                                                                                              05/16/2017


                                            DA 16-0410
                                                                                          Case Number: DA 16-0410

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2017 MT 119N



MARY VANBUSKIRK and ROGER BARBER,

               Plaintiffs and Appellees,

         v.

PATRICIA DOW GEHLEN, RAY GEHLEN,
Trustees, GEHLEN PATRICIA DOW TRUST,

               Defendants and Appellants.


APPEAL FROM:           District Court of the Twelfth Judicial District,
                       In and For the County of Hill, Cause No. DV 14-126
                       Honorable David Cybulski, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Christopher D. Meyer, CD Meyer Law Firm, Bozeman, Montana

                For Appellees:

                       Brian Lilletvedt, Jamie Bedwell, Bosch, Kuhr, Dugdale, Martin & Kaze
                       PLLP, Havre, Montana



                                                    Submitted on Briefs: March 15, 2017

                                                              Decided: May 16, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(c), 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 Patricia Dow Gehlen and Raymond Gehlen are the trustees of the

Patricia Dow Gehlen Trust, hereinafter, collectively, “Gehlens.” Gehlens appeal the grant

of summary judgment by the Twelfth Judicial District Court, Hill County, in favor of Mary

VanBuskirk and Roger Barber, hereinafter, collectively, “VanBuskirks.”

¶3    Much like a phoenix, this case arises out of an old easement dispute, which has been

litigated several times. The contested road, referred to as the “Northern Loop Road,”

crosses a field currently owned by Gehlens. Northern Loop Road is located in Section 2,

Township 32 North, Range 16 East, M.P.M., Hill County. The map below shows the

location of Northern Loop Road.




                                         2
                               ...,
                                         •,
                         181h31
                       ____

                                                                    Path referenced in Exhibit C of
                                                                    February 13, 1987 stipulation

                                                                        Northern Loop road

                                                                      Al

               Patricia Dow Gehlen Trust Land
                                                           02                                              01
                                                                                                        Non-Party
                                                                                                        Property



                                                       _


              Non-Party           Patricia Dow Gehlen I Non-Party             VanBuskirk   VanBuskirk
              Property            Trust Land            Property
                                                                               1976
             County Road 440           Western Loop road                                     1978
    32N 16E 40________----,
                                                                 2008
                                                                VanBuskirk    VanBuskirk

                                                                                 1977
                                      Non-Party
                                                           11                r____                         12
                                      Property




¶4         In 1976, Certificate of Survey #440093 (COS #440093) was completed “for the

purpose of creating a new tract.” COS #440093 created a new 21 acre parcel, which

VanBuskirks’ predecessors-in-interest1 purchased. Following the purchase, VanBuskirks’

predecessors-in-interest sought to secure their access to the property via Northern Loop

Road.




1
 VanBuskirks’ predecessors-in-interest are Mary VanBuskirk’s parents, Warren and Edith
VanBuskirk.
                                         3
¶5        In 1980, VanBuskirks’ predecessors-in-interest brought a lawsuit against Gehlens’

predecessors-in-interest2 “to keep the [N]orthern [L]oop [R]oad available based on

prescriptive use.”       At that time, District Judge Leonard Langen determined that

VanBuskirks’ predecessors-in-interest could not establish a prescriptive easement because

“they did not have five years continuous use of the [Northern] [L]oop [R]oad.” Then, in

1982, VanBuskirks’ predecessors-in-interest brought a second lawsuit, claiming a right of

way by necessity over the road. The parties entered into negotiations to settle the matter

and, finally, in 1987, the parties reached a settlement memorialized by a February 23, 1987

Stipulation (Stipulation) filed with the District Court and recorded in the Hill County Clerk

and Recorder’s Office.

¶6        The Stipulation stated:

          [Gehlens’      predecessors-in-interest]     agree     that    [VanBuskirks’
          predecessors-in-interest] have the right to use the path across that real
          property more particularly described on Exhibit “C” appended hereto and by
          this reference made a part hereof, at all times which do not interfere with the
          farming operation on that real property, or whenever necessary.

(Emphasis added.) The incorporated Exhibit C stated:

          A roadway in the NE½SE½; Section 2, Township 32 North, Range 16 East,
          M.P.M., Hill County, Montana, the centerline of which is described as
          follows:

          Beginning at a point which lies S0°1’E a distance of 30.0 feet from the
          Northwest corner of Certificate of Survey #44[0]093; Thence S89°28’W a
          distance of 71.4 feet; Thence N24°14’W a distance of 236.3 feet; Thence
          N1°39’W a distance of 283.5 feet; Thence N21°20’E a distance of 223.9 feet;
          Thence N7°38’W a distance of 3261.4 feet to a point on the South [r]ight-of-
          way [l]ine of U.S. Highway #2.
2
    The Gehlens’ predecessors-in-interest are Vivian and Roy Bruner and Dow Brothers, Inc.
                                               4
       Length of easement is 3,176.5 feet.

(Emphasis added.) Below the legal description on Exhibit C is a map from the United

States Department of the Interior Geological Survey. Upon the map is a hand-drawn line

roughly indicating the location of the described “path.” The Stipulation was signed by the

partys’ attorneys and included an order signed by Judge Langen dismissing the litigation

for good cause on the basis of the Stipulation.

¶7     In the current case, the District Court concluded “the Stipulation created a right of

way to cross the field on the path which transverses what is now Defendants’ property, but

did not create a right to ‘build up’ a road across the property,” which constituted an

easement.    The District Court permanently restrained and enjoined Gehlens from

interfering with VanBuskirks’ or their successors’ use of the easement, and awarded

VanBuskirks’ attorney fees and costs in prosecuting the action. Alternatively, the District

Court held that VanBuskirks had acquired a prescriptive easement across the road. Gehlens

challenge these rulings on appeal.

¶8     “We review de novo a district court’s grant or denial of summary judgment,

applying the same criteria of M. R. Civ. P. 56 as a district court.” Pilgeram v. GreenPoint

Mortg. Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839 (citation omitted).

“We review a district court’s conclusions of law to determine whether they are correct and

its findings of fact to determine whether they are clearly erroneous.” Pilgeram, ¶ 9 (citation

omitted).


                                          5
¶9     “An easement is a nonpossessory interest in land--a right which one person has to

use the land of another for a specific purpose or a servitude imposed as a burden upon the

land.” Blazer v. Wall, 2008 MT 145, ¶ 24, 343 Mont. 173, 183 P.3d 84 (citations omitted).

Further,

       [a]n 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 (citations omitted). “An easement appurtenant must have both a dominant

tenement and a servient tenement,” both of which must be determinable. Blazer, ¶ 24

(citations omitted). “A document creating an easement may reference a separate document

that adequately describes the easement’s contents.” James v. Chicago Title Ins. Co., 2014

MT 325, ¶ 12, 377 Mont. 264, 339 P.3d 420 (citations omitted).                 Further, “[t]he

construction of a writing granting an interest in real property . . . is governed by the rules

of contract interpretation.” Broadwater Dev., L.L.C. v. Nelson, 2009 MT 317, ¶ 19, 352

Mont. 401, 219 P.3d 492 (citations omitted). Finally, the rules of contract construction

       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 . . . and that
       when a contract is reduced to writing, the intention of the parties is to be
       ascertained from the writing alone if possible.

Broadwater Dev., L.L.C., ¶ 19 (citation omitted; emphasis added).

¶10    In this case, the subject easement was created out of the settlement of a lawsuit

between Gehlens’ predecessors-in-interest and VanBuskirks’ predecessors-in-interest.

The Stipulation, essentially a contract, was entered into by the parties and submitted to the

                                           6
District Court. The Stipulation, including attached Exhibit C, evidences an intention by

the parties to create an easement appurtenant.         The Stipulation indicates Gehlens’

predecessors-in-interest were granting VanBuskirks’ predecessors-in-interest a “right to

use” the “path” across the property described in the exhibit, and used the term “easement”

to describe this right. The easement itself is identified by the property description provided

in Exhibit C. Further, the servient tenement can also be determined from the property

description. Based on the incorporated legal description and associated map, it is clear that

the easement runs directly through Gehlens’ property.           Additionally, the dominant

tenement can also be determined based on the property description in Exhibit C. The

easements description begins at the Northwest corner of COS #440093, which created the

subject VanBuskirk parcel, and terminates at United States Highway Number Two.

Northern Loop Road is not an open-ended roadway—it serves VanBuskirks’ property, the

dominant tenement identified by COS #440093.

¶11    We affirm the District Court’s conclusion that the 1987 Stipulation, which ended

the prior litigation, created an easement. Based on this conclusion, we further affirm the

District Court’s grant of a permanent injunction restraining and enjoining Gehlens from

interfering with VanBuskirks’ or their successors’ right to use the easement in the manner

provided in the Stipulation. Consequently, the District Court’s ruling on the prescriptive

easement claim was unnecessary and we do not address it further.

¶12    Regarding attorney fees, “a district court’s decision as to whether legal authority

exists to award attorney fees is a conclusion of law.” Trs. of Ind. Univ. v. Buxbaum, 2003

                                          7
MT 97, ¶ 15, 315 Mont. 210, 69 P.3d 663 (citation omitted). “We review conclusions of

law to determine whether the district court’s interpretation of the law is correct.” Buxbaum,

¶ 15 (citation omitted).

¶13    The District Court held VanBuskirks were entitled to attorney fees under

§§ 27-1-316(c) and 27-8-311, MCA. Section 27-1-316(c), MCA, a remnant of the Field

Code, defines the “detriment” that is caused by a “breach of a covenant of seisin, of right

to convey, of warranty, or of quiet enjoyment in a grant of an estate in real property” to

include “any expenses properly incurred by the covenantee in defending possession.” This

action is based on VanBuskirks’ claim to a nonpossessory easement interest, not a defense

of possession of an estate in real property. We have previously declined to award attorney

fees under § 27-1-316(c), MCA. See Haggerty v. Gallatin Cty., 221 Mont. 109, 121, 717

P.2d 550, 557 (1986); Stevenson v. Ecklund, 263 Mont. 61, 67, 865 P.2d 296, 299 (1993).

This provision does not authorize an award of attorney fees herein. However, the District

Court also cited the Uniform Declaratory Judgment Act in support of the fee award, under

which we have approved an award of attorney fees as supplemental relief. Buxbaum, ¶ 42.

We conclude that the District Court did not err by awarding attorney fees and costs here as

supplemental relief.

¶14    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. This appeal presents

no constitutional issues, no issues of first impression, and does not establish new precedent

or modify existing precedent. The District Court did not err in its conclusions of law.

                                          8
¶15   Affirmed.



                              /S/ JIM RICE


We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR




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