Submitted on Briefs: September 4, 2013.
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV 06-634C Honorable Stewart E. Stadler, Presiding Judge.
COUNSEL OF RECORD:
For Appellant: Thane P. Johnson; Johnson, Berg & Saxby, PLLP; Kalispell, Montana.
For Appellee: Richard De Jana; Richard De Jana & Associates, PLLC; Kalispell, Montana.
JIM RICE, Justice.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Tungsten Holdings, Inc. (Tungsten) appeals from the order of the Eleventh Judicial District Court determining the location of the easement granted in the deed to Tungsten's property. Tungsten is the owner of 80 acres: 40 acres are located immediately to the north of the other 40 acres (collectively Tungsten Property). David Freyder (Freyder) is the owner of 20 acres (Freyder Property). The Freyder Property is not contiguous to the Tungsten Property, but lies to the east of the Tungsten northern 40 acres, separated by a 20 acre parcel (Intervening Property). Neighboring property owners use an access road known as Moose Crossing that travels in a northerly direction, just barely crossing into the eastern boundary of the Freyder Property, before turning west and crossing property to the north. There is also a newer road along the southern boundary of the Freyder Property known as Apgar View.
¶3 Tungsten filed its complaint asserting Freyder was interfering with use of its easement. It asserted an easement through the entirety of the Freyder and Intervening Properties not along Moose Crossing or Apgar View, but along a small trail through the woods just north of the Freyder house, about midway between the other two access roads. Alternatively, Tungsten requested the court declare that it had an easement by necessity to cross the Freyder and Intervening Properties. Freyder answered that the easement granted to Tungsten was not on the road it claimed, but along Moose Crossing. The owner of the Intervening Property was never a party to the case. After 6 years of pleadings, motions, and ultimately a bench trial, the District Court held that Tungsten's easement was along Moose Crossing, traveling to the eastern border of the Freyder Property before heading north and around the Freyder and Intervening Properties and dropping into the northeast corner of the Tungsten Property. Because the District Court determined that access existed, it denied Tungsten's claim to an easement by necessity. This appeal followed.
¶4 After thorough review of the transcript and the District Court record, the pertinent facts are as follows. By December 1968, Carrol and Myrna Wright (Wrights) owned approximately 520 contiguous acres, including the Freyder, Tungsten, and Intervening Properties (collectively Subject Properties), located just southwest of where the Middle Fork diverges from the North Fork of the Flathead River (Wright 520 acres). This land is between sections of the Flathead National Forest and, at the time of the Wrights' ownership, had to be accessed by use of a Forest Service "jeep trail."
¶5 Between 1973 and 1978, the Wrights sold the 80 acres immediately to the north of the Subject Properties in three transactions. Only one deed specifically reserved an easement while the other two only noted that access to the property was by use of an "existing road." On August 31, 1978, shortly after the last of these parcels was sold, the Wrights filed a Declaration of Easement (Declaration). The Declaration stated that the easement "follows as closely as possible jeep trails and the description thereof will be in general terms as it follows existing rights of way." (Emphasis added.) The Declaration then set out a more thorough description of the easement describing the direction of travel through various portions of the Wright 520 acres. The Declaration specifically listed as a benefitted tract (dominant estate) all of Wrights' remaining land including the Subject Properties, though it did not describe the easement as crossing any of the Subject Properties with the exception of it touching the eastern boundary of the Freyder Property. The description follows what is now Moose Crossing, however it does not describe the portion of road that passes through the previously sold properties to the north of the Subject Properties.
¶6 On September 8, 1978, the Freyder Property was conveyed to Freyder's predecessor in interest. The conveyance reserved a right to use "an existing 'jeep trail' which crosses a portion" of the property. In 1987, Tungsten's predecessors in interest acquired the Tungsten Property. The northern 40 acres and the southern 40 acres of the Tungsten Property were acquired through two separate contracts for deed, approximately six months apart. The deed for the northern 40 acres (the property with a border adjoining the Intervening Property) included use of an easement "along an existing jeep trail which crosses a portion of the" Freyder and Intervening Properties. (Emphasis added.) The deed for the southern 40 acres included use of an easement with a different description.
¶7 In 1996, Freyder's predecessor in interest, the Nichols, executed an Exchange Easement with the owner of the Intervening Property allowing the owner to construct a road through the Freyder Property along the southern boundary into the Intervening Property. The road was subsequently created and referred to as Apgar View.
¶8 In February 2002, Tungsten purchased the Tungsten Property "subject to and together with all easements, restrictions and covenants apparent or of record." It brought this action in 2006 asserting its right to use a path through the Freyder Property between Moose Crossing and Apgar View. Prior to trial, Tungsten agreed that its predecessors in ...