                                                                                          11/15/2016


                                      DA 15-0705
                                                                                      Case Number: DA 15-0705

             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2016 MT 290


MARC FLORA and GLORIA FLORA,

         Plaintiffs and Appellants,

    v.

THEODORE CLEARMAN, JANEEN SMITHEEN
and DENNIS SMITHEEN, GRAYCE TURK and
DUANE TURK, BUD MORRIS, JEFFREY JACOBS,
KEVIN HENDRICKSON and BRENDA HENDRICKSON,
TOMAS GRAMAN, STEFFEN RASILE, and ALTA VISTA
PROPERTIES, LLC, a Montana corporation,

         Defendants,

LINDA KOONTZ, DENNIS SHAW, CHAD NEWMAN
and NICOLE NEWMAN, KATY WESSEL, JOHN MEHAN,

         Defendants and Appellees.



APPEAL FROM:       District Court of the First Judicial District,
                   In and For the County of Lewis and Clark, Cause No. DDV 2011-471
                   Honorable James P. Reynolds, Presiding Judge


COUNSEL OF RECORD:

           For Appellants:

                   Colleen M. Dowdall, Jesse C. Kodadek, Worden Thane P.C., Missoula,
                   Montana

           For Appellees:

                   Timothy W. McKeon, McKeon Doud, P.C., Helena, Montana
                   (Attorney for Kate Wessel and John Mehan)

                   John D. Doubek, Doubek, Pyfer & Fox, LLP, Helena, Montana
                   (Attorney for Linda Koontz and Dennis Shaw)
                                 Submitted on Briefs: September 7, 2016

                                            Decided: November 15, 2016


Filed:

         __________________________________________
                           Clerk




                             2
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1       Plaintiffs Marc and Gloria Flora appeal the October 13, 2015, Order by the First

Judicial District Court, Lewis and Clark County, granting their preliminary injunction

based on a prescriptive easement rather than on an express public easement. The Floras

also appeal the Order’s limit that constrains their prescriptive use to light duty and

passenger vehicles along the contested easement of Turk Road. We restate the issues on

appeal as follows:

         1. Whether the District Court erred in granting the Floras a preliminary
            injunction based on a prescriptive easement claim.

         2. Whether the District Court erred by limiting the Floras’ prescriptive easement
            to the use of passenger vehicles.

We affirm in part and reverse in part.

                    PROCEDURAL AND FACTUAL BACKGROUND

¶2       This dispute involves the existence and use of an easement along Turk Road, a

private road that runs through multiple properties.1 Turk Road begins at Threemile Road

in the southeast quarter of Section 15, Township 11 North, Range 5 West, Principal

Montana Meridian, in Lewis and Clark County, and runs northwest across nine parcels

before turning onto state land in Section 16, then continuing north into Section 9, which

contains several other parcels. Turk Road is not maintained by Lewis and Clark County

or any other government entity. All the parties in this case own property accessed via

Turk Road, and Turk Road passes through at least portions of the defendants’ properties.

This appeal concerns only the Floras’ right to use Turk Road over two properties owned

1
    A depiction of the properties involved and the road at issue is attached as Appendix A.


                                                  3
by four defendants: the first property is owned by husband and wife Dennis Shaw and

Linda Koontz, and the second property is owned by husband and wife John Mehan and

Katy Wessel.

¶3     All the properties along Turk Road were originally owned in common by

Rosemary and Ray Sewell until the 1970s, when they began to divide and sell tracts of

their land. In 1977, the Sewells sold 980 acres to Cecil and Beverly Hill in a contract for

deed (Sewell-Hill Deed). The Sewell-Hill Deed provides: “Seller will provide a 60 foot

public easement to Section 9.” The Sewell-Hill Deed further provides: “S[ellers] reserve

an easement for public use for ingress and egress to the property on the existing roads.”

The easement referenced is understood by all parties to be Turk Road.

¶4     Koontz and Shaw (Koontz/Shaw) own the north half of the southeast quarter of

the northwest quarter of Section 15, which they purchased in the 1990s. Deeds within the

Koontz/Shaw property chain of title provide the property was conveyed “including a 60

foot public road easement on the existing road . . . .” In 2003, Shaw rerouted a portion of

Turk Road from his property onto the neighbors’ property to the east.

¶5     Mehan and Wessel (Mehan/Wessel) own the northwest quarter of the northwest

quarter of Section 15, which they purchased in 2008.              The deeds within the

Mehan/Wessel property chain of title and their title insurance policy state their property

was conveyed “subject to the existing sixty (60) feet [sic] right of way easement of

record.”   However, neither the Mehan/Wessel warranty deed nor the deed of their

predecessor in interest contains information regarding an easement or covenant.




                                            4
¶6     The Floras own the southwest quarter of Section 10 that sits directly north of and

shares a property line with the Mehan/Wessel property. In 1972, the Sewells first sold a

parcel in Section 10 that, combined with other parcels they later sold, was purchased by

the Floras in 2000. The Floras constructed a home and moved to their property in 2005.

¶7     The dispute over the use of Turk Road began in 2009, after Mehan/Wessel

purchased their property. The Floras originally accessed their property from Redtail

Ridge Road, which meets Turk Road on a parcel at the eastern edge of Section 9. In

2009, the Floras purchased an easement from their neighbor, Steffen Rasile, and

constructed a new driveway that connects to Turk Road and parallels the eastern

Mehan/Wessel property line. The Floras’ agents and invitees also have used Turk Road

to access the Floras’ property in Section 10. Beginning in 2009, Levi Cheff performed

logging operations on the Floras’ property in Section 10, and other properties in Section

17. The logging operations cleared dead and dying trees, and required Cheff to transport

heavy machinery to the job sites and use large logging trucks along Turk Road. Because

the Floras believe they have a right to use Turk Road, they used it to access their property

from 2000 until 2012, when they moved out of the area during this pending controversy.

Koontz/Shaw and Mehan/Wessel contest the Floras’ right to use the road as it crosses

their respective properties.

¶8     In attempts to stop others from using Turk Road, Koontz/Shaw and Mehan/Wessel

removed existing road signs, dug a ditch across the road, and blocked the road with

debris, dirt, snow, and rudimentary gates and fences. Mehan brandished and fired pistols

as the Floras and others used Turk Road to cross the Mehan/Wessel property.              In


                                             5
November 2010, after construction of the Floras’ new driveway on the Rasiles’ property

to the east of the Mehan/Wessel property, Mehan and Shaw placed straw bales across the

driveway and covered them in water to create an ice berm, making the driveway

unplowable and unusable for eight days. Mehan also constructed a snow fence on his

property that caused snow to accumulate on the Floras’ new driveway.

¶9     On May 2, 2011, the Floras sought a declaratory judgment that they have legal

access along Turk Road as it passes through the Koontz/Shaw and Mehan/Wessel

properties pursuant to an express easement reserved within the Sewell-Hill Deed and the

Koontz/Shaw and Mehan/Wessel properties’ chains of title. In November 2012, the

Floras moved for summary judgment on all claims against Koontz/Shaw, which the

District Court denied by concluding that the documents presented did not establish that

the Floras owned an express easement across the Koontz/Shaw property under an

easement appurtenant theory. Further, the District Court held that it could not reach a

conclusion by clear and convincing evidence that there are no genuine issues of material

fact to establish a prescriptive easement.

¶10    In January 2014, the Floras submitted a consolidated motion for partial summary

judgment against Mehan/Wessel and renewed partial summary judgment against

Koontz/Shaw. The District Court heard oral argument on April 23, 2014. On June 27,

2014, while the summary judgment motion was pending, the Floras moved for a

temporary restraining order and preliminary injunction to enjoin Koontz/Shaw and

Mehan/Wessel from interfering with the Floras’ access along Turk Road. The District




                                             6
Court declined to issue a temporary restraining order and held a hearing on the

preliminary injunction.

¶11   On August 27, 2015, before ruling on the preliminary injunction, the District

Court granted the Floras’ motion to take judicial notice of Judge Seeley’s May 14, 2014

Final Judgment in another case involving the use of Turk Road. In that action, Judge

Seeley concluded:         “[A]n express sixty-foot road easement exists across the

[Mehan/]Wessel Property due to the deeds within the chain of title to the [Mehan/]Wessel

Property. The express easement allows [the plaintiffs] Taylor and Dickerson use of Turk

Road to access the Taylor and Dickerson property.” The District Court then denied the

Floras’ motion for partial summary judgment, concluding there remained genuine issues

of material fact as to whether the Sewells intended to create a “public easement” along

Turk Road through the Sewell-Hill Deed, and that the Floras are strangers to the Sewell-

Hill Deed and cannot claim rights to an express easement under it.

¶12   On October 13, 2015, the District Court granted the Floras a preliminary

injunction, enjoining Koontz/Shaw and Mehan/Wessel from blocking the Floras’ use of

Turk Road across their properties because the Floras laid out a prima facie case for a

prescriptive easement. However, the District Court concluded “in order to minimize

potential damage, the scope of the injunction must be limited” to light-duty passenger

vehicles or trucks.       The Floras appeal the District Court’s reasoning basing the

preliminary injunction on a prescriptive easement theory and not on an express public

easement theory. The Floras also appeal the District Court’s limitation on the easement

to passenger vehicles.


                                            7
                             STANDARDS OF REVIEW

¶13   An order granting, dissolving, or refusing to grant an injunction is immediately

appealable, notwithstanding that the merits of the controversy remain to be determined.

M. R. App. P. 6(3)(e). Because of the high degree of discretion vested in the district

courts to maintain the status quo, the standard for reviewing the grant of a preliminary

injunction is a “manifest abuse of discretion.” Shammel v. Canyon Res. Corp., 2003 MT

372, ¶ 12, 319 Mont. 132, 82 P.3d 912. We only disturb a district court’s decision

regarding injunctive relief with a showing of a manifest abuse of discretion. Sandrock v.

DeTienne, 2010 MT 237, ¶ 13, 358 Mont. 175, 243 P.3d 1123. “A ‘manifest’ abuse of

discretion is one that is obvious, evident or unmistakable.” Shammel, ¶ 12 (citations

omitted). We review a district court’s conclusions of law to determine whether they are

correct. Sandrock, ¶ 13.

                                     DISCUSSION

¶14   1. Whether the District Court erred in granting the Floras a preliminary
      injunction based on a prescriptive easement claim.

¶15   The Floras argue the District Court erred by granting their motion for a

preliminary injunction on the basis of their prima facie showing of a prescriptive

easement rather than an express public easement.       In their motion for a temporary

restraining order and preliminary injunction, the Floras requested that the District Court

issue a preliminary injunction barring Koontz/Shaw and Mehan/Wessel from obstructing,

threatening, harassing, or otherwise interfering in any way with their access on Turk

Road pending the outcome of the litigation. The Floras’ motion argued that the public



                                            8
has an express easement over the Koontz/Shaw and Mehan/Wessel properties and that the

Floras have prescriptive easements over the Koontz/Shaw and Mehan/Wessel properties.

According to the Floras, there are no disputed facts, and the language in the Sewell-Hill

Deed expressly granted an easement to the public, particularly when considered with

evidence that demonstrates the Sewells undertook a common development scheme to

divide and sell their property in Sections 9, 10, and 15. See Broadwater Dev., L.L.C. v.

Nelson, 2009 MT 317, ¶ 37, 352 Mont. 401, 219 P.3d 492; Mary J. Baker Revocable

Trust v. Cenex Harvest States, Coops., Inc., 2007 MT 159, ¶ 19, 338 Mont. 41, 164 P.3d

851.

¶16    The District Court granted the following relief requested by the Floras: “Wessel,

Mehan, Koontz, and Shaw are enjoined from interfering with the Floras’ use of Turk

Road to access their property pending the outcome of this litigation.” The District Court

held the Floras laid out a prima facie case that they are entitled to a prescriptive easement

along Turk Road as it crosses the Koontz/Shaw and Mehan/Wessel properties, granting

the Floras a preliminary injunction under § 27-19-201(1), MCA. In other words, the

District Court granted the Floras the relief they sought, just not on the basis that they

preferred it to be granted.

¶17    The Floras contend the District Court implicitly ruled against their express public

easement claim by granting their preliminary injunction based on a prescriptive easement

claim. We disagree. While the District Court concluded the Floras have laid out a prima

facie case for a prescriptive easement, the preliminary injunction order is silent as to the

Floras’ express public easement claim.       This is entirely consistent with the District


                                             9
Court’s order denying summary judgment on the Floras’ express public easement claim

on the basis that there remained genuine issues of material fact. That order is not before

us. The District Court’s summary judgment order was not certified by the District Court

pursuant to M. R. Civ. P. 54(b). Therefore, the Floras’ express public easement claim is

not before us on appeal. M. R. App. P. 6(6) (“[A] district court may direct the entry of

final judgment as to an otherwise interlocutory order or judgment, only upon an express

determination that there is no just reason for delay, pursuant to M. R. Civ. P. 54(b).”); see

Kohler v. Croonenberghs, 2003 MT 260, 317 Mont. 413, 77 P.3d 531.

¶18    The District Court granted the Floras’ requested relief, and enjoined Koontz/Shaw

and Mehan/Wessel from interfering with the Floras’ use of Turk Road to access their

property pending the outcome of this litigation. Our review finds the record accurately

reflects the District Court’s findings of fact and conclusions of law regarding the Floras’

establishment of a prima facie case of a prescriptive easement along Turk Road. We

conclude the District Court did not manifestly abuse its discretion in granting a

preliminary injunction based on the Floras’ prescriptive easement claim.

¶19    2. Whether the District Court erred by limiting the Floras’ prescriptive easement
       to the use of passenger vehicles.

¶20    The Floras contend the District Court’s limit on their use of Turk Road to

passenger vehicles is a manifest abuse of discretion because their prescriptive use

evidenced in the record does not support such a limit. Koontz/Shaw and Mehan/Wessel

argue the limit to passenger vehicles prevents further damage to Turk Road pending the

outcome of the litigation.



                                             10
¶21    The purpose of a preliminary injunction is to prevent further injury or irreparable

harm pending an adjudication on the merits. Yockey v. Kearns Props., L.L.C., 2005 MT

27, ¶ 18, 326 Mont. 28, 106 P.3d 1185 (citing Knudson v. McDunn, 271 Mont. 61, 65,

894 P.2d 295, 297-98 (1995)). In granting a preliminary injunction, the district court

should decide whether a sufficient case was made to warrant the preservation of the status

quo until trial. Yockey, ¶ 18. “Upon the requisite showing, a preliminary injunction is

issued to maintain the status quo pending trial, which has been defined as ‘the last actual,

peaceable, noncontested condition which preceded the pending controversy.’” Sandrock,

¶ 16 (citations omitted).    Under § 70-17-106, MCA, the extent of an easement is

determined by the nature of the enjoyment by which it was acquired.

¶22    The District Court concluded that the Floras made a prima facie case for a

prescriptive easement along Turk Road. However, in granting the preliminary injunction,

the District Court limited the scope of the use to passenger vehicles after making findings

of undisputed fact that support use of heavy equipment, including Cheff’s use of Turk

Road since 2009 to transport heavy equipment for logging operations to the Floras’

property in Section 10 and other properties in Section 17. Neither Koontz/Shaw nor

Mehan/Wessel rebutted the evidence of use by trucks and heavy equipment. The District

Court’s preliminary injunction as ordered has the effect of altering the status quo by

limiting use of Turk Road to passenger vehicles and diminishing the Floras’ ability to

maintain their property.

¶23    The last peaceable, noncontested condition in this case entailed the Floras using

Turk Road to access their property by passenger vehicles as well as the Floras’ agents


                                            11
using Turk Road to access the Floras’ property for maintenance with large trucks and

heavy equipment. See Sandrock, ¶ 16. The established status quo would then be use by

the Floras and their agents that includes use beyond light duty passenger vehicles. The

extent of the easement on Turk Road includes the use of large trucks and heavy

equipment by prescription. We hold that the District Court’s conclusion restricting the

Floras’ use of Turk Road to light duty vehicles is incorrect and a manifest abuse of

discretion. We therefore reverse on this issue.

                                     CONCLUSION

¶24    We affirm the District Court’s decision that the Floras are entitled to a preliminary

injunction based on a prescriptive easement. We reverse the District Court’s decision

restricting the Floras’ use along Turk Road to light duty and passenger vehicles, and

remand to the District Court for further proceedings consistent with this Opinion.



                                                  /S/ JAMES JEREMIAH SHEA


We Concur:


/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JIM RICE




                                            12
                   APPENDIX A: Turk Road Area Map




    Mike Crites

                                           10

                                                 Floras'
                                                 onginal
                                                driveway   1
                                               Elora
                                               •
                                        o4s
                                      ,v
                                     vy
                                                  Floras' new
                             R es4
                                                   driveway




                           Mehan/
                           Wessel

State of Montana
                                                Koontz/
                                                 Shaw                  815


                                          15



                                                                Turk




                                                                             a pe,a 1• R




                                          13
