                                                                            October 2 2012


                                         DA 12-0114

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2012 MT 217N



JIMMY A. AXELSON and JIMMY A. AXELSON
AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF LORRAINE M. AXELSON; RALPH
RUHBECK and LAURA RUHBECK, husband
and wife; and, JEANETTE HOFER and VERNON L.
HOFER, as Co-trustees for the “HOFER
IRREVOCABLE TRUST,”

           Plaintiffs and Appellants,

     v.

VICKI L. HARRIS and BUDD HARRIS, husband
and wife, and KEVIN JAMES WINETEER, JIM
WINETEER and ELEANOR WINETEER, husband
and wife; and JOHN DOE 1,

          Defendants and Appellees.
____________________________

KEVIN JAMES WINETEER,

           Plaintiff and Appellee,

     vs.

JIMMY A. AXELSON and JIMMY A. AXELSON
AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF LORRAINE M. AXELSON; RALPH
RUHBECK and LAURA RUHBECK, husband
and wife; and JEANETTE HOFER and VERNON L.
HOFER, as Co-trustees for the “HOFER
IRREVOCABLE TRUST,” and JOHN DOES 1-5,

           Defendants and Appellants.



APPEAL FROM:   District Court of the Fourteenth Judicial District,
               In and For the County of Musselshell, Cause No. DV-08-95
               In and For the County of Golden Valley, Cause No. DV 09-02
               Honorable Gary L. Day, Presiding Judge
COUNSEL OF RECORD:
         For Appellants:

                Floyd A. Brower, Brower Law Firm, Roundup, Montana

         For Appellees:

                William A. D’Alton, D’Alton Law Firm, P.C., Billings, Montana


                                             Submitted on Briefs: September 12, 2012
                                                        Decided: October 2, 2012




Filed:

                __________________________________________
                                  Clerk




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Justice Brian Morris delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Appellants Jimmy A. Axelson and Jimmy A. Axelson as personal representative of

the Estate of Lorraine M. Axelson, Ralph Ruhbeck and Laura Ruhbeck, husband and wife,

and Jeanette Hofer and Vernon L. Hofer, as co-trustees for the Hofer Irrevocable Trust

(collectively Axelsons) appeal the District Court’s findings of fact, conclusions of law, and

order denying Axelsons’ claim for injunctive relief, denying Axelsons’ request for a

restraining order, denying Axelsons’ trespass charge, denying Axelsons’ claim for emotional

distress, and denying Axelsons’ claim for punitive damages. We affirm.

¶3     Reforestation, Inc., a Washington corporation, purchased large tracts of land in

Montana that it subdivided into tracts of aliquot parts generally from 10 to 40 acres each.

Reforestation purchased property in Musselshell County and Golden Valley County and

divided the acreage into 96 aliquot parts. These properties became known as the NI

Properties. Reforestation created a blanket easement for the NI Properties on October 30,

1972, through the following granting language:

       and their successors and assigns, an easement for road purposes for ingress
       and egress, over and across all roads presently existing or heretofore reserved
       by the grantor herein in deeds executed and to be placed of record, or already
       of record within the above described property. Said easement to be for the
       benefit of and appurtenant to each and every part of the subject legal
       description.


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¶4     Axelsons own various parcels in NI Properties that range from Golden Valley County

to Musselshell County. The predecessor in interest of Appellees Kevin James Wineteer, Jim

and Eleanor Wineteer, husband and wife, and Vicki L. Harris and Budd Harris, husband and

wife (collectively Wineteers), purchased NI 47 from Reforestation in 1970 through a deed

that reserved an easement over all existing roads in the subdivision. Wineteers’ predecessor

in interest recorded this deed in Golden Valley County on October 3, 1975. Succeeding

deeds clarified that the property was subject to the reservation of access on all “existing

roads.”

¶5     A dispute arose between Axelsons and Wineteers regarding whether the “Bundy

Road/Wineteer Driveway” was a road in existence as of February 1970. Wineteers took the

position that Bundy Road never went all the way through NI 47, and, as a result, Wineteers

referred to the disputed road as the “Wineteer Driveway.” Axelsons took the position that a

continuous road, the “Bundy Road,” existed from U.S. Highway 12 south to and through

Wineteers’ property and to various other tracts of the NI Properties.

¶6     The parties eventually litigated the matter to resolve the status of the disputed

roadway and ancillary matters. The District Court conducted a trial after which it found that

Bundy Road had been in existence as of February 1970 and therefore is available for use by

all the parties. The court found the right to travel across the existing roads must be

consistent with the use made of the road to date. The court declined to specify the width of

the easement along Bundy Road other than the width in existence as of 1970. The court

denied Axelsons’ request for injunctive relief, but the court’s determination that Bundy Road



                                             4
qualified as an existing road as of 1970 meant that no party could interfere with another

party’s use of the existing road.

¶7     The court further determined that Wineteers owed damages in the amount of $2,500

to Axelsons for Wineteers’ unwarranted and unnecessary interference with the use of the

road by leaving a waterline trench open for approximately 90 days. In turn, the court found

that Axelsons owed Wineteers $4,000 for the remediation of a driveway that had been placed

improperly. The court further found that Axelsons owed Wineteers $1,000 to remediate a

portion of a driveway that had been placed outside the 100-foot limit. The court also

dismissed Axelsons’ request for punitive damages. The court entered further findings and

conclusions in its order not subject to this appeal. Axelsons appeal.

¶8     Axelsons argue on appeal the District Court incorrectly concluded that Reforestation

did not intend to reserve a 60-foot easement over all the tracts. Axelsons argue the court

should have set a minimum width on Bundy Road that comported with state law. Axelsons

further contend that the District Court mistakenly determined that the driveway had to be

moved and that the cost of remediation in the amount of $1,000 had to be paid to Wineteers.

Axelsons further argue the District Court improperly dismissed their request for punitive

damages.

¶9     We review for clear error a district court’s findings of fact. Pastimes, LLC. v. Clavin,

2012 MT 29, ¶ 18, 364 Mont. 109, 274 P.3d 714. We review for correctness a district

court’s conclusions of law. Blanton v. Dept. of Public Health and Human Services, 2011

MT 110, ¶ 20, 360 Mont. 396, 255 P.3d 1229. We have determined to decide this case

pursuant to Section I, Paragraph 3(d), of our 1996 Internal Operating Rules, as amended in

                                              5
2006, that provide for memorandum opinions. It is manifest on the briefs and record before

us that substantial evidence supports the District Court’s findings of fact and that the District

Court correctly applied the law to those facts.

¶10    Affirmed.

                                                    /S/ BRIAN MORRIS



We Concur:


/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE




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