### No. 14852 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

LARRYA. MICHAELSON and SYLVIA MICHAELSON, husband and wife, Plaintiffs and Respondents,
VS

# . CALLIS WARDELL, Defendant and Appellant.
Appeal from: District Court of the First Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: Small,Hatch and Doubeck, Helena,Montana For Respondents: Robert T. Cummins,Helena, Montana Jackson and Kelley, Helena, Montana

Submitted on briefs: November 14, 1979 Decided: .jJ/,;

## 1 ,-P9

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### - ,- - 

### Filed: is: - -

### Mr. Justice Gene B. 

### Daly delivered the Opinion of the Court.

his 

### appeal is from a summary judgment in favor of the respondentswho alleged they were entitled to a permanent easement over appellant's land by operation of law. ~oth parties filed motions for summary judgment. Pursuant to thesemotions, the District Court granted respondents an implied easement by reservation. Appellant filed a motion with the DistrictCourt to alter and amend a portion of its order. No actionwas taken
on this motion, and appellantbrought this appeal. Prior to 1969 appellant, as a principal stockholder of Cal-Mart Corp., was the owner of the land now owned by respondents. Also, prior to 1969, appellant built the house presently inhabited by respondents,and built and improved the access road presently in issue. This road traverses several hundred feet of appellant's property, enters respondents' property and becomes respondents' driveway. The road
was built by appellant to serve the house on the property and also to serve part of appellant's fields. In 1969 appellant conveyed the property presently owned by respondents to James and Grace Fournier. The conveyances were made by warranty deed and contained no easements. The roadway across appellant's property was used by the ~ourniers to reach their property. Appellant also used this road to drive through the Fourniers'property to get to his fields. The Fourniers conveyed the property to Mr. and Mrs. Greenfield. In 1972 the Greenfields conveyed the property to the respondents. This deed did not contain an express easement.Although appellant had never given the respondents specific written or oralpermission touse the access road, respondents used 

### it continuously, with appellant's knowledge and cooperation from the 

### timethey purchased the property. The access road was and still is the only regularly used
means of access torespondents' house. Respondents used the road until March 1978. Atthat 

### timeappellant removed a cattleguard atthe beginning of the
access road on appellant's property and blocked the road with a concrete culvert. This was the first

### timeappellant had ever interferedwith respondents' or their predecessors'
use of the access road. Appellant's action prompted respondents to bring this suit. The DistrictCourt found thatrespondents did not have
an easement by prescription because the use was permissive. The DistrictCourt did find, however, that respondents have an implied easement by reservation pursuant to section 70- 20-308, MCA. It is this conclusion of law that forms the only issue for review by thisCourt. Appellant contends the use of the roadway by respondents and their predecessors 

### was entirely with appellant's consent and permission and 

### was inthe nature of a license, therefore,
no easement of any kind would arisewith respect to the use of the road. Wedisagree. The DistrictCourt correctly found that, while respondents do not have a prescriptive easement, they have an implied easement by reservation over thisroad. The controlling statute is section 70-20-308, MCA. It reads:"Easements topass with property. A transfer of 

### real property passes alleasements attached thereto and creates infavor thereof an easement touse other

### real

## propertyof theperson whose 

### -- 

### -- estate is transferred inthe 

### same manner and to 

### --- -- the sameextent

### as such property was obviously 

### -- 

### -- and permanently used 

## & the person whose estate is transferred for the benefit thereof atthe 

### - -- -- 

### timewhen the transfer was agreed upon orcom

### --- --- pleted.

### " (Emphasis added.) This statute, inpart, 

### recites the common 

### lawprinciple that an easement isreserved when the dominant tenement is conveyed and a servient tenement isretained. Spaeth v. Emmett (1963), 142Mont. 231, 383 P.2d 812, 816. This statute, however, extends the common law and creates an easement, nonexistent prior to the conveyance, in
caseswhere the property inquestion was "obviously and permanently" used by the grantor for the benefit of what becomes the dominant estate. McPherson v. Monegan (1947), 120Mont. 454, 187 P.2d 542, 545. InMcPherson 

### we upheld an implied easement of a road under section 70-20-308, MCA (then, 86865, Rev. Codes 1935),
on facts not dissimilar tothose presented here. "The facts in this case disclose an implied grant of easement which passed with theproperty under our statute 

### (sec. 6865) and which aroseoutof the fact thatMrs. Samson sold land bounded inpartby a road which had theretofore been continuously used by said grantor as

### a means of 

### access to said land 

# . .

# ." 187P.2d at545. The facts inthis 

### case, as found by the District Court, reveal such an implied grantof easement. Appellant was the
owner incommon of hispresent property and respondents' presentproperty. Before sellingany of hisproperty, appellantbuilt the access road to serve the residence now owned by respondents. That road 

### was continuously used by

### respondents and their predecessors to serve the residence. The road was and still is the only means of access used by respondents and their predecessors. When appellant conveyed the property to the firstgrantees, the Fourniers, he created under the above statute a permanent easement for use of the roadway as an access to respondents' residence. The roadway is being used for the same benefit to respondents as itwas to the original owner. The requirements of the statutewere met, McPherson 

### v. Monegan, supra; Spaethv. Emmett, supra; Godfrey 

### v. Pilon

(1974), 165Mont. 439, 529 P.2d 1372; and, there were no genuine issues as to any material fact. The District Court acted properly in ruling the respondents have an implied easementby reservation in the road crossing appellant's property and in granting respondents' motion for summary judgment. The judgmentof the District Court is affirmed.

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L. kL724' 

### Justice We concur:



# 3*&k4 Chief Justice