Wolf v. Owens

• Decision Date: 20 November 2007
• Docket Number: No. DA 06-0126.,DA 06-0126.
• Citation: 172 P.3d 124,2007 MT 302
• Parties: Kenneth M. WOLF and Michel B. Wolf, Nell McLouth, Alan D. Wise and Patricia Wolf, Gary Peiffer and Nancy Peiffer, Donald J. Topp and Donna J. Topp, Plaintiffs and Appellees, v. Jerry L. OWENS, Defendant and Appellant.
• Court: Montana Supreme Court

172 P.3d 124

2007 MT 302

Kenneth M. WOLF and Michel B. Wolf, Nell McLouth, Alan D. Wise and Patricia Wolf, Gary Peiffer and Nancy Peiffer, Donald J. Topp and Donna J. Topp, Plaintiffs and Appellees, v. Jerry L. OWENS, Defendant and Appellant.

No. DA 06-0126.

Supreme Court of Montana.

Submitted on Briefs April 11, 2007.

Decided November 20, 2007.

For Appellant: Lane K. Bennett, Kalispell, Montana.

For Appellees: Darrell S. Worm, Ogle & Worm, PLLP, Kalispell, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Appellant Jerry L. Owens (Owens) appeals an order of the Eleventh Judicial District Court determining that Kenneth M. Wolf, Michel B. Wolf, Nell McLouth, Alan D. Wise, Patricia Wolf, Gary Peiffer, Nancy Peiffer, Donald J. Topp and Donna Topp (Appellees) have established a prescriptive easement across a parcel of real property owned by Owens, and further denying Owens a prescriptive easement over real property owned by Appellees. We affirm the District Court.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Appellees are owners of lots within the Hawkes Nest subdivision (Hawkes Nest), located near the Middle Fork of the Flathead River in Essex, Montana. Hawkes Nest is subdivided into 24 lots. Lot 24 is located at the northeast corner of Hawkes Nest, from which point the lots run west-southwest, with lot 1 at the southwest corner of the subdivision. Owens has three parcels which surround Hawkes Nest, the largest of which (South Parcel) measures roughly 5 acres and lies just south of Hawkes Nest, between it and the Middle Fork of the Flathead River. Owens's two other parcels border Hawkes Nest along its northerly and northwesterly borders. Only access to and across the South Parcel is at issue in the current appeal.

¶ 3 The property comprising Hawkes Nest and the South Parcel originally existed as one contiguous piece of property owned by a single individual. In 1957 that individual platted Hawkes Nest, and left what is now the South Parcel as a remainder. The original owner then sold lots within Hawkes Nest to various parties, and abandoned the South Parcel, ultimately forfeiting it for failure to pay taxes. Appellees all acquired their respective Hawkes Nest lots between 1969 and 1994. Owens obtained the South Parcel via assignment of a tax sale certificate in 1970. Owens finally acquired a tax deed to this parcel in 1988.

¶ 4 Beginning in the summer of 1971, Owens began visiting the South Parcel a couple of times a year. Owens claims he reached the South Parcel over a road which cut across Hawkes Nest, beginning in the northeast area of this subdivision around lot 16 and running southwest to lot 3. Owens claims that on more than one occasion he was able to drive a vehicle down this road, across lots 4 and 5, directly onto the South Parcel. At other times, he would drive to lot 5, park his vehicle there, and then walk to the South Parcel.

¶ 5 At some point, a chain and a "no vehicle" sign were placed across the road at lot 8, which was owned by Donald J. Topp. Owens contacted Topp by telephone and inquired if he could buy a part of lot 8 to gain access to the South Parcel, but Topp refused this request. After this time, Owens ceased driving down to lots 3, 4, and 5, and parked at other lots, or outside of Hawkes Nest altogether, and simply walked down to the South Parcel.

¶ 6 Because Owens's visits to the South Parcel were infrequent, contact between Owens and the various Appellees was sporadic at best. Topp claimed that his first contact with Owens was in the late 1980's or early 1990's after receiving the telephone call from Owens. Gary and Nancy Peiffer claim their first contact with Owens occurred in July of 1993. Nell McLouth claims she became aware of Owens sometime in late 1988-89, and also met him in July of 1993. Ken Wolf also first met Owens in July of 1993. Al Wise and Patricia Wolf claim their first meeting with Owens occurred in 1995. Prior to either meeting Owens in person or receiving a phone call from him, none of the Appellees knew that Owens owned the South Parcel, or that it was owned by anyone at all.

¶ 7 Owens claims that during these interactions he gave permission to Appellees to access the Middle Fork via the South Parcel. Appellees, however, deny they ever sought or received such permission. Appellees also claim that during interactions with Owens, he indicated that he might obstruct access to the Middle Fork by constructing a fence along the South Parcel. Owens never constructed any fence. Additionally, Appellees claim that Owens could not have driven past lot 8, in a southwesterly direction onto lots 3, 4, or 5, because, they say, no such road existed. They also dispute that it was even possible for Owens to drive a vehicle directly onto the South Parcel, as there existed a steep bank between their lots and the South Parcel which would have prevented any vehicular access.

¶ 8 For their part, Appellees claim that they accessed the Middle Fork for recreational purposes by crossing the South Parcel from their lots beginning in 1969. Owens claims that he never saw indications of such use until the late 1980's. Nevertheless, it is undisputed that, for years, Appellees crossed Owens's property to gain access to the Middle Fork, and that they denied him the right to cross their lots in order to reach the South Parcel.

¶ 9 On December 18, 2003, Appellees filed a suit for declaratory relief and an injunction against Owens. Appellees sought a declaration from the District Court that they had a prescriptive easement across the South Parcel, and further asked the District Court to enjoin Owens from interfering with their rights of access across the South Parcel. Owens responded and counterclaimed, seeking a declaration that he had acquired an implied easement across Appellees' lots in order to gain access to the South Parcel. Owens also sought injunctive relief preventing Appellees from interfering with his rights of access.¹

¶ 10 On January 21, 2005, the District Court held a bench trial on this matter, issuing its final order on August 10, 2005. The District Court found that Appellees' use of the South Parcel was open, notorious, exclusive, adverse, continuous, and uninterrupted for more than five years, and thus satisfied all the required elements for a prescriptive easement. Additionally, the District Court rejected Owens's claims that he had established an implied easement by use or necessity across Appellees' lots. The District Court determined that the South Parcel did not appear on the original plat, was not transferred or sold by the sub-divider, and was allowed to be forfeited for back taxes. The District Court further held that no access to the South Parcel from the northerly Owens's parcels and across the lots of Hawkes Nest was contemplated by the original owner. Owens has timely appealed this decision.

ISSUES

¶ 11 We consider the following issues on appeal:

¶ 12 Issue One: Did the District Court err in concluding that Owens does not have an implied easement across Appellees' real property?

¶ 13 Issue Two: Did the District Court err in concluding that Appellees have a prescriptive easement across the South Parcel?

STANDARD OF REVIEW

¶ 14 "We review a district court's findings of fact to ascertain whether they are clearly erroneous. A finding is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if our review of the record convinces us that a mistake has been committed. The standard of review of a district court's conclusions of law is whether the court's interpretation of the law is correct." Gelderloos v. Duke, 2004 MT 94, ¶ 22, 321 Mont. 1, ¶ 22, 88 P.3d 814, ¶ 22 (citations omitted).

DISCUSSION

¶ 15 Issue One: Did the District Court err in concluding that Owens does not have an implied easement across Appellees' real property?

¶ 16 Implied easements are created "by operation of law at the time of severance, rather than by written instrument. There are only two types of implied easements: (1) an intended easement based on a use that existed when the dominant and servient estates were severed, and (2) an easement by necessity." Albert G. Hoyem Trust v. Galt, 1998 MT 300, ¶ 17, 292 Mont. 56, ¶ 17, 968 P.2d 1135, ¶ 17 (citation omitted). The implied easement by necessity has two basic elements: (1) unity of ownership, and (2) strict necessity at the time that the unified tracts are severed. Hoyem Trust, ¶ 18. "A way of necessity depends solely upon strict necessity at the time of conveyance and is, in that sense, more truly an implied use. The way of necessity arises when the strong public policy against shutting off a tract of land and thus rendering it unusable gives rise to a fictional intent defeating any such restraint." Hoyem Trust, ¶ 19 (citations and quotations omitted). In other words, an easement by necessity is found when an owner conveys a "landlocked" parcel of real property which can only be accessed across the real property of the grantor herself, or the surrounding land of third parties. Hoyem Trust, ¶ 18.

¶ 17 The second type of implied easement, one from a pre-existing use, "arises only if, prior to the time the title or tract is divided, 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." Hoyem Trust, ¶ 22. Moreover, "[f]or a use to give rise to an implied easement from existing use, it must be apparent and continuous at the time the tract is divided." Hoyem Trust, ¶ 23.

¶ 18 Owens argues that he established an implied easement by necessity and that the District Court erred in rejecting his claim. Owens points out that the South Parcel can only be accessed by crossing Hawkes Nest; thus, an easement over Hawkes Nest is necessary for Owens to use and enjoy his property. Additionally, he...