Submitted on Briefs: March 15, 2017
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:
Appellants: Christopher D. Meyer, CD Meyer Law Firm, Bozeman,
Appellees: Brian Lilletvedt, Jamie Bedwell, Bosch, Kuhr,
Dugdale, Martin & Kaze PLLP, Havre, Montana.
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
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."
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.
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 purchased.
Following the purchase, VanBuskirks'
predecessors-in-interest sought to secure their access to the
property via Northern Loop Road.
In 1980, VanBuskirks' predecessors-in-interest brought a
lawsuit against Gehlens'
predecessors-in-interest "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
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