                                                                                             March 10 2015


                                            DA 14-0440
                                                                                            Case Number: DA 14-0440

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                            2015 MT 76



WALTER & NEREIDA WOODS III,

              Petitioners and Appellants,

         v.

JEFF SHANNON,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DV 13-1349
                       Honorable Mary Jane Knisely, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Walter Woods III and Nereida Woods, Self-Represented, Shepherd,
                       Montana

                For Appellee:

                       Eric Edward Nord, Tanis M. Holm, Crist, Krogh, Butler & Nord, LLC,
                       Billings, Montana



                                                    Submitted on Briefs: February 4, 2015
                                                               Decided: March 10, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Walter Woods III and Nereida Woods appeal from the order of the Thirteenth

Judicial District Court, Yellowstone County, granting Jeff Shannon’s motion to dismiss

their petition for injunctive relief. We affirm.

¶2     The issue presented for review is whether the District Court erred when it granted

Shannon’s motion to dismiss on the grounds that the Woodses had failed to state a claim

upon which relief could be granted.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     This case concerns Shannon’s use of an easement crossing the northwest corner of

the Woodses’ property. The Woodses own Lot 13, Block 7 of Arrow Island Subdivision.

Shannon owns Lot 12, which borders Lot 13 to the north. The Woodses purchased their

property in 2007 and claim they were not informed of the existence of an easement. In

May 2013, the Woodses arrived at their home to find an excavator removing vegetation

from the northwest corner of their property. They inquired about the disturbance and

were informed by Shannon that he held an easement over the property and intended to

construct a driveway.

¶4     The Woodses contacted their title company and were provided with a copy of the

warranty deed for their property, which includes the following paragraph:

       An easement in an existing road for ingress and egress to Lot 12 in Block 7
       of said Arrow Island Subdivision, Second Filing, 40 feet in width, across
       the Northwestern Corner of said Lot 13, more particularly described as
       being located 20 feet to each side of a center line commencing at a point 50
       feet east of the north corner of the northwest corner of Lot 13, and thence in
       a southwesterly direction to a point 70 feet southeast of the southwesterly
       corner of the northwest corner of the said Lot 13.


                                              2
The easement is approximately 50 feet long and located approximately 70 yards from the

Woodses’ house. The easement was established in 1978, at which time there was no

other access to Lot 12. A road now provides access to Lot 12 from the east, and the

Woodses allege Shannon has secured additional access routes to the property through

neighboring lands, rendering the easement no longer necessary. The Woodses claim the

easement was never in use before 2013.

¶5        On October 31, 2013, the Woodses, acting pro se, filed a petition for injunctive

relief. The Woodses claimed the easement was created by necessity, and should be

extinguished because it is no longer necessary. They asked the District Court to prevent

Shannon from using the easement until such time as their claims could be adjudicated.

On December 13, 2013, Shannon filed a motion to dismiss the Woodses’ petition for

failure to state a claim, pursuant to M. R. Civ. P. 12(b)(6).        Shannon claimed the

easement was created by an express grant, the terms of which were clear and

unambiguous, and the Woodses had failed to set forth facts that would entitle them to

relief.

¶6        After additional briefing, a hearing was held on the motion to dismiss on June 3,

2014, and the motion was taken under advisement. On June 16, 2014, the District Court

issued an order granting Shannon’s motion to dismiss. The District Court found the

easement was not established by necessity, as argued by the Woodses, but rather was

created by an express grant. The District Court further found the terms of the easement

clear and unambiguous, and so declined to consider the Woodses’ documentary evidence




                                              3
concerning the intent of the parties at the time the easement was created. The Woodses

filed this appeal.

                              STANDARD OF REVIEW

¶7     The determination that a pleading fails to state a claim upon which relief can be

granted is a conclusion of law, which we review for correctness.          Stokes v. State,

2005 MT 42, ¶ 6, 326 Mont. 138, 107 P.3d 494 (citing Cape v. Crossroads Corr. Ctr.,

2004 MT 265, ¶ 10, 323 Mont. 140, 99 P.3d 171).

                                       DISCUSSION

¶8     Whether the District Court erred when it granted Shannon’s motion to dismiss on
       the grounds that the Woodses had failed to state a claim upon which relief could
       be granted.

¶9     A motion to dismiss pursuant to M. R. Civ. P. 12(b)(6) requires a district court to

determine whether a claim has been adequately stated in the pleadings. Meagher v.

Butte-Silver Bow City-County, 2007 MT 129, ¶ 15, 337 Mont. 339, 160 P.3d 552. The

pleadings should not be dismissed unless it appears certain that the petitioner will be

unable to recover under any set of facts which could be proven in support of his or her

claim. Kleinhesselink v. Chevron, U.S.A., 277 Mont. 158, 161, 920 P.2d 108, 110 (1996).

The pleadings must be construed in the light most favorable to the petitioner, and all

allegations of fact contained in the pleadings are taken as true. Plouffe v. State, 2003 MT

62, ¶ 8, 314 Mont. 413, 66 P.3d 316.

¶10     An easement is an interest held by one person in lands owned by another,

consisting of the right to use the land for a specific purpose. Blazer v. Wall, 2008 MT

145, ¶ 24, 343 Mont. 173, 183 P.3d 84. If an easement is created by a written instrument,


                                            4
it is considered an express easement. Blazer, ¶ 26. An easement may also be created by

operation of law, which is considered an implied easement. Blazer, ¶ 26. One type of

implied easement is an easement created by necessity. Albert G. Hoyem Trust v. Galt,

1998 MT 300, ¶ 18, 292 Mont. 56, 968 P.2d 1135. An easement by necessity is created

when an owner of land conveys part of that land to another, leaving one piece of land

with no ingress or egress route except through the other. Hoyem Trust, ¶ 18.

¶11    The Woodses argue that the easement held by Shannon was created out of

necessity, but they also acknowledge that it is in writing. An easement created in writing

is by definition express, rather than implied. The easement at issue in this case is

therefore an express easement, not an easement implied by necessity. The fact that an

express easement was created because one of the parties found it necessary does not

transform the legal character of the express grant.

¶12    The extent or scope of an express easement is determined by the terms of the

grant. Section 70-17-106, MCA; Clark v. Pennock, 2010 MT 192, ¶ 25, 357 Mont. 338,

239 P.3d 922. If the grant is not specific, the court must look beyond the plain language

of the grant to consider the situation of the property and the surrounding circumstances,

including historical use of the easement. Clark, ¶ 25. The scope of an easement that is

not specifically defined “‘need only be such as is reasonably necessary and convenient

for the purpose for which it was created.’” Clark, ¶ 25 (quoting Mason v. Garrison,

2000 MT 78, ¶ 22, 299 Mont. 142, 998 P.2d 531).

¶13    The warranty deed to the Woodses’ property grants “[a]n easement in an existing

road for ingress and egress to Lot 12 in Block 7 of said Arrow Island Subdivision,” and


                                             5
particularly describes the location and dimensions of that easement. The Woodses argue

that the scope of the easement is not specifically defined because there is no definition of

what is included in “ingress and egress.” They claim that use for “ingress and egress” is

ambiguous because it does not address such issues as whether Shannon’s family members

may use the easement and what types of vehicles may be driven on the easement. Thus,

the Woodses claim the District Court should have looked beyond the terms of the grant

and limited the easement to strict necessity.

¶14    Under factual circumstances similar to those presented here, we have previously

treated easements granted for the purpose of “ingress and egress” as specific in nature.

Clark, ¶ 27 (reversing district court determination that easement for ingress and egress

was ambiguous, and concluding “that the easement language specifically creates a road

easement”); McCauley v. Thompson-Nistler, 2000 MT 215, ¶ 49, 301 Mont. 81, 10 P.3d

794 (concluding scope of easement for ingress and egress was to be “determined upon the

actual terms of the grant,” and could not be limited by district court); Mason, ¶ 43

(concluding easement granting access over existing roadways for ingress and egress was

“sufficiently specific in nature that the terms of the grant are decisive of the limits of the

servitude”); but see Whary v. Plum Creek Timberlands, L.P., 2014 MT 71, ¶¶ 17-18,

374 Mont. 266, 320 P.3d 973 (reversing summary judgment on other grounds and

remanding for fact-finding on scope of easement without analysis of whether grant for

ingress and egress is specific or general). Because the terms of the grant are specific, the

District Court was bound to consider only those terms. Clark, ¶ 25 (“If an easement is

specific in nature, the breadth and scope of the easement are strictly determined by the


                                                6
actual terms of the grant.” (emphasis added)). The District Court correctly declined to

consider external evidence such as the historical use of the easement or the understanding

of the parties at the time it was created, or to limit the use of the easement based on such

evidence. McCauley, ¶¶ 49-50 (where right of ingress and egress was unrestricted by

terms of grant, district court erred by limiting scope to “conduct of normal activities

conducted with residential living”).

¶15    An express easement for the purpose of ingress and egress, with no other

restriction, entitles the holder of the easement and his or her “family, tenants, and

invitees . . . to use the road 24 hours a day by any form of transportation that does not

inflict unreasonable damage or unreasonably interfere with the enjoyment” of the land

crossed by the easement, also termed the servient estate. Restatement (Third) of Prop.:

Servitudes § 4.10 illus. 1 (2000). A private easement, such as this, is not open to use by

the general public, but may be used by the easement holder’s family members, guests,

tenants, employees, and tradesmen or others with whom he or she is transacting business.

City of Missoula v. Mix, 123 Mont. 365, 373-74, 214 P.2d 212, 216-17 (1950). Further,

the holder of an easement “has not only the right but the duty to keep it in repair,” and

thus is permitted to perform maintenance, repair, and improvements. Guthrie v. Hardy,

2001 MT 122, ¶ 59, 305 Mont. 367, 28 P.3d 467. An easement may be extinguished

when the holder of the easement uses the easement in a way that overburdens the servient

estate or is incompatible with the nature of the easement. Section 70-17-111(1)(c),

MCA; Steed v. Solso, 2010 MT 264, ¶ 30, 358 Mont. 356, 246 P.3d 697.




                                             7
¶16    Shannon’s current uses of the easement appear to include maintaining the

easement by removing vegetation and driving an ATV on the easement. These uses are

within the scope of the grant permitting use of the easement for ingress and egress and

are consistent with the nature of the easement. The Woodses’ concerns are largely

speculative—for example, that Shannon’s extended family may hold ATV races along

the easement, or that a vehicle crossing the easement may suffer a rollover accident and

endanger the Woodses’ home some 70 yards away. The Woodses claim that frequent,

heavy traffic would cause an increased risk of flooding or erosion, yet there are no

allegations that such heavy use has actually occurred. We cannot address at this time

whether these hypothetical future circumstances would overburden the Woodses’

property. Lindley v. Maggert, 198 Mont. 197, 199, 645 P.2d 430, 432 (1982) (“This

Court cannot declare that the proposed use will be inconsistent with the reserved

easement on the basis of speculation as to possible future uses.”).

¶17    On appeal, the Woodses also argue the easement has been abandoned.          This

argument was only briefly mentioned in the District Court, and the Woodses base their

claim of abandonment on the fact that the easement was never used because Shannon’s

property could be accessed by other routes.          Mere nonuse does not demonstrate

abandonment of an express easement. Pearson v. Virginia City Ranches Assn., 2000 MT

12, ¶ 47, 298 Mont. 52, 993 P.2d 688 (quoting Halverson v. Turner, 268 Mont. 168, 175,

885 P.2d 1285, 1290 (1994)). The holder of an easement “‘is not required to make use of

the easement as a condition to retaining his interest in the easement.’” Pearson, ¶ 47




                                             8
(quoting Halverson, 268 Mont. at 175, 885 P.2d at 1290). The Woodses allege no other

facts that would establish abandonment.

                                     CONCLUSION

¶18    The easement is an express grant, which specifically permits Shannon to cross the

designated portion of the Woodses’ land in order to gain ingress and egress to his

neighboring lot. The Woodses have failed to allege any facts which would establish

either that their property has been overburdened by Shannon’s use of the easement, or

that the easement has been abandoned. Even construing the pleadings in the light most

favorable to the Woodses, their allegations are speculative at best. The District Court did

not err when it determined that the Woodses had failed to present a claim entitling them

to relief, and accordingly dismissed their petition pursuant to M. R. Civ. P. 12(b)(6).

¶19    Affirmed.

                                                 /S/ LAURIE McKINNON

We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT




                                             9
