No. 14852 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

LARRY A. 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 ,-P 9 L - ,- - 

Filed: is: - - 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

 his appeal is from a summary judgment in favor of the 

respondents who 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 

these motions, the District Court granted respondents an 

implied easement by reservation. 

Appellant filed a motion with the District Court to 

alter and amend a portion of its order. No action was taken 

on this motion, and appellant brought 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 oral permission to use the access road, 

respondents used it continuously, with appellant's knowledge 

and cooperation from the time they purchased the property. 

The access road was and still is the only regularly used 

means of access to respondents' house. 

Respondents used the road until March 1978. At that 

time appellant removed a cattleguard at the beginning of the 

access road on appellant's property and blocked the road 

with a concrete culvert. This was the first time appellant 

had ever interfered with respondents' or their predecessors' 

use of the access road. Appellant's action prompted respondents 

to bring this suit. 

The District Court found that respondents did not have 

an easement by prescription because the use was permissive. 

The District Court 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 this Court. 

Appellant contends the use of the roadway by respondents 

and their predecessors was entirely with appellant's consent 

and permission and was in the nature of a license, therefore, 

no easement of any kind would arise with respect to the use 

of the road. We disagree. 

The District Court correctly found that, while respondents 

do not have a prescriptive easement, they have an implied 

easement by reservation over this road. 

The controlling statute is section 70-20-308, MCA. It 

reads: 
"Easements to pass with property. A transfer of 

real property passes all easements attached 

thereto and creates in favor thereof an easement 

-- to use other real property of -- the person whose 

estate is transferred --- in the same manner 

-- 

and to 

-- the sameextent -- as such property was obviously 

and permanently used & the person whose estate 

- is transferred -- for the benefit thereof -- 

at the 

--- time when the transfer was agreed --- upon or completed. " (Emphasis added. ) 

This statute, in part, recites the common law principle 

that an easement is reserved when the dominant tenement is 

conveyed and a servient tenement is retained. Spaeth v. 

Emmett (1963), 142 Mont. 231, 383 P.2d 812, 816. 

This statute, however, extends the common law and 

creates an easement, nonexistent prior to the conveyance, in 

cases where the property in question was "obviously and 

permanently" used by the grantor for the benefit of what 

becomes the dominant estate. McPherson v. Monegan (1947), 

120 Mont. 454, 187 P.2d 542, 545. 

In McPherson we upheld an implied easement of a road 

under section 70-20-308, MCA (then, 86865, Rev. Codes 1935), 

on facts not dissimilar to those presented here. "The 

facts in this case disclose an implied grant of easement 

which passed with the property under our statute (sec. 6865) 

and which arose out of the fact that Mrs. Samson sold land 

bounded in part by a road which had theretofore been continuously used by said grantor as a means of access to said 

land . . ." 187 P.2d at 545. 

The facts in this case, as found by the District Court, 

reveal such an implied grant of easement. Appellant was the 

owner in common of his present property and respondents' 

present property. Before selling any of his property, 

appellant built 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 first grantees, 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 it was 

to the original owner. 

The requirements of the statute were met, McPherson v. 

Monegan, supra; Spaeth v. Emmett, supra; Godfrey v. Pilon 

(1974), 165 Mont. 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 

easement by reservation in the road crossing appellant's 

property and in granting respondents' motion for summary 

judgment. 

The judgment of the District Court is affirmed. 

/ 

L. 

kL724' 

Justice 

We concur: 

3*&k4 Chief Justice