                                                                                            September 24 2009


                                           DA 08-0587

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2009 MT 317



BROADWATER DEVELOPMENT, L.L.C.,
and LEWIS AND CLARK COUNTY,

              Plaintiffs and Appellees,

         v.

STEPHANIE J. NELSON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and for the County of Lewis and Clark, Cause No. CDV-2007-944
                        Honorable Thomas C. Honzel, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

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

                For Appellee Broadwater Development L.L.C.:

                        Amos Rogers Little, III, Attorney at Law, Helena, Montana

                For Appellee Lewis and Clark County:

                        Leo J. Gallagher, Lewis and Clark County Attorney, K. Paul Stahl,
                        Jeff Sealey, Deputy County Attorneys, Helena, Montana



                                                     Submitted on Briefs: July 8, 2009

                                                                Decided: September 24, 2009


Filed:

                        __________________________________________
                                          Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1    Broadwater Development, LLC filed a Petition for Declaratory Judgment in the

First Judicial District Court, Lewis and Clark County, on December 4, 2007, seeking

declaratory rulings that an alleged 60-foot emergency public access and utility easement

over the property of Stephanie J. Nelson is valid and enforceable against Nelson and that

a Notice of Invalid Easement filed in the Lewis and Clark County Clerk and Recorder’s

Office is invalid and of no legal effect.       Nelson answered the petition and denied

Broadwater Development’s allegations. Thereafter, Lewis and Clark County intervened

in the litigation in order “to protect its interest” in the alleged easement. The District

Court ultimately granted summary judgment in favor of Broadwater Development and

the County, determining that the alleged 60-foot easement is a valid and enforceable

express easement and that the Notice of Invalid Easement is itself invalid. Nelson now

appeals. We affirm.

                                   BACKGROUND

¶2    The properties at issue in this case are located west of Helena, Montana, on the

north side of U.S. Highway 12. The westernmost property is owned by Frank and Bonita

Gruber, who in 2002 began the process of subdividing this land to create the Broadwater

Estates Major Subdivision. To the north and east of the subdivision, but not part of the

subdivision, is a parcel (the “Gruber parcel”) which the Grubers owned in 2002 and then

sold to Michael and Gaylynn Wagner in 2003. Finally, the easternmost property (the

“State Nursery property”) was owned by State Nursery & Seed Company until 2003 and

is now owned by Nelson.


                                            2
¶3      Piecing together two surveys of the area provided in the record, the properties are

situated as follows:

                                     Gruber parcel            State Nursery property




                                                 disputed 60’ easement
     Broadwater
       Estates                       Old Broadwater Lane
     Subdivision
                                          Broadwater                      Intersection of Hwy. 12
                                            Estates                          and the easement
                                          Subdivision         Hwy. 12




                                Intersection of Hwy. 12 and
                                   Old Broadwater Lane




¶4      In July 2002, the County granted preliminary approval for the creation of the

Broadwater Estates Major Subdivision (consisting of 60 lots). The preliminary approval

was subject to 25 conditions that had to be met before the subdivision could receive final

approval. Of relevance here, County regulations required the subdivision to have two

ingress/egress routes meeting County road standards.          Because only one such route

existed (Old Broadwater Lane, which runs from Highway 12 through the proposed

subdivision in a northerly direction), the Grubers proposed to create a second route


                                             3
connecting to the highway through land located north and east of the subdivision.

Specifically, the route would begin at the existing terminus of Old Broadwater Lane,

cross the Gruber parcel, enter the adjoining State Nursery property and connect with the

existing State Nursery access road, and then end at the highway. The County agreed with

this proposal and included the following condition in the preliminary approval:

              The Applicant shall construct a secondary access road, 20-feet wide
       with 6-inches of all-weather surfacing . . . , from Old Broadwater Lane to
       connect to the existing State Nursery access road. A 60-foot wide public
       access easement shall be placed along the secondary access road from the
       end of Old Broadwater Lane, across the Applicant’s property, along the
       existing access road to the State Nursery, and along the existing State
       Nursery access road to its intersection with US Highway 12 West. The
       Applicant shall present legal documentation that has been filed with the
       County Clerk and Recorders Office verifying the creation of the easement.

¶5     On July 30 and 31, 2003, the Grubers and Dean Mills (President of State Nursery)

executed a document which purported to create the required easement. This document,

filed with the Lewis and Clark County Clerk and Recorder on July 31, 2003, and

numbered 3046859, is at the center of the present litigation. It was prepared by a licensed

land surveyor and is titled:

         60’ EMERGENCY PUBLIC ACCESS & UTILITY EASEMENT
              FOR: BROADWATER ESTATES MAJOR SUBDIVISION

The document contains a depiction of the easement, which is labeled “60’ Emergency

Public Access & Utility Ease.” From west to east, the easement is shown beginning at an

“Existing 60’ Easement,” crossing property identified as being owned by the Grubers

followed by property identified as being owned by State Nursery, and terminating at

Highway 12. The easement is also described in metes and bounds. There is a space titled



                                            4
“Certificate of Surveyor,” which is signed by Stephen J. Ries and dated July 30, 2003.

There is also a “Certificate of Land Owners,” which states: “We the undersigned

property owners, hereby create this 60 foot emergency public access and utility easement;

as shown by this exhibit.” The document is signed by Dean Mills, Frank Gruber, and

Bonita Gruber, each of whom is specifically identified as an “Owner.” It is also signed

by the CEO of Mountain West Bank, N.A. In addition, a signature block for Syngenta

Seeds, Inc. is included but is not signed. We shall refer to this document, a copy of

which is attached as an appendix to this Opinion, as the “Easement Agreement.”1

¶6    As noted, Nelson now owns the State Nursery property.             She obtained this

property through the following series of events. Between 1999 and 2001, State Nursery

executed several promissory notes which were held by Mountain West Bank and secured

by mortgages on the State Nursery property. On July 23, 2003, Mountain West initiated

      1
          Broadwater Development has made a bit of an issue about what the document
should be called. Initially, the parties referred to it as “Certificate of Survey 3046859.”
But six days after we announced our decision in Blazer v. Wall, 2008 MT 145, 343 Mont.
173, 183 P.3d 84, Broadwater Development filed a motion in the District Court to amend
its Petition for Declaratory Judgment “to correct all references to the subject document
from ‘Certificate of Survey No. 3046859’ to its appropriate characterization as the
Easement recorded under Reception No. 3046859 at Book M29, p. 322.” Since then, the
parties and the District Court have used various terms, including Certificate of Survey,
easement survey, easement survey diagram, Easement Agreement, 60’ Easement, and the
Easement. Notably, the document bears the indicia of a certificate of survey in that it
contains “a drawing of a field survey prepared by a registered surveyor for the purpose of
disclosing facts pertaining to boundary locations,” § 76-3-103(1), MCA; and as we have
previously observed, if something “looks like a duck, walks like a duck and quacks like a
duck, it must be a duck[,] . . . even if it is holding a piece of paper that says it is a
chicken,” Wild v. Fregein Construction, 2003 MT 115, ¶ 31, 315 Mont. 425, 68 P.3d 855.
On the other hand, the document also contains express language purporting to create an
easement, and it is signed by the landowners. Thus, for the sake of consistency, and
because the document’s label is less important than its contents, we shall use the term
“Easement Agreement.”

                                            5
a foreclosure action against State Nursery naming several individuals and entities as

defendants, including Syngenta Seeds. Syngenta was named because it held a mortgage

on the State Nursery property, and Mountain West alleged that Syngenta’s mortgage was

subordinate to Mountain West’s mortgages. The District Court ordered foreclosure in

December 2003; Mountain West purchased the State Nursery property at public auction

in March 2004; Syngenta exercised its right of redemption in April 2005; and Syngenta

assigned to Nelson its right to receive the Sheriff’s Deed in June 2005. On July 7, 2005,

Mike Nelson (acting as property manager for Syngenta) recorded a document titled

“Notice of Invalid Easement,” in which he asserted that the Easement Agreement was

“invalid due in part by a lack of vital signatures and a blatant disregard for the largest lien

holder of the property in question.” Finally, the Sheriff’s Deed conveying the State

Nursery property to Stephanie Nelson was executed July 11 and recorded July 22, 2005.

¶7     Meanwhile, immediately after signing the Easement Agreement on July 31, 2003,

the Grubers conveyed the Gruber parcel to the Wagners. The following month, the

Grubers granted Broadwater Development (owned by Michael Wagner at the time) an

exclusive right to develop, improve, and sell parcels of the Broadwater Estates Major

Subdivision.   According to the parties’ agreement, Broadwater Development was to

complete certain infrastructure development by a specified date and the Grubers were to

provide signed warranty deeds to each parcel, when properly created, for transfer of title

to the ultimate purchaser at closing. Michael Wagner died in October 2005, and Gaylynn

Wagner (as personal representative of his estate) sold Broadwater Development to Joseph

Mueller in October 2006.       As part of the purchase agreement, Mueller agreed that


                                              6
Broadwater Development would remain obligated to perform the agreements related to

the development of Broadwater Estates Major Subdivision.

¶8    One such agreement was a Subdivision Improvements Agreement executed by

Broadwater Development, the Grubers, and the County on July 11, 2006, in conjunction

with the final subdivision plat approval. Among other things, Broadwater Development

and the Grubers agreed within a specified timeframe to construct the secondary access

road from Old Broadwater Lane to the existing State Nursery access road. At this point,

Gaylynn Wagner owned the Gruber parcel and Nelson owed the State Nursery property.

Broadwater Development proceeded with construction of the road from the terminus of

Old Broadwater Lane over the Gruber parcel. But Nelson refused to permit construction

of the road across the State Nursery property, and she refused to remove encroachments

within the easement. In addition, her husband apparently threatened to file charges if the

road builder entered the State Nursery property. Consequently, Broadwater Development

commenced the instant action against Nelson in order to establish the validity of the

easement, and the County later intervened, as noted, in order “to protect its interest” in

the easement. In addition, the County extended Broadwater Development’s deadline for

completing the mandates of the Subdivision Improvements Agreement.

¶9    The parties filed cross-motions for summary judgment. Their briefing focused on

whether the Easement Agreement validly created the 60-foot easement. Broadwater

Development and the County argued that the document met all of the formal

requirements for granting an express easement. Furthermore, the County argued that the

easement was an easement in gross held by the public and, as such, did not have a


                                            7
dominant tenement (i.e., did not benefit a particular parcel of land), though the County

also asserted that the residents of Broadwater Estates in particular were “entitled to the

benefit of the easement to ensure their health and safety in case of an emergency.”

¶10   In Nelson’s view, however, the Easement Agreement was deficient in several

respects—namely, it failed to identify the grantor and the grantee, failed to identify the

dominant and servient tenements, did not include language of transfer, did not adequately

describe the servitude being created, and did not contain language of dedication to the

public. Nelson opined that the document was simply “an exhibit” that was designed to be

referred to in a separate instrument of conveyance, but she pointed out that there were no

instruments of conveyance referring to the Easement Agreement. Moreover, invoking

Blazer v. Wall, 2008 MT 145, 343 Mont. 173, 183 P.3d 84, Nelson analogized the

depiction in the Easement Agreement to the depiction in the certificate of survey at issue

in Blazer. She argued that the easement shown in the Easement Agreement could be

across the State Nursery property for the benefit of the Gruber parcel or could be across

the State Nursery property and the Gruber parcel for the benefit of the Broadwater Estates

Major Subdivision (which, she contended, did not exist at the time the Easement

Agreement was executed because it had not yet received final approval from the County).

Nelson contended that this uncertainty as to the identity of the dominant tenement was

fatal under Blazer, and she insisted that Broadwater Development’s and the County’s

reliance on factual information not contained on the face of the Easement Agreement was

inappropriate. Finally, as to the County’s contention that the purported easement was in

gross, Nelson asserted that the easement was not for the general public to use in the same


                                            8
way as Highway 12; rather, “the title [of the Easement Agreement] indicates that

whatever was to be transferred was to benefit the Broadwater Estates Subdivision.”

¶11    In addressing the parties’ contentions, the District Court first decided that this case

does not involve the easement-by-reference doctrine, under which an easement may be

created by referring in an instrument of conveyance to a recorded plat or certificate of

survey on which the easement is adequately described. Blazer, ¶¶ 27, 40. Rather, the

court stated, “the dispositive issue is whether the Grubers and State Nursery created a

valid express easement while using an easement survey diagram, along with a metes and

bounds description to describe the easement.” Nevertheless, the court noted that some of

the principles articulated in Blazer were “guiding” in determining this issue.

¶12    The District Court then considered the requirements for expressly granting an

easement: an instrument in writing that identifies the grantor and the grantee, adequately

describes what is being conveyed, contains language of conveyance, and is signed. See

Kuhlman v. Rivera, 216 Mont. 353, 359, 701 P.2d 982, 985 (1985); §§ 70-20-101, -103,

MCA. Here, the court observed, the Easement Agreement is in writing, the property

owners are identified as the Grubers and State Nursery, the Grubers and State Nursery

signed the document, and it can be reasonably ascertained from the document as a whole

that the Grubers and State Nursery are the grantors and Broadwater Estates Major

Subdivision is the grantee. Next, the court determined that the easement is adequately

described since the Easement Agreement states that the easement is to serve as a public

access and utility easement for the subdivision and since the easement’s course is detailed

in a diagram as well as a metes-and-bounds description. The court further determined


                                              9
that the terms “hereby create” in the sentence “We the undersigned property owners,

hereby create this 60 foot emergency public access and utility easement” constitute

language of conveyance. Lastly, the court noted that the Easement Agreement was

recorded, thus putting Nelson on notice of the easement’s existence.

¶13   In light of the foregoing, the District Court held that “the Grubers and State

Nursery conveyed and created an easement, using an adequately labeled diagram and

express language.” The court thus granted Broadwater Development’s and the County’s

motions for summary judgment and denied Nelson’s motion for summary judgment. The

court entered judgment decreeing that the 60-foot easement is “a valid and enforceable

express easement” and that the Notice of Invalid Easement is invalid.

                                        ISSUES

¶14   Nelson contends that the District Court erred in granting summary judgment in

favor of Broadwater Development and the County. She raises three issues:

      1. Did the District Court erroneously rely on facts outside the four corners of the

Easement Agreement, making summary judgment inappropriate?

      2. Does the Easement Agreement satisfy the requirements for creating an express

easement?

      3. Did the County fail to accept the easement?

                              STANDARD OF REVIEW

¶15   We review de novo a district court’s ruling on a motion for summary judgment,

applying the criteria set forth in M. R. Civ. P. 56. Arnold v. Yellowstone Mountain Club,

LLC, 2004 MT 284, ¶ 12, 323 Mont. 295, 100 P.3d 137. Summary judgment “shall be


                                           10
rendered forthwith if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” M. R. Civ. P. 56(c). Whether a fact is “material” depends on the substantive law,

i.e., the elements of the cause of action or defenses at issue. See Arnold, ¶ 15; Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). Only genuine

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248, 106 S. Ct.

at 2510. A dispute is “genuine” if the evidence is such that a reasonable fact-finder could

return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.

Where the material facts are undisputed, the court must simply identify the applicable

law, apply it to the uncontroverted facts, and determine who prevails. See Corporate Air

v. Edwards Jet Center, 2008 MT 283, ¶ 28, 345 Mont. 336, 190 P.3d 1111.

                                      DISCUSSION

¶16    Issue 1. Did the District Court erroneously rely on facts outside the four corners
       of the Easement Agreement, making summary judgment inappropriate?

¶17    Nelson contends that in support of their motions for summary judgment,

Broadwater Development and the County presented the District Court with extrinsic

evidence—i.e., “[e]vidence relating to a contract but not appearing on the face of the

contract because it comes from other sources, such as statements between the parties or

the circumstances surrounding the agreement,” Black’s Law Dictionary 578 (Bryan A.

Garner ed., 7th ed., West 1999). Nelson further contends that the District Court relied on



                                             11
this evidence when interpreting the Easement Agreement. She lists a number of

“extrinsic facts” the court considered, including the following: Broadwater Estates Major

Subdivision is located west of Helena off Highway 12; the Grubers own the property

making up the subdivision; the County conditioned final approval of the subdivision on

the creation of an easement and the construction of a road across the Gruber parcel and

the State Nursery property; the Easement Agreement was executed and recorded in 2003

“in accordance with” this condition; the Grubers granted Broadwater Development the

right to develop the subdivision; the Grubers, Broadwater Development, and the County

entered into a Subdivision Improvements Agreement which required the developer to

construct the road by a specified date; Mueller bought Broadwater Development and

assumed responsibility for Broadwater Development’s obligations; and the County has

extended the deadline for completing the road.

¶18   Nelson reasons that the Easement Agreement “alone” must meet the requirements

of an express easement, but the Easement Agreement is deficient in numerous respects,

thus the extrinsic evidence provided by Broadwater Development and the County must

have been a “factor” in the District Court’s determination that the easement is valid.

Citing Blazer, ¶ 49, and Proctor v. Werk, 220 Mont. 246, 250, 714 P.2d 171, 173 (1986),

Nelson argues that the essential elements of an express easement may not be supplied by

extrinsic evidence and that “[w]hen extrinsic evidence is required to determine the

interpretation of a contract, summary judgment is not appropriate.” In other words, she

claims that the District Court erroneously relied on facts outside the four corners of the

Easement Agreement, making summary judgment inappropriate. We disagree.


                                           12
¶19    The construction of a writing granting an interest in real property (such as an

easement) is governed by the rules of contract interpretation. See Van Hook v. Jennings,

1999 MT 198, ¶¶ 10-12, 295 Mont. 409, 983 P.2d 995; Mularoni v. Bing, 2001 MT 215,

¶ 32, 306 Mont. 405, 34 P.3d 497; Mary J. Baker Revoc. Trust v. Cenex Harvest States,

2007 MT 159, ¶ 18, 338 Mont. 41, 164 P.3d 851; Wills Cattle Co. v. Shaw, 2007 MT 191,

¶ 19, 338 Mont. 351, 167 P.3d 397; § 70-1-513, MCA. Those rules, in turn, state that a

contract must be so interpreted as to give effect to the mutual intention of the parties as it

existed at the time of contracting, § 28-3-301, MCA, and that when a contract is reduced

to writing, the intention of the parties is to be ascertained from the writing alone if

possible, § 28-3-303, MCA. Indeed, when the terms of an agreement have been reduced

to writing by the parties, it is to be considered as containing all those terms, and

therefore, as a general rule, there can be between the parties and their representatives or

successors in interest no evidence of the terms of the agreement other than the contents of

the writing. Sections 28-2-905(1), 70-20-202(1), MCA.

¶20    But contracts are not created in a vacuum, and the foregoing rules do not prohibit a

court from hearing the circumstances under which the agreement was made or the matter

to which it relates. See §§ 28-3-402, 28-2-905(2), 70-20-202(2), MCA. As the County

points out, § 1-4-102, MCA, states that “[f]or the proper construction of an instrument,

the circumstances under which it was made, including the situation of the subject of the

instrument and of the parties to it, may also be shown so that the judge is placed in the

position of those whose language the judge is to interpret.” In Baker Revoc. Trust, ¶ 47

n. 5, we noted that there may be several purposes for which evidence is admissible under


                                             13
this statute. For example, objective evidence of the circumstances under which a contract

was made may be shown to aid the court in determining, as a preliminary matter, whether

the contract contains an ambiguity. 2 Baker Revoc. Trust, ¶ 55; accord Richards v. JTL

Group, Inc., 2009 MT 173, ¶ 33, 350 Mont. 516, 212 P.3d 264. Likewise, we recently

considered surrounding circumstances in determining whether a particular interpretation

of an easement agreement would lead to an absurdity. Mattson v. Montana Power Co.,

2009 MT 286, ¶¶ 26-28, 352 Mont. 212, ___ P.3d ___. And, as discussed below, the

determination of whether a given easement is appurtenant or in gross may require

consideration of the circumstances existing at the time of execution. See ¶ 34, infra.

¶21    Still, there are limits on the use of such evidence, particularly when it comes to

written documents of conveyance. Evidence of surrounding circumstances may not be

used to add to, vary, or contradict the terms of the contract. Baker Revoc. Trust, ¶ 21.

Nor may extrinsic evidence be used to supply a property description in the first instance,

to complete a description that is insufficient, or to show the intention with which it was

made. See Blazer, ¶ 71. And it may not be used to show an intention independent of the

instrument. See Hollis v. Garwall, Inc., 974 P.2d 836, 843 (Wash. 1999). As we have

said, good-faith purchasers of real property are entitled to rely on publicly recorded

deeds, plats, and certificates of survey pertaining to the subject property to disclose

accurately all encumbrances, easements, and impediments thereon; they are not required

to track down unrecorded extrinsic evidence in order to ascertain the use or necessity of a

       2
        The parties do not contend that the Easement Agreement contains ambiguous
terms. In fact, Broadwater Development and the County contend that it is unambiguous,
while Nelson argues that it is simply missing essential terms.

                                            14
purported easement depicted on a plat or certificate of survey in their chain of title.

Blazer, ¶ 74. Requiring subsequent purchasers to investigate not only their chain of title

but also the “context” within which each conveyance in the chain was executed “would

be an impractical burden, perhaps an impossible one, and would virtually destroy the

utility of the real estate recording system.” 3 Olson v. Trippel, 893 P.2d 634, 639 (Wash.

App. Div. 2 1995).

¶22    The sum of all this is that a court is not required to conduct its analysis in a

vacuum. For purposes of interpreting a writing granting an interest in real property,

evidence of the surrounding circumstances, including the situation of the property and the

context of the parties’ agreement, may be shown so that the judge is placed in the

position of those whose language the judge is to interpret. Section 1-4-102, MCA.

However, to comply with the statute of frauds (§ 70-20-101, MCA) and the recording

system (see generally Title 70, chapter 21, MCA), the writing itself must ultimately stand

on its own and meet all of the formal requirements for granting the property interest.

¶23    Here, the District Court was apprised of various facts not contained within the four

corners of the Easement Agreement. The court was allowed to consider this evidence for

purposes of understanding the situation of the parties, the properties, and the easement at

issue. The court recited these “extrinsic facts” as “Background” in its Memorandum and

Order, but it appears that the court’s analysis of the easement’s validity was limited to the

face of the Easement Agreement—Nelson’s speculation to the contrary notwithstanding.

       3
         For these reasons, we reject Broadwater Development’s and the County’s use of
affidavits provided by Mills and the Grubers in which they state what their intention was
in executing the Easement Agreement.

                                             15
Finally, unlike Proctor, where “the true intent of the parties [was] discernable only with

reference to extrinsic evidence,” Proctor, 220 Mont. at 250, 714 P.2d at 173, we conclude

below in Issue 2 that the Grubers’ and State Nursery’s intent is discernable without

reference to extrinsic evidence. Accordingly, we hold that the District Court did not

erroneously rely on “extrinsic facts.”

¶24    Issue 2. Does the Easement Agreement satisfy the requirements for creating an
       express easement?

¶25    Broadwater Development and the County claim an easement created by express

grant in the Easement Agreement. An easement may be expressly granted by using

appropriate language in an instrument of conveyance, see e.g. Kuhlman, 216 Mont. at

359, 701 P.2d at 985, or by referring in an instrument of conveyance to a recorded plat or

certificate of survey on which the easement is adequately described (the easement-by-

reference doctrine), see Blazer, ¶¶ 40-41. Nelson asserts that the Easement Agreement

“combines the elements” of both of these methods, and she relies heavily on Blazer in

arguing that the Easement Agreement is deficient. She asserts that the facts of Blazer are

“similar to” the facts of this case, and she attempts to show that the Easement Agreement

suffers from the same inadequacies that existed in the Blazer certificate of survey.

¶26    At the outset, we do not agree that this is an easement-by-reference case. We are

not presented with an instrument of conveyance that refers to a recorded plat or certificate

of survey on which an easement is depicted and purports by such reference to reserve or

grant an easement. See e.g. Bache v. Owens, 267 Mont. 279, 883 P.2d 817 (1994);

Halverson v. Turner, 268 Mont. 168, 885 P.2d 1285 (1994); Pearson v. Virginia City



                                            16
Ranches Assn., 2000 MT 12, 298 Mont. 52, 993 P.2d 688. The only document at issue

here is the Easement Agreement, which purports by its own express language to create

the easement that is depicted and described on the face of the document. The question is

whether this document is sufficient in itself to create the easement. Nevertheless, we do

agree with Nelson and the District Court that certain principles articulated in Blazer (and

repeated where applicable below) are “guiding” in our analysis.

¶27   An express grant must be in writing, § 70-20-101, MCA, and the grantor’s intent

to create an easement burdening particular property for the benefit of another must be

clearly and unmistakably communicated, Blazer, ¶ 43. The whole of the writing is to be

taken together so as to give effect to every part if reasonably practicable, each clause

helping to interpret the other. Section 28-3-202, MCA. To be a valid conveyance, the

writing must (1) identify the grantor and the grantee, (2) adequately describe what is

being conveyed, (3) contain language of conveyance, and (4) be signed. Kuhlman, 216

Mont. at 359, 701 P.2d at 985 (citing § 70-20-103, MCA). Here, the grantor’s identity,

the language of conveyance, and the signature requirements are easily established;

however, the grantee’s identity and the property description require a more involved

analysis. We address each in turn.

¶28   Identity of the grantor. The Easement Agreement depicts an easement crossing

property identified as being owned by the Grubers and property identified as being

owned by State Nursery. There is a “Certificate of Land Owners,” which states: “We the

undersigned property owners, hereby create this 60 foot emergency public access and

utility easement; as shown by this exhibit.” Beneath this statement, three individuals are


                                            17
identified as “Owner”: Dean Mills, as President of State Nursery & Seed Company Inc.;

Frank D. Gruber; and Bonita M. Gruber. Hence, it seems that State Nursery and the

Grubers are the grantors.

¶29    Nelson points out, however, that the term “grantor” does not appear on the face of

the Easement Agreement. Yet, the statute from which the four Kuhlman requirements

derive does not require the use of any specific words. It states that “[a] grant of an estate

in real property may be made in substance as follows . . . .” Section 70-20-103, MCA

(emphasis added). Nelson’s approach, requiring every conveyance of a property interest

to include the word “grantor,” elevates form over substance, and we reject it. A grantor

is simply “[o]ne who conveys property to another,” Black’s Law Dictionary 707, and it is

sufficiently clear from the depiction of the properties and the easement, the language of

the Certificate of Land Owners, and the fact that the Grubers and State Nursery are

identified as “owners” that they are the ones conveying a property interest to another.

¶30    Nelson also points out that the Easement Agreement does not identify the interests

of Mountain West Bank and Syngenta Seeds (which have their own signature blocks).

She argues that this creates uncertainty as to the identities of the grantors and the

grantees. Yet, there is no language in the Easement Agreement indicating that Mountain

West and Syngenta are conveying property to another or that property is being conveyed

to them. The Easement Agreement shows a “60’ Emergency Public Access & Utility

Easement for: Broadwater Estates Major Subdivision.” Whereas the Grubers and State

Nursery are expressly identified as owners of the tracts over which the easement is

depicted, Mountain West and Syngenta are not so identified. The inference readily


                                             18
drawn from all this is that Mountain West and Syngenta are neither grantors nor grantees.

The failure to specify their interests does not create the uncertainty Nelson claims. We

conclude that the grantors are adequately identified as the Grubers and State Nursery.

¶31    Language of conveyance. An interest in real property can be “created, granted,

assigned, surrendered, or declared.” Section 70-20-101, MCA. Here, the Easement

Agreement states: “We the undersigned property owners, hereby create this 60 foot

emergency public access and utility easement; as shown by this exhibit” (emphases

added). An easement is a nonpossessory interest in land that gives a person the right to

use the land of another for a specific purpose. Taylor v. Montana Power Co., 2002 MT

247, ¶ 11, 312 Mont. 134, 58 P.3d 162. Hence, the Grubers’ and State Nursery’s intent to

convey a property interest over their properties is clear and unmistakable.

¶32    Signatures. The writing must be signed by the party creating, granting, assigning,

surrendering, or declaring the interest in real property. Sections 70-20-101, -103, MCA.

Here, the Easement Agreement is signed by the grantors: State Nursery and the Grubers.

Nelson makes much of the fact that although there is a signature block for Syngenta,

Syngenta did not sign the document. Yet, nothing in the Easement Agreement identifies

Syngenta as an owner of the properties over which the easement is depicted, and

Syngenta in fact was not an owner of the State Nursery property in July 2003 when the

Easement Agreement was executed. Nelson presents no factual or legal basis for

concluding that Syngenta’s signature was essential to the creation of this easement.

¶33    Identity of the grantee, and description of the property interest being

conveyed. As part of our analysis of the grantee’s identity and the adequacy of the


                                            19
property description, it is useful to begin by classifying the easement. Indeed, the parties’

briefing reflects some confusion in this regard. As noted, an easement is a nonpossessory

interest in the land of another. Taylor, ¶ 11. The interest may be “appurtenant” or “in

gross.” An easement appurtenant is one that benefits a particular parcel of land, i.e., it

serves the owner of that land and passes with the title to that land. 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, by contrast, benefits the holder

of the easement personally, i.e., not in connection with his or her ownership or use of a

particular parcel of land. Thus, with an easement in gross, no dominant tenement exists

and the easement right does not pass with the title to any land. Blazer, ¶ 24.

¶34    It is not always apparent whether an easement is appurtenant to a certain parcel of

property or personal to a certain individual. Notably, § 70-17-101, MCA, lists a number

of “servitudes upon land [that] may be attached to other land as incidents or

appurtenances,” while § 70-17-102, MCA, lists a number of “servitudes upon land [that]

may be granted and held though not attached to land.” But the servitude with which we

are dealing here—the “right-of-way,” i.e., the right to pass through property owned by

another, Black’s Law Dictionary 1326—is contained in both lists. See §§ 70-17-101(4),

-102(5), MCA. Thus, in the absence of statutory direction, the 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


                                             20
accomplished by the easement. See Jon W. Bruce & James W. Ely, Jr., The Law of

Easements and Licenses in Land § 2:3, 2-6 (2009) (hereinafter Bruce & Ely); Westland

Nursing Home v. Benson, 517 P.2d 862, 865 (Colo. App. 1974); McLaughlin v. Board of

Selectmen of Amherst, 664 N.E.2d 786, 790 (Mass. 1996); Barrett v. Kunz, 604 A.2d

1278, 1280 (Vt. 1992); Pokorny v. Salas, 81 P.3d 171, ¶ 24 (Wyo. 2003). 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. See Bruce & Ely § 2:3, 2-6 to 2-8; Nelson v. Johnson, 679 P.2d 662, 664

(Idaho 1984) (easement was appurtenant since it was “a beneficial and useful adjunct of

the cattle ranch, and it would be of little use apart from the operations of the ranch”);

McLaughlin, 664 N.E.2d at 789-90 (access and utility easement created for “the purposes

for which public ways in the Town of Amherst are now or may hereafter be used” was

appurtenant since it was reserved “for the benefit of other land of the grantor”); Green v.

Lupo, 647 P.2d 51, 53-54 (Wash. App. Div. 2 1982) (grant of easement for ingress,

egress, and utilities purposes to the owners of adjacent land indicates appurtenance); cf.

Mumaugh v. Diamond Lake Area Cable TV Co., 456 N.W.2d 425, 430 (Mich. App. 1990)

(electric company’s easement was in gross since it was not appurtenant to any estate in

land, but was a personal interest to use the servient land for the erection and maintenance

of a utility pole line); Village of Walbridge v. Carroll, 875 N.E.2d 144, ¶ 21 (Ohio App.

6th Dist. 2007) (easement was in gross since it did not benefit the Village’s use of any

particular land). Furthermore, if the granting instrument does not specify whether the

easement is appurtenant or in gross, the court generally begins with the presumption that


                                            21
it is appurtenant. Luevano v. Group One, 779 P.2d 552, 555 (N.M. App. 1989); see also

Bruce & Ely § 2:3, 2-10 to 2-11 (noting the strong constructional preference for

easements appurtenant over easements in gross); Skeen v. Boyles, 213 P.3d 531, ¶ 22

(N.M. App. 2009) (same); Nelson, 679 P.2d at 664-65 (“[I]n case of doubt, the weight of

authority holds that the easement should be presumed appurtenant.”); United States v.

Blackman, 613 S.E.2d 442, 446 (Va. 2005) (“[A]n easement is ‘never presumed to be in

gross when it [can] fairly be construed to be appurtenant to land.’ ” (second brackets in

Blackman)); Green, 647 P.2d at 54 (“There is a strong presumption in Washington that

easements are appurtenant to some particular tract of land; personal easements, easements

in gross, are not favored.”).4

¶35    In the present case, the District Court concluded that “the Broadwater Estates

Subdivision is the grantee” of the easement, thus suggesting an easement appurtenant.

On appeal, Broadwater Development asserts on one hand that “the grant language in the

[Easement Agreement] creates a servitude attached to land for the benefit of Broadwater

Estates and the public,” but on the other hand that “[t]he grant language in the [Easement

Agreement] creates a servitude not attached to land for the benefit of the public.” For its

part, the County states that it “support[s]” Broadwater Development’s arguments but is

       4
        Some rationales for this presumption are that “[c]onstruing doubtful easements
as easements in gross would allow assignment of the easement to strangers to the area
who could then control the use of the property. Such construction could also result in
increased burdens on land beyond that contemplated by the original grantor.” Luevano,
779 P.2d at 556. Thus, “[a]t common law, easements in gross were strongly disfavored
because they were viewed as interfering with the free use of land.” Blackman, 613
S.E.2d at 446. The preference for easements appurtenant also “reflects the traditional
suspicion of easements in gross as interests that burden one parcel of land without
providing a corresponding benefit to another parcel.” Bruce & Ely § 2:3, 2-11.

                                            22
limiting its own arguments to “the public’s interest” in the easement. The County then

argues that the “public” is a grantee of the easement and that “[t]he public’s easement is

an easement in gross.”

¶36    Nelson, however, suggests that we cannot know what sort of easement is being

created because the Easement Agreement utterly fails to identify the grantee and the

dominant tenement. In addition, she correctly points out that a landowner cannot hold an

easement in the landowner’s own property.        See § 70-17-105, MCA (“A servitude

thereon cannot be held by the owner of the servient tenement.”). If the owner of two

parcels attempts to create an express easement over one of the parcels in favor of the

other, the purported interest is a nullity; at most, the servitude exists only momentarily

before merging into the fee. See Bruce & Ely § 3:11, 3-34 & n. 4; One Harbor Financial

Ltd. v. Hynes Properties, 884 So. 2d 1039, 1044 (Fla. 5th Dist. App. 2004). This rule

“proceeds from the rationale that a person does not need an easement in his or her own

land, because all the uses of an easement are already included in the general right of fee

ownership.” Beyer v. Tahoe Sands Resort, 29 Cal. Rptr. 3d 561, 571 (Cal. App. 3d Dist.

2005). Here, when the Easement Agreement was executed, the Grubers owned both the

Gruber parcel and the land making up the Broadwater Estates Major Subdivision. Thus,

Nelson suggests that the Easement Agreement could not have created an easement over

the Gruber parcel in favor of the subdivision.

¶37    Whether or not this is true, however, is not something we need to resolve here.

This lawsuit was filed to determine the validity of the easement over the State Nursery

property to which Nelson is a successor. Even assuming, for the sake of argument, that


                                            23
the Easement Agreement could not have created an easement over the Gruber parcel in

favor of the subdivision, this does not mean that the entire 60-foot easement is void. Our

focus is on what Dean Mills (President of State Nursery) intended when executing the

Easement Agreement. Viewing the Easement Agreement from Mills’ perspective, we

first observe that the easement bears indicia of both an easement appurtenant and an

easement in gross. On one hand, the document states that the easement is “for:

Broadwater Estates Major Subdivision,” which could indicate an easement appurtenant.

On the other hand, the document states that the easement is for “emergency public access

and utility” purposes, which could indicate an easement held by the public and utility

providers personally, i.e., not in connection with their ownership of any particular land.

In Nelson’s view, the existence of these two possibilities precludes summary judgment

for Broadwater Development and the County, and she criticizes the District Court for

“cobbl[ing] together” various parts of the Easement Agreement. Yet, as noted, the whole

of a contract is to be taken together so as to give effect to every part if reasonably

practicable, each clause helping to interpret the other. Section 28-3-202, MCA. Doing so

here, we conclude that notwithstanding the presumption of appurtenance, the terms

“public” and “utility” as used in the Easement Agreement clearly indicate an intention by

Mills to grant an easement in gross—i.e., an easement in favor of the public and utility

providers personally. We further conclude that the “for: Broadwater Estates Major

Subdivision” language was intended to limit the easement’s scope, such that members of

the public may use it to travel between Broadwater Estates Major Subdivision and

Highway 12 in emergency situations and utility providers may use it to provide utilities


                                           24
specifically to the subdivision. Thus, insofar as the State Nursery property is concerned,

the grantees of this easement are the public and utility providers.

¶38    As for the property description, an instrument of conveyance must adequately

describe the property interest being created. See Kuhlman, 216 Mont. at 359, 701 P.2d at

985. More specifically, with respect to an easement, the identities of the dominant and

servient tenements must be ascertainable with reasonable certainty and the owner of the

property burdened by the easement should have knowledge of its use or its necessity. See

Blazer, ¶ 51. Here, the easement is depicted on the face of the Easement Agreement and

is described in metes and bounds. It is labeled “60’ Emergency Public Access & Utility

Ease.,” and because it is in gross, there is no dominant tenement. It is shown crossing

property identified as being owned by the Grubers and property identified as being

owned by State Nursery, which are the servient tenements. It is shown connecting with

an “Existing 60’ Easement” at its west end and Highway 12 at its east end—and for this

reason, Nelson’s analogy to Blazer is unpersuasive. Unlike the Blazer easement, which

ran off the certificate of survey with no identifiable destination, the full extent of the

present easement is shown on the Easement Agreement. Consequently, a person looking

at the document is not left wondering, “Where does this go, who gets to use it, and for

what purpose?” It runs from an existing 60-foot easement to Highway 12; it is for

emergency public access and utility purposes connected with Broadwater Estates Major

Subdivision; and it may be used by individuals and entities engaged in such purposes.

¶39    Nelson points out that the subdivision had received only preliminary approval

when the Easement Agreement was executed in July 2003; however, she provides no


                                             25
factual or legal basis for concluding that an easement in gross could be granted to the

public and utility providers only after the subdivision had received final approval.

Nelson also asserts that the Easement Agreement does not impart sufficient knowledge of

the easement’s use and necessity because it does not disclose “the number of emergencies

that need to be accommodated and the extent of the improvements required to serve the

emergencies.” Our cases, however, do not require this degree of specificity in order to

create an easement. Moreover, while it seems that Nelson would have us believe that she

had no way of knowing the purpose and nature of this easement when she obtained the

State Nursery property, we are not persuaded.         The Easement Agreement imparts

sufficient knowledge of the easement’s use and necessity.

¶40    Conclusion.    The Easement Agreement satisfies the formal requirements for

expressly granting an easement. While Nelson attempts to make this into a Blazer case,

we disagree that this is an easement-by-reference situation or that the principles

articulated in Blazer require the instant easement to fail. We accordingly affirm the

District Court’s conclusion that the “60’ Emergency Public Access & Utility Easement”

is a valid and enforceable express easement.

¶41    Issue 3. Did the County fail to accept the easement?

¶42    Citing § 7-14-2101(2)(b), MCA (which defines “county road”), Nelson contends

that the easement cannot be in favor of the public because the County has not “accepted”

it. In response, the County disagrees that it is required to comply with this statute before

a public easement may come into existence. The County notes that “ ‘a public easement

is not the equivalent of a county road’ ” (quoting Pedersen v. Dawson County, 2000 MT


                                            26
339, ¶ 23, 303 Mont. 158, 17 P.3d 393). Moreover, the County maintains that, in any

event, it did “accept” the easement, whether pursuant to the statute or under the doctrine

of common law dedication (see Heller v. Gremaux, 2002 MT 199, ¶ 19, 311 Mont. 178,

53 P.3d 1259). Specifically, the County points out that it required the easement to be

created as a condition of final subdivision approval.

¶43    Nelson cites no authority for the proposition that a “public easement” (as we have

here), as opposed to a “county road,” requires compliance with § 7-14-2101(2)(b), MCA.

She also fails to respond, with a properly developed argument including citations to

authority, to the County’s assertions regarding common law dedication. For that matter,

the County’s arguments also are rather scant on authority. It is not this Court’s job to

conduct legal research on a party’s behalf or to develop legal analysis that may lend

support to the position the party advances. State v. White, 2008 MT 464, ¶ 29, 348 Mont.

196, 199 P.3d 274; see also M. R. App. P. 12(1)f., 12(2). Under these circumstances, we

will not address this issue further.

                                       CONCLUSION

¶44    The Easement Agreement created a 60-foot emergency public access and utility

easement, which is enforceable against Nelson. The easement is in gross, and it may be

used by members of the public to travel between Broadwater Estates Major Subdivision

and Highway 12 in emergency situations and by utility providers to provide utilities to

the subdivision. Broadwater Development and the County have shown that there are no

genuine issues of material fact and that they are entitled to judgment as a matter of law.




                                             27
Affirmed.

                               /S/ JAMES C. NELSON


We Concur:

/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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APPENDIX




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