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Walker v. Phillips

Supreme Court of Montana

September 25, 2018

LEVI WALKER and BETHANY WALKER, Plaintiffs and Appellees,
v.
WENDY GEAN PHILLIPS, Defendant and Appellant.

          Submitted on Briefs: August 8, 2018

          District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-16-831A Honorable Amy Eddy, Presiding Judge

          For Appellant: Marcel A. Quinn, Benjamin J. Hammer, Hammer, Quinn & Shaw PLLC, Kalispell, Montana.

          For Appellees: Sean S. Frampton, Frampton Purdy Law Firm, Whitefish, Montana.

          OPINION

          Beth Baker Justice.

         ¶1 Wendy Gean Phillips appeals an order of the Eleventh Judicial District Court, Flathead County, ruling on summary judgment that Levi Walker and Bethany Walker (the "Walkers") have both an express private road easement and a prescriptive easement to travel across Phillips's land. Phillips argues that the District Court: (1) erroneously relied on a corrected certificate of survey that was not signed by the land owner to find an express easement, and (2) erred in finding a prescriptive easement when Phillips had no notice of a claim of right and the use was instead permissive. We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 Don Walker, Levi's grandfather, acquired a large parcel of property near Kalispell, Montana, in the 1970s. In 2007, Levi's father, Wade Walker, inherited the property from his father. Wade subdivided the land into seven tracts as described and depicted on Certificate of Survey No. 17859 ("Certificate"). Both Wade and the surveyor signed the Certificate, which certified that the purpose of the survey was to divide the property into Parcels A, B, C, D, E, F, and G to be conveyed to Wade's immediate family. Wade then conveyed Parcels A and F to Levi's grandmother, Anna Louise Walker, and conveyed Parcel B to Levi. Wade conveyed the remaining parcels to Levi's siblings. Wade died in May 2007, after the Certificate was recorded in Flathead County and after the parcels were conveyed. Each parcel's legal description concludes with the language: "Subject to and Together with a 30' Private Roadway and Utility Easement as shown hereon. Subject to all easements of record." On the Certificate, the easement runs along the eastern border of Parcel F, adjacent to property now owned by a third party and not at issue in this case, turning west in between Parcel E and Parcel F, and ending at the intersection of Parcels B, C, and G. Parcel A did not border the easement depicted on the Certificate. Diagram I shows the general layout of the parcels Wade subdivided. The private road and utility easement is shaded.[1]

         (Image Omitted)

         ¶3 In September 2007, four months after Wade's death, Correction Certificate of Survey No. 17859 ("Correction Certificate") was recorded in Flathead County. There is no evidence in the record to indicate who filed the Correction Certificate or what prompted the filing. The Correction Certificate was signed by the surveyor, but no one signed as the owner. The Correction Certificate changed the depiction of the thirty-foot private road and utility easement on the map. On the Correction Certificate, the easement runs where the shared driveway currently is located on the western edge of Parcel A, turning east at the intersection of Parcels B, C, and G, and ending at the juncture of Parcels D, E, and F. The corrected easement touches all seven parcels. The legal descriptions of each parcel remained substantively the same, [2] and no boundary locations changed for any parcel. The purpose of the Correction Certificate remained the same: to transfer the property to family. The upper left corner contained the following statement: "PURPOSE OF CORRECTION: To Relocate the 30 foot Private Roadway & Utility Easement." Diagram II depicts the corrected easement.

         (Image Omitted)

         ¶4 The Walkers' home is located on Parcel B. Since 2009, the Walkers have accessed it by using a shared driveway, marked as the private road easement on the Correction Certificate and located on the western edge of Parcel A. In 2010, Levi acquired Parcel C. By the end of that year, Anna Louise had acquired all the land that Wade had conveyed to his other children. On July 4, 2011, Anna Louise sold her parcels to Phillips. Anna Louise showed Phillips both the Certificate and the Correction Certificate. The Deed of Trust Phillips signed referred to "Parcel A of Correction Certificate of Survey No. 17859." The Warranty Deed references "Exhibit 'A'" for the description of the property being transferred. Exhibit "A" consists of the legal descriptions for Parcels D through G of the "Corrected Certificate of Survey No. 17589." Phillips did not speak to the Walkers about the driveway or take any steps to investigate the Walkers' ongoing use of the driveway. About a year and a half after she acquired the property, Phillips discussed the discrepancies between the two certificates with her boyfriend, Matthew Martin. Martin testified that he told her the Correction Certificate might not be valid because it did not have Wade's signature. Phillips never raised the issue of validity with the Walkers or with Anna Louise.

         ¶5 Phillips financed her purchase of the parcels with a note and trust indenture to Anna Louise. In July 2014, the note matured with an outstanding balance remaining. To avoid foreclosure, Phillips deeded Parcels D, E, F, and G back to Anna Louise, retaining Parcel A for herself. Phillips relied on the "Corrected Certificate of Survey No. 17859" to describe the property in the deed in lieu of foreclosure. In November 2014, the Walkers purchased Parcels D, E, F, and G from Anna Louise, and the legal description on their deed also referenced the "Corrected Certificate of Survey No. 17859." Following that transfer, Phillips owned Parcel A and the Walkers owned the rest of the parcels.

         ¶6 On September 13, 2016, Phillips installed a gate and a wire fence across the shared driveway, effectively blocking the Walkers' access to their property. The gate and fence were removed after a sheriff's deputy instructed Phillips to remove them. Thereafter, under Phillips's authority, Martin installed a new, more permanent gate across the driveway and installed "no trespassing" signs, again blocking the Walkers' access. On September 26, 2016, Phillips sent the Walkers a letter claiming that she had "decided to terminate the permissive use of the driveway effective immediately" and asking the Walkers to respect the driveway as her "private property." Phillips explained that an increased number of vehicles traveled on the driveway and traveled at high speeds. Her letter stated that gates and ...


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