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Brown and Brown of MT, Inc. v. Raty

Supreme Court of Montana

November 12, 2013

BROWN AND BROWN OF MT, INC., A Corporation, Plaintiff and Appellant,
v.
KEITH RATY AND COLLEEN RATY, Defendant and Appellee.

Submitted on Briefs: October 23, 2013

APPEAL FROM: District Court of the Twelfth Judicial District, In and For the County of Hill, Cause No. DV 08-190 Honorable Daniel A. Boucher, Presiding Judge.

For Appellant: J. Devlan Geddes, Goetz, Gallik & Baldwin, P.C.; Bozeman, Montana

For Appellee: Gregory J. Hatley, Davis, Hatley, Haffeman & Tighe, P.C.; Great Falls, Montana

OPINION

Michael E Wheat, Justice

¶1 Brown & Brown of Montana, Inc. (Brown) appeals from the Order of the Montana Twelfth Judicial District Court, Hill County, modifying its final judgment to conform with our opinion in Brown & Brown of MT, Inc. v. Raty, 2012 MT 264, 367 Mont. 67, 289 P.3d 156 (Brown I).

¶2 We reverse and remand for further proceedings.

¶3 The issue on appeal is:

¶4 Did the District Court err by failing to delineate the scope of the Ratys' residential and recreational prescriptive easements across Brown's real property?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 The Court previously considered this case in Brown I, where we reviewed the District Court's decision granting summary judgment to the Ratys. T he District Court's decision, as modified, provided generally that: (1) the Ratys had a prescriptive easement to cross Brown's land; (2) the prescriptive easement included residential and recreational uses; and (3) the width of the easement was confined to twenty feet. The record before the District Court included sworn affidavits, deposition testimony, and photographs attesting to historic and present-day use of the easement. The uses included trailing herds of livestock, horseback riding, walking, driving agricultural and construction equipment, hauling materials to repair or build fences, spraying weeds, maintaining and developing water sources, hauling firewood, riding snowmobiles, accessing residences, hunting, and fishing. We held that the District Court properly found that the Ratys had a prescriptive easement that included these uses, but improperly limited the width of the easement to twenty feet for the purposes of trailing cattle. We remanded the case to the District Court to clarify the scope of recreational and residential uses authorized by the easement; and to modify its order regarding the easement's width.

¶6 The District Court's pertinent language as to the scope of use included in the easement originally read:

The permitted uses of the Raty's prescriptive easement are as follows:

a. Trailing cattle and engaging in other travel necessary for the maintenance of the cattle and the property on ...

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