Waters v. Blagg

• Decision Date: 30 December 2008
• Docket Number: No. DA 07-0602.,DA 07-0602.
• Citation: 348 Mont. 48,2008 MT 451,202 P.3d 110
• Parties: Gary L. WATERS and Patricia Waters, Plaintiffs and Appellants, v. Cameron A. BLAGG, Jerry Paul Overman, Delbert E. Bowe and Linda M. Bowe, and all other persons, unknown, claiming or who might claim any right, title, estate, or interest in or lien or encumbrance upon the real property described in the Complaint adverse to Plaintiffs, ownership or any cloud upon Plaintiffs' title thereto, whether such claim or possible claim be present or contingent, Defendants and Appellees.
• Court: Montana Supreme Court

202 P.3d 110

2008 MT 451

348 Mont. 48

Gary L. WATERS and Patricia Waters, Plaintiffs and Appellants, v. Cameron A. BLAGG, Jerry Paul Overman, Delbert E. Bowe and Linda M. Bowe, and all other persons, unknown, claiming or who might claim any right, title, estate, or interest in or lien or encumbrance upon the real property described in the Complaint adverse to Plaintiffs, ownership or any cloud upon Plaintiffs' title thereto, whether such claim or possible claim be present or contingent, Defendants and Appellees.

No. DA 07-0602.

Supreme Court of Montana.

Submitted on Briefs August 13, 2008.

Decided December 30, 2008.

Rehearing Denied February 19, 2009.

For Appellants: Randall A. Snyder; Snyder Law Officer; Bigfork, Montana.

For Appellees: Darrell S. Worm; Ogle and Worm; Kalispell, Montana.

Justice W. WILLIAM LEAPHARTdelivered the Opinion of the Court.

¶ 1 Gary and Patricia Waters ("the Waters") commenced an action in Sanders County District Court to quiet title to their property, seeking declaration that the property was unencumbered by any easements in favor of neighbors Blagg, Bowe, and Overman, (collectively "the Defendants"); and that Blagg's rock harvesting operation on the adjoining property was a nuisance. The Defendants counterclaim that they acquired easement by implication or by prescription. The District Court granted summary judgment in the Defendants' favor, declaring a blanket implied easement by pre-existing use and by necessity, and a prescriptive easement as to all Defendants on existing roads crossing the Waters' property. The District Court subsequently held a bench trial to resolve those issues not subject to summary judgment, and determined that the Defendants' use of the easement was within the permissible scope, and that Blagg's rock harvesting operation did not constitute a nuisance. The Waters appeal from both the summary judgment and final judgment. We affirm in part, reverse in part, and remand to the District Court for proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 The parties own property in Section 17 of rural Sanders County, Montana. Access to the properties commences from Montana Highway 56, continuing across approximately one mile of United States Forest Service ("USFS") property where it enters Section 17 at the eastern boundary of Waters' Parcel E. Before the main road continues into Waters' Parcel C-2, a southerly spur provides access to the Bowe property, Parcel J. The main road continues into Parcel C-2, where it again divides into an "upper" and "lower" road. The upper road cuts diagonally across Parcel C-2, providing access to the Blagg (Parcels C, C-1, G, and H) and Overman (Parcels K, A) properties and the lower road continues along the boundary line between Parcel C-2 and Parcel E, providing access both to Blagg's properties and for landowners not party to this action. Waters' residence is located on Parcel C-2. The roads described provide the only practical access to all properties in Section 17. The parties' use of the USFS road is permissive. A diagram of the subject properties is appended to this Opinion for reference.

¶ 3 As of 1963, WH Field and Company, Inc. ("Field Co.") owned the east half of Section 17, including the parties' property, in one unified tract. Field Co. conveyed each of the parcels at issue between 1964 and 1976, but failed to effectively reserve or grant easements for the benefit of any of the properties it conveyed. All parties to this action therefore hold title to property lacking legal access.¹ The Waters purchased first Parcel C-2, and then Parcel E, with the knowledge that there was no legal access across the USFS property to any of the properties in Section 17, including their own.

¶ 4 The access road in question is a dirt road typical of old logging roads found in Western Montana. In places, it is not wide enough for two cars to pass. The use of the road has been similarly typical. At the time Field Co. purchased its interest in Section 17, the network of roads on the property had been utilized exclusively for logging purposes. Each of the parcels at issue continued to be logged to some extent after they were severed from common ownership under Field Co.

¶ 5 In 1996, Blagg began small scale rock harvesting and sale from his property. The scale of his operation and corresponding use of the road has increased significantly since that time, peaking in 2006. There is now approximately one loaded truck per day traveling the road, and Blagg's employees use the road to get to work. Overman sold a substantial quantity of rock to a third party in 1996 or 1997, and has not sold or harvested rock since then, although he plans to do so in future. In 2004, Blagg began harvesting rock from the Bowe property, requiring travel between those properties over both the Waters' parcels. Prior to the Waters' construction of their residence from 1997-2000, residential use of the road was sporadic and limited. Since that time, use of the road has become increasingly residential. The Waters do not object to use of the road for residential purposes.

¶ 6 Blagg's rock harvesting and hauling operations are typical, with the attendant dust, noise, and travel one would expect of such an operation. Blagg acknowledged that his operation was negatively affecting the Waters, and has made attempts to address the Waters' concerns regarding both the harvesting operation and the associated travel on the road in question. Despite these attempts, the Waters maintain that the operation continues to inhibit the quiet peace and enjoyment of their property, constituting a nuisance.

¶ 7 The District Court granted summary judgment in favor of the Waters with respect to their claim that none of the named Defendants have a granted or recorded easement to cross the Waters' property. The court denied the Waters' motion as to their claim that the Defendants lack implied or prescriptive easements, instead granting summary judgment in favor of the Defendants on those issues. The District Court then held a bench trial to determine the scope of use of the declared easements, and to evaluate the merits of the Waters' nuisance claim. From that trial, the court determined that Blagg has an express easement over the Waters' property, and that each of the Defendants have easements by necessity, by pre-existing use, and by prescription across the Waters' property. The court further concluded that the use of the roads associated with the commercial transport of rock was within the permissible scope of the declared easements, and that Blagg's rock hauling and quarrying operations did not constitute a private nuisance. The Waters appeal four aspects of the District Court's judgment.² First, that the Defendants are entitled to an implied easement by pre-existing use or necessity. Second, that the Defendants are entitled to an easement by prescription. Third, that the scope of the Defendants' easement rights allow the uses associated with the commercial harvest of rock. Finally, that Blagg's operations do not constitute a private nuisance.

STANDARD OF REVIEW

¶ 8 We review a district court's grant of summary judgment de novo. Bowyer v. Loftus, 2008 MT 332, ¶ 6, 346 Mont. 182, ¶ 6, 194 P.3d 92, ¶ 6. Legal conclusions and mixed questions of law and fact are also reviewed de novo. Stanley v. Lemire, 2006 MT 304, ¶ 25, 334 Mont. 489, ¶ 25, 148 P.3d 643, ¶ 25.

¶ 9 We resolve the following dispositive issues on appeal:

¶ 10 I. Did the District Court err in concluding that the Defendants were entitled to declaration of an implied easement by pre-existing use?

¶ 11 II. Did the District Court err in concluding that the scope of the Defendants' easement permitted uses associated with the commercial harvesting of rock?

¶ 12 III. Did the District Court err in determining that Blagg's rock harvesting operation did not constitute a nuisance?

DISCUSSION

¶ 13 I. Did the District Court err in concluding that the Defendants were entitled to declaration of an implied easement by pre-existing use?

¶ 14 An implied easement is created by operation of law at the time a contiguous tract of land is severed from common ownership. Wolf v. Owens, 2007 MT 302, ¶ 16, 340 Mont. 74, ¶ 16, 172 P.3d 124, ¶ 16. If, prior to the time of severance from common ownership, "a use exists on the `servient part' that is reasonably necessary for the enjoyment of the `dominant part,' and a court determines that the parties intended the use to continue after division of the property," then an implied easement by pre-existing use is created. Wolf, ¶ 17, citing Albert G. Hoyem Trust v. Galt, 1998 MT 300, ¶ 22, 292 Mont. 56, ¶ 22, 968 P.2d 1135, ¶ 22. For the use at issue to give rise to an easement by pre-existing use, it must be apparent and continuous at the time the tract is divided. Wolf, ¶ 17. Put another way, three elements must be satisfied: 1) the tracts at issue must have been severed from common ownership; 2) the use that exists on the servient tract must be apparent, continuous, and reasonably necessary for the beneficial use and enjoyment of the dominant tract at the time of severance; and 3) the parties to the deed must have intended the use to continue after division of the property.

¶ 15 The Waters challenge only the second element of this test. Specifically, they argue that because the parties access Section 17 by permissive use of a USFS road, the proposed easement by implication will not provide true legal access, thus it cannot be necessary for beneficial use and enjoyment of the Defendants' land. Essentially, they assert that an easement by implication cannot be declared where there is no connection to a public road. The Defendants argue that for the purposes of our analysis, the USFS road is a "public road," and that moreover, connection to a public road is not required where, as here, there is a pre-existing use of the proposed implied easement.

¶ 16 The Waters cite...