DA 17-0223

IN THE SUPREME COURT OF THE STATE OF MONTANA

2018 MT 68

QUARTER CIRCLE JP RANCH, LLC;

WALLY PAPEZ and ARETTA PAPEZ,

 Plaintiffs and Appellants,

 v.

BARBARA JERDE,

 Defendant, Appellee and Cross-Appellant.

APPEAL FROM: District Court of the Twenty-Second Judicial District,

In and For the County of Carbon, Cause No. DV 14-67

Honorable Blair Jones, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jacqueline R. Papez, Lee Bruner, Doney Crowley, P.C., Helena, Montana

For Appellee:

Daniel G. Gillispie, Attorney at Law, Billings, Montana

Submitted on Briefs: January 24, 2018

 Decided: April 3, 2018

Filed:

__________________________________________

Clerk

04/03/2018

Case Number: DA 17-0223
2

Justice Jim Rice delivered the Opinion of the Court. 

¶1 Wally Papez, Aretta Papez and Quarter Circle JP Ranch, LLC (collectively “Quarter 

Circle”) appeal from the February 2, 2017 Order on Cross Motions for Partial Summary 

Judgment and the June 10, 2016 Order on Plaintiffs’ Motion for Summary Adjudication

entered by the Twenty-Second Judicial District Court, Carbon County. Barbara Jerde

cross-appeals. We affirm in part and reverse in part, addressing the following issues: 

1. Did the District Court err by concluding a road easement “for the purpose of 

conducting farming and ranching operations and activities” was specific in nature 

and unambiguously included residential use? 

2. Did the District Court err by concluding the easement did not also provide access 

to adjacent after-acquired property? 

3. Did the District Court err by denying joinder of the owner of the after-acquired 

property to the litigation?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In 1988, John Papez, James and Phyllis Hoskin, Lorraine Lindblad, and Clifford 

Helt entered a “Mutual Grant of Access Easement,” wherein they, as “Grantors-Grantees,” 

granted access over an “existing trail or roadway,” as follows:

A non-exclusive access easement over and across the above-described lands 

on the existing trail or roadway for ingress and egress to and from adjoining 

properties owned by the respective Grantors/Grantees for the purpose of 

conducting farming and ranching operations and activities, together with the 

right to repair and maintain the same in the condition it now exists at each 

party’s own respective cost and expense, and to provide access to the parties 

hereto along this existing trail running from N1/2S1/2, Sec. 33-6S-22E, 

M.P.M., to the county road running along the South side of Sec. 9-7S-22E, 

M.P.M. [Emphasis added.]
3

Quarter Circle is the successor-in-interest to the properties previously owned by John 

Papez and James and Phillis Hoskin (Papez Property). Jerde is successor-in-interest to the 

property previously owned by Lorraine Lindblad (Jerde Record Property). Jerde also 

purports to be an unrecorded contract purchaser of other real property abutting the Jerde 

Record Property (Jerde Contract Property). The Papez Property and the Jerde Record 

Property are burdened and benefitted, respectively, by the easement. The Jerde Contract 

Property was not owned by any party to the access easement at the time of execution in 

1988.

¶3 In 2009, Jerde moved a fifth-wheel trailer onto the Jerde Record Property and began 

using it as a residence. She also constructed a shed and kept horses on the property. When 

the trail/roadway became difficult to use, Jerde departed from the road and traveled across 

other land owned by Quarter Circle. Jerde also used the road to access the Jerde Contract 

Property.

¶4 Quarter Circle filed a complaint, seeking declaratory relief that Jerde, in 

Counts I-III: (1) improperly deviated from the easement onto Quarter Circle’s unburdened 

property; (2) used the easement to access certain property not benefitted by the easement;

and (3) used the easement for residential purposes that were not contemplated by the 

easement. Quarter Circle sought summary judgment, and on June 10, 2016, the District 

Court granted the motion on Count I. Jerde acknowledged deviating from the trail/road 

subject to the easement when it became impassible or flooded, and the District Court 

concluded that the language of the easement unambiguously limited Jerde’s passage to the 
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trail/road alone, and not over Quarter Circle’s other land. The District Court also granted 

summary judgment to Quarter Circle on Count II, concluding the language of the easement 

unambiguously granted access to the trail/road only “to and from adjoining properties 

owned by the respective Grantors/Grantees,” and thus Jerde’s use of the easement to access 

the Jerde Contract Property, which was not owned by any of the original grantors or 

grantees at the time of the grant, was prohibited. The District Court denied summary 

judgment as to Count III, reasoning that:

[T]here is a material issue of fact relative to whether the scope of the 

Easement for ‘farming and ranching operations and activities’ properly 

includes residential purposes. The record is not entirely clear as to how the 

Easement has been historically used, whether the original grantors/grantees 

contemplated use of the Easement for residential purposes related to farming 

and ranching, and whether Jerde’s use of the Easement is incompatible with 

the purposes established in the grant of the Easement . . . [T]he Court finds 

it prudent to allow the parties to clarify for the Court whether the original 

parties to the Easement contemplated the use of the road/trial for residential 

purposes related to farming and ranching on the Jerde Record Property

[Emphasis added.]

¶5 After further record development, the parties both filed motions for summary 

judgment, supported by affidavits. On February 2, 2017, the District Court granted 

summary judgment to Jerde on Count III, concluding the language in the easement granting 

access for “the purpose of conducting farming and ranching operations and activities” was 

specific in nature and “clear and unambiguous as to its scope,” and that it included 

residential use. In support of its conclusion, the District Court referenced dictionary 

definitions, including the definition of a “farm” as “[l]and and connected buildings used 

for agricultural purposes” (citing Black’s Law Dictionary 638 (8th Ed. 2004). The court 
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also provided its observations of customary use and practice on such properties, stating

that, “[i]n Montana, it is frequently necessary or desirable for farmers or ranchers to have 

residences on their farms or ranches that are an integral part of their farming or ranching 

operations[,]” and noting that such a residence is commonly described as a “farm house” 

or “ranch house.” The District Court reasoned that “the dictionary definition of ‘farm’

together with the often practical necessity for a farmer or rancher to physically reside near 

the other operations of the farm or ranch, establish that a farm or ranch house is, in many 

instances, a necessary and accepted part of ‘farming and ranching operations and 

activities,’” and thus concluded that the language of the easement unambiguously included 

a residence. Quarter Circle appeals this issue.

¶6 In response to Count II of the complaint, Jerde sought to establish that the easement 

included use of the trail/road to access the after-acquired Jerde Contract Property. She 

moved for joinder of Donna Riley, the record owner of this property, arguing that the 

easement claims could not be properly adjudicated without Riley. The District Court

denied the motion, reasoning that Riley was not a party to or successor-in-interest to the 

easement, and thus had no interest in the litigation. The District Court thereafter granted 

summary judgment to Quarter Circle on Count II, holding that the easement 

unambiguously limited the access grant to the 1988 signatories, and the grant was not 

intended to benefit the contiguous properties of those who owned property along the 

easement. Jerde cross-appeals the court’s disposition of Count II, including the denial of 

joinder of Riley. 
6

STANDARD OF REVIEW

¶7 We review de novo a district court’s grant or denial of summary judgment, applying 

the same criteria of M. R. Civ. P. 56 as a district court. Pilgeram v. GreenPoint Mortg. 

Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. Summary judgment is 

appropriate when the moving party demonstrates both the absence of any genuine issues 

of material fact and entitlement to judgment as a matter of law. M. R. Civ. P. 56(c)(3); 

Bird v. Cascade Cnty., 2016 MT 345, ¶ 9, 386 Mont. 69, 386 P.3d 602. We review a 

district court’s conclusions of law to determine whether they are correct. Pilgeram, ¶ 9. 

DISCUSSION

¶8 1. Did the District Court err by concluding a road easement “for the purpose of 

conducting farming and ranching operations and activities” was specific in nature and 

unambiguously included residential use? 

¶9 Quarter Circle argues that, by initially determining that there was a material question 

of fact regarding the scope of the easement, and soliciting evidence to establish the original 

intent of the grantors/grantees, the District Court implicitly found the easement was general 

in nature. Quarter Circle argues that the District Court erred by later concluding that the 

easement was specific, or “clear and unambiguous as to its scope,” and ignoring the

evidence of historic use, the parties’ intent, and the circumstances surrounding the 

easement at its inception. Quarter Circle argues neither the language of the easement nor 

the evidence of historical use contemplates residential use of Jerde’s property. In answer, 

Jerde argues the District Court did not err because a grant of access for “farming and

ranching operations and activities” unambiguously includes residential use, noting that the 
7

dictionary definition of “farm” encompasses “a very broad swath of activity, including 

residing on the farm or ranch property.” Jerde avers in her affidavit that the property had 

previously been used for residential purposes, and argues that farming and ranching 

“necessarily includes the right to live on the property because it is so essential to the 

successful operation of a ranch.” 

¶10 “Where an easement is specific in nature, the breadth and scope of the easement are 

strictly determined by the actual terms of the grant.” Mason v. Garrison, 2000 MT 78, 

¶ 21, 299 Mont. 142, 998 P.2d 531 (citations omitted); see also § 70-17-106, MCA “[t]he 

extent of a servitude is determined by the terms of the grant. . . .” Stated differently, if the 

grant “is specific in its terms, it is decisive of the limits of the easement.” Mason, ¶ 21

(citations omitted). “[I]t is not the proper role of the judiciary to insert modifying language 

into clearly written and unambiguous instruments where the parties to the instrument

declined to do so.” Creveling v. Ingold, 2006 MT 57, ¶ 12, 331 Mont. 322, 132 P.3d 531; 

see also § 1-4-101, MCA (the judge is “not to insert what has been omitted or to omit what 

has been inserted.”)

¶11 Where an easement is general in its terms, “courts must look beyond the language 

of the deed in determining the breadth and scope of the servitude, which need only be such 

as is reasonably necessary and convenient for the purpose for which the easement was 

created.” Mattson v. Mont. Power Co., 2009 MT 286, ¶ 17, 352 Mont. 212, 215 P.3d 675

(citing Guthrie v. Hardy, 2001 MT 122, ¶ 47, 305 Mont. 367, 28 P.3d 467). To define the 

breadth and scope of a servitude of a general easement, a court considers “the situation of 
8

the property, surrounding circumstances, and historical use[.]” Ganoung v. Stiles, 2017 

MT 176, ¶ 15, 388 Mont. 152, 398 P.3d 282. Further, we have consistently held that “in 

the absence of clear specifications defining scope, no use may be made of a right-of-way 

different from the use established at the time of the creation of the easement so as to burden 

the servient estate to a greater extent than was contemplated at the time the easement was 

created.” Guthrie, ¶ 48.

¶12 The language of the easement here contains no express language indicating whether 

the parties intended the trail/road to be used to support residential use of the property. 

Further, the phrase granting access over the trail/road “for the purpose of conducting 

farming and ranching operations and activities” is not further defined to include or exclude 

residential purposes. Because use of the trail/road for residential purposes is not “strictly 

determined by the actual terms of the grant,” Mason, ¶ 21, the easement is not “specific” 

for purposes of this particular question.

¶13 Because the District Court reached the contrary conclusion that the easement was 

specific and unambiguous, it refused to consider evidence of the circumstances and 

historical intent, reasoning that “surrounding circumstances may not be considered once 

the court has determined that the instrument is unambiguous.” Instead, it resolved the 

uncertainty in the easement’s language by turning to non-record information, including 

dictionary definitions and its own observations about Montana farms and ranches. For 

example, the court stated that “[i]n Montana, it is frequently necessary or desirable for 

farmers or ranchers to have residences”; that, “in many instances,” a necessary and 
9

accepted part of farming and ranching is having a “farm or ranch house”; and a residence 

“may well serve as part of” a farming or ranching operation (emphasis added). These

customs and observations may well be true, but the District Court drew them from its own 

experience, and not from the record in this case. More importantly, what may be necessary 

“in many instances,” what is “desirable,” or what “may well serve” a farming or ranching 

operation cannot displace the proper inquiry—to determine “the purpose for which the 

easement was created.” Mattson, ¶ 17; see § 1-4-103, MCA (“In the construction of an 

instrument, the intention of the parties is to be pursued if possible.”); see also Restatement 

(Third) of Property: Servitudes § 4.1 (“A servitude should be interpreted to give effect to 

the intention of the parties. . . .”). Further, while consultation of dictionaries can be helpful 

in correctly applying a word or term,1 here the District Court relied upon dictionary 

definitions to the exclusion of evidence the parties had offered of the historic use and intent 

behind the easement’s creation. 

¶14 For these reasons, we conclude the District Court erred in determining that the 

easement was specific upon this question—that is, whether use of the trail/road to support 

residential purposes is encompassed by the grant—and by refusing to consider the parties’ 

historical evidence. The language in the easement regarding the residence question is 

general in nature and ambiguous, which the District Court originally recognized when it 

 

1

See Mattson ¶ 35 (when an easement was executed 50-70 years prior and no original signatories

were available to establish the intent of the parties at the time of contracting, dictionaries used “at

the time the easement contracts were executed” were consulted to define terms such as “flood” 

and “subirrigate,” and thereby determine the extent of the grant).
10

solicited extrinsic evidence from the parties to establish historical use and intent. On this

question, the parties have submitted materially conflicting evidence. James Hoskins, an 

original signatory to the easement, stated that the property had been used for seasonal 

grazing only and that no residences were required for seasonal grazing lands “because you 

don’t need to be there. You don’t winter there, generally. You can’t put up any hay there, 

so there would be no reason to have a building there.” On the other hand, Barbara Jerde 

averred that “I am aware that this property has been used for a residence in the past as when 

I purchased the property from the Lindblads, the descendants of the original homesteaders, 

Lauraine Lindblad was kind enough to give me a book relating to the history of the property 

and included many pictures of the homestead built there. . . .” She further averred “[Quarter 

Circle] ignores the fact that in order to use the property for farming and ranching operations 

and activities, it is necessary to also maintain a residence. . . . There are numerous 

circumstances for which it is necessary to live on the ranch property in order to properly 

care for the animals.” These and other averments establish conflicts in material facts, 

resolution of which will determine the outcome, and, therefore, this issue was not 

appropriate for resolution by summary judgment.2

 

2 The District Court’s error in concluding the easement was specific on the residence issue in Count 

III does not undermine its conclusion that the easement was specific with respect to the issues 

raised in Counts I and II. See, e.g., Mason, ¶¶ 20-24 (finding two “separate but related” easements 

within a single grant and further delineating between specific and general portions). As discussed 

below, the District Court correctly concluded that the easement is specific regarding passage upon 

the trail/road, i.e., that the easement unambiguously granted access only upon the “existing trail or 

roadway,” and not over other property. Further, the District Court correctly concluded the 

easement unambiguously granted access over the trail/road only “to and from adjoining properties 

owned by the respective Grantors/Grantees,” thus prohibiting Jerde’s use of the trail/road to access 

the Jerde Contract Property. 
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¶15 We conclude the District Court erred by granting summary judgment to Jerde on

Count III of Quarter Circle’s complaint. A trial will permit consideration of “the situation 

of the property, surrounding circumstances, and historical use,” Ganoung, ¶ 15, to 

determine the breadth and scope of the easement. Therefore, we remand for further 

proceedings to properly determine the extent of the scope of the grant.

¶16 2. Did the District Court err by concluding the easement grant did not provide 

access to after-acquired property?

¶17 On cross appeal, Jerde argues the Jerde Contract Property, as an adjacent property 

to the Jerde Record Property, should be included in the easement grant because the grant 

“does not unambiguously foreclose the possibility of benefiting after-acquired property.”

Jerde explains she is “not arguing that there is a legal principle that after-acquired adjacent 

parcel is automatically benefitted by the same easement used to access the primary parcel,” 

because Leffingwell Ranch, Inc. v. Cieri, 276 Mont. 421, 432, 916 P.2d 751, 758 (1996),

confirms “this is not the law.” Rather, Jerde contends that the language of the grant is open 

to “at least two reasonable interpretations[,]” arguing the language referencing the 

described lands as “owned by the respective Grantors/Grantees” could be interpreted as 

“owned at any time by the respective Grantors/Grantees.” Quarter Circle argues the 

District Court did not err because the Jerde Contract Property is not described or otherwise 

mentioned in the easement and was not a property owned by any Grantors/Grantees at the 

time of the creation of the easement. 

¶18 We conclude the District Court did not err in holding the easement included only 

the original signatories and their successors-in-interests, and applied only to the described 
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lands of the Grantors/Grantees. If an easement grant “is specific in its terms, it is decisive 

of the limits of the easement.” Mason, ¶ 21. Here, the easement language is specific 

regarding the subject properties and their owners. The easement indicated the agreement 

was between “the undersigned Grantors-Grantees” (listing John Papez, James Hoskin, 

Lorraine Lindblad, and Clifford Helt and describing their respective lands), granted “unto 

each other” the described easement, provided “access to the parties hereto” on the existing 

road, and stated the easement “shall be for the benefit and use of the respective owners of 

adjacent lands described above, their heirs, successors, and assigns . . . .” No language lent 

itself to an interpretation that the easement could be applied to lands owned “at any time” 

by the Grantors/Grantees. Such an interpretation would cast a broad application of the 

easement that could not have been known or foreseen at the time of its creation. Even

assuming arguendo that Jerde’s interpretation of language could support her position, it 

cannot be read in isolation. See §§ 1-4-101, 28-3-202, MCA. As a whole, the grant 

unambiguously and explicitly specifies that the easement is only for the described parties, 

the described lands, and for successors-in-interests to the described lands. Unlike the Jerde 

Record Property, the Jerde Contract Property was not owned by any of the original 

signatories nor was it a described land in the easement grant. Therefore, the District Court 

did not err in concluding the Jerde Contract Property was not subject to the easement. 

¶19 3. Did the District Court err by not joining the owner of adjacent after-acquired 

property to the easement to the litigation?

¶20 On cross appeal, Jerde argues the District Court abused its discretion by not joining 

Donna Riley, the record owner of the Jerde Contract Property, to the litigation as a 
13

necessary party. Quarter Circle answers that neither the Jerde Contract Property nor Riley 

is subject to the easement.3 The District Court denied Jerde’s motion to join Riley to the 

litigation because: (1) Jerde failed to file a supporting brief with her motion; (2) Jerde’s 

motion contained only unsworn and unsupported factual allegations; and (3) Riley was not 

a party to the easement or successor-in-interest to any party in the easement, thus she was 

not an indispensable party under M. R. Civ. P. 19. 

¶21 The District Court did not err by refusing joinder of Riley as a necessary party. Filed 

without a brief, Jerde’s motion itself contained unsworn and unsupported allegations, and 

was insufficient to establish the merits of her request. Further, the District Court did not 

err in determining that Riley was not an indispensable party subject to joinder. A person 

subject to service must be joined as a party if “in that person’s absence, the court cannot 

accord complete relief among existing parties[.]” M. R. Civ. P. 19(a)(1)(A). Here, the 

easement specified the Grantors/Grantees, and Riley was neither a party to the easement 

nor a successor-in-interest to any party to the easement. The District Court did not err in 

denying Jerde’s motion. 

 

3 Quarter Circle alternatively argues that because Jerde did not reference the District Court’s 

January 25, 2016 Order Denying Motion to Join Defendants in her Notice of Appeal, this Court 

should not consider the issue. However, Jerde appealed the “final judgment or order” from which 

the appeal is taken and is not required to appeal previous orders. See M. R. App. P. 4(4)(a) (“[A]n 

appeal from a judgment draws into question all previous orders and rulings excepted or objected 

to which led up to and resulted in the judgment.”).
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¶22 For the reasons stated above, we reverse and remand to the District Court for further 

proceedings consistent with this opinion. We affirm the District Court’s holdings on 

Counts I and II.

/S/ JIM RICE

We concur: 

/S/ MIKE McGRATH

/S/ JAMES JEREMIAH SHEA

/S/ LAURIE McKINNON

/S/ BETH BAKER

/S/ INGRID GUSTAFSON

/S/ DIRK M. SANDEFUR