                                                                                           October 14 2009


                                           DA 09-0100

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2009 MT 333



SCOTT SLAUSON,

              Plaintiff, Appellant and Cross-Appellee,

         v.

MAROZZO PLUMBING AND HEATING, LLC,

              Defendant, Appellee and Cross-Appellant.



APPEAL FROM:           District Court of the Nineteenth Judicial District,
                       In and For the County of Lincoln, Cause No. DV 08-046
                       Honorable C. B. McNeil, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Amy N. Guth, Attorney at Law, Libby, Montana

                For Appellee:

                       Heather McDougall, Attorney at Law, Troy, Montana



                                                     Submitted on Briefs: September 16, 2009

                                                               Decided: October 13, 2009


Filed:

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

¶1    Scott Slauson appeals, and Marozzo Heating and Plumbing, LLC (“Marozzo”)

cross-appeals, from the order of the Nineteenth Judicial District Court, Lincoln County,

granting in part and denying in part the parties’ summary judgment motions. We affirm.

                                   BACKGROUND

¶2    Referring to the diagram below, this case concerns a prescriptive easement over

Tract B (Slauson’s north property) in favor of Tract A (Marozzo’s property). Slauson

also owns Tract C (Slauson’s south property). These properties are situated along U.S.

Highway 2 on the southeastern outskirts of Libby, Montana.




                                  A



                              B


                                        C




                                            2
¶3     The prescriptive easement over Tract B was established prior to Marozzo’s

acquisition of Tract A. Before Marozzo, Tract A was owned by Neil Bertelsen and

Phyllis A. Bertelsen as trustees of the Bertelsen Family Trust (“Bertelsen”). In 1987,

Bertelsen leased the property to Amerigas (which was managed by Neil Bertelsen’s

son-in-law). During its lease, Amerigas constructed or placed a number of improvements

on Tract B, including fixtures and a driveway/parking lot. In addition, Bertelsen installed

some landscaping (railroad ties, shrubs, and washed rock) on Tract B in the mid-1990s.

Amerigas leased Tract A from June 1987 to August 2007, when it terminated the lease

and vacated the premises. Bertelsen then sold Tract A to Marozzo in December 2007.

¶4     Meanwhile, Slauson purchased Tract C in October 2002. While researching the

purchase of this property, he noticed that the land constituting Tract B was not part of

Bertelsen’s property. Rather, it belonged to Alma Edwards, who owned a large tract of

land on the opposite side of Highway 2. Apparently, Tract B had been split off from

Edwards’ larger tract when the highway was constructed. Edwards, however, was not

aware that she owned Tract B.        Moreover, the property had never been separately

identified by deed and was not on the Lincoln County tax roles. To avoid the possibility

of a property tax liability, Edwards transferred Tract B to Slauson in July 2003.

¶5     Slauson then had Tract B surveyed. The survey showed that Amerigas was using

Tract B for its customers to access the Amerigas office and to park. In addition, the

survey showed that several of the improvements which Amerigas had constructed,

including a portion of two chain-link fences and a “control box unit” protected by three

concrete posts, were encroaching on Tract B.


                                             3
¶6     Slauson contacted the Montana Department of Transportation, which discharged

its easement over Tract B, and he contacted the Lincoln County Clerk and Recorder’s

Office, which placed the property back on the tax roles. He then approached Amerigas

and Bertelsen and offered to lease Tract B to Bertelsen. Bertelsen, however, claimed a

right to continue using the property.

¶7     Slauson thus filed suit in December 2004 against Bertelsen (but not Amerigas) to

enforce his property rights and recover compensation and damages. Bertelsen responded

that he had acquired Tract B through adverse possession or that he had acquired a

prescriptive easement allowing Amerigas to use Tract B. The District Court agreed with

Bertelsen’s latter theory. In its November 2005 Findings of Fact, Conclusions of Law,

and Judgment, the court concluded that “Bertelsen and Amerigas have used [Tract B] in

an open, notorious, exclusive, adverse, continuous, and uninterrupted manner since 1987”

and, thus, that “[t]he Bertelsens and its lessee, Amerigas, have established a prescriptive

easement to maintain the improvements and to transact Amerigas’s business” on Tract B.

The court ruled that the easement was limited in scope to the uses (ingress, egress, and

customer parking) and encroachments which existed as of December 2004, but that

Bertelsen and Amerigas were entitled “to maintain the property (snow plowing, etc.) as

necessary to facilitate the uses which they have acquired the right herein to continue.”

¶8     This Court affirmed in Slauson v. Bertelsen Family Trust, 2006 MT 314, ¶ 23, 335

Mont. 43, 151 P.3d 866. We concluded that “Bertelsen . . . established the elements

necessary to acquire a prescriptive easement of [Tract B], including that the use was open

and notorious and adverse.” Slauson, ¶ 19. We thus “affirm[ed] the District Court’s


                                             4
determination that Bertelsen has established a prescriptive easement to use Slauson’s

property for an access and parking lot, and agree[d] with the District Court’s

pronouncement that the easement is limited to these existing uses.” Slauson, ¶ 23.

¶9     As noted, Bertelsen sold Tract A to Marozzo in December 2007.                 Shortly

thereafter, a dispute arose between Slauson and Marozzo concerning the use of Tract B.

Slauson ultimately commenced the instant action against Marozzo in February 2008,

asserting that Marozzo had trespassed on and used Slauson’s property “in ways not

authorized by law,” including piling snow and placing equipment in such a manner as to

interfere with Slauson’s enjoyment of his property. Marozzo countersued for interference

with the scope of the easement. Marozzo claimed that it had a legal right to use Tract B,

that it was entitled to use the property in the same manner as Amerigas and Bertelsen had

used it, and that it had not exceeded the easement’s scope. Marozzo also asserted a claim

for conversion, alleging that Slauson had wrongfully removed landscaping timbers and

rock from Tract B. Marozzo requested costs and attorney’s fees.

¶10    The parties filed cross-motions for summary judgment. Relying on Leichtfuss v.

Dabney, 2005 MT 271, 329 Mont. 129, 122 P.3d 1220, Slauson argued that the

prescriptive easement had been created through Amerigas’s use of Tract B, that Amerigas

had been a lessee of Tract A, and that an easement created in favor of an estate less than a

fee simple (such as a lease) terminates when that estate ends. The District Court,

however, concluded that the “identical legal issues” and the final judgments rendered in

Slauson were dispositive here. The court then reasoned that Marozzo was “in privity”

with Bertelsen and that the easement over Tract B had passed to Marozzo with the sale of


                                             5
Tract A. The court awarded Marozzo $418.60 for the landscaping Slauson had removed

from Tract B, awarded Slauson $430.00 for the costs of removing snow piled by Marozzo

on Slauson’s property south of the area subject to the easement, but denied Marozzo’s

request for costs and attorney’s fees.

                                         ISSUES

¶11    Slauson presents the following issue on appeal: Did the easement over Tract B

survive the extinguishment of Amerigas’s leasehold? In addition, he asserts, essentially

as an afterthought at the end of his opening brief, that the District Court “erred in

ordering Slauson to pay damages to Marozzo for removal of personal property abandoned

by Amerigas.” However, he presents no argument, with citation to authority, in support

of this assertion, and we therefore will not consider it. See Marx v. Belgrade Volunteer

Firefighters Relief Assn., 2008 MT 410, ¶¶ 12-13, 347 Mont. 256, 198 P.3d 247.

¶12    Marozzo presents the following cross-appeal issue: Should Marozzo be awarded

attorney’s fees? In addition, Marozzo asserts in its Summary of the Argument that

“Marozzo is not responsible for the cost of removing the snow piles since it is within the

established scope of the easement.”      Yet, Slauson filed an affidavit (with attached

documentation) in the District Court which established that Marozzo placed the snow

piles outside the area subject to the easement, that the snow piles prevented access

between Slauson’s north and south properties (Tracts B and C, respectively), and that it

cost him $430.00 to remove the snow. And as the District Court noted, Marozzo did not

refute this amount or the location of the piles. Likewise on appeal, Marozzo utterly fails

to show that the District Court’s analysis was in error. Marozzo asserts that the easement


                                            6
“included snow piling,” but Marozzo does not address the fact that the piles were placed

outside the area subject to the easement. Marozzo simply offers the rather flippant

observation that “Slauson could have let the snow piles melt rather than intentionally

incurring costs.” Thus, Marozzo having failed to present an appropriate argument in

support of its position, we will not consider this matter any further. Marx, ¶¶ 12-13.

                               STANDARD OF REVIEW

¶13    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

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). 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

¶14    Issue 1. Did the prescriptive easement over Tract B survive the extinguishment
       of Amerigas’s leasehold?

¶15    Slauson contends that the easement over Tract B ceased to exist when Amerigas’s

lease of Tract A ended. He argues that Amerigas established the requisite elements of a

prescriptive use and that a prescriptive easement established by a lessee terminates at the



                                             7
end of the leasehold. He also argues that the easement established by Amerigas was in

gross and that an easement in gross terminates with the estate that benefitted from it.

¶16    Addressing Slauson’s second point first, we do not agree that the easement was in

gross. An easement—which is a nonpossessory interest in land that gives a person the

right to use the land of another for a specific purpose—may be “appurtenant” or “in

gross.” Taylor v. Montana Power Co., 2002 MT 247, ¶ 11, 312 Mont. 134, 58 P.3d 162;

Blazer v. Wall, 2008 MT 145, ¶ 24, 343 Mont. 173, 183 P.3d 84.                  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.

¶17    As we recently explained in Broadwater Development, LLC v. Nelson, 2009 MT

317, 352 Mont. 401, ___ P.3d ___, we determine whether an expressly created easement

is appurtenant or in gross based on applicable statutory provisions (e.g., §§ 70-17-101

and -102, MCA) and “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

accomplished by the easement.” Broadwater Development, ¶ 34. Here, because we are

considering a prescriptive easement, as opposed to an express easement, there is no


                                              8
instrument to examine, and we must look instead to the situation of the properties

involved, the purpose to be accomplished by the easement, and the nature of the

enjoyment by which it was acquired. See § 70-17-106, MCA (“The extent of a servitude

is determined by the terms of the grant or the nature of the enjoyment by which it was

acquired.” (emphasis added)); cf. Leichtfuss, ¶ 42 (because the easement at issue had

been created by prescriptive use, there were no written terms from which we could

discern the parties’ intent; thus, our inquiry focused on “the expectations the

circumstances should reasonably have engendered in the parties”). 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.

Broadwater Development, ¶ 34. Furthermore, we begin with the presumption that the

easement is appurtenant. Broadwater Development, ¶ 34.

¶18    Here, there is nothing to indicate that Amerigas or Bertelsen contemplated that

their use of Tract B was independent of their use of Tract A. To the contrary, the record

reflects that they used Tract B in connection with Tract A. In fact, the purpose of the

easement was to facilitate Amerigas’s business operations on Tract A, and this use is the

manner by which the easement was established.           Notably, “the right of transacting

business upon land” is statutorily recognized as a type of easement appurtenant, see

§ 70-17-101(6), MCA, but is not listed as a type of easement in gross, see § 70-17-102,

MCA. There also is nothing to indicate that Amerigas or Bertelsen expected to retain a

personal, nonpossessory interest in Tract B rather than have the easement pass with the

title to Tract A. All of this indicates that the easement is appurtenant.


                                              9
¶19    Slauson’s citations to Rasmussen v. Fowler, 245 Mont. 308, 800 P.2d 1053 (1990),

in support of his “in gross” theory are unavailing. For one thing, the Rasmussen Court

did not hold that “[a] lessee is not entitled to an easement appurtenant” or that “[a]

prescriptive easement created for the benefit of an interest less than fee simple is not

appurtenant.” The Court did observe that Rasmussen, who held an agricultural lease on

200 acres of state land, could not have an easement appurtenant to the state land over

Fowler’s land. Rasmussen, 245 Mont. at 313, 800 P.2d at 1056. But the Court cited no

authority in support of this proposition, and this portion of the opinion was arguably

dictum in any event, given that the Court had already held that a public easement existed

to access the state land, see Rasmussen, 245 Mont. at 312, 800 P.2d at 1056. Moreover,

the facts and holding of Leichtfuss—where we concluded that a prescriptive easement in

favor of a life estate may survive the extinguishment of the life estate and pass to a

subsequent purchaser of that land, see Leichtfuss, ¶¶ 37-45—directly contradict Slauson’s

assertion that a prescriptive easement created for the benefit of an interest less than fee

simple cannot be appurtenant. We conclude that the prescriptive easement over Tract B

is appurtenant.

¶20    There is no question that this easement passed to Marozzo if it was attached to

Tract A at the time of the Bertelsen-Marozzo sale. See Burleson v. Kinsey Cartwright,

2000 MT 278, ¶ 16, 302 Mont. 141, 13 P.3d 384 (“A transfer of real property passes all

easements attached to it. Section 70-20-308, MCA. Thus, the valid conveyance of real

property conveys all easements that attach to the property.”); accord Leichtfuss, ¶ 29; see

also Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land


                                            10
§ 9:1, 9-4 (2009) (hereinafter “Bruce & Ely”) (“Appurtenant easements acquired by

prescription are, of course, transferred with the dominant estate.”). The question raised

by Slauson, rather, is whether the easement existed when Bertelsen sold Tract A to

Marozzo. More specifically: Did the termination of Amerigas’s lease concomitantly

extinguish the easement?

¶21    We addressed a similar issue in Leichtfuss, where the question was whether a

prescriptive use established by the owners of a life estate terminated when the life estate

ended. The general rule, we noted, is that “an easement burdening or benefitting an

estate less than a fee simple ends when that estate expires.” Leichtfuss, ¶ 37 (emphasis

omitted); see also Bruce & Ely, § 2:9, 2-24 to 2-25, § 10:15, 10-32. We observed that

this principle makes sense where the servient tenement is held in less than fee simple, as

“a person can convey no more or greater title than he holds. In other words, a life tenant

or a lessee generally cannot impose upon his land a burden that passes to the

remainderman or the reversioner.” Leichtfuss, ¶ 38 (citation omitted). But where (as

here) the dominant tenement is held in less than fee simple, we concluded that “rigid

application of a rule that prevents the benefit of an easement from running to a

remainderman or reversioner is unsound.” Leichtfuss, ¶ 41. Whether a prescriptive

easement established by a life tenant or a lessee continues to exist after the life estate or

leasehold ends depends on what the parties should reasonably have expected during the

prescriptive period. See Leichtfuss, ¶¶ 42-44.

¶22    Applying this rule here, Marozzo offers a brief argument that Bertelsen, Amerigas,

and Edwards did not expect the easement over Tract B to terminate with Amerigas’s


                                             11
lease of Tract A. However, this approach presupposes that the easement was held by an

estate less than a fee simple, and Marozzo’s primary argument is not that the easement

was held by Amerigas, Bertelsen’s lessee, but rather that it was held by Bertelsen, the fee

simple owner of Tract A, and as such that it passed with the sale of Tract A. Slauson, on

the other hand, insists that the easement was established by and for Amerigas; after all,

Amerigas leased Tract A during the prescriptive period, Amerigas operated a business on

that property, Amerigas’s customers used Tract B for access and parking, and Amerigas

constructed encroachments on Tract B in connection with its use of Tract A. Slauson

thus maintains that the easement did not survive the extinguishment of Amerigas’s lease.

We conclude, however, that Slauson’s argument is foreclosed by the District Court’s

decision in the prior lawsuit, which we affirmed in Slauson, and that Leichtfuss,

therefore, is distinguishable and does not control the outcome of this case.

¶23    As Marozzo points out, Slauson chose in the prior lawsuit to sue Bertelsen, not

Amerigas. The District Court ruled in November 2005 that “[t]he Defendants”—i.e.,

Bertelsen Family Trust, Neil Bertelsen and Phyllis A. Bertelsen, trustees—established a

prescriptive easement to use Tract B. Granted, in reaching this conclusion, the court

cited various uses of Tract B by Amerigas and implicitly assumed that these uses inured

to the benefit of Bertelsen—a questionable assumption, given the longstanding legal

principles discussed in Leichtfuss. But Slauson did not contest this aspect of the court’s

decision; and while he seems to do so now, he nevertheless conceded in the District Court

that the present case is “controlled” by the court’s November 2005 decision, and he

likewise asserts on appeal that he and Marozzo are “bound” by that decision.


                                             12
¶24    Thus, Slauson instead seeks to limit the easement recognized by the District Court

in favor of Bertelsen. He contends that the easement was “for the benefit of [Bertelsen’s]

lessee” and not for the benefit of Bertelsen’s successors, as if to suggest that Bertelsen’s

easement contained a durational limitation. Yet, while the District Court’s decision sets

forth limitations on the utilization of the easement, it does not set forth a limitation on the

duration of the easement. Moreover, the record reflects that Bertelsen used Tract B along

with Amerigas (e.g., he installed some landscaping on Tract B in the mid-1990s) and that

Bertelsen intended the uses of Tract B which occurred during the prescriptive period to

continue indefinitely.    For these reasons, we do not agree with Slauson that the

termination of Amerigas’s lease extinguished Bertelsen’s easement.

¶25    In sum, based on the facts and prior court decisions here, Bertelsen held a

perpetual easement appurtenant over Tract B for the benefit of Tract A. The easement

passed to Marozzo with the sale of Tract A, but it remains limited to the prescriptive uses

which were established in the prior lawsuit and recited in the District Court’s November

2005 judgment. The material facts being undisputed, and Marozzo having shown that it

is entitled to judgment as a matter of law concerning the easement’s validity, we hold that

the District Court did not err in granting in part Marozzo’s motion for summary judgment

and denying in part Slauson’s motion for summary judgment.

¶26    Issue 2. Should Marozzo be awarded attorney’s fees?

¶27    Marozzo asserts that it is entitled to attorney’s fees “because this suit was filed

with both parties agreeing that the doctrine of res judicata applied and the scope of the

easement was considered litigated in the previous court proceeding.” Marozzo further


                                              13
asserts that it is entitled to attorney’s fees “due to Slauson’s interference with the scope of

the easement.” As Slauson quite correctly points out, however, “[i]n the United States,

the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from

the loser.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95

S. Ct. 1612, 1616 (1975). This is in fact the longstanding rule in Montana, often referred

to as the “American Rule,” and we have held that “absent statutory or contractual

authority, attorney’s fees will not be awarded to the prevailing party in a lawsuit.” Erker

v. Kester, 1999 MT 231, ¶ 43, 296 Mont. 123, 988 P.2d 1221; accord Stanley v. Lemire,

2006 MT 304, ¶ 72, 334 Mont. 489, 148 P.3d 643. We have recognized an equitable

exception to this rule under which “a district court may award attorney’s fees to make an

injured party whole under its equity powers.” Erker, ¶ 44. This exception, however,

applies only in “rare” and “isolated” instances—in particular, only where the action into

which the prevailing party has been forced is utterly without merit or frivolous, and only

in cases with particularly limited facts. Erker, ¶ 44; Goodover v. Lindey’s Inc., 255

Mont. 430, 446-47, 843 P.2d 765, 774-76 (1992); Jacobsen v. Allstate Ins. Co., 2009 MT

248, ¶ 21, 351 Mont. 464, ___ P.3d ___.

¶28    Marozzo intimates that this is one of those rare and isolated instances in which an

equitable award of attorney’s fees should be granted; however, we are not persuaded that

Slauson’s claims against Marozzo were utterly without merit or frivolous. Alternatively,

Marozzo contends that it is entitled to attorney’s fees under § 70-17-112(5), MCA, which

states that if a legal action is brought to enforce rights relating to a canal or ditch

easement, the prevailing party is entitled to reasonable attorney’s fees. Yet, Marozzo did


                                              14
not bring this action to enforce an easement for a canal or ditch. And while Marozzo

argues that the statute “should also include interference with prescriptive easements” like

the one at issue here, this is an argument to be made to the Legislature. This Court may

not rewrite the statute to suit Marozzo. Section 1-2-101, MCA (“In the construction of a

statute, the office of the judge is simply to ascertain and declare what is in terms or in

substance contained therein, not to insert what has been omitted or to omit what has been

inserted.”).   We accordingly conclude that Marozzo has not demonstrated that it is

entitled to attorney’s fees.

                                    CONCLUSION

¶29    The District Court determined that Bertelsen’s prescriptive easement passed to

Marozzo with the sale of Tract A. The court then awarded Marozzo $418.60 for the

landscaping Slauson had removed from Tract B, awarded Slauson $430.00 for the costs

of removing snow piled by Marozzo on Slauson’s property south of the area subject to

the easement, and denied Marozzo’s request for costs and attorney’s fees. The parties

have not shown error in any of these rulings.

¶30    Affirmed.

                                                        /S/ JAMES C. NELSON


We Concur:

/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JIM RICE




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