Wagner v. Crossland Constr. Co.

• Decision Date: 25 November 2013
• Docket Number: No. 20130056.,20130056.
• Citation: 840 N.W.2d 81,2013 ND 219
• Court: North Dakota Supreme Court
• Parties: Patrick WAGNER, Plaintiff and Appellant v. CROSSLAND CONSTRUCTION COMPANY, INC., Baker Hughes Oilfield Operations, Inc., M & K Hotshot & Trucking, Inc., and Titan Specialties, Ltd., Defendants and Appellees.

840 N.W.2d 81

2013 ND 219

Patrick WAGNER, Plaintiff and Appellant

v.CROSSLAND CONSTRUCTION COMPANY, INC., Baker Hughes Oilfield Operations, Inc., M & K Hotshot & Trucking, Inc., and Titan Specialties, Ltd., Defendants and Appellees.

No. 20130056.

Supreme Court of North Dakota.

Nov. 25, 2013.

Ariston E. Johnson, Watford City, N.D., for plaintiff and appellant.

Sara E. Ruliffson (argued) and Richard H. McGee II (appeared), Minot, N.D., for defendants and appellees Crossland Construction Company, Inc., and Baker Hughes Oilfield Operations, Inc.

Vanessa L. Anderson (argued) and Robert B. Stock (appeared), Fargo, N.D., for defendants and appellees M & K Hotshot & Trucking, Inc., and Titan Specialties, Ltd.

MARING, Justice.

[¶ 1] Patrick Wagner appeals from a summary judgment holding as a matter of law that his property is burdened by either an express or an implied roadway easement and dismissing his claims for injunctive relief and damages against Crossland Construction Company, Inc. (“Crossland”), Baker Hughes Oilfield Operations, Inc. (“Baker”), M & K Hotshot & Trucking, Inc. (“M & K”), and Titan Specialties, Ltd. (“Titan”). We conclude that, as a matter of law, the language in the warranty deed at issue in this case did not create or reserve an express easement. We further conclude genuine issues of material fact precluded the district court from resolving whether an implied easement exists. We reverse and remand for further proceedings.

I

[¶ 2] Wagner owns a tract of land in Williams County. The controversy in this case centers on a recorded April 15, 1981, warranty deed in Wagner's chain of title which states the property is “subject to a road easement on the North 40.00 feet of the parcel.” Wagner obtained his interest in the property through a 2009 warranty deed stating the conveyance was “SUBJECT to all prior exceptions, easements, restrictions and rights-of way of record.” Baker owns a tract of land north of and adjacent to Wagner's property. M & K owns a tract of land east of and adjacent to Wagner's property. Titan owns a tract of land east of and adjacent to Baker's property. Before 2011, there existed a two-track dirt trail along the northern boundary of Wagner's property. In 2011, Baker hired Crossland to build a road within the 40–foot strip of Wagner's property and the adjacent 40–foot strip of Baker's property. Baker, M & K, and Titan use the road, now known and signed as “Commercial Drive,” for industrial and commercial purposes.

[¶ 3] In December 2011, Wagner sued the defendants seeking damages for negligence and trespass and also sought an injunction prohibiting them from entering his property. The defendants alleged their actions occurred within the boundaries of a roadway easement on Wagner's property. On cross motions for summary judgment, the district court ruled in favor of the defendants:

2. As a matter of law, the language in the April 15, 1981 deed creates an express easement that burdens the plaintiff's parcel of land for the purpose of a roadway upon the strip of land between the northern boundary of the plaintiff's parcel and a line parallel thereto and 40 feet south of the same.

3. In the alternative, as a matter of law, there is an implied easement that burden[ ]s the plaintiff's parcel of land as described in the preceding paragraph.

The court dismissed Wagner's claims for damages and injunctive relief as well as the defendants' counterclaims.

II

[¶ 4] Wagner argues the district court erred in ruling as a matter of law that his property is burdened by either an express or an implied roadway easement.

[¶ 5] Our standard of review for summary judgments is well established:

“Under N.D.R.Civ.P. 56, summary judgment is a procedural device for promptly resolving a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. The party moving for summary judgment must show there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law. A district court's decision on a motion for summary judgment is a question of law that we review de novo on the record. In determining whether summary judgment was appropriately granted, we view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of all favorable inferences which can reasonably be drawn from the record.”

Lario Oil & Gas Co. v. EOG Resources, Inc., 2013 ND 98, ¶ 5, 832 N.W.2d 49 (quoting Brigham Oil and Gas, L.P. v. Lario Oil & Gas Co., 2011 ND 154, ¶ 13, 801 N.W.2d 677).

[¶ 6] “ ‘An easement is an interest in land “consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose.” ’ ” Niles v. Eldridge, 2013 ND 52, ¶ 9, 828 N.W.2d 521 (quoting Riverwood Commercial Park, LLC v. Standard Oil Co., Inc., 2005 ND 118, ¶ 10, 698 N.W.2d 478). An easement may be created by an express grant or reservation contained in a written instrument, see 25 Am. Jr.2d Easements and Licenses §§ 13, 15–17 (2004); N.D.C.C. § 47–05–02.1, or may arise by implication under the facts and circumstances of a particular case. See 25 Am.Jur.2d at § 19; Mougey Farms v. Kaspari, 1998 ND 118, ¶ 18, 579 N.W.2d 583.

A

[¶ 7] Wagner argues the district court erred in concluding the language in the 1981 warranty deed created an express roadway easement.

[¶ 8] We described the rules for construing deeds in Waldock v. Amber Harvest Corp., 2012 ND 180, ¶ 6, 820 N.W.2d 755 (quoting Carkuff v. Balmer, 2011 ND 60, ¶ 8, 795 N.W.2d 303):

In construing a deed, the primary purpose is “to ascertain and effectuate the grantor's intent, and deeds are construed in the same manner as contracts.” State Bank & Trust of Kenmare v. Brekke, 1999 ND 212, ¶ 12, 602 N.W.2d 681;see Williams Co. v. Hamilton, 427 N.W.2d 822, 823 (N.D.1988). If a deed is unambiguous, this Court determines the parties' intent from the instrument itself. See Brekke, at ¶ 12;Stracka v. Peterson, 377 N.W.2d 580, 582 (N.D.1985). In other words, “[t]he language of the deed, if clear and explicit, governs its interpretation; the parties' mutual intentions must be ascertained from the four corners of the deed, if possible.” North Shore, Inc. v. Wakefield, 530 N.W.2d 297, 300 (N.D.1995); seeN.D.C.C. §§ 9–07–02, 9–07–03, 9–07–04, 47–09–11. Whether or not a contract is ambiguous is a question of law. Brekke, at ¶ 12.

[¶ 9] The April 15, 1981, warranty deed conveys the property to the grantee “subject to a road easement on the North 40.00 feet of the parcel.” The defendants rely on City of Revere v. Boston/Logan Airport Assocs., LLC, 416 F.Supp.2d 200, 207 (D.Ct.Mass.2005) (construing Massachusetts law); Aszmus v. Nelson, 743 P.2d 377, 379 (Alaska 1987); Katkish v. Pearce, 490 A.2d 626, 628 (D.C.Ct.App.1985); Nolan v. Stuebner, 429 N.W.2d 918, 922 (Minn.Ct.App.1988); and Jakobson v. Chestnut Hill Props., Inc., 106 Misc.2d 918, 436 N.Y.S.2d 806, 810 (N.Y.Sup.Ct.1981), overruled on other grounds, Marchand v. New York State Dep't of Envtl. Conservation, 19 N.Y.3d 616, 950 N.Y.S.2d 496, 973 N.E.2d 1270 (2012), for the proposition that use of the words “subject to” in a deed expressly creates or reserves an easement as a matter of law.

[¶ 10] This Court, however, has followed the general rule and has not interpreted the deed language “subject to” in the same manner as those courts. In Monson v. Dwyer, 378 N.W.2d 865, 866 (N.D.1985) (internal citations omitted), this Court explained:

We have stated that the words “subject to” are generally terms of qualification meaning “subordinate to”, “subservient to”, “limited by”, or “charged with”. These words connote a limitation on a grantor's warranty and not a reservation of rights. This interpretation of the words “subject to” is the generally accepted view and is properly adhered to by the trial court in the instant case. We conclude that the words “subject to” in the Monson–Dwyer deed do not act as words of reservation.

See also Stracka v. Peterson, 377 N.W.2d 580, 582–83 (N.D.1985) (same); 23 Am.Jur.2d Deeds § 246 (2002); 26A C.J.S. Deeds § 320 (2011). Under the same reasoning adopted by this Court, other courts have ruled use of the language “subject to” in a warranty deed does not create or reserve an easement. See, e.g., Blazer v. Wall, 343 Mont. 173, 183 P.3d 84, 94 (2008); Beattie v. State ex rel. Grand River Dam Auth., 41 P.3d 377, 383 (Okla.2002); Renner v. Crisman, 80 S.D. 532, 127 N.W.2d 717, 721 (1964); Hancock v. Planned Dev. Corp., 791 P.2d 183, 186 (Utah 1990). Although Monson and Stracka did not involve disputes over whether the “subject to” language created or reserved easements, we see no principled reason to interpret the deed language differently in this case.

[¶ 11] The defendants argue Monson and Stracka are distinguishable under the circumstances. The issues in Monson, 378 N.W.2d at 866, and Stracka, 377 N.W.2d at 582, were whether the words “subject to” in warranty deeds created reservations of mineral interests. In both cases, this Court distinguished Bulger v. McCourt, 179 Neb. 316, 138 N.W.2d 18, 22 (1965), in which the Nebraska Supreme Court ruled the words “subject to” in a warranty deed constituted a reservation of mineral interests. This Court distinguished Bulger because, unlike the situations before it, in Bulger there was no prior reservation of a mineral interest to which the words “subject to” could refer, and consequently, the words must necessarily express an intent to reserve mineral interests. See Monson, at 867;Stracka, at 583 n. 4. Because in this case, as in Bulger, there are no prior recorded easements to which the “subject to” language could refer, the defendants argue we should adopt the reasoning of the Bulger court and conclude the 1981 warranty deed expressly reserved a roadway easement as a matter of law.

[¶ 12] The defendants' argument...