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Ash v. Merlette

Supreme Court of Montana

December 12, 2017

BRENDA M. ASH, INDIVIDUALLY and as Trustee of the Brenda M. Ash Revocable Trust, Plaintiff and Appellee,
v.
JOHN B. MERLETTE, Individually and as Trustee of the John B. Merlette, Sr. Living Trust; GLADYS A. MERLETTE, Individually and as Trustee of the Gladys A. Merlette Living Trust, Defendants and Appellants.

          Submitted on Briefs: August 2, 2017

         District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-15-1043B Honorable Robert B Allison, Presiding Judge

          Paul A. Sandry, Johnson, Berg, & Saxby, PLLP; Kalispell, Montana For Appellee

          Renee L. Coppock, Crowley Fleck PLLP; Billings, Montana Richard W. Casey, Ashley A. Di Lorenzo, Crowley Fleck PLLP; Kalispell, Montana For Appellant

          Justice Dirk Sandefur delivered the Opinion of the Court.

         ¶1 John B. Merlette and Gladys A. Merlette (Merlette) appeal an order of the Montana Eleventh Judicial District Court granting summary judgment declaring that Brenda M. Ash (Ash) owns certain disputed land between the high- and low-water marks of a small lake located in Flathead County, Montana. We affirm and address the following issue on appeal:

         Did the District Court correctly conclude that Ash owns the land bordering her property between the high- and low-water marks of Parker Lake?

         BACKGROUND

         ¶2 In 1986, Larry and Serena Streeter (Streeters) acquired approximately 43 acres of property surrounding a small lake in Flathead County known as Parker Lake No. 1.[1] In 1991, Streeters subdivided the property by internal boundary line relocation into an approximately 5.66 acre tract (Parcel A) and a 37.17 acre remainder (Tract 1).[2] Both tracts included lake frontage on Parker Lake. In 1992, Streeters sold the 37.17 acre remainder to John Bradshaw (Merlette Property)[3] but retained the previously created 5.66 acre tract (Ash Property) for themselves. In 2000, Brenda Ash (formerly Olson) jointly acquired the Ash Property with her then-husband via a mesne conveyance originating from Streeters.[4]

         ¶3 As created and particularly described by Streeters' 1991 COS 10404, the 5.66 acre Ash Property included approximately 577 feet of frontage on Parker Lake. COS 10404 described the Ash Property boundary along Parker Lake by a particularized metes and bounds plot running from a referenced starting point on the high-water mark and then "on and along" the high-water mark three specified courses marked by pin locations. Streeters' subsequent 1992 deed to Bradshaw conveyed the Merlette Property by reference to COS 10120 but expressly excluded the retained Ash Property from the conveyance by reference to COS 10404, which cut the Ash Property out of COS 10120 prior to the Bradshaw conveyance. The 1992 Bradshaw deed expressly excluded the Ash Property by reference to COS 10404 and a redundant metes and bounds description lifted verbatim therefrom. The 2000 Olson-Ash deed (Ash deed) described the Ash Property by reference to COS 10404 and a redundant metes and bounds plot running from a referenced point on the high-water mark "on and along" the high-water mark three specified courses, "577 feet more or less."[5]

         ¶4 In 2002, construction workers retained by Merlette excavated fill from Parker Lake to level a site for a new residence on the Merlette Property. Ash complained to the U.S. Army Corps of Engineers that Merlette's fill excavation violated § 404 of the federal Clean Wa ter Act prohibiting unpermitted dredging in streams, lakes, and wetlands subject to the Act. [6] After a site visit, the Corps issued correspondence, dated January 21, 2003, declaring Parker Lake as a non-navigable intrastate body of water beyond the Corps' jurisdiction pursuant to Solid Waste Agency v. U.S. Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675 (2001) (federal jurisdiction limited to waters susceptible to interstate commerce and immediately adjacent wetlands).

         ¶5 Later in 2002, Ash placed a boat dock on the Parker Lake shoreline in front of her home. Merlette objected, asserting that he owned all of the land below the high-water mark around the entire lake. He accused Ash of trespass and insisted that she remove the dock immediately. Ash eventually acquiesced and removed the dock. In 2015, Ash again installed a dock on the lake in advance of listing her property for sale. Merlette again protested on the asserted ground that he owned all of the land below the high-water mark around the lake. The dispute escalated when Merlette pounded metal fence posts along the high-water mark bordering Ash's property and Ash removed and stacked them on Merlette's driveway.

         ¶6 After the parties exchanged correspondence through counsel, Ash filed suit on November 12, 2015, asserting claims for declaratory judgment and in tort based on alleged trespass and nuisance. Ash further sought a temporary restraining order and preliminary injunction enjoining Merlette from interfering with her lake access pending final judgment. Merlette counterclaimed in trespass, asserting ownership of all land between the high- and low-water marks on the lake. On November 24, 2015, the District Court granted Ash's request for a temporary restraining order and, following hearing on December 1, 2015, issued a preliminary injunction enjoining Merlette from interfering with Ash's lake access. On December 28, 2016, Ash filed an amended complaint adding counts of intentional interference with her contractual relationship with her realtors and slander of title based on Merlette's alleged misrepresentations to third parties regarding his asserted ownership of all lake frontage on Parker Lake.

         ¶7 In January 2016, the parties filed cross-motions for summary judgment. On the ground that extrinsic evidence was not necessary or proper to construe the clear and unambiguous language in Ash's deed, the District Court denied Merlette's M. R. Civ. P. 56(f) motion to stay summary judgment and for further discovery. On November 7, 2016, the District Court granted summary judgment that Ash owned the land between the high- and low-water marks of Parker Lake bordering Ash's property. On February 22, 2017, the District Court certified its summary judgment order for immediate appeal pursuant to M. R. Civ. P. 54(b). We affirm and remand for further proceedings.

         STANDARD OF REVIEW

         ¶8 We review summary judgment rulings de novo for conformance to M. R. Civ. P. 56.Dick Anderson Constr., Inc. v. Monroe Prop. Co., 2011 MT 138, ¶ 16, 361 Mont. 30, 255 P.3d 1257. Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). Whether a genuine issue of material fact exists or whether a party is entitled to judgment as a matter of law are ...


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