                                                                                                  01/16/2018


                                           DA 16-0534
                                                                                              Case Number: DA 16-0534

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                            2018 MT 8



THOMAS MICHAEL HUDSON and
REBECCA ANNE HUDSON,

              Plaintiffs and Appellants,

         v.

DENNIS R. IRWIN, IRWIN ENTERPRISES, LLC,
and WEST FORK LODGE, INC.,

              Defendants and Appellees.



APPEAL FROM:            District Court of the Twenty-First Judicial District,
                        In and For the County of Ravalli, Cause No. DV-12-250
                        Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                        Robert T. Bell, Reep, Bell, Laird & Jasper, P.C., Missoula, Montana

                For Appellees:

                        Martin S. King, Worden Thane P.C., Missoula, Montana



                                                     Submitted on Briefs: October 25, 2017

                                                                 Decided: January 8, 2018


Filed:

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


¶1     This is an appeal from a Twenty-First Judicial District Court order granting

summary judgment in favor of Dennis Irwin, Irwin Enterprises, LLC, and West Fork

Lodge, Inc. (collectively Irwin), concluding that Thomas and Rebecca Hudson (Hudsons)

do not have an easement to access a nearby airstrip. We affirm.

¶2     We restate the issues on appeal as follows:1

       1. Whether the District Court erred when it concluded that the Hudsons were not
       entitled to access an easement located on the Irwin Property.

       2. Whether the owner of real property who is establishing a general plan
       development can create an easement upon the owner’s own parcel.

       3. Whether the District Court’s prevailing party award of attorney fees should be
       vacated.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶3     The Hudsons own real property located in Ravalli County, Montana, known as

“Parcel A of Certificate of Survey No. 490742-R, Section 4, Township 1 North, Range 21

West, P.M.M., Ravalli County, Montana” (Hudson Property). Irwin owns real property

located in Ravalli County, Montana, known as “A tract of land located in and being a

portion of Section 4, Township 1 North, Range 21 West, P.M.M., Ravalli County,

Montana, and being more particularly described as Parcel B, Certificate of Survey No.




       1
         Because the issues we address are dispositive, we do not reach the other issues raised by
appellant on appeal.
                                                2
490742-R” (Irwin Property).2 Before being subdivided by a previous owner, the Hudson

and Irwin Properties were one in the same.

¶4    A privately owned, public use airport (Airport) is located on the Irwin Property.

The Airport was founded by Roy Shook for United States Forest Service purposes and

was operated from a building referred to as “West Fork Lodge.” In 1976, Certificate of

Survey (COS) 1075 was recorded, depicting eleven parcels of land. The airstrip to the

Airport is located within Parcel 7 of COS 1075. West Fork Lodge is located outside of

COS 1075 on COS 719 (West Fork Lodge Property).

¶5    Shook sold the land north of the airstrip to Harold Mildenberger and the airstrip

and West Fork Lodge to David Monks. In 1980, Monks conveyed the West Fork Lodge

Property to Shook Mountain Resort. In 1981, Monks conveyed Parcel 7 of COS 1075 to

Shook Mountain Resort. Also in 1981, an easement (Easement Grant) was executed and

recorded, which described an airport known as the Wilcox-Shook Mountain Resort

Airport that exists across portions of Parcels 4, 5, and 7 of COS 1075. The Easement

Grant stated that, as owners of real property including Parcels 4, 5, and 7 COS 1075,

Richard and Bette Lou Gamegan and Wayne A. and Betty M. Wilcox granted

      to the other Grantors, and to the owner of each parcel, Parcels 1 through 13,
      inclusive, Certificate of Survey No. 1075, records of Ravalli County,
      Montana: a non-exclusive easement for use of the easement premises and
      the air over same as an airport for the ingress, egress, and tie-down of one
      (1) airplane only for each of the above-described parcels. This grant is
      appurtenant to each of said parcels.




      2
          See Figure 1.
                                             3
¶6     In 1990, Shook Mountain Resort conveyed two tracts of land to Vaughn and Linda

Davis: West Fork Lodge Property located on COS 719 and Parcel 7 of COS 1075. That

same year, the Davises conveyed the same parcels to Helmet and Margot Syring. In

1992, the Syrings conveyed these parcels to Nancy Magee (Magee). In 1996, Magee

recorded COS 5379-R, in which the boundary lines of Parcel 7 of COS 1075 (Original

Parcel 7) and West Fork Lodge Property located within COS 719 were relocated. The

boundary line relocation reconfigured parcels labeled as Parcels 7A and 7B.             The

relocation also combined West Fork Lodge Property with that portion of Original Parcel

7 on which the airstrip and tie down area are located to form Parcel 7B. The remainder

of Original Parcel 7 became known as Parcel 7A. The only reference on COS 5379-R to

the Airport is a designation of an “Airstrip Easement” that depicts a small triangle of 0.05

acres of land in Parcel 7A located at the north end of the airstrip.

¶7     In 1997, Magee conveyed Parcel 7B to Paul Raddatz. In 1999, Raddatz conveyed

Parcel 7B back to Magee. In 2000, Magee recorded the deed of her completed purchase

from the Syrings of Original Parcel 7 and West Fork Lodge Property. Also in 2000,

Magee conveyed Parcel 7B to West Fork Billabong, LLC (West Fork Billabong). In

2001, Magee conveyed Parcel 7A to Richard Magee and Nancy Magee.

¶8     In 2002, the Magees recorded COS 490742-R, in which a boundary line

adjustment resulted in the transfer of the 0.05-acre triangle at the north edge of the

airstrip from Parcel 7A to Parcel 7B. Parcel 7A was renamed Parcel A, and Parcel 7B

was renamed Parcel B.



                                              4
¶9     In 2005, West Fork Billabong conveyed Parcel B to Irwin. In June 2007, the

Magees conveyed Parcel A to ECI # 147, LLC, an entity used by the Hudsons to facilitate

a like-kind exchange of property. Also in 2007, ECI # 147, LLC, conveyed Parcel A to

the Hudsons. The Hudsons and Irwin now own property adjacent to one another.

¶10    On June 1, 2012, the Hudsons filed a Complaint for Declaratory, Quiet Title,

Injunctive and Other Relief against Irwin. The Hudsons argue they are entitled to access

and use the airstrip from their property pursuant to the terms of the 1981 Easement Grant.

Irwin alleges that the Hudson Property is not benefitted under any easement to use the

airstrip or any portion of Irwin’s property.

¶11    In its Amended Opinion and Order dated April 21, 2016, the Twenty-First Judicial

District Court concluded that the Hudson Property is not benefitted by an easement that

would give the Hudsons access to an airstrip. The District Court granted Irwin’s Motion

for Partial Summary Judgment for declaratory judgment, quiet title, and injunctive relief

regarding Irwin’s counterclaims and claims made in the Amended Complaint.             The

District Court denied the Hudsons’ Motion for Partial Summary Judgment, holding that

Parcel A is not benefitted under the Easement Grant. The District Court also denied the

Hudsons’ Motion for Additional Discovery Under Rule 56(f), holding that no further

discovery on their alternative prescriptive easement claim is allowed. On July 26, 2016,

the District Court awarded Irwin $53,385.08 in attorney fees and costs. Hudsons appeal.

                               STANDARD OF REVIEW

¶12    This Court reviews a grant or denial of summary judgment de novo, applying the

same criteria of M. R. Civ. P. 56 as a district court. Lone Moose Meadows, LLC v. Boyne

                                               5
USA, Inc., 2017 MT 142, ¶ 7, 387 Mont. 507, 396 P.3d 128. Pursuant to M. R. Civ. P.

56, 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.” Lone Moose Meadows, ¶ 8. We review conclusions of law

for correctness and the district court’s findings of fact to determine if they are clearly

erroneous. Lone Moose Meadows, ¶ 7. “We will affirm the district court when it reaches

the right result, even if it reaches the right result for the wrong reason.” Talbot v.

WMK-Davis, LLC, 2016 MT 247, ¶ 6, 385 Mont. 109, 380 P.3d 823.

                                      DISCUSSION

¶13    1. Whether the District Court erred when it concluded that the Hudsons were not
       entitled to access an easement located on the Irwin Property.

¶14    The District Court held that “in the absence of an express reservation of an

easement to use the Airport in favor of Parcel 7A, Parcel 7A no longer retained any

benefit or right under the Easement Grant.” Magee failed to reserve an easement over

Parcel 7B in favor of Parcel 7A prior to conveying Parcel 7B to West Fork Billabong in

2000, extinguishing any right the Hudsons would have had to access an easement on the

Irwin Property. We affirm the District Court’s decision, but rely on alternate grounds.

¶15    The rules of contract interpretation govern the construction of a writing granting

an interest in real property. Broadwater Dev., L.L.C. v. Nelson, 2009 MT 317, ¶ 19, 352

Mont. 401, 219 P.3d 492 (citing 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


                                             6
497; Mary J. Baker Revocable Trust v. Cenex Harvest States, Coops., Inc., 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). When interpreting the language of a

contract, one must consider the intention of the parties at the time of contracting.

Section 28-3-301, MCA. If possible, the intention of the parties should be ascertained

from the writing alone. Section 28-3-303, MCA.

¶16    The 1981 Easement Grant provided each parcel within the general plan

development an easement to access the airstrip.3 The Easement Grant states that the

owner of each parcel has “a non-exclusive easement for use of the easement premises and

the air over same as an airport for the ingress, egress and tie-down of one (1) airplane

only . . . .” Pursuant to the Easement Grant language, each parcel was granted an

easement to access the airstrip for one airplane only.       After Magee recorded COS

490742-R and adjusted a boundary line in 2002, the single airplane easement was located

on Parcel B rather than Parcel A. Magee’s subdivision of Original Parcel 7 in 1996 and

later conveyances of parcels A and B did not reserve an easement benefitting Parcel A,

and significantly it did not grant the easement now on Parcel B to benefit Parcel A.

Consequently, future owners of Parcel A do not have an airplane easement. Thus, the

Hudsons are not entitled to access the airstrip via their own property or the Irwin

Property. Parcel A is not benefitted under the Easement Grant. Holding otherwise would

       3
         Because the parcels were larger than twenty acres in size when the development was
created in 1976, the development did not have to comply with the review requirements of the
Montana Subdivision and Platting Act at that time. Section 76-3-101, MCA. Developments
such as the one in this case are now generally considered to be “planned unit developments.”
Section 76-3-103(11), MCA.
                                             7
permit more than one airplane to use the airstrip. The writing alone shows that the parties

intended to grant each parcel in the development an easement for one airplane only. The

decision of the District Court is affirmed.

¶17    2. Whether the owner of real property who is establishing a general plan
       development can create an easement upon the owner’s own parcel.

¶18    The District Court held that “A landowner cannot hold an easement in his or her

own land,” citing to Broadwater Dev., LLC, v. Nelson, 2009 MT 317, ¶ 36, 352 Mont.

401, 219 P.3d 492. Broadwater holds that “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.”

Broadwater, ¶ 36.      The Restatement (Third) of Property: Servitudes § 7.5 (2000)

(Restatement) supports the holding in Broadwater and states: “A servitude is terminated

when all the benefits and burdens come into a single ownership. Transfer of a previously

benefited or burdened parcel into separate ownership does not revive a servitude

terminated under the rule of this section. Revival requires re-creation under the rules

stated in Chapter 2.” However, a comment to the Restatement recognizes an exception to

the general rule applied in Broadwater:

       Application to property subject to general plan of development. Because
       merger takes place only when all the benefits and burdens of the servitude
       come into a single ownership, subdivision covenants and servitudes in other
       developments with reciprocal servitudes are rarely terminated by merger.
       Since each lot, unit, or parcel enjoys the benefit of the servitudes imposed
       on every other property in the development, see § 2.14(a), the occasion for
       merger can arise only when the entire development is acquired by a single
       owner.

Restatement (Third) of Prop.: Servitudes § 7.5 cmt. c (2000).

                                              8
¶19    The Restatement defines a general plan development as “a real-estate development

or neighborhood in which individually owned lots or units are burdened by a servitude

imposed to effectuate a plan of land-use controls for the benefit of the property owners in

the development or neighborhood.” Restatement (Third) of Prop.: Servitudes § 1.7(1)

(2000). Although a landowner cannot hold an easement on his or her own land because a

“servitude is terminated when all the benefits and burdens come into a single ownership,”

a landowner who is establishing a general plan development can create an easement upon

the landowner’s own parcel. Restatement (Third) of Prop.: Servitudes § 7.5; cmt. c.

Only when every parcel in a general plan development is acquired by a single landowner

or entity is an easement or other covenant within that development terminated by merger.

Restatement (Third) of Prop.: Servitudes § 7.5 cmt. c.

¶20    We agree with the logic noted in the exception in comment c of the Restatement.

Clearly, application of the exception complies with the intent and purpose of the

development here, which was to provide access to the airstrip for each parcel within the

development at that time.     Based on the facts of this case, we conclude that the

restrictions applied in Broadwater are inapplicable to the development here.

¶21    3. Whether the District Court’s prevailing party award of attorney fees should be
       vacated.

¶22    The 1981 Easement Grant states that “Any party may enforce this instrument by

appropriate action and should he or she prevail in such litigation, he or she shall recover

as part of his or her costs a reasonable attorney’s fee.” The Hudsons argue the attorney

fees awarded by the District Court in its order dated July 26, 2016, should be vacated if


                                            9
this Court reverses the District Court’s decision regarding the Hudsons’ easement rights.

As the prevailing party in this appeal, Irwin is entitled to reasonable attorney fees. We

affirm the District Court’s decision to award attorney fees to Irwin. Irwin also has a

contractual right to attorney fees incurred on this appeal, and we remand for further

proceedings to determine the amount of Irwin’s attorney fees.

                                    CONCLUSION

¶23   While the District Court was correct in deciding that the Hudsons are not entitled

to access an easement on the Irwin Property, we affirm for a different reason. We affirm

the District Court’s award of attorney fees to Irwin and hold that Irwin is entitled to

attorney fees incurred on appeal. This matter is remanded to the District Court for a

determination of the amount of attorney fees.


                                                /S/ MIKE McGRATH


We Concur:


/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR




                                           10
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Figure 1                                                                                Appendix 7




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