                                No. 85-337
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1986




!fRK J
 .A.     . PENLAND ,
                 Plaintiff and Appellant,


J. LEONARD DERBY and. MARY D. DERBY,
his v~ife,
                 Defendants and Respondents.




APPEAL FROM:     District Court of the Eleventh Judicial District,
                 In and for the County of Flathead,
                 The Honorable Frank I. Haswell, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                 Datsopoulos, Ma-cDonal-d& Lind; Ronald B. MacDonald
                 argued, Missoula , llontana

         For Respondent:
                 Murphy, Robinson, Heckathorn & Phillips; David
                 J. Dietrich argued, Kalispell, Montana




                                   Submitted:   January 23, 1986
                                     Decided:   February 20, 1986
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


      The appellant, Penl-and, appea 1s the summary iudgment
granted by the Flathead County District Court, which allows
respondents, Derbys to keep and use a summer cabin which lies
across the legal boundary of their property, encroaching upon
the appellant's property.       Penland contends that there were
insufficient facts in the record to support the District
Court's finding of an equitable easement in the Derbys.          We
agree, and therefore need not discuss the other issues raised
on appeal.
      We reverse and remand for trial.
      The issue before us is whether summary judgment was
appropriate given      the    factual record and    the   legal and
equitable theories argued to the District Court.
      First we    turn   to   the    facts, as   stipulated by   the
parties.     Penland and the Derbys own adjacent property along
Flathead Lake.    Each of these properties include 63.6 feet of
lake frontage.    When Penland purchased his property in 1977,
the seller and her re21 estate agent notified him of the
existence of the boundary dispute between the seller and the
Derbys.    Penland was given notice that a summer cabin, owned
by the Derbys, straddled the legal boundary between his and
the Derbys' property, protruding approximately 15 feet onto
his property.    This cabin, has been in existence at the same
Location at least since 1934.
      Surveys done in 1976 first indicated the encroachment of
the   summer    home   onto    the   appellant's   property.     The
Certificates of Surveys, No. 2389 and No. 1881, establish the
legal boundary between their properties and accurately depict
the location of the cabin.               Each party respectively paid the
real    estate       taxes    on     the    real    property     depicted     as
"Plaintiff's" property             and    "Defendant's" property         on   the
certificates of survey.
       Settlement negotiations between the parties failed and
Penland      filed     a     complaint      in    District     Court     seeking
declaratory judgment regarding the commoii boundary line and
requesting the court to quiet title to the property and order
the encroaching cahin removed.                   The parties submitted the
matter on cross petitions for summary judgment, filing with
the court stipulations of fact, stipulations of evidence,
affidavits and briefs in support of their motions.                     In ruling
on the cross motions, the District Court ordered that the
respondents "have an equitable easement to keep the building
upon the land on which it was constructed."
       Penland   cites       this    Court's      admonishment,    "A     court,
however, may         not   create    as    a matter of       law an      implied
easement where the facts indicate the parties did not intend
that an easement be created."                White v. Landerdahl (Mont.
19811, 625 P.2d 1145, 1147, 38 St.Rep. 413, 415.                       He argues
that neither he nor the respondents purchased their property
with   the   intent that an encroachment should continue by
virtue of an implied easement and that their negotiations
failed because they did not agree to either an easement or
removal of the encroaching building.
       The Derbys reject Penland's contention that they relied
on an implied easement theory.               Rather they argue the basis
of the District Court's             order was the "relative hardship
doctrine" which requires the court to balance the competing
interests of the parties.            The Derbys emphasize that Penland
was aware of the encroachment when he purchased the land and
therefore is estopped             from opposing Derbys' claims to an
easement in equity.              They argue that Penland has "unclean
hands" because of this knowledge, while respondents inherited
the     property        without        knowledge       of     the     encroachment.
Respondents rely on Allman v. Stuart (19721, 158 Mont. 402,
492 P.2d 909, to argue that appellant willful.1~ignored their
alleged ownership rights.               The Derbys acknowledge that this
Court    has      yet    to    adopt    an    equitable       "relative hardship
doctrine" but argue for its adoption in this case.
       It is unclear upon what theory the District Court based
its finding of the existence of an equitable easement.                           While
the District Court was not limited to the relative hardship
doctrine,        the    other     common      equitable       theories      for    the
creation of easements are unlikely, given these facts.                             The
record indicates no subservience of one part of the tenement
to a dominant portion prior to severance.                             Michaelson v.
Wardell    (1980), 186 Mont.             278, 607 P.2d         100.       Nor do the

facts     indicate       reservation         of   an    easement      at   the    time
Penland,         or    his    predecessors,        purchased        the    property.
Burlingame v. Marjerrison (Mont. 1983), 665 P.2d 1136, 1139,
40 St.Rep. 1005.              Further, no facts in the record establish
an zgreement between the parties                       to create an easement.
Johnson    77.    Meiers       (1946), 118 Mont.            258, 164 P.2d         1012.
There is no           factual basis       for an easement by necessity.
Schmid v. McDowell (1982), 199 Mont. 233, 649 P.2d 431.                            Nor
does the record indicate any misrepresentation of fact by
Penland estopping him from protesting an easement in equity.
Allman v. Stuart (1972), 158 Mont. 402, 405, 492 P.2d 909,
912.
       The Derbys' reliance upon Allman is unfortunate, as that
case acutally bolsters Penland's argument.                          In Allman, the
party with "unclean" hands ignored the right of the legal
owner of the land underneath his building to request he
remove his building.    That case is factually distinguishable,
however, in that the building's owner bought the building
with full knowledge that someone else owned the. land.           The
Derbys argue Penland bought the land with notice of their
"alleged" property right.        Actua.lly, the record indicates
Penland bought his property with notice that although the
cabin extended across the boundary, the surveys pla.ced his
legal boundary just where the parties have since stipulated
it exists.
     Because there are no facts in the record to support any
established equitable easement theory we turn to the novel
theory propounded by the Derbys, the doctrine of "relative
hardship."    If the District Court's order rests on that
doctrine, this Court must remand the case for trial.           If we
affirmed the District Court's judgment on a relative hardship
theory the Court would be adopting a new theory of equitable
easements, not requiring intent of the parties as an element.
Considering   a   new   legal   theory   on   appeal   from   summary
judgment is inappropriate, as a federal district court has
explained:
    Summary judgment, with ever-lurking issues of fact,
    is always a treacherous shortcut and, in cases like
    these, too fragile a foundation for so heavy a
    load. Such relief is always discretionary, and in
    cases posing complex issues of fact and unsettled
    questions of law, sound judicial administration
    dictates that the court withhold judgment until the
    whole factual structure stands upon a solid
    foundation of a plenary trial where the proof can
    be fully developed, questions answered, issues
    clearly focused and facts definitively found.
Petition of Bloomfield S. S. Co. (D.C.N.Y. 1969), 298 ~.Supp.
1239, 1242, aff'd on other grounds (2d Cir. 1970), 442 ~ . 2 d
     The     record     discloses   no   set   of    facts   supporting     an

equitable easement based on any previously accepted theory in
Montana.        Furthermore it would be unwise to consider a novel
theory     of    equitable   easements    without      the   benefit   of    a
complete record developed at trial.                 Therefore, we reverse
and remand for trial.




We Concur:         ./
