VanBuskirk v. Gehlen

• Decision Date: 13 April 2021
• Docket Number: DA 20-0336
• Citation: 484 P.3d 924,2021 MT 87
• Parties: Mary E. VANBUSKIRK and Roger A. Barber, Plaintiffs and Appellants, v. Patricia Dow GEHLEN and Raymond G. Gehlen, Trustees, Gehlen Patricia Dow Trust, Defendants and Appellees.
• Court: Montana Supreme Court

484 P.3d 924

2021 MT 87

Mary E. VANBUSKIRK and Roger A. Barber, Plaintiffs and Appellants,

v.Patricia Dow GEHLEN and Raymond G. Gehlen, Trustees, Gehlen Patricia Dow Trust, Defendants and Appellees.

DA 20-0336

Supreme Court of Montana.

Submitted on Briefs: December 16, 2020

Decided: April 13, 2021

For Appellants: Samantha P. Travis, Randall S. Ogle, Ogle, Worm & Travis, PLLP, Kalispell, Montana

For Appellees: Patricia Dow Gehlen, Raymond G. Gehlen, Self-represented, Castle Pines, Colorado

Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Plaintiffs Mary VanBuskirk and Roger Barber (VanBuskirks) appeal the May 2018, May 2019, and June 2020 judgments of the Montana Twelfth Judicial District Court, Hill County, compelling them to survey a roadway easement previously adjudicated by declaratory judgment in 2016, denying their motion for clarification of the subsequently discovered ambiguity between the metes and bounds description and accompanying map depiction of the easement in the underlying 1987 grant, and rescinding its prior awards of discretionary attorney fees and costs on the judgment. We address the following restated issues:

1. Whether the District Court erred by sua sponte ordering VanBuskirks to survey the 1987 grant, subsequently denying their resulting motion for clarification, and rescinding their prior awards of attorney fees and costs?

2. Whether the District Court erroneously denied VanBuskirks’ motion on remand for additional attorney fees incurred on appeal in VanBuskirk I?

We affirm in part, reverse in part, and remand for further proceedings.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 This is the latest installment in the continuing saga, dating back to 1980, of a contentious dispute over a private roadway in Hill County running between U.S. Highway 2 and the VanBuskirk property, across farmland now owned by the Gehlen Patricia Dow Trust (Gehlens). After acquiring their property in 1976, the VanBuskirks’ predecessors in interest¹ asserted an ultimately unsuccessful prescriptive easement claim against the Gehlens’ predecessors in interest² regarding the historical path of the disputed roadway.³ They tried again in 1982, this time resulting in a stipulated settlement in 1987 that included, inter alia , the following express written grant from Gehlens’ predecessors to VanBuskirks’ predecessors:

the right to use the path across that real property more particularly described on Exhibit "C" appended hereto ..., at all times which do not interfere with the farming operation on that real property, or whenever necessary.

(Emphasis in original.) The referenced Exhibit C described the existing unimproved roadway path from U.S. Highway 2 southerly to the northwest corner of the surveyed VanBuskirk property by two complementary means—a metes and bounds description and:

[a] portion of a United States Department of the Interior Geological Survey [map] ... shown below and by this reference made a part hereof, which depicts the above-described way .

(Emphasis added.)⁴ The referenced portion of the United States Department of the Interior Geological Survey map included in Exhibit C (USDIGS Map) depicted the historical course of the unimproved roadway as then-existing and known to the parties on the ground. As then-existing and shown on the USDIGS Map, the historical course of the Northern Loop Road ran almost due south from the U.S. Highway 2 highway right of way approach until curving westerly and then back easterly (backward S-curve) to the northwest corner of the VanBuskirk property.⁵ After and in accordance with the 1987 Stipulation, the VanBuskirk property owners continuously used the Northern Loop Road, as depicted on the USDIGS Map included in Exhibit C, without interruption or dispute from 1987 until 2013-14.

¶3 In late 2013 or early 2014, Gehlens broke the longstanding peace by installing a locked gate across the Northern Loop Road at the boundary between the highway approach and the northern boundary of their property.⁶ In 2014, VanBuskirks filed suit against Gehlens asserting two alternative claims for declaratory judgment and related injunctive relief.⁷ The first was a prescriptive easement claim predicated on asserted continuous adverse use since 1980. The second was an express easement claim predicated on the 1987 Stipulation, as described and depicted in Exhibit C thereto. In January 2016, the District Court granted summary judgment to VanBuskirks on both alternative claims, and thus permanently enjoined Gehlens "from interfering with VanBuskirks’ or their successors right to use the easement in the manner provided" in the 1987 Stipulation. VanBuskirk I , ¶¶ 7 and 11. The court awarded VanBuskirks costs and supplemental relief attorney fees on the declaratory judgment.⁸ On May 16, 2017, we affirmed on the express easement claim, holding that the 1987 stipulation expressly granted VanBuskirks an appurtenant easement as described and depicted in Exhibit C, beginning at the northwest corner of their property and "terminat[ing] at [U.S.] Highway [2]." VanBuskirk I , ¶¶ 10-11. We accordingly declined to address the alternative prescriptive easement theory as "unnecessary." VanBuskirk I , ¶ 11. On a right-result, wrong-reason basis, we affirmed the attorney fees award as relief supplemental to the declaratory judgment authorized under § 27-8-313, MCA. VanBuskirk I , ¶ 13.⁹

¶4 Notably, and of later consequence here, not at issue in VanBuskirk I was the question of whether the historical course of the Northern Loop Road as depicted on the USDIGS map in the 1987 grant, and then existing on the ground, was consistent with the accompanying metes and bounds description. The 2016 judgment merely concluded pursuant to M. R. Civ. P. 56 that it was beyond genuine material dispute that "[t]he route and location of the path at issue was specifically described in Exhibit C of the [1987] Stipulation ... [and] remained unchang[ed] and fixed for far more than 25 years."

¶5 Before the ink was dry on VanBuskirk I , Gehlens, through their lessee, took two actions that altered the status quo of the Northern Loop Road. First, incident to seeding the surrounding field in May or June of 2017, they again plowed-over the historical course of the road. In its stead, they left an unseeded, un-bladed 20’-wide path that ran directly due south on a straight line from the highway approach adjoining their north boundary, across Gehlens’ field to the approximate apex of the south half of the preexisting backward-S curve, and then south through the remnant of the curve to the north boundary of the VanBuskirk property tract acquired in 2008. The un-bladed path overlayed the historic course of the road in certain segments, but substantially deviated from it insofar that the new path essentially eliminated the north half of the original backward S-curve that continued south to the north boundary of the expanded VanBuskirk property. In conjunction with the new un-bladed path, Gehlens placed new stock fencing and an unlocked 12’ metal gate across the roadway at or near the VanBuskirks’ property line. On November 20, 2017, on the asserted grounds that the new path deviated from the historical course of the previously adjudicated easement and the new fencing and gate precluded them from getting larger equipment (i.e. mowing equipment) onto their property, VanBuskirks filed a motion for enforcement of the 2016 judgment, and included injunction, seeking: (1) a contempt-finding against Gehlens; (2) an order compelling them to remove the new fencing and gate and to "restore the road bed to its original condition and location"; and (3) a related attorney fees award.

¶6 Upon evidentiary hearing in May of 2018, the District Court concluded that, due to the fact that the metes and bounds description accompanying the USDIGS Map in the 1987 grant had never been surveyed to establish the precise location of the described easement on the ground, VanBuskirks failed to meet their burden of showing that the Gehlens were in contempt of the 2016 judgment. The court further reasoned, inter alia , that the unlocked easy-open stock gate was a reasonable use of the servient tenement to control grazing stock and would not substantially impair VanBuskirks’ ability to bring large equipment onto their property because: (1) it "is wide enough for the usual traffic"; (2) there was no evidence that the 12’ gate had actually interfered with VanBuskirks’ use of the easement to date; and (3) the subject road "is not the only access to [their] property."

¶7 As to the alleged deviation of the 2017 Gehlens path from the historical course of the roadway, the District Court found that a pre-2017 Google Maps satellite photo showed the pre-2017 course of the road as "approximately identical" to the original course of road depicted on the USDIGS Map included in Exhibit C to the 1987 Stipulation. The court acknowledged that the new 2017 Gehlens path did not "precisely follow" the historical course of the road, but reasoned that the metes and bounds description in the 1987 grant remained un-surveyed, "no one required VanBuskirk[s] to follow the [new] path," and nothing prevented them from still driving "where the easement was supposed to go." The court concluded that "[o]nly by having the exact location of the survey marked can VanBuskirk's rights be protected." Accordingly, sua sponte , the court ordered VanBuskirks "[to] obtain ... a licensed surveyor to mark the exact location of the [previously adjudicated] easement based on the description in [the 1987 stipulation]."

¶8 VanBuskirks subsequently commissioned a professional survey of the metes and bounds description in Exhibit C to the 1987 grant. However, the 2018 survey yielded a surprising result—the plotted metes and bounds description significantly deviated from the historical course of the roadway as depicted on the accompanying USDIGS Map and as had existed on the ground since before 1987. From the north boundary line of the...