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Vanbuskirk v. Gehlen

Supreme Court of Montana

May 16, 2017

MARY VANBUSKIRK and ROGER BARBER, Plaintiffs and Appellees,
v.
PATRICIA DOW GEHLEN, RAY GEHLEN, Trustees, GEHLEN PATRICIA DOW TRUST, Defendants and Appellants.

          Submitted on Briefs: March 15, 2017

         APPEAL FROM: District Court of the Twelfth Judicial District, In and For the County of Hill, Cause No. DV 14-126 Honorable David Cybulski, Presiding Judge COUNSEL OF RECORD:

          For Appellants: Christopher D. Meyer, CD Meyer Law Firm, Bozeman, Montana.

          For Appellees: Brian Lilletvedt, Jamie Bedwell, Bosch, Kuhr, Dugdale, Martin & Kaze PLLP, Havre, Montana.

          Jim Rice Justice.

         ¶1 Pursuant to Section I, Paragraph 3(c), 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 Appellants Patricia Dow Gehlen and Raymond Gehlen are the trustees of the Patricia Dow Gehlen Trust, hereinafter, collectively, "Gehlens." Gehlens appeal the grant of summary judgment by the Twelfth Judicial District Court, Hill County, in favor of Mary VanBuskirk and Roger Barber, hereinafter, collectively, "VanBuskirks."

         ¶3 Much like a phoenix, this case arises out of an old easement dispute, which has been litigated several times. The contested road, referred to as the "Northern Loop Road, " crosses a field currently owned by Gehlens. Northern Loop Road is located in Section 2, Township 32 North, Range 16 East, M.P.M., Hill County. The map below shows the location of Northern Loop Road.

         (image Omitted)

         ¶4 In 1976, Certificate of Survey #440093 (COS #440093) was completed "for the purpose of creating a new tract." COS #440093 created a new 21 acre parcel, which VanBuskirks' predecessors-in-interest[1] purchased. Following the purchase, VanBuskirks' predecessors-in-interest sought to secure their access to the property via Northern Loop Road.

         ¶5 In 1980, VanBuskirks' predecessors-in-interest brought a lawsuit against Gehlens' predecessors-in-interest[2] "to keep the [N]orthern [L]oop [R]oad available based on prescriptive use." At that time, District Judge Leonard Langen determined that VanBuskirks' predecessors-in-interest could not establish a prescriptive easement because "they did not have five years continuous use of the [Northern] [L]oop [R]oad." Then, in 1982, VanBuskirks' predecessors-in-interest brought a second lawsuit, claiming a right of way by necessity over the road. The parties entered into negotiations to settle the matter and, finally, in 1987, the parties reached a settlement memorialized by a February 23, 1987 Stipulation (Stipulation) filed with the District Court and recorded in the Hill County Clerk and Recorder's Office.

         ¶6 The Stipulation stated:

[Gehlens' predecessors-in-interest] agree that [VanBuskirks' predecessors-in-interest] have the right to use the path across that real property more particularly described on Exhibit "C" appended hereto and by this reference made a part hereof, at all times which do not interfere with the ...

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