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2006 MT 95

Sunday v. Harboway

Montana Supreme Court

Decided May 4, 2006

Montana Supreme Court · decided 2006-05-04

Cited by 8 later decisions — most recently April 2012

8 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 2006-05-04

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JUSTICE MORRIS

¶1specially concurs.

¶2¶29 I concur with the Court’s conclusion that the evidence failed to establish the Alleged Road as a visible easement reserved in prior deeds. I write separately to emphasize that the Court reaches this result based upon the District Court’s resolution of conflicting testimony regarding the existence of any visible easements reserved in prior deeds. It was Sunday’s failure to persuade the District Court of the existence of visible easements on the ground, rather than the failure of the predecessors in interest of either Sunday or the *111Harboways to reserve visible easements in conveying the various parcels at issue that dictated the outcome. Indeed, Gist originally conveyed Parcel C to the Valeries free from all encumbrances “except all visible road easements and hereditaments.” The Harboways, in turn, received Parcel C subject to any of these visible road easements. The District Court found, as a matter of fact, that no visible road easements existed on Parcel C and the Court correctly defers to the District Court’s finding of fact in this matter. Tomlin, ¶ 12.

JUSTICE LEAPHART joins in the foregoing special concurrence.
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