Wilkinson, LLC v. Scott & Cindy Erler, LLP
| Decision Date | 13 July 2021 |
| Docket Number | DA 20-0582 |
| Citation | 2021 MT 177,491 P.3d 704 |
| Court | Montana Supreme Court |
| Parties | WILKINSON, LLC, and Jack Couch, Plaintiffs and Appellants, v. SCOTT AND CINDY ERLER, LLP, Scott Erler, individually, and Does 1-10, Defendants and Appellees. |
For Appellants: Rob Cameron, Scott M. Svee, Nathan Bilyeu, Jackson, Murdo & Grant, P.C., Helena, Montana
For Appellees: David J. Steele, II, Timothy D. Geiszler, Layla A. Turman, Geiszler Steele, PC, Missoula, Montana
¶1 Wilkinson, LLC, and Jack Couch (collectively Wilkinson) appeal the October 2, 2020 order from the Third Judicial District Court, Granite County, holding the Secret Gulch Road Easement was an easement in gross, vacating Wilkinson's temporary restraining order, denying Wilkinson's injunctive relief, and awarding Scott and Cindy Erler, LLP (Erler), costs and attorney's fees. We reverse.
¶2 Wilkinson presents the following issue for review:
Whether the District Court erred in determining the Secret Gulch Road Easement was an easement in gross rather than appurtenant.
¶3 In 1988, Valley Mining Company (Valley Mining) owned a tract of land in Granite County, northeast of Drummond, which was platted and referenced as Government Lot 3. In October 1988, Valley Mining granted and conveyed the Secret Gulch Road Easement (Easement Document) across Government Lot 3 to Champion International Corporation (Champion), as provided below:
(Emphasis added.) The attached plat depicts the Secret Gulch Road Easement:
The Easement Document was duly recorded with the Granite County Clerk and Recorder's Office on November 1, 1988.
¶4 In 1993, Champion granted, sold, and conveyed to Plum Creek Timber Company (Plum Creek), and "to its successors and assigns, FOREVER ...," Government Lot 7 as described in Exhibit "A."1 In 2002, Erler acquired Government Lot 3 of Township 12 North, Range 14 West, by warranty deed, expressly subject to any existing easements. The deed provided:
TO HAVE AND TO HOLD the said premises, with their appurtenances unto the said Grantee and to the Grantee's heirs and assigns forever. And the said Grantor does hereby covenant to and with the said Grantee, that the Grantor is the owner in fee simple of said premises; that said premises are free from all encumbrances except current years taxes, levies, and assessments, and except U.S. Patent reservations, restrictions, easements of record, and easements visible upon the premises , and that Grantor will warrant and defend the same from all lawful claims whatsoever.
(Emphasis added.)
¶5 In 2004, Plum Creek Timberlands, L.P., as successor to Plum Creek, granted and conveyed the real property to Stimson Lumber Company (Stimson) and "to its successors and assigns, FOREVER," by special warranty deed. The deed included Government Lot 7 in Township 12 North, Range 14 West as indicated in the special warranty deed between Champion and Plum Creek and contained the identical description: "Section 22: Lot 7; NW 1/4 SW 1/4; W 1/2 NW 1/4." Although the Stimson deed specifically described other easements conveyed within different townships and ranges, it contained a description regarding all other easements claimed by the Grantor, i.e., Plum Creek Timberlands. Exhibit "C" of the Stimson deed stated:
Grantor further assigns, conveys, transfers, and sets over to Grantee all of Grantor's rights, title and interest in, to and under any and all other rights-of-way, easements, use agreements and other access rights presently held or claimed by Grantor in Granite County, Montana, which are appurtenant and provide access to or otherwise benefit the real property described herein.
(Emphasis added.)
¶6 Finally, on June 15, 2020, Stimson conveyed, by special warranty deed, lands in Township 12 North, Range 14 West, including Government Lot 7 in Section 22. The deed contained the description regarding easements: "TO HAVE AND TO HOLD unto the Grantee, its successors and assigns forever, subject, however, to all easements, rights of way ...." Upon receiving the Secret Gulch Road Easement, Wilkinson, through its agent Jack Couch, began using it to cross Erler's property for construction of improvements on its adjacent Government Lot 7. Shortly after, Erler blocked the use of the Secret Gulch Road Easement by locking its headgate.
¶7 On August 7, 2020, Wilkinson filed suit with the District Court seeking a temporary restraining order against Erler. The District Court granted the temporary restraining order and set a hearing for August 27, 2020. Wilkinson filed a preliminary injunction order on September 4, 2020, which was denied by the District Court in its October 2, 2020 order holding the Secret Gulch Road Easement was in gross rather than appurtenant. The October 2, 2020 order additionally terminated the temporary restraining order and awarded costs, damages, and attorney's fees to Erler. The District Court held an emergency hearing on October 5, 2020, after both parties brought forth allegations of damages to the road and to headgates on each property. Following the emergency hearing, Wilkinson filed a M. R. Civ. P. 54(b)(1) motion for entry of the October 2, 2020 order as a final order and certifying it for appeal. In December 2020, the District Court granted Wilkinson's motion.
¶8 The interpretation of an easement is a question of law. Mary J. Baker Revocable Trust v. Cenex Harvest States, Coops., Inc. , 2007 MT 159, ¶¶ 18-19, 338 Mont. 41, 164 P.3d 851. The Court reviews a district court's conclusion of law de novo for correctness. Blazer v. Wall , 2008 MT 145, ¶ 22, 343 Mont. 173, 183 P.3d 84.
¶9 "An easement is a nonpossessory interest in land—a right which one person has to use the land of another for a specific purpose or a servitude imposed as a burden upon the land." Blazer , ¶ 24. An easement may be "appurtenant" or "in gross." Blazer , ¶ 24. "An easement appurtenant is one that benefits a particular parcel of land ... it serves the owner of that land and passes with the title to that land." Blazer , ¶ 24. "The benefited parcel is known as the ‘dominant’ tenement or estate, and the burdened parcel is termed the ‘servient’ tenement or estate." Blazer , ¶ 24. "An easement in gross benefits the holder of the easement personally ... not in connection with his or her ownership or use of a specific parcel of land." Blazer , ¶ 24. With an easement in gross, "no dominant tenement exists and the easement right cannot pass with the title to any land." Blazer , ¶ 24. An easement cannot be created except by an instrument in writing, by operation of law, or by prescription. "We have recognized the creation of easements by express grant, reservation, exception, or covenant; by implication from necessity or a prior existing use; and by prescription." Blazer , ¶ 26. "An easement may be expressly granted by the appropriate language in an instrument of conveyance, or by referring, in an instrument of conveyance, to a recorded plat or certificate of survey on which the easement is clearly depicted or adequately described." Whitefish Congregation of Jehovah's Witnesses, Inc. v. Caltabiano , 2019 MT 228, ¶ 26, 397 Mont. 284, 449 P.3d 812.
¶10 This Court has held:
[T]he determination of whether an expressly created easement is appurtenant or in gross necessarily depends on other considerations—in particular, the intention of the parties as ascertained from the language of the instrument and aided, if necessary, by the situation of the properties involved, the objective circumstances existing at the time of execution, and the purpose to be accomplished by the easement.
Broadwater Dev., L.L.C. v. Nelson , 2009 MT 317, ¶ 34, 352 Mont. 401, 219 P.3d 492. "The fact that the easement benefits the owner of a particular tract, adds to the enjoyment of another parcel, or is of no value unless used in connection with particular land suggests appurtenance." Broadwater Dev., L.L.C. , ¶ 34. "[I]f the granting instrument does not specify whether the easement is appurtenant or in gross, the court generally begins with the presumption that it is appurtenant." Broadwater Dev., L.C.C. , ¶ 34. This Court has established two requirements for adequately describing an easement: "(1) identification of the dominant and servient tenements must be ‘ascertainable with reasonable certainty’ from the transaction documents, and (2) the transaction documents must give the owner of the property being burdened by the servitude ‘knowledge of its use or necessity.’ " Caltabiano , ¶ 26 (citing Yorlum Props., Ltd. v. Lincoln County , 2013 MT 298, ¶ 18, 372 Mont. 159, 311 P.3d 748 ).
¶11 The Easement Document creating the Secret Gulch Road Easement does not specify whether it is appurtenant or in gross. Thus, this Court must look to the nature of the dominant and servient estates as depicted...
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