April 7 2010
DA 09-0299
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 71
JONATHAN FRAME,
Plaintiff and Appellee,
v.
THEODORE D. HUBER, CARLEEN M. HUBER,
CHARLES ANDREW POOLE, VALERIE ALEISA SMITH,
GREGORY L. YETTER, CATHERINE M. YETTER,
LARRY R. RACICOT, MARGARET POOLE RACICOT,
GARY L. MARTINSEN and LORI B. MARTINSEN,
Defendants and Appellants.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. CDV 08-375(b)
Honorable Julie Macek, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Robert J. Phillips, Amy O. Durek; Phillips Law Firm P.C.,
Missoula, Montana
For Appellee:
Patrick E. Melby, Erin F. MacLean; Luxan & Murfitt, PLLP,
Helena, Montana
Submitted on Briefs: October 28, 2009
Decided: April 7, 2010
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Hubers, Poole, Smith, Yetters, Racicots and Martinsens appeal from the District
Court’s April 17, 2009, order granting Frame’s motion for summary judgment, ruling that
Frame has an easement by necessity across their lands, and denying all other motions for
summary judgment. We reverse.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 The parties all own tracts of land that abut the Dearborn River. Frame’s lot abuts
the River on the south bank and lies in Lewis & Clark County. The Huber and Poole lots
abut each other and are on the opposite side of the Dearborn River from Frame’s lot, in
Cascade County.1 In 1971 Fred and Nina Dear subdivided land they owned, including all
of the land that now comprises the lots owned by the parties. That same year an entity
called LDS, Inc. bought the subdivided Dear property and sold the lots to the parties or to
their predecessors in interest. The Poole lot was bought in January, 1971; the Huber lot
was bought in August, 1971; and the Frame lot was bought in November, 1971. Jonathan
Frame acquired the Frame lot in 2002. The State of Montana owned the bed of the
Dearborn River, Montana Coalition for Stream Access v. Curran, 210 Mont. 38,
682 P.2d
163 (1984), at and before the time the current lots were created and sold.
¶3 A road known as the Dearborn River Road abuts the northern boundary of the
Huber and Poole lots and provides access to those lots and other land in the area. The
Dearborn River Road does not reach the Dearborn River (at least in the area at issue in
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Theodore and Carleen Huber own the parcel referred to as the Huber lot. Poole, Smith,
the Yetters, the Racicots and the Martinsens own the parcel referred to as the Poole lot.
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this case) or the Frame lot. Another road turns off of the Dearborn River Road, follows
on or near the property line between the Huber and Poole lots and reaches the Dearborn
River on Hubers’ land. At the place where this second road reaches the River it is
possible, at least in times of lower water flows, to ford the River with a vehicle and reach
Frame’s lot. There is no bridge.
¶4 Hubers or Pooles have long maintained a locked gate at the turn-off onto their
property from the Dearborn River Road. They have used the gate to control access to
their property and to the road leading across their property down to the River. They
excluded Frame on one or more occasions when he sought to cross their land to reach the
River.
¶5 Frame sued, claiming that he was entitled to an easement by necessity across the
Poole/Huber land so that he could reach the Dearborn River and cross it to reach his
property. The parties moved for summary judgment. The District Court concluded that
Frame had an easement by necessity to cross the Poole/Huber lots from the Dearborn
River Road in order to reach the Dearborn River.
¶6 The dispositive issue is whether the District Court erred when it ruled that Frame
had an easement by necessity across the Poole/Huber land.
STANDARD OF REVIEW
¶7 This Court reviews a district court’s decisions on motions for summary judgment
de novo. Allstate Ins. Co. v. Wagner-Ellsworth, 2008 MT 240, ¶ 7,
344 Mont. 445,
188
P.3d 1042.
DISCUSSION
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¶8 The District Court found that Frame had an implied easement by necessity to cross
the Poole/Huber lots from the Dearborn River Road to reach the Dearborn River, which
he would then have to cross to reach his lot.
¶9 Montana law recognizes the existence of easements by necessity as a species of
implied easements. Easements by necessity arise from a legal fiction that the owner of a
tract of land would not sell parts of the land so as to isolate and landlock a remaining
portion of it without having intended to reserve a way of access to the parcel over the
lands being severed. Wolf v. Owens, 2007 MT 302, ¶ 16,
340 Mont. 74,
172 P.3d 124.
The law implies intent by the landowner to provide an easement by necessity in favor of
the landlocked parcel across the landowner’s other lands when necessary to reach a
public road. In easement terms, the landlocked parcel is the dominant estate, and the
landowner’s other sold property that must be crossed to reach the landlocked parcel is the
servient estate. Albert G. Hoyem Trust v. Galt,
1998 MT 300, ¶ 18,
292 Mont. 56,
968
P.2d 1135; Schmid v. McDowell,
199 Mont 233, 237,
649 P.2d 431, 433 (1982).
¶10 An easement by necessity can arise only within the context of land held in
common ownership at the time a severance creates a landlocked parcel, and cannot exist
over the land of a third person whose land was not part of the common ownership. Big
Sky Hidden Village Owners Assoc. v. Hidden Village, Inc.,
276 Mont. 268, 277,
915 P.2d
845, 850 (1996). Easements by necessity arose from a public policy against isolating
tracts of land and thereby minimizing their utility, Big Sky Hidden Village,
276 Mont. at
277,
915 P.2d at 851, but they may arise only in the specific circumstances that come
within the requirements of law. Implied easements by necessity have never been
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intended to provide access across the land of others to benefit any and all landlocked
property.
¶11 The two essential elements of an easement by necessity are referred to as unity of
ownership and strict necessity, and the proponent of the easement must prove the
necessary elements by clear and convincing evidence. Watson v. Dundas, 2006 MT 104,
¶¶ 32-33,
332 Mont. 164,
136 P.3d 973. The servient property owner may own his land
for decades before finding it subjected to a claim of easement by necessity. If the
easement is established, the servient property owner then suffers permanent loss of some
of his property rights without any compensation. Therefore, an important component of
the law is that easements by necessity are “considered with extreme caution” because
they deprive the servient tenement owner of property rights “through mere implication.”
Graham v. Mack,
216 Mont. 165, 174,
699 P.2d 590, 596 (1985) (emphasis in original).
¶12 Unity of ownership exists where the owner of a tract of land severs part of the tract
so as to create a landlocked parcel without expressly providing an outlet to a public road.
Watson, ¶¶ 32, 33. A single owner must at one time have owned both the landlocked
tract to be benefited by the easement (the dominant tenement) and the tract across which
the easement would pass (the servient tenement). Loomis v. Luraski,
2001 MT 223, ¶ 49,
306 Mont. 478,
36 P.3d 862. Unity of ownership is established if the dominant and
servient parcels were owned by one person or entity immediately prior to the severance
that gives rise to necessity. Schmid,
199 Mont. at 238,
649 P.2d at 433. Here, for
example, Frame’s claim is based upon the contention that as among himself, Poole and
Huber, his lot was landlocked by the LDS sale of the Poole and Huber lots.
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¶13 An easement by necessity is created by operation of law at the time of severance
of the parcels of land, Hoyem Trust, ¶ 17, but that may occur decades before a judicial
determination of whether there is an easement by necessity. Kelly v. Burlington
Northern, 279 Mont. 238, 244-45,
927 P.2d 4, 7-8 (1996) (unity of ownership traced to
1891).
¶14 The element of strict necessity requires that there be no practical access to a public
road from the landlocked parcel except across lands that were formerly in common
ownership. Kelly,
279 Mont. at 244,
927 P.2d at 7. Strict necessity must exist at the time
the tracts are severed from the original ownership and at the time the easement is
exercised. Watson, ¶ 32. A developed way of access to the landlocked parcel need not
actually exist at the time of severance, and an easement by necessity is “distinguished
from other implied easements on the simple ground that [a developed way] need not be in
existence at the time of conveyance . . . .” Schmid,
199 Mont. at 237,
649 P.2d at 433.
¶15 The requisite necessity is the necessity to cross land formerly in common
ownership for access to a public road. Waters v. Blagg,
2008 MT 451, ¶¶ 16-17,
348
Mont. 48,
202 P.3d 110. While an easement by necessity arises at the time of severance
of the tracts from unified ownership, it can lie dormant through successive ownership
changes until an owner elects to exercise the right. Loomis, ¶ 53.
¶16 In this case the evidence of unity of ownership arises, if at all, from the fact that in
1971 the Dears and then LDS owned all of the lots now owned by the parties. Dears sold
all the lots to LDS which sold the lots to the parties or their predecessors, the last to sell
being the Frame tract. The unity of ownership required to imply an easement by
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necessity cannot exist in this case, however, because the State-owned bed and banks of
the Dearborn River separate the Poole/Huber land from the Frame land. The State-owned
land--the bed and banks of the Dearborn River--was never in common ownership with
the Poole, Huber and Frame lots. While LDS owned and then sold each of the lots, the
Poole and Huber lots could not have been severed from the Frame lot because they were
never contiguous or attached to it. The River has always separated the tracts.
¶17 An easement by necessity can be implied, if at all, only to cross lands formerly
held in unified ownership to reach a public road. An easement by necessity cannot be
implied to merely reach the land of a third party which was not part of the original
unified ownership. As previously noted, it is established that a claim of easement by
necessity is viewed with extreme caution, and that the proponent must demonstrate the
required elements by clear and convincing evidence. The court considered a similar
situation in Schmid where a tract of land formerly in unified ownership had been severed
into two parcels, both of which were separated from a public road by State-owned land.
The owner of one parcel claimed an easement by necessity across the other parcel to
reach the State-owned land in order to cross it to access the public road. This Court
rejected the claim, holding that an easement by necessity
can only arise out of the land granted or reserved by the grantor and never
out of the land of a third party or a stranger to the title. Here, the land now
owned by the State of Montana was not part of the original land owned by
Junkins, and, therefore, not under “common ownership” or “unity of title.”
On this ground alone, appellants’ claim for the way of necessity must fail.
Schmid, 100 Mont. at 238, 649 P.2d at 431. This Court continues to follow the Schmid
rule. Kullick v. Skyline Homeowners,
2003 MT 137, ¶ 25,
316 Mont. 146,
69 P.3d 225;
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Watson, ¶ 33; Waters, ¶¶ 16-17. Here, as in Schmid, the State-owned land between the
landlocked parcel and the public road defeats a claim of easement by necessity. Because
the Dearborn River dissects the lots, there was never unity of ownership.
¶18 While Frame disclaims an intent to seek an easement across the State-owned
Dearborn River, that is not determinative of whether an easement by necessity may be
implied here. Under prevailing principles governing easements by necessity, and
particularly as illustrated in Schmid, the requirement for unity of ownership can be met
only if all the land necessary to provide the easement was once in unified ownership.
¶19 Frame has no easement by necessity to cross the Huber/Poole lots to reach the
Dearborn River, and the decision of the District Court is reversed.
/S/ MIKE McGRATH
We concur:
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
Justice Patricia O. Cotter specially concurs.
¶20 I concur in the result reached by the Court and agree that the District Court’s grant
of summary judgment should be reversed. I write separately because I do not wholly
agree with the Court’s rationale in reaching this decision
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¶21 An easement by necessity has two required elements: (1) unity of ownership, and
(2) strict necessity at the time the unified tracts are separated. To demonstrate unity of
ownership, “the tract over which the easement is claimed must have been owned at some
time by the same person holding title to the land that the easement would benefit.”
Loomis v. Luraski, 2001 MT 223, ¶ 49,
306 Mont. 478,
36 P.3d 862. The Court
concludes that unity of ownership cannot exist in this case because the Dearborn River
separates the Poole/Huber land from the Frame tract. I disagree with this conclusion for
the simple fact that Frame is not seeking an easement across the Dearborn River. LDS
owned all three parcels at one time and then severed them at a later date. Frame is only
seeking an easement across the Poole/Huber tracts to the Dearborn River. He is not
seeking an easement of necessity over state lands. Once Frame has an easement to the
Dearborn River, he can then cross it in order to reach his land.
¶22 In this connection, I believe Schmid is distinguishable and the Court errs in relying
upon it in this case. In Schmid, a claimant sought an easement across state-owned land
and across the land of private landowners. The Court in Schmid correctly noted that a
“way of necessity” in that case could not be claimed “over the lands of a third party or a
stranger in title . . . .” Schmid,
199 Mont. at 236,
649 P.2d at 432. The claimants in that
case argued that they had a way of necessity over private and state lands. Schmid,
199
Mont. at 236,
649 P.2d at 432. Here, Frame is not claiming an easement over state land,
but merely claiming one to the river. Frame does not need an easement over the
Dearborn River in order to lawfully access his land. The claimed easement of necessity
would only burden the Poole or Huber tracts. Because there was unity of ownership
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among the Poole, Huber, and Frame tracts before LDS severed these parcels, I would
conclude, as the District Court did, that the unity of ownership requirement has in fact
been satisfied.
¶23 However, due to the timing of the severance of the property in this case, I cannot
conclude that “strict necessity” for an easement over the Poole tract existed at the time of
severance. As the Court stated in Albert G. Hoyem Trust v. Galt, 1998 MT 300, ¶ 18,
292 Mont. 56,
968 P.2d 1135, “[a] right-of-way by absolute necessity is created by
implied grant over the remaining lands of the seller when the owner of a tract of land
sells a part of the tract that has no outlet to a public road except over the other lands of
the seller.” (Emphasis added.) LDS owned all three tracts at one time. In January 1971,
LDS severed the Poole tract, and retained the other two. Once the Poole tract was
severed from the other two, the remaining lands of LDS were the Huber and Frame
tracts. At this point, LDS could use the Huber tract in order to reach the Dearborn River
since the southern boundary of the Huber tract abuts the Dearborn. In August 1971, LDS
severed the Huber tract from the Frame tract. At this point, the Frame tract actually
became landlocked, or “riverlocked.” However, if an easement of necessity to reach the
Dearborn River (and then presumably access the Frame tract) could be said to exist at all
in this case, it could exist only over the Huber tract due to the timing of the severances.
That is because “[a] way of necessity depends solely upon ‘strict necessity’ at the time of
conveyance . . . .” Hoyem Trust, ¶ 19. In other words, the existence of strict necessity is
determined when land is severed or conveyed, and so the timing of the severance is a
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critical component in determining whether or not strict necessity exists. See also Wolf v.
Owens, 2007 MT 302, ¶ 19,
340 Mont. 74,
172 P.3d 124.
¶24 Because the Poole tract was severed from the LDS lands at a point in time earlier
than the severance of the Huber/Frame tracts, Frame’s claim for an easement by necessity
over the Poole tract must fail as a matter of law. If an easement of necessity exists in this
case, it could exist only over the Huber tract. Since Frame’s claim was for an easement
over the Poole tract, I concur in the Court’s decision.
/S/ PATRICIA O. COTTER
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