                                                                                          October 15 2013


                                         DA 12-0707

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2013 MT 298



YORLUM PROPERTIES, LTD.,

               Plaintiff and Appellee,

         v.

LINCOLN COUNTY, a political subdivision,
and WILLIAM and JANET BIGGERSTAFF,

               Defendants and Appellants.


APPEAL FROM:           District Court of the Nineteenth Judicial District,
                       In and For the County of Lincoln, Cause No. DV 11-74
                       Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Clifton W. Hayden; Hedman, Hileman & LaCosta, PLLP; Whitefish,
                       Montana (for William and Janet Biggerstaff)

                       Bernard G. Cassidy; Lincoln County Attorney; Libby, Montana
                       (for Lincoln County)

                For Appellee:

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



                                                   Submitted on Briefs: July 24, 2013
                                                              Decided: October 15, 2013


Filed:

                       __________________________________________
                                         Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1    Carol Miller owned two adjacent parcels of real property in Lincoln County near

Eureka, Montana. In March 2005, she conveyed one of the parcels to William and Janet

Biggerstaff (the Biggerstaffs). Miller purported in the conveyance to reserve an easement

over the Biggerstaffs’ parcel for the benefit of Miller’s retained parcel. In August 2006,

Miller conveyed her retained parcel to Yorlum Properties Ltd. (Yorlum).

¶2    Thereafter, a dispute arose among Yorlum, the Biggerstaffs, and Lincoln County

concerning the validity of the reserved easement. Yorlum commenced this action in the

Nineteenth Judicial District Court, Lincoln County, seeking to quiet title to its property

and access rights. The District Court granted summary judgment to Yorlum, and both the

Biggerstaffs and Lincoln County now appeal.

¶3    We address three issues:

      1. Whether the easement over the Biggerstaffs’ parcel is valid.

      2. Whether Miller lacked title to convey to Yorlum.

      3. Whether Yorlum’s complaint is barred by equitable principles.

We conclude that Yorlum is entitled to summary judgment on each of these issues, and

we accordingly affirm the District Court’s decision.

                                    BACKGROUND

¶4    Miller’s property at issue in this case initially consisted of a 5.534-acre parcel

designated “Lot 5” in the Dukes Vista Ridge subdivision, plus an adjacent 35.746-acre

parcel north of Lot 5. Access to Lot 5 is provided over Dukes Vista Drive (a cul-de-sac).

In 2004, Miller proposed a boundary adjustment to combine her two parcels into one


                                            2
41.28-acre parcel, designated “Lot 5A.”              Lincoln County approved this boundary

adjustment on January 10, 2005, as depicted on Amended Plat No. 6576. This plat is

shown here, with the boundary of Lot 5A bolded:1




                                                   Dukes Vista Drive




¶5    Miller next proposed to divide Lot 5A into two parcels. The northerly parcel,

“Lot 5-B,” would be 20.26 acres, and the southerly parcel, “Lot 5-A-1,” would be 21.00

acres. This division is depicted on Amended Plat No. 6588. The plat, shown below, also
      1
          The diagrams contained in this Opinion are part of the record in this case.


                                                 3
depicts a “30' private easement” running northerly through the middle of Lot 5-A-1 from

the terminus of Dukes Vista Drive to the southern boundary of Lot 5-B.




                                                Dukes Vista Drive




¶6    The Lincoln County Planning Department received objections from neighboring

landowners regarding Miller’s proposed division of Lot 5A. The landowners claimed

that the Dukes Vista Ridge subdivision covenants prohibited further subdivision of any

                                           4
lot. They also claimed that the covenants prohibited access to any further added land

using the subdivision’s private roads. In this regard, the final plat of the Dukes Vista

Ridge subdivision (Plat No. 5846, recorded March 26, 1997) indicates that Dukes Vista

Drive and Linda Vista Drive (with which Dukes Vista Drive intersects to the south) are

both 60-foot-wide “private” roads.

¶7    Despite the landowners’ objections, the Lincoln County Board of Commissioners

granted preliminary plat approval on February 2, 2005. As a condition of final approval,

Miller was expected to resolve the access dispute with her neighbors; however, although

Miller contacted several of the landowners, no agreement was reached. Nevertheless, the

Board of Commissioners granted final plat approval on February 15, 2005. Amended

Plat No. 6588 was recorded that same day. Two weeks later, Miller sold Lot 5-A-1 to the

Biggerstaffs by a warranty deed dated March 1, 2005, and recorded March 2, 2005. The

deed describes the property being conveyed as “Lot 5-A-1 of the Amended Plat of Dukes

Vista Ridge Lot 5A, according to the plat thereof on file in the office of the Clerk and

Recorder, Lincoln County, Montana. Plat #6588.”

¶8    None of the neighboring landowners appealed, pursuant to § 76-3-625, MCA,

from the Board’s preliminary approval or final approval of Amended Plat No. 6588. Nor

did any of the landowners sue to enforce the subdivision covenants. A number of the

landowners, however, appeared at the Board’s regular session on April 20, 2005, and

reasserted their objections to the division of Lot 5A into two parcels. They claimed that

Miller had “manipulated” the law and had employed “tactics” designed to “get[ ] around

the legalities of our Covenants.” They asked the Board to return Miller’s property to a


                                           5
single 41-acre parcel, or to remove Lot 5-B from the Dukes Vista Ridge subdivision and

eliminate the easement over Lot 5-A-1.

¶9    On August 24, 2005, the Board of Commissioners executed a document which

purports to invalidate the easement over Lot 5-A-1. The document was recorded with the

Lincoln County Clerk and Recorder that same day. It states:

                 NOTICE OF NO AUTHORIZED ROAD ACCESS

      Lincoln County hereby asserts that there is NO AUTHORIZED ROAD
      ACCESS for use of Linda Vista Drive nor access across Lot 5-A-1 for the
      benefit of Lot 5-B of the Amended Plat of Dukes Vista Ridge located in the
      NE1/4 of Section 14, Twp. 36 N., R. 28 W., P.M.M., all as shown on
      Amended Plat 6588, Lincoln County records.

      No agreement between the original developer of the amended plat and
      landowners within the Plat of Dukes Vista Drive could be reached for use
      of Linda Vista Drive for access to Lot 5-B. This was a condition of the
      approval of the Amended Plat of Dukes Vista Ridge, Amended Plat
      No. 6588.

¶10   Yorlum acquired Lot 5-B from Miller on August 15, 2006. The following year,

Yorlum notified the Biggerstaffs that a surveyor would be staking off the easement over

Lot 5-A-1 and that a roadway would then be constructed to Lot 5-B. The Biggerstaffs

responded that “no easement of any kind crosses Lot 5-A-1 for the benefit of Lot 5-B.”

Additionally, a spokesperson for the property owners in Dukes Vista Ridge subdivision

sent Yorlum a letter stating that subdivision roads could not be used to access Lot 5-B.

Yorlum attempted to resolve this issue with the landowners, but was not successful.

¶11   On March 21, 2011, Yorlum filed the instant action under Title 70, chapter 28,

part 1, MCA, seeking a determination that it “is the owner in fee simple of property

described in Amended Plat 6588” and “is entitled to subdivision access as described in


                                            6
Amended Plat 6588.” The Biggerstaffs and Lincoln County filed answers, and the parties

subsequently filed cross-motions for summary judgment. The District Court determined

that the documents of conveyance from Miller to the Biggerstaffs created an easement

over Lot 5-A-1 as depicted and labeled on Amended Plat No. 6588. The District Court

further ruled that once the Board of Commissioners granted final plat approval, the Board

had no statutory authority to then record a “Notice of No Authorized Road Access.” The

District Court noted that if Miller or her surveyor in fact misrepresented the legal access

in Amended Plat No. 6588, then Lincoln County and any affected landowners could have

pursued available remedies under the Montana Subdivision and Platting Act (Title 76,

chapter 3, MCA), none of which included placing a cloud over Yorlum’s easement in the

form of a Notice of No Authorized Road Access. Finally, the District Court rejected the

Biggerstaffs’ claim that Yorlum should be equitably precluded from legal access to its

lot. The court reasoned that Yorlum took whatever title Miller could lawfully convey and

that any awareness Yorlum may have had of the Notice of No Authorized Road Access

was not salient to the validity of the Notice or the easement.

                              STANDARDS OF REVIEW

¶12    This Court reviews a district court’s ruling on a motion for summary judgment de

novo, applying the criteria set forth in M. R. Civ. P. 56. Gordon v. Kuzara, 2012 MT

206, ¶ 13, 366 Mont. 243, 286 P.3d 895. Summary judgment “should be rendered if the

pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” M. R. Civ. P. 56(c)(3). Where the material facts are


                                             7
undisputed—as is the case here—the district court must simply identify the applicable

law, apply it to the uncontroverted facts, and determine who prevails. Corp. Air v.

Edwards Jet Ctr., 2008 MT 283, ¶ 28, 345 Mont. 336, 190 P.3d 1111. The determination

as to whether a party is entitled to judgment on the facts is a conclusion of law, which

this Court reviews to determine whether it is correct. Gordon, ¶ 13.

                                     DISCUSSION

¶13    Issue 1. Whether the easement over the Biggerstaffs’ parcel is valid.

¶14    Yorlum claims it has an easement by reservation over the Biggerstaffs’ property.

An easement arises by reservation where a landowner conveys part of his or her property

to another but reserves an easement over the transferred property in favor of the

landowner’s retained property. Blazer v. Wall, 2008 MT 145, ¶ 27, 343 Mont. 173, 183

P.3d 84. A reserved easement may be created only when the dominant and servient

estates are split from single ownership. Blazer, ¶¶ 38, 44; Ruana v. Grigonis, 275 Mont.

441, 448-51, 913 P.2d 1247, 1252-54 (1996). Hence, the easement over Lot 5-A-1 was

reserved, if at all, when Lot 5A was split from single ownership into two separately

owned parcels. That occurred on March 1, 2005, when Miller conveyed Lot 5-A-1 to the

Biggerstaffs and retained Lot 5-B for herself. Thus, the Miller-Biggerstaff transaction is

decisive. Blazer, ¶ 44.

¶15    The Miller-Biggerstaff deed contains no language expressly reserving an easement

over the conveyed property—such as, “Grantor reserves a 30-foot-wide private access

easement over Lot 5-A-1 for the benefit Lot 5-B.” See Davis v. Hall, 2012 MT 125, ¶ 19,

365 Mont. 216, 280 P.3d 261. The deed does state (in the Property Description) that the


                                            8
conveyance of Lot 5-A-1 is “SUBJECT TO easements on the recorded plat #5846, #6576

and #6588, records of Lincoln County, Montana.” However, this Court has held that

“subject to” language in a document of conveyance does not create an easement. Wild

River Adventures, Inc. v. Bd. of Trustees, 248 Mont. 397, 401, 812 P.2d 344, 346-47

(1991); Bache v. Owens, 267 Mont. 279, 286, 883 P.2d 817, 821 (1994); Ruana, 275

Mont. at 449, 913 P.2d at 1252-53; Blazer, ¶ 28. Consequently, given the absence of any

language in the deed expressly reserving the claimed easement over Lot 5-A-1, Yorlum

relies instead on this Court’s easement-by-reference doctrine.

¶16    In a series of cases, this Court has recognized that an express easement may be

created by referring in an instrument of conveyance to a recorded plat or certificate of

survey on which the easement is adequately described. See Bache, 267 Mont. at 283-86,

883 P.2d at 820-22; Halverson v. Turner, 268 Mont. 168, 172-74, 885 P.2d 1285,

1288-89 (1994); Ruana, 275 Mont. at 449, 913 P.2d at 1253; Tungsten Holdings, Inc. v.

Parker, 282 Mont. 387, 390, 938 P.2d 641, 642 (1997); Pearson v. Virginia City Ranches

Assn., 2000 MT 12, ¶¶ 19-20, 26, 298 Mont. 52, 993 P.2d 688; Blazer, ¶¶ 30-43; Conway

v. Miller, 2010 MT 103, ¶ 19, 356 Mont. 231, 232 P.3d 390; Davis, ¶ 19; see also

Broadwater Dev., LLC v. Nelson, 2009 MT 317, ¶ 26, 352 Mont. 401, 219 P.3d 492.

“When the deed itself contains no language reserving (or granting) an easement, our

easement-by-reference doctrine contemplates that an explicit reference in the deed to a

plat or certificate of survey on which an easement is clearly depicted and adequately

described is sufficient to establish the easement.” Blazer, ¶ 41.




                                             9
¶17    As noted, the Miller-Biggerstaff deed describes the property being conveyed as

“Lot 5-A-1 of the Amended Plat of Dukes Vista Ridge Lot 5A, according to the plat

thereof on file in the office of the Clerk and Recorder, Lincoln County, Montana.

Plat #6588.”   This is sufficient to incorporate the plat into the deed.      Blazer, ¶ 45.

Accordingly, the dispositive question is whether the easement shown on Amended Plat

No. 6588 is “adequately described.” Blazer, ¶¶ 41, 45; Broadwater Dev., ¶ 38.

¶18    We have noted two requirements for adequately describing an easement: first, the

identities of the dominant and servient tenements must be “ascertainable with reasonable

certainty” from the transaction documents; second, the transaction documents must give

the owner of the property being burdened by the servitude “knowledge of its use or its

necessity.” Davis, ¶¶ 20, 24-25; Blazer, ¶¶ 36, 51, 54, 56-57; Broadwater Dev., ¶ 38.

The Biggerstaffs argue that, in order to satisfy these requirements, the precise location of

the easement on the ground must be provided.

¶19    This is a question we have not previously addressed in our easement-by-reference

cases. In Bache, Halverson, and Blazer, the certificates of survey showed a 30-foot-wide

easement along the boundary of the servient estate. Bache, 267 Mont. at 282, 291, 883

P.2d at 819, 823; Halverson, 268 Mont. at 170-71, 885 P.2d at 1287; Blazer, ¶¶ 2-4.

There was no dispute about where the alleged easement was situated. Likewise, the

location of the building restriction line at issue in Conway was identified by corners and

measurements on the face of the plat. Conway, ¶ 2. In Tungsten Holdings, the alleged

easement was a meandering strip of land 40 feet wide, approximately 2,700 feet long, and

identified as “lot 34”; however, this parcel served as a boundary between property to the


                                            10
north and property to the south of lot 34, and thus its precise location was not in question.

282 Mont. at 388-89, 938 P.2d at 641-42. Finally, in Ruana, Pearson, and Davis, there

was no dispute about the easement’s location; the only question was its validity. Ruana,

275 Mont. at 444-45, 450, 913 P.2d at 1249-50, 1253; Pearson, ¶ 17; Davis, ¶¶ 3-4.

¶20    In contrast, the precise location of the easement on Amended Plat No. 6588 is not

specified—for example, with a metes-and-bounds description.2 For reader convenience,

an excerpt of the plat is provided here:




¶21    The District Court, while it did “not necessarily disagree with the Biggerstaffs’

claims that a metes and bounds description would be helpful,” nevertheless concluded

that the lack of such a description does not invalidate the easement. In the Biggerstaffs’

view, this was error. They argue that a depiction is inadequate—and, thus, the purported
       2
         Metes and bounds: “The territorial limits of real property as measured by distances and
angles from designated landmarks and in relation to adjoining properties.” Black’s Law
Dictionary 1080 (Bryan A. Garner ed., 9th ed., Thomson Reuters 2009).


                                              11
easement is void—if no courses, bearings, distances, angles, radiuses, centerline location,

or other similar information is provided. They characterize this information as essential

to locate the easement and to determine the burden on the servient estate.

¶22    It is true that a land description is necessary in an instrument conveying title so

that the extent of the claim to the property may be determined. Blazer, ¶¶ 51, 70;

Halverson, 268 Mont. at 172, 885 P.2d at 1288. However, contrary to the Biggerstaffs’

argument, failing to fix an easement’s precise location in the transaction documents does

not render the easement void as a matter of law. In Anderson v. Stokes, 2007 MT 166,

338 Mont. 118, 163 P.3d 1273, for example, the owners of a 160-acre parcel granted

Donald Treloar an easement to erect, construct, operate, and maintain radio towers. The

instrument of conveyance recited that Treloar desired to erect the radio towers on “certain

portions” of the 160-acre parcel, but the exact location was “impossible to determine” at

that time. Anderson, ¶ 4. The grantors thus gave Treloar “the right to select the place or

places at which the above described facilities shall be erected and maintained.”

Anderson, ¶ 4. Treloar then selected a site within the 160 acres and built two radio

towers along with a transmission line, wires, conduits, and ground radial antennas.

Anderson, ¶ 5. We held that the selection of a site and the construction of towers on that

site fixed the location of the easement. Anderson, ¶¶ 37-47.

¶23    Other cases recognize, at least implicitly, that the failure to specify an easement’s

precise location in the documents of conveyance is not necessarily fatal to the easement’s

validity. See e.g. Ponderosa Pines Ranch, Inc. v. Hevner, 2002 MT 184, ¶ 27, 311 Mont.

82, 53 P.3d 381 (“Where, as here, an easement is reserved without designating a location,


                                            12
and a road exists at the time of the reservation, then a court will treat the road as the

easement that the parties contemplated.”); Wills Cattle Co. v. Shaw, 2007 MT 191, ¶ 26,

338 Mont. 351, 167 P.3d 397 (“If a document fails to adequately fix the location of an

easement, a court may ascertain the location by use.”); Larson v. Amundson, 414 N.W.2d

413, 417 (Minn. App. 1987) (where the location of an easement is indefinite, the grantor

or the grantee may designate the roadway in a reasonably suitable location); Evans v. Bd.

of Co. Commrs., 2005 UT 74, ¶¶ 12-14, 123 P.3d 432 (although certainly desirable in

most instances, language fixing the location of an easement is not always necessary when

other terms of the easement safeguard the servient estate from the risk that its burden may

be greater than that for which it bargained); Smith v. King, 620 P.2d 542, 543 (Wash.

App. Div. 1 1980) (a right-of-way not definitely located in the deed may be located by

the parties by parol agreement anywhere within the boundaries of the land over which the

right is granted; the location of an easement may be established also by implication

through customary use); Brumbaugh v. Mikelson Land Co., 2008 WY 66, ¶ 21, 185 P.3d

695 (where the location of an express easement is not stated, courts consider certain

factors in locating the easement); see also Jon W. Bruce & James W. Ely, Jr., The Law of

Easements and Licenses in Land §§ 7:4 to 7:6, 7-5 to 7-17 (Thomson Reuters 2013)

(discussing this subject).

¶24    Of course, the foregoing cases are factually distinguishable from the present case

in the respect that each case involved an easement that was created using express

language in a deed, covenant, or declaration, but whose location was not fixed. The

courts did not find the easements void for lack of a specified location; they instead


                                            13
applied various approaches for determining the easement’s location. The present case, in

contrast, involves an easement that was not created using express language of grant or

reservation in a deed; it instead was created solely by means of a depiction on a plat

referenced in the deed.

¶25    Nevertheless, whether an easement is created using express language (e.g.,

Broadwater Dev.), or by merely depicting it on a plat or certificate of survey referenced

in the deed (e.g., Bache, Halverson, Pearson), or through some combination of these two

methods (e.g., Davis), the essential requirement in all three situations is the same with

regard to the description: an individual examining the transaction documents must be

able to ascertain, with reasonable certainty, the intended dominant and servient tenements

and the easement’s use or necessity.        Blazer, ¶ 75; Broadwater Dev., ¶¶ 26, 38;

Davis, ¶¶ 24-25. The purpose of requiring this information is to ensure that the owner of

the servient estate can determine the extent of the burden on the servient land. It also

enables the dominant and servient landowners to ensure that the terms of the easement

are being honored, see Evans, ¶ 12, and it gives notice of the burden to prospective

purchasers of the servient estate under the recording statutes, see Blazer, ¶¶ 73-74. While

there may be instances where the depicted easement’s location is so vague and uncertain

as to render it impossible to ascertain, with reasonable certainty, the easement’s burden

on the servient estate, we do not agree with the Biggerstaffs’ argument that the failure to

provide a metes-and-bounds description is necessarily fatal in every case.

¶26    Here, Amended Plat No. 6588 provides a metes-and-bounds description (with

angles, distances, and corners) of the boundaries of Lot 5-A-1 and Lot 5-B. The depicted


                                            14
easement begins at the terminus of Dukes Vista Drive and is aligned with the easterly

30 feet of that road. (Dukes Vista Drive is 60 feet wide.) The easement proceeds a short

distance north, then veers to the northeast, and gradually returns to a northerly direction,

ultimately terminating at the southernmost boundary of Lot 5-B. The easement runs

through the middle of Lot 5-A-1, and its course can be fairly approximated using the

Graphic Scale provided on the plat and measuring from the boundaries of Lot 5-A-1 and

Lot 5-B. The easement is labeled 30 feet wide and “private.” The plat thus imparts

sufficient information for an individual to ascertain, with reasonable certainty, the

dominant tenement (Lot 5-B), the servient tenement (Lot 5-A-1), the easement’s

approximate course across Lot 5-A-1, and the easement’s use or necessity (to provide a

means of private access to Lot 5-B). The easement’s burden on the servient estate is

reasonably clear to any purchaser of Lot 5-A-1.

¶27    Based on this analysis, we hold that the Miller-Biggerstaff transaction documents

created a valid easement over Lot 5-A-1 for the benefit of Lot 5-B.

¶28    Issue 2. Whether Miller lacked title to convey to Yorlum.

¶29    Lincoln County and the Biggerstaffs advance two separate but related arguments

concerning the validity of Miller’s sale of Lot 5-B to Yorlum. We reject these arguments

for the reasons which follow.

¶30    First, Lincoln County cites § 76-3-608(3)(d), MCA, which states: “A subdivision

proposal must undergo review for . . . the provision of legal and physical access to each

parcel within the proposed subdivision . . . .” The County opines that because Miller

failed to secure legal access to her property using the Dukes Vista Ridge subdivision


                                            15
roads, the Board’s final approval of Amended Plat No. 6588 was “mistaken or negligent,”

“in violation of the Montana Subdivision and Platting Act,” and “taken without

authority.” In this regard, the County cites a 1980 opinion of the Montana Attorney

General (Mont. Atty. Gen. Op. 38-106, 1980 Mont. AG LEXIS 13 (Sept. 12, 1980)), for

the proposition that “[t]he board’s illegal grant of final approval does not legitimize

Miller’s transfer of the lot to Yorlum.”

¶31    As an initial matter, there is conflicting evidence in the record underlying the

County’s assertion that Miller had no right to use the subdivision roads to access her

property. As explained, the County permitted Miller to add a 35.746-acre parcel outside

the subdivision to her 5.534-acre parcel (Lot 5) inside the subdivision, which resulted in a

41.28-acre parcel designated Lot 5A. The County then permitted Miller to divide Lot 5A

into two parcels, one 21 acres and the other approximately 20 acres. During this process,

neighboring landowners and the developer of Dukes Vista Ridge told the County that the

subdivision covenants barred access over subdivision roads “to any further added land.”

In other words, “none of the property added to original Lot 5 has any easement rights on

the [subdivision roads].” This would mean that the subdivision roads cannot be used to

access Yorlum’s Lot 5-B, as well as the bulk of the Biggerstaffs’ Lot 5-A-1. At the same

time, however, the landowners took the seemingly inconsistent position that subdivision

roads could be used to access Lot 5A. At the Board’s April 20, 2005 meeting, the Road

Users Association and Landowners of Dukes Vista Ridge represented that restoring

Miller’s land to its “originally platted and recorded 41 acres [i.e., Lot 5A] . . . would

easily remedy this situation.” They expressed no objections to accessing the 41 acres, as


                                            16
a single parcel, using subdivision roads. As a result, the evidence in the record regarding

Miller’s right to use subdivision roads to access the 35.746 acres she appended to original

Lot 5 is, at best, open to dispute.

¶32    But even assuming that the subdivision roads cannot be used to access Miller’s

35.746 acres, this fact does not render the Board’s grant of final plat approval “illegal”

and “without authority” as the County claims.3 In the Attorney General opinion on which

the County relies, the Attorney General concluded that because the governing body

lacked statutory authority to review and approve the certificate of survey at issue, any

illegalities in the underlying land transfer could not be cured by the governing body’s

unauthorized approval of that certificate of survey.         1980 Mont. AG LEXIS 13 at

**10-11. That is not the situation in the present case. Here, the governing body did have

statutory authority to review and approve the plat at issue, see Title 76, chapter 3, part 6,

MCA, and the Board of Commissioners in fact reviewed and granted final approval to

Amended Plat No. 6588. Thus, this is not a case where the landowner sold property

following an unauthorized act of the governing body; rather, it is a case where the

landowner sold property following an authorized act of the governing body, but the

governing body then found that not all conditions of final plat approval had been met. In

such situations, § 76-3-301(3), MCA, states: “If transfers not in accordance with [the

Montana Subdivision and Platting Act] are made, the county attorney shall commence

action to enjoin further sales or transfers and compel compliance with all provisions of

       3
         Notably, under the County’s argument, Miller’s failure to secure legal access to her
property would invalidate not only the Miller-Yorlum sale, but also the Miller-Biggerstaff sale.
The Biggerstaffs do not express any support for this argument in their separate appellate briefs.


                                               17
[the Act].”4 Here, the Board granted final plat approval on February 15, 2005; Miller

sold Lot 5-A-1 to the Biggerstaffs on March 1, 2005; the landowners raised the access

issue in their objections to the Board on April 20, 2005; and Miller sold Lot 5-B to

Yorlum on August 15, 2006. At no point following Miller’s sale to the Biggerstaffs did

the Lincoln County Attorney commence an action “to enjoin further sales or transfers and

compel compliance with” the Act. Section 76-3-301(3), MCA. For these reasons, the

County’s argument that the Miller-Yorlum transaction was void is without merit.

¶33    The Biggerstaffs present a slightly different theory challenging the Miller-Yorlum

transaction. They point to a letter from Miller to the Board of Commissioners dated

February 11, 2005, four days before the Board granted final plat approval. The body of

this letter states, in its entirety: “Lot No. 5-B will not be transferred until the access

agreement through Linda Vista Drive is completed.”              The letter was recorded on

February 15, 2005. The Biggerstaffs claim that since no “access agreement” was ever

reached between Miller and the landowners, “Miller had no title to be lawfully conveyed

to Yorlum.” Yet, the Biggerstaffs fail to cite any legal authority for the proposition that

an ostensible promise not to convey land until access is established means that the

promisor lacks “title” to the land or that the conveyance is void as a matter of law. As

discussed, the Montana Subdivision and Platting Act provides remedies for such

situations, including injunctive relief and criminal prosecution. See §§ 76-3-105, -301(3),

       4
         The violator might also be subject to prosecution under § 76-3-105, MCA, which states:
“Any person who violates any provision of this chapter or any local regulations adopted pursuant
thereto shall be guilty of a misdemeanor and punishable by a fine of not less than $100 or more
than $500 or by imprisonment in a county jail for not more than 3 months or by both fine and
imprisonment.”


                                              18
MCA. These remedies were not pursued here. Nor did any aggrieved landowner appeal

the Board’s decision pursuant to § 76-3-625, MCA, or file suit to enforce the subdivision

covenants. As a result, the Biggerstaffs’ arguments in this regard ring hollow.

¶34    The Biggerstaffs and Lincoln County have failed to establish any basis for

concluding that Miller lacked title to convey to Yorlum.

¶35    Issue 3. Whether Yorlum’s complaint is barred by equitable principles.

¶36    The Biggerstaffs and Lincoln County contend that Yorlum’s complaint should be

dismissed under equitable principles. The basis for this assertion is that Yorlum had

notice of adverse claims against its right of access when it purchased Lot 5-B. However,

the existence of adverse claims is a reason for bringing a quiet title action, not a reason

for precluding it. See § 70-28-101, MCA.5 As Yorlum points out, what it sought in this

lawsuit is a determination of its property interests under Amended Plat No. 6588. This

included determinations of whether it has an easement over the Biggerstaffs’ lot and

whether the County had authority to record the Notice of No Authorized Road Access.

Yorlum did not seek a decree concerning its use of subdivision roads not shown on the

plat, and any dispute concerning the use of such roads is beyond the scope of Yorlum’s

requested relief.6 Amended Plat No. 6588 clearly depicts and adequately describes an


       5
          “An action may be brought and prosecuted to final decree, judgment, or order by any
person or persons, whether in actual possession or not, claiming title to real estate against any
person or persons, both known and unknown, who claim or may claim any right, title, estate, or
interest therein or lien or encumbrance thereon adverse to plaintiff’s ownership or any cloud
upon plaintiff’s title thereto, whether such claim or possible claim be present or contingent,
including any claim or possible claim of dower, inchoate or accrued, for the purpose of
determining such claim or possible claim and quieting the title to said real estate.”
        6
          For this reason, the Biggerstaffs’ separate argument that Yorlum failed to join necessary
parties is without merit.


                                                19
easement over Lot 5-A-1 for the benefit of Lot 5-B. The fact that the Biggerstaffs and the

County did not believe this easement was valid—assuming Yorlum was aware of this fact

when it purchased Lot 5-B from Miller—does not constitute an equitable basis for

precluding Yorlum’s complaint.7

                                       CONCLUSION

¶37    The District Court correctly granted summary judgment to Yorlum and denied

summary judgment to the Biggerstaffs and Lincoln County.

¶38    Affirmed.


                                                    /S/ LAURIE McKINNON

We concur:


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




       7
          Regarding the Board’s August 24, 2005 “Notice of No Authorized Road Access,” the
County did not challenge, in its opening brief on appeal, the District Court’s conclusion that the
Board lacked authority to record the Notice. The County touches on this issue in a two-sentence
paragraph near the end of its reply brief; however, arguments and issues first raised in a reply
brief are not properly before this Court and will not be considered on appeal. State v. Murphy,
2003 MT 276, ¶ 14, 317 Mont. 500, 78 P.3d 843.


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