No. 05-111
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 289
JOHN L. CRAVATH, et al.,
Plaintiffs and Respondents,
v.
GEORGE F. ELLINGSON, et al.,
Defendants and Appellants.
APPEAL FROM: The District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV 91-010A,
Honorable Ted O. Lympus, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Richard DeJana, Richard DeJana & Associates, Kalispell, Montana
Gary W. Bjelland, Jardine, Stephenson, Blewett & Weaver,
Great Falls, Montana
For Respondents:
Sharon Morrison and Frank B. Morrison, Jr., Morrison & Frampton,
Whitefish, Montana
Michael A. Ferrington, Attorney at Law, Whitefish, Montana
Submitted on Briefs: August 30, 2005
Decided: November 15, 2005
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 George Ellingson, et al. (Ellingson), appeal from the District Court’s Order granting
a permanent injunction.
¶2 We restate the issues raised on appeal as a single issue: whether the District Court
properly granted a permanent injunction prohibiting Ellingson from using and maintaining
a boat dock and ordering removal of that dock.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 This case comprises the latest, but apparently not the last, chapter in a decade-long
legal saga whereby the parties continue to dispute their respective rights to utilize communal
lakefront property.
¶4 John Cravath, et al. (Cravath), and Ellingson own real property in the Rest Haven
subdivision in Flathead County. The original developers of the subdivision, the Penwells,
announced the development of the subdivision in a document known as the “Penwell
Agreement” (Agreement). The Agreement included a provision reserving a “community
access area” along the lakeshore for the use of owners and future purchasers of property in
the Rest Haven subdivision. The pertinent provision of the Agreement, in its entirety, reads:
THE UNDERSIGNED DO HEREBY FURTHER AGREE AND COVENANT with any and all persons or corporations who now or shall hereafter
acquire any interest in and to [the Rest Haven subdivision] that the undersigned (the Penwells) will provide within the [subdivision] and within the
boundaries of Lot 16 of Rest Haven, Flathead County, Montana, pending a
public dedication of the same, 150 to 200 feet of Lake frontage as a common
access area or private park for the mutual benefit and privilege of said personal
guests for small special functions, boat dockage or motoring, but without right
to alter, remodel, build or construct any facilities of any nature on any of said
premises without the written consent of the undersigned, and without right to
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exclude the use of same at any time by any other person or corporation who
now or shall hereafter acquire any interest in and to the above described
property. It being understood and agreed that said area so set aside by the
undersigned as a common access area or private park shall be so used as any
other public park may be used for any and all recreational purposes, but for the
sole, use and privilege of said persons or corporation who now or shall
hereafter acquire any interest in and to the above described property, and as
long as said use is not detrimental, injurious or offensive to the common usage
of said area by all those entitled to use the same under the terms of this
Agreement.
Perceived ambiguity in the respective rights that this provision granted to Ellingson1 and
Cravath spawns the present dispute.
¶5 Litigation concerning the continuing validity of the “Penwell Agreement” began over
a decade ago. In that initial dispute, the District Court granted summary judgment to
Cravath, confirming the validity of the Agreement and indicating that Cravath held an
irrevocable, non-possessory interest in the “common access area.” This Court affirmed,
holding (in an unpublished opinion) that “Ellingson took title to the Rest Haven property
subject to the community access rights set forth in the Penwell Agreement . . . .” Cravath
v. Ellingson, 2001 MT 23N, ¶ 17 (emphasis added).
¶6 Subsequent to our decision in Cravath, Ellingson constructed a boat dock on the
lakefront portion of lot 16. The dock was located, at least in part, within the community
access area, occupying a portion of its shoreline as well as the water immediately adjacent
thereto. Ellingson intended the dock to be personal property. Accordingly, Ellingson has
required, and intends to continue to require, other Rest Haven residents to obtain permission
1
Ellingson presently owns lot 16, the lot that contains the common access area.
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to use the dock for docking their boats. Moreover, Ellingson has excluded, and intends to
continue to exclude, other Rest Haven residents from using the dock, except for emergency
purposes.
¶7 In response to the construction and exclusionary use of Ellingson’s dock, Cravath
sought and obtained a temporary restraining order and preliminary injunction from the
District Court. Eventually, the District Court granted a permanent injunction in favor of
Cravath, prohibiting Ellingson from using or maintaining the dock, and ordering it removed.
The District Court specifically found that Ellingson installed a dock “in front of the
community access area,” and has not allowed the dock to be used as a communal facility, but
“intend[s] to control, supervise and restrict any usage of the dock by other owners . . . .” The
District Court reasoned that the Ellingson dock violates the terms of the Agreement because
it “exclude[s] Plaintiffs . . . from using the dock as a community facility.” The District Court
concluded that further exclusion from the use of the dock would cause irreparable harm to
Cravath and that monetary compensation would not provide an adequate remedy. Therefore,
it granted a permanent injunction.
¶8 A group of Rest Haven residents applied for a permit to construct a dock of their own
along the lakeshore within the common access area. The Flathead County Commissioners
reversed the initial approval of their application for a permit. The Commissioners provided
several legal bases for their decision, including a Whitefish Lakeshore Regulation that
renders easement holders ineligible to obtain a lakeshore construction permit. An appeal of
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the Commissioners’ rejection of the residents’ dock construction permit application is
currently pending before the District Court.
STANDARD OF REVIEW
¶9 We review a district court’s grant of an injunction to determine whether the court has
committed a manifest abuse of discretion. Shammel v. Canyon Resources, 2003 MT 372,
¶ 12,
319 Mont. 132, ¶ 12,
82 P.3d 912, ¶ 12. A manifest abuse of discretion is one that is
obvious, evident, or unmistakable. Shammel, ¶ 12 (citation omitted).
DISCUSSION
¶10 Did the District Court err when it granted the permanent injunction?
¶11 Ellingson argues that the District Court erred by not interpreting the Agreement as
creating an easement, or something “akin to an easement,” and not applying easement law
to determine whether Ellingson had the right to erect and use the dock. Ellingson notes that
easement law precludes the owner of the servient estate from holding a servitude on its own
land; thus the owner of the servient estate cannot simultaneously be the owner of a dominant
estate. Ellingson asserts that he owns the servient estate. Ellingson interprets the
Agreement as constraining only the actions that owners of the dominant estates may take
within the communal area. He argues that the owners of the servient estate are unrestrained
by the language prohibiting exclusion of others from use of the communal area. Accord-
ingly, Ellingson claims that he may construct a dock and exclude others from using it.
Ellingson contends that the District Court, under the false impression that Cravath is fee
owner of the communal area, has permitted him to impede Ellingson’s lawful and free use
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of his property. Finally, Ellingson apparently presumes that the District Court premised its
Order entirely on the basis that his private and exclusive dock precludes Cravath from having
use of a dock within the communal area. He asserts that the District Court erred by failing
to recognize that Whitefish Lakeshore Regulations actually prohibit Cravath from erecting
a communal dock, regardless of the existence of Ellingson’s dock.
¶12 Cravath argues that the District Court properly found that Ellingson had excluded and
would continue to exclude other Rest Haven residents from using the dock. Cravath
maintains that the Agreement prohibits Ellingson from erecting a dock in the communal area
and excluding others from using it. This interferes with Cravath’s exercising the rights
reserved in the Agreement, including using the communal lakeshore area for recreational
water sports, swimming, and boat dockage. Cravath further contends that the Agreement’s
restrictions on use of the communal area by the other Rest Haven owners apply equally to
Ellingson.
¶13 We will first address Ellingson’s final claim of error. To support its conclusion that
Ellingson’s dock prevents other Rest Haven residents from using the communal area for boat
docking, the District Court’s Order recites a Whitefish Lake and Lakeshore Protection
Regulation that allows only one dock per lakefront property ownership. Ellingson contends
that a different Whitefish Lake and Lakeshore Protection Regulation precludes Cravath, an
easement holder, from erecting a dock. Certain Rest Haven owners did apply for a permit
to erect a dock on the communal area. The Flathead County Board of Commissioners
ultimately denied this application. Appeal of their decision is presently pending in district
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court, which has not yet reached a final decision. Accordingly, this issue is not ripe for
review by this Court. Langemo v. Montana Rail Link, 2001 MT 273, ¶ 34,
307 Mont. 293,
¶ 34,
38 P.3d 782, ¶ 34.
¶14 Next, we address Ellingson’s contention that, pursuant to our decision in Cravath, the
respective rights of the parties must be determined by applying easement law. Ellingson
bases his claim on a misreading of our language in Cravath. We held that “Ellingson took
title to the Rest Haven property subject to the community access rights set forth in the
Penwell Agreement and the Deed Exhibit 273.” Cravath, ¶ 17 (emphasis added). Ellingson
had argued that the access right set forth in the Agreement had later been relinquished by
Penwell. In reaching our conclusion, therefore, we noted that the Agreement “indicates that
the community access area or recreation area was intended to be irrevocable, akin to an
easement, within the subdivision . . . .” Cravath, ¶ 13. When read in context, the phrase
“akin to an easement” simply expands on the word irrevocable–the common access area was
intended to be irrevocable, just like an easement is intended to be irrevocable. It does not,
as Ellingson presumes, indicate that we held that the Agreement created a property interest
“akin to an easement” in Cravath. It is not obvious that our holding in Cravath established
the existence of an easement. The District Court did not manifestly abuse its discretion by
not explicitly applying easement law to assess the respective rights of the parties to use the
communal access area.
¶15 Nevertheless, the outcome of this case would not differ if easement law were to apply.
Assuming, arguendo, that easement law does govern the respective rights of Ellingson and
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Cravath to use the communal area, the District Court nonetheless reached the correct result
and provided findings of fact sufficient to support this result. We have long held that the
grantee of a parcel that is burdened by a servitude, including an easement, “take[s] subject
to the restrictions imposed.” City of Missoula v. Mix (1950), 123 Mont. 365, 371,
214 P.2d
212, 215 (citation omitted). Moreover, “the owner of the servient tenement may make use
of the land in any lawful manner that he or she chooses, provided that such use is not
inconsistent with and does not interfere with the use and right reserved to the dominant
tenement or estate.” Mason v. Garrison,
2000 MT 78, ¶ 47,
299 Mont. 142, ¶ 47,
998 P.2d
531, ¶ 47 (emphasis added) (citation omitted); accord Mix,
123 Mont. at 372,
214 P.2d at
216. In Garrison, an easement by reservation had provided owners within a subdivision the
perpetual right to use a parking area adjacent to Flathead Lake. Garrison, ¶ 9. We held that
the owner of the servient estate, who built two raised gardens within the parking area, had
unreasonably interfered with others’ right to use the easement. Garrison, ¶ 49. Similarly,
we have held that a servient estate owner who simply closed a gate across a right-of-way
easement unreasonably interfered with the use of a reserved easement for ingress and egress.
Strahan v. Bush (1989),
237 Mont. 265, 269,
773 P.2d 718, 721. Mindful that such
determinations are fact specific, Gabriel v. Wood (1993),
261 Mont. 170, 176,
862 P.2d 42,
46, the evidence here shows that Ellingson’s erection and exclusionary use of the dock
clearly interferes with the use and rights reserved to Cravath. The Penwell Agreement set
aside the lake frontage, “as a common access area or private park . . . for recreation purposes
. . . for small social functions, boat dockage or motoring,” and provides that the area “shall
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be so used as any other public park may be used for any and all recreational purposes . . . .”
(Emphasis added.) Ellingson erected his dock within the communal area and excluded all
others from using it, subject to limited exceptions. Such conduct interferes with the right
reserved to other Rest Haven residents to use the communal lakeshore area for recreational
purposes such as playing on the beach, swimming and docking boats. It physically prevents
them from utilizing part of the reserved communal area, just as the raised gardens physically
prevented use of part of the parking area and the closing of a gate physically impeded the
ingress and egress of the easement holder.
¶16 Moreover, we note that the owner of the dominant estate is not required to obtain
permission from the owner of the servient estate “to do what he is already legally entitled to
do . . . .” Ludwig v. Spoklie (1996), 280 Mont. 315, 320,
930 P.2d 56, 59. Here, the
Agreement specifically authorizes Cravath to use the common access area, presumably
including the waters immediately abutting the dry land comprising the communal area for
boat dockage. Cravath is legally entitled to use the communal area for boat dockage. Thus,
Ellingson may not require Cravath to obtain permission to use a dock in the communal area,
whether that dock belongs to Ellingson, Cravath, or all of the Rest Haven residents
collectively. Thus, even if the Agreement created an easement, Ellingson violated the terms
of the Agreement by requiring Cravath to obtain permission to use the area for boat dockage.
¶17 Finally, we note that Ellingson’s argument reaches too far. Ellingson contends that
the Agreement does not restrict his ability to build within the common access area or to
exclude Cravath from the resultant structures. By such reasoning, Ellingson could simply
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build over the entire common access area and prohibit Cravath from utilizing any of it.
Obviously, such conduct would be inconsistent with the rights reserved to the Rest Haven
residents by the Agreement, just as exclusion of them from a portion of the communal area
interferes with such rights. Therefore, the District Court correctly held that Ellingson’s
erection, use and maintenance of the dock violates the Penwell Agreement.
¶18 The District Court properly held that Ellingson’s use and maintenance of a private
dock violated the terms of the Penwell Agreement, and properly concluded that pecuniary
compensation would not provide an adequate remedy. The District Court did not manifestly
abuse its discretion in enjoining Ellingson’s continued use of the dock and ordering its
removal.
¶19 Accordingly, we affirm.
/S/ W. WILLIAM LEAPHART
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
Justice Jim Rice specially concurring.
¶20 I concur in the result reached by the Court, but would affirm the District Court on a
different basis.
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¶21 The District Court recognized the Whitefish Lake and Lakeshore Protection
Regulations in effect for this property, which provide that “only one dock is allowed per
waterfront property ownership,” and reasoned as follows:
The hereinabove cited applicable Whitefish Lakeshore Regulation
makes it clear that only one dock can be maintained upon one waterfront
property ownership. Accordingly, under the regulations, the community
access area here is entitled to only one dock thereon. By provision of the
Penwell Agreement, any dock so installed must be subject to use by all of the
subject lot owners equally. [Ellingsons’] conduct makes this impossible.
The “conduct” by Ellingsons which makes common use of the dock impossible is their
refusal to allow the other interest-holders to use the dock for general lake access. The
Penwell Agreement provided the other holders with a “common access area” for “boat
dockage or motoring,” but reserved to Ellingsons, as Penwell’s successor, the right to control
dock construction. As a consequence of the Whitefish regulations allowing only one dock
to be placed on this property, Ellingsons’ actions have effectively undermined the rights of
the other holders under the Penwell Agreement to boat dockage. Ellingsons’ steadfast refusal
to allow dock access left the District Court with little choice. Quite simply, under current
regulation, any dock must be available to all. If it is not, the Penwell Agreement is violated,
and the District Court reasonably required the dock to come out. Another solution may have
been for Ellingsons to allow general access to the dock by the other holders.
¶22 Thus, in my view, the Court’s conclusion that “Ellingson erected his dock within the
communal area and excluded all others from it, subject to limited exceptions[;] [s]uch
conduct interferes with the right reserved to other Rest Haven residents” (¶ 15) is, without
more, too broadly stated. This conduct is impermissible only because of the single-dock
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limitation imposed by the Whitefish Lakeshore regulations. The evidence appears to support
Ellingsons’ contention that there is ample room along the shoreline for construction of a
second dock for the other residents, which would provide the dock access granted by the
Penwell Agreement, but that is not allowed under the current regulations.
¶23 Although I disagree with the Court’s conclusion that construction of the dock itself
by Ellingson is a violation of the Penwell Agreement, I concur with the decision of the Court
to affirm the District Court.
/S/ JIM RICE
Justice Patricia O. Cotter joins the concurring opinion of Justice Rice.
/S/ PATRICIA O. COTTER
Justice John Warner joins in the concurring opinion of Justice Rice.
/S/ JOHN WARNER
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