                                                                                           April 7 2010


                                         DA 09-0299

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2010 MT 71



JONATHAN FRAME,

              Plaintiff and Appellee,

         v.

THEODORE D. HUBER, CARLEEN M. HUBER,
CHARLES ANDREW POOLE, VALERIE ALEISA SMITH,
GREGORY L. YETTER, CATHERINE M. YETTER,
LARRY R. RACICOT, MARGARET POOLE RACICOT,
GARY L. MARTINSEN and LORI B. MARTINSEN,

              Defendants and Appellants.


APPEAL FROM:          District Court of the Eighth Judicial District,
                      In and For the County of Cascade, Cause No. CDV 08-375(b)
                      Honorable Julie Macek, Presiding Judge


COUNSEL OF RECORD:

               For Appellants:

                      Robert J. Phillips, Amy O. Duerk; Phillips Law Firm P.C.,
                      Missoula, Montana

               For Appellee:

                      Patrick E. Melby, Erin F. MacLean; Luxan & Murfitt, PLLP,
                      Helena, Montana


                                                   Submitted on Briefs: October 28, 2009

                                                              Decided: April 7, 2010


Filed:
                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Hubers, Poole, Smith, Yetters, Racicots and Martinsens appeal from the District

Court’s April 17, 2009, order granting Frame’s motion for summary judgment, ruling that

Frame has an easement by necessity across their lands, and denying all other motions for

summary judgment. We reverse.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶2     The parties all own tracts of land that abut the Dearborn River. Frame’s lot abuts

the River on the south bank and lies in Lewis & Clark County. The Huber and Poole lots

abut each other and are on the opposite side of the Dearborn River from Frame’s lot, in

Cascade County.1 In 1971 Fred and Nina Dear subdivided land they owned, including all

of the land that now comprises the lots owned by the parties. That same year an entity

called LDS, Inc. bought the subdivided Dear property and sold the lots to the parties or to

their predecessors in interest. The Poole lot was bought in January, 1971; the Huber lot

was bought in August, 1971; and the Frame lot was bought in November, 1971. Jonathan

Frame acquired the Frame lot in 2002. The State of Montana owned the bed of the

Dearborn River, Montana Coalition for Stream Access v. Curran, 210 Mont. 38, 682 P.2d

163 (1984), at and before the time the current lots were created and sold.

¶3     A road known as the Dearborn River Road abuts the northern boundary of the

Huber and Poole lots and provides access to those lots and other land in the area. The

Dearborn River Road does not reach the Dearborn River (at least in the area at issue in

1
  Theodore and Carleen Huber own the parcel referred to as the Huber lot. Poole, Smith,
the Yetters, the Racicots and the Martinsens own the parcel referred to as the Poole lot.
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this case) or the Frame lot. Another road turns off of the Dearborn River Road, follows

on or near the property line between the Huber and Poole lots and reaches the Dearborn

River on Hubers’ land. At the place where this second road reaches the River it is

possible, at least in times of lower water flows, to ford the River with a vehicle and reach

Frame’s lot. There is no bridge.

¶4       Hubers or Pooles have long maintained a locked gate at the turn-off onto their

property from the Dearborn River Road. They have used the gate to control access to

their property and to the road leading across their property down to the River. They

excluded Frame on one or more occasions when he sought to cross their land to reach the

River.

¶5       Frame sued, claiming that he was entitled to an easement by necessity across the

Poole/Huber land so that he could reach the Dearborn River and cross it to reach his

property. The parties moved for summary judgment. The District Court concluded that

Frame had an easement by necessity to cross the Poole/Huber lots from the Dearborn

River Road in order to reach the Dearborn River.

¶6       The dispositive issue is whether the District Court erred when it ruled that Frame

had an easement by necessity across the Poole/Huber land.

                                STANDARD OF REVIEW

¶7       This Court reviews a district court’s decisions on motions for summary judgment

de novo. Allstate Ins. Co. v. Wagner-Ellsworth, 2008 MT 240, ¶ 7, 344 Mont. 445, 188

P.3d 1042.

                                      DISCUSSION

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¶8     The District Court found that Frame had an implied easement by necessity to cross

the Poole/Huber lots from the Dearborn River Road to reach the Dearborn River, which

he would then have to cross to reach his lot.

¶9     Montana law recognizes the existence of easements by necessity as a species of

implied easements. Easements by necessity arise from a legal fiction that the owner of a

tract of land would not sell parts of the land so as to isolate and landlock a remaining

portion of it without having intended to reserve a way of access to the parcel over the

lands being severed. Wolf v. Owens, 2007 MT 302, ¶ 16, 340 Mont. 74, 172 P.3d 124.

The law implies intent by the landowner to provide an easement by necessity in favor of

the landlocked parcel across the landowner’s other lands when necessary to reach a

public road. In easement terms, the landlocked parcel is the dominant estate, and the

landowner’s other sold property that must be crossed to reach the landlocked parcel is the

servient estate. Albert G. Hoyem Trust v. Galt, 1998 MT 300, ¶ 18, 292 Mont. 56, 968

P.2d 1135; Schmid v. McDowell, 199 Mont 233, 237, 649 P.2d 431, 433 (1982).

¶10    An easement by necessity can arise only within the context of land held in

common ownership at the time a severance creates a landlocked parcel, and cannot exist

over the land of a third person whose land was not part of the common ownership. Big

Sky Hidden Village Owners Assoc. v. Hidden Village, Inc., 276 Mont. 268, 277, 915 P.2d

845, 850 (1996). Easements by necessity arose from a public policy against isolating

tracts of land and thereby minimizing their utility, Big Sky Hidden Village, 276 Mont. at

277, 915 P.2d at 851, but they may arise only in the specific circumstances that come

within the requirements of law.       Implied easements by necessity have never been

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intended to provide access across the land of others to benefit any and all landlocked

property.

¶11   The two essential elements of an easement by necessity are referred to as unity of

ownership and strict necessity, and the proponent of the easement must prove the

necessary elements by clear and convincing evidence. Watson v. Dundas, 2006 MT 104,

¶¶ 32-33, 332 Mont. 164, 136 P.3d 973. The servient property owner may own his land

for decades before finding it subjected to a claim of easement by necessity. If the

easement is established, the servient property owner then suffers permanent loss of some

of his property rights without any compensation. Therefore, an important component of

the law is that easements by necessity are “considered with extreme caution” because

they deprive the servient tenement owner of property rights “through mere implication.”

Graham v. Mack, 216 Mont. 165, 174, 699 P.2d 590, 596 (1985) (emphasis in original).

¶12   Unity of ownership exists where the owner of a tract of land severs part of the tract

so as to create a landlocked parcel without expressly providing an outlet to a public road.

Watson, ¶¶ 32, 33. A single owner must at one time have owned both the landlocked

tract to be benefited by the easement (the dominant tenement) and the tract across which

the easement would pass (the servient tenement). Loomis v. Luraski, 2001 MT 223, ¶ 49,

306 Mont. 478, 36 P.3d 862. Unity of ownership is established if the dominant and

servient parcels were owned by one person or entity immediately prior to the severance

that gives rise to necessity. Schmid, 199 Mont. at 238, 649 P.2d at 433. Here, for

example, Frame’s claim is based upon the contention that as among himself, Poole and

Huber, his lot was landlocked by the LDS sale of the Poole and Huber lots.

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¶13      An easement by necessity is created by operation of law at the time of severance

of the parcels of land, Hoyem Trust, ¶ 17, but that may occur decades before a judicial

determination of whether there is an easement by necessity.               Kelly v. Burlington

Northern, 279 Mont. 238, 244-45, 927 P.2d 4, 7-8 (1996) (unity of ownership traced to

1891).

¶14      The element of strict necessity requires that there be no practical access to a public

road from the landlocked parcel except across lands that were formerly in common

ownership. Kelly, 279 Mont. at 244, 927 P.2d at 7. Strict necessity must exist at the time

the tracts are severed from the original ownership and at the time the easement is

exercised. Watson, ¶ 32. A developed way of access to the landlocked parcel need not

actually exist at the time of severance, and an easement by necessity is “distinguished

from other implied easements on the simple ground that [a developed way] need not be in

existence at the time of conveyance . . . .” Schmid, 199 Mont. at 237, 649 P.2d at 433.

¶15      The requisite necessity is the necessity to cross land formerly in common

ownership for access to a public road. Waters v. Blagg, 2008 MT 451, ¶¶ 16-17, 348

Mont. 48, 202 P.3d 110. While an easement by necessity arises at the time of severance

of the tracts from unified ownership, it can lie dormant through successive ownership

changes until an owner elects to exercise the right. Loomis, ¶ 53.

¶16      In this case the evidence of unity of ownership arises, if at all, from the fact that in

1971 the Dears and then LDS owned all of the lots now owned by the parties. Dears sold

all the lots to LDS which sold the lots to the parties or their predecessors, the last to sell

being the Frame tract.       The unity of ownership required to imply an easement by

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necessity cannot exist in this case, however, because the State-owned bed and banks of

the Dearborn River separate the Poole/Huber land from the Frame land. The State-owned

land--the bed and banks of the Dearborn River--was never in common ownership with

the Poole, Huber and Frame lots. While LDS owned and then sold each of the lots, the

Poole and Huber lots could not have been severed from the Frame lot because they were

never contiguous or attached to it. The River has always separated the tracts.

¶17   An easement by necessity can be implied, if at all, only to cross lands formerly

held in unified ownership to reach a public road. An easement by necessity cannot be

implied to merely reach the land of a third party which was not part of the original

unified ownership.   As previously noted, it is established that a claim of easement by

necessity is viewed with extreme caution, and that the proponent must demonstrate the

required elements by clear and convincing evidence. The court considered a similar

situation in Schmid where a tract of land formerly in unified ownership had been severed

into two parcels, both of which were separated from a public road by State-owned land.

The owner of one parcel claimed an easement by necessity across the other parcel to

reach the State-owned land in order to cross it to access the public road. This Court

rejected the claim, holding that an easement by necessity

      can only arise out of the land granted or reserved by the grantor and never
      out of the land of a third party or a stranger to the title. Here, the land now
      owned by the State of Montana was not part of the original land owned by
      Junkins, and, therefore, not under “common ownership” or “unity of title.”
      On this ground alone, appellants’ claim for the way of necessity must fail.

Schmid, 100 Mont. at 238, 649 P.2d at 431. This Court continues to follow the Schmid

rule. Kullick v. Skyline Homeowners, 2003 MT 137, ¶ 25, 316 Mont. 146, 69 P.3d 225;

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Watson, ¶ 33; Waters, ¶¶ 16-17. Here, as in Schmid, the State-owned land between the

landlocked parcel and the public road defeats a claim of easement by necessity. Because

the Dearborn River dissects the lots, there was never unity of ownership.

¶18    While Frame disclaims an intent to seek an easement across the State-owned

Dearborn River, that is not determinative of whether an easement by necessity may be

implied here.    Under prevailing principles governing easements by necessity, and

particularly as illustrated in Schmid, the requirement for unity of ownership can be met

only if all the land necessary to provide the easement was once in unified ownership.

¶19    Frame has no easement by necessity to cross the Huber/Poole lots to reach the

Dearborn River, and the decision of the District Court is reversed.


                                                    /S/ MIKE McGRATH


We concur:


/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




Justice Patricia O. Cotter specially concurs.

¶20    I concur in the result reached by the Court and agree that the District Court’s grant

of summary judgment should be reversed. I write separately because I do not wholly

agree with the Court’s rationale in reaching this decision




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¶21    An easement by necessity has two required elements: (1) unity of ownership, and

(2) strict necessity at the time the unified tracts are separated. To demonstrate unity of

ownership, “the tract over which the easement is claimed must have been owned at some

time by the same person holding title to the land that the easement would benefit.”

Loomis v. Luraski, 2001 MT 223, ¶ 49, 306 Mont. 478, 36 P.3d 862.                The Court

concludes that unity of ownership cannot exist in this case because the Dearborn River

separates the Poole/Huber land from the Frame tract. I disagree with this conclusion for

the simple fact that Frame is not seeking an easement across the Dearborn River. LDS

owned all three parcels at one time and then severed them at a later date. Frame is only

seeking an easement across the Poole/Huber tracts to the Dearborn River. He is not

seeking an easement of necessity over state lands. Once Frame has an easement to the

Dearborn River, he can then cross it in order to reach his land.

¶22    In this connection, I believe Schmid is distinguishable and the Court errs in relying

upon it in this case. In Schmid, a claimant sought an easement across state-owned land

and across the land of private landowners. The Court in Schmid correctly noted that a

“way of necessity” in that case could not be claimed “over the lands of a third party or a

stranger in title . . . .” Schmid, 199 Mont. at 236, 649 P.2d at 432. The claimants in that

case argued that they had a way of necessity over private and state lands. Schmid, 199

Mont. at 236, 649 P.2d at 432. Here, Frame is not claiming an easement over state land,

but merely claiming one to the river.       Frame does not need an easement over the

Dearborn River in order to lawfully access his land. The claimed easement of necessity

would only burden the Poole or Huber tracts. Because there was unity of ownership

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among the Poole, Huber, and Frame tracts before LDS severed these parcels, I would

conclude, as the District Court did, that the unity of ownership requirement has in fact

been satisfied.

¶23    However, due to the timing of the severance of the property in this case, I cannot

conclude that “strict necessity” for an easement over the Poole tract existed at the time of

severance. As the Court stated in Albert G. Hoyem Trust v. Galt, 1998 MT 300, ¶ 18,

292 Mont. 56, 968 P.2d 1135, “[a] right-of-way by absolute necessity is created by

implied grant over the remaining lands of the seller when the owner of a tract of land

sells a part of the tract that has no outlet to a public road except over the other lands of

the seller.” (Emphasis added.) LDS owned all three tracts at one time. In January 1971,

LDS severed the Poole tract, and retained the other two. Once the Poole tract was

severed from the other two, the remaining lands of LDS were the Huber and Frame

tracts. At this point, LDS could use the Huber tract in order to reach the Dearborn River

since the southern boundary of the Huber tract abuts the Dearborn. In August 1971, LDS

severed the Huber tract from the Frame tract. At this point, the Frame tract actually

became landlocked, or “riverlocked.” However, if an easement of necessity to reach the

Dearborn River (and then presumably access the Frame tract) could be said to exist at all

in this case, it could exist only over the Huber tract due to the timing of the severances.

That is because “[a] way of necessity depends solely upon ‘strict necessity’ at the time of

conveyance . . . .” Hoyem Trust, ¶ 19. In other words, the existence of strict necessity is

determined when land is severed or conveyed, and so the timing of the severance is a



                                            10
critical component in determining whether or not strict necessity exists. See also Wolf v.

Owens, 2007 MT 302, ¶ 19, 340 Mont. 74, 172 P.3d 124.

¶24    Because the Poole tract was severed from the LDS lands at a point in time earlier

than the severance of the Huber/Frame tracts, Frame’s claim for an easement by necessity

over the Poole tract must fail as a matter of law. If an easement of necessity exists in this

case, it could exist only over the Huber tract. Since Frame’s claim was for an easement

over the Poole tract, I concur in the Court’s decision.



                                                  /S/ PATRICIA O. COTTER




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