                                                                                             March 18 2014


                                           DA 13-0635

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2014 MT 71



ERIC LANCE WHARY, WILLIAM TIEGS,
and DONNA TIEGS,

              Plaintiffs and Appellants,

         v.

PLUM CREEK TIMBERLANDS, L.P.,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DV 11-332
                        Honorable Ted O. Lympus, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                        Noah H. Bodman, Tammi E. Fisher; Fisher & Bodman, PC;
                        Kalispell, Montana

                For Appellee:

                        Kimberly S. More, Mark Stermitz; Crowley Fleck, PLLP;
                        Kalispell, Montana



                                                    Submitted on Briefs: February 19, 2014
                                                               Decided: March 18, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     Eric Lance Whary, William Tiegs, and Donna Tiegs (Plaintiffs) appeal from an

order of the Eleventh Judicial District Court, Flathead County, denying their motion for

partial summary judgment and granting Plum Creek Timberlands, L.P.’s (Plum Creek)

motion for summary judgment. We reverse and remand.

                                         ISSUES

¶2     A restatement of the issues on appeal is:

¶3     1. Did the District Court err in granting Plum Creek’s motion for summary

judgment?

¶4     2. Did the District Court err in finding that the scope of the easement was not

limited to logging operations?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶5     This dispute involves real property located in Flathead County; specifically, it

involves an easement located in lots 8 and 9 of Section 3 and in the southwest and

southeast quarters of Section 2, Township 27 North, Range 22 West, P.M.M. In March

1972, Phyllis E. Hudson and Clarence G. Hudson granted an easement to Burlington

Northern, Inc. Plaintiffs are the successors in interest to the Hudsons. Plum Creek is a

successor to Burlington Northern, Inc. The easement is a road or driveway that runs

north from Haywire Gulch, a public road, to Plum Creek’s property, crossing Plaintiffs’

property.   Since the 1980s, Plum Creek employees and contractors have used the



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easement to conduct road inspections, road construction, slash burning, timber cruising,

logging operations, and real estate activities.

¶6     According to the District Court’s order, the “North Gate” is located on Plum

Creek’s property above the property line with Whary. This was apparently confirmed by

a 2011 survey. In his deposition, Whary testified that “[t]he gate swings both ways,” and

that “the arm was in [his] property” when he decided to lock the gate in 1999. He never

gave Plum Creek a key to the lock.          Steve Perrone, a Plum Creek employee, first

encountered the locked gate in 2009 and unsuccessfully demanded that Whary remove

the lock. Whary also placed rocks, gravel, and a large boulder in front of the gate. He

contends that he “blocked off . . . 40 feet” of the easement and “used it for storage of

material.”

¶7     Plaintiffs filed a complaint against Plum Creek in March 2011 to extinguish the

scope of the easement. Plaintiffs subsequently amended their complaint in May 2011 and

March 2013.        The second amended complaint raised four claims for relief:

extinguishment of the easement due to the non-assignment provision; extinguishment of

the easement due to non-use; extinguishment by reverse adverse possession; and

limitation on use of the easement. Only the second and fourth claims are at issue in this

appeal. On April 30, 2013, Plaintiffs filed a motion for partial summary judgment only

as to the fourth claim, seeking to limit Plum Creek’s use of the easement to logging

activities. On May 14, 2013, Plum Creek filed a motion for summary judgment on the

entire complaint. After additional briefing on both motions, the District Court entered an

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order denying Plaintiffs’ motion for partial summary judgment and granting Plum

Creek’s motion for summary judgment. Plaintiffs timely appealed.

                               STANDARD OF REVIEW

¶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).

                                      DISCUSSION

¶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.” Mattson v. Mont. Power Co., 2009 MT 286, ¶ 16, 352 Mont. 212, 215 P.3d 675

(citation omitted). Here, the easement was created by a written instrument. Generally,

“where the creating words of a deed make the scope and the location of an easement

perfectly clear, there is no need for further inquiry.” Guthrie v. Hardy, 2001 MT 122,

¶ 46, 305 Mont. 367, 28 P.3d 467. “[I]f the grant or reservation is specific in its terms, it

is decisive of the limits of the easement.”      Mattson, ¶ 17 (quoting Guthrie, ¶ 46).

However, “where the grant or reservation is general in its terms, courts must look beyond

the language of the deed in determining the breadth and scope of the servitude, which



                                             4
need only be such as is reasonably necessary and convenient for the purpose for which

the easement was created.” Mattson, ¶ 17 (citing Guthrie, ¶ 47).

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

an interest in real property. Mattson, ¶ 18 (citations omitted). The construction and

interpretation of a contract is a question of law. Mattson, ¶ 18 (citations omitted). If

possible, a contract must be interpreted to give effect to every part of the contract, and the

intention of the parties must be ascertained from the writing alone.          Mattson, ¶ 18

(citations omitted). “The language of a contract is to govern its interpretation if the

language is clear and explicit and does not involve an absurdity.” Mattson, ¶ 18 (citing

§ 28-3-401, MCA). Evidence of the circumstances under which the contract was made

may be admissible but may not be used to add to, vary, or contradict the terms of the

contract. Mattson, ¶ 18 (citations omitted).

¶11    With these principles in mind, we turn to Plaintiffs’ contentions.

¶12    1. Did the District Court err in granting Plum Creek’s motion for summary

judgment?

¶13    The easement in question included the following language regarding termination

in the event of non-use:

       If for a period of five (5) years the Grantee shall cease to use, or preserve
       for prospective future use, the road, or any segment thereof, for the
       purposes granted, or if at any time the Grantee determines that the road, or
       any segment thereof, is no longer needed for the purposes granted, the
       easement traversed thereby shall terminate.



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¶14   Plaintiffs contend that though portions of the granting document are ambiguous,

this section is not. Plaintiffs argue that the District Court did not address the language

concerning failure to use or preserve “any segment” of the road, thereby failing to give

meaning to all of the written terms of the agreement as required by § 28-2-905, MCA.

They further argue that because they submitted evidence that, for a period in excess of

five years, use of the easement was impeded by the locked gate, boulder, rocks, and

gravel, there was an issue of material fact as to whether the easement had terminated.

Plum Creek counters that it is irrelevant “[w]hether or not the Plum Creek gate was

locked or whether Whary placed a pile of gravel or boulders at the north end of the

Easement” because Plum Creek used the easement numerous times over the years.

¶15   We conclude the District Court erred when it failed to give meaning to the phrase

“or any segment thereof,” as required by § 28-3-202, MCA. Section 28-3-202, MCA

(“The whole of a contract is to be taken together so as to give effect to every part if

reasonably practicable, each clause helping to interpret the other.”). Plum Creek has

not disputed that a segment of the easement was obstructed for a period of over five

years, nor has it addressed the clear language of the granting document that addresses

failure to use “any segment” of the easement. Viewing Plaintiffs’ evidence regarding the

obstructed easement in the light most favorable to them as the nonmoving party, we

conclude the District Court erred in granting Plum Creek’s motion for summary

judgment.



                                            6
¶16    2. Did the District Court err in finding that the scope of the easement was not

limited to logging operations?

¶17    The easement was originally granted for “ingress and egress over and across said

road, said rights to be exercised in a manner that will not interfere with the use of the

road by Grantee.” The District Court concluded that Plum Creek “has established that

the easement is general in nature, that the original Grantor’s property was developed into

a residential use, and there is no legal justification to limit Plum Creek’s present or

prospective use to only logging operations.” Plaintiffs argue that the District Court erred

in relying upon the historical uses of the easement within the servient estate to determine

the easement’s scope; rather, it is the historic use of the dominant estate that is

determinative. We agree with Plaintiffs on this point. See Section 70-17-106, MCA

(“The extent of a servitude is determined by the terms of the grant or the nature of the

enjoyment by which it was acquired.”); Ashby v. Maechling, 2010 MT 80, ¶ 38, 356

Mont. 68, 229 P.3d 1210 (citing Tungsten Holdings v. Kimberlin, 2000 MT 24, ¶ 27, 298

Mont. 176, 994 P.2d 1114) (This Court has “endorsed the concept that a decision on the

scope of an implied easement should consider ‘the actual uses being made [of the

dominant estate] at the time of the severance, such uses as the facts and circumstances

show were within the reasonable contemplation of the parties at the time of the

conveyance, and such uses as the parties might reasonably have expected from future

uses of the dominant tenement.’ ” ); Mason v. Garrison, 2000 MT 78, ¶¶ 22, 24-27, 299

Mont. 142, 998 P.2d 531 (The Court analyzed the extent of the easement “with a view to

                                            7
the situation of the property and the surrounding circumstances,” especially evidence of

the historical use of the dominant estate.). Plaintiffs further argue that the scope of the

easement must be limited to the sporadic logging related activities historically conducted

by Plum Creek. Plum Creek counters that the District Court correctly concluded that it

consistently used, preserved, and maintained the easement, and that the record establishes

that the original grantors of the easement never intended to limit the easement’s scope to

a particular activity.

¶18    Because we reverse under Issue One, we also reverse the court’s finding regarding

the scope of the easement, which is a question of fact to be determined by the finder of

fact on remand of this case. See Guthrie, ¶ 47 (what may be considered a reasonable use

of a general easement is usually a question of fact to be determined in light of the

situation of the property and the surrounding circumstances).

                                    CONCLUSION

¶19    For the foregoing reasons, we reverse and remand for further proceedings

consistent with this opinion.


                                                 /S/ PATRICIA COTTER

We concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT



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