, and to prevent the paving of the road.

Titeca's complaint was based on a claimed fee title to the roadway, allegations of improperly made environmental studies, of creating a nuisance, of exposing Titeca to personal liability, and of maintaining a trespass, disturbing peace and contentment, depreciating land values and taking without just compensation. The complaint was supported by the affidavit of John Titeca which alleged that he owned fee title in the right of way and that "irreparable injuries, trespass, damages and losses" would occur by reason of the proposed use of the right of way and development of the access site.

A hearing was held and testimony taken from John Titeca and the department's regional parks manager, Ray Berntsen. No decision was rendered at the hearing.

Subsequently, the department moved for summary judgment. The motion was supported by affidavits from Don Abarr (husband of Annice Abarr when the deed of right of way was granted) and Annice Abarr (Somers). Both affidavits indicated the deed was intended to provide only an easement from the Rules. The motion was further supported by an environmental assessment and a preliminary environmental review together with affidavits, made by a department program manager, Ron Aasheim, and a department civil engineer, Walt Anderson. Completion of the environmental assessment was apparently required to qualify the purchase for matching federal funds. The conclusions of both affidavits were that the environmental studies were properly made. Each study concluded that the impacts of the project would be minor and each resulted in a finding that the drafting of an environmental impact statement was not necessary.

In opposition to the motion for summary judgment, Titeca introduced affidavits from Edith Rule, one of the original grantors, and, another from Annice Abarr (Somers), the original grantee. Thus, each party submitted an affidavit from Annice Abarr in support of their position.

The District Court found the department had met its burden and that there were no genuine issues of material fact. Summary judgment was entered as a matter of law on behalf of the department.

We affirm the judgment of the District Court.

In granting summary judgment, the District Court ordered:

"1. That title to the property in question is quieted in the State of Montana, Department of Fish, Wildlife, and Parks, subject to an easement for roadway purposes held by plaintiffs.

"2. That defendant acted under proper authority in acquiring the property in question and did so without depriving plaintiffs of their constitutional right of due process.

"3. That defendant made all necessary and proper environmental assessments before acquiring the property and before undertaking the project thereon.

"4. That defendant's acquisition, management, and use of the property is not a taking of plaintiff's property without compensation."

It is this order of the District Court which we review upon appeal.

An appropriate statement of the law with regard to summary judgment can be found in Byrd v. Bennett, White and American Title & Escrow of Billings (1981), Mont., 631 P.2d 695, 38 St.Rep. 1083:

"In recent opinions, this Court explained the purpose of summary judgment under Rule 56, M.R.Civ.P., and we outlined the proper procedure for entry of summary judgment. See, Anaconda Co. v. General Acc. Fire & Life (1980), Mont., 616 P.2d 363, 37 St.Rep. 1589; Reaves v. Reinbold (1980), Mont., 615 P.2d 896, 37 St.Rep. 1500. Under Rule 56(c), M.R.Civ.P., summary judgment shall be entered if '... the pleadings, depositions, answers to interrogatories, and admissions on file (together with the affidavits if any) show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' The purpose of summary judgment is to encourage economy through the elimination of unnecessary trial, delay and expense, but the procedure is never to be a substitute for a trial if a material factual controversy exists. Engebretson v. Putnam (1977),174 Mont. 409, 571 P.2d 368. In a summary judgment proceeding, the formal issues presented by the pleadings are not controlling. The question to be decided in a motion for summary judgment is whether there exists a genuine dispute over material facts. The party moving for summary judgment has the burden of showing the complete absence of material factual questions. The proof proffered by the movant is closely scrutinized. The party opposing the motion may block summary judgment by offering proof that a dispute exists regarding facts material to the claim for relief." 38 St.Rep. at 1084.

It is in light of this standard that we must review the holding of the District Court.

1. Did the District Court err when it entered summary judgment quieting title to the roadway in the department subject to an easement for roadway purposes held by plaintiffs?

To resolve this issue we must determine what interest Titeca has in the disputed right of way. The language of the 1954 conveyance quoted earlier is sufficiently clear on this point. It is entitled "Deed of Right of Way over Existing Road." Titeca maintains that this instrument conveys a fee interest in the roadway or, in the alternative, an exclusive easement under the terms of which Titeca alone is allowed to use the roadway. The department contends that the instrument conveys nothing more than an ordinary, nonexclusive easement.

The language of the instrument creating Titeca's interest in the roadway is, on its face, clear and unambiguous: the instrument conveyed "a permanent right of way ... for use as a private road ..." The grant of an easement is the grant of a use and not a grant of title to the land. Bolinger v. City of Bozeman (1972), 158 Mont. 507, 511, 493 P.2d 1062, 1064. The instrument conveys an easement.

Although Titeca directs us to numerous cases involving strips of land where it was held that a fee interest was either granted or reserved, each case is easily distinguishable. In most instances, this can be accomplished on the basis of the language of the instruments involved.

In the course of the litigation, neither party indicated who has paid taxes on the roadway since 1954. Although that information would not be entirely determinative of the issue of fee or easement, it would provide some insight into which one of the parties owned the road.

Titeca's alternative assertion that if he does not have a fee interest in the road, he at least holds an exclusive easement is the stronger of his two arguments. We find, however, that Titeca holds nothing more than an ordinary easement.

Titeca bases his assertion that he holds an "exclusive" easement on the use of the words "private road" in the 1954 document. "An 'exclusive easement' is an unusual interest in land; it has been said to amount almost to a conveyance of the fee." 2 Thompson on Real Property (1980), § 426, at 654-655. "No intention to convey such a complete interest can be imputed to the owner of the servient tenement in the absence of a clear indication of such an intention." City of Pasadena v. California-Michigan Land & W. Co. (1941), 17 Cal.2d 576, 110 P.2d 983, 985. The mere use of the words "private road" is not a clear indication of an intent to create an "exclusive" easement.

Furthermore, section 70-17-106, MCA, states "(t)he extent of a servitude is determined by the terms of the grant ... by which it was...