No. 94-227 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994

JACK J. HALVERSON, Plaintiff and Respondent,

SHIRLEY J. TURNER and HAROLD TURNER, Defendants and Appellants.

APPEAL FROM: District Court of theThirteenthJudicialDistrict, In and for the County of Yellowstone, The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD: For Appellant: Jeffrey T. Renz, Missoula, Montana For Respondent: James R. Halverson, Herndon, Hartman, Sweeney & Halverson, Billings, Montana

Filed: Submitted on Briefs: August 25, 1994 Decided: December 1,1994Justice Fred J. Weber delivered the Opinion of the Court. Defendants appeal the Order of the District Court of the Thirteenth Judicial District, Yellowstone County, which granted plaintiff's motion for summary judgment declaring that Dahlia Halverson, predecessor in interest of both parties' tracts, had created an easement across defendantstproperty by reservationand necessity for purposes of ingress and egress. The District Court also denied defendants' subsequent Motion to Reconsider,Amend or Vacate the summary judgment order. We affirm. We restate the issues as follows: I. Did the District Court err by finding that Dahlia Halverson created an easement when she conveyed a portion of her property to dafandants? 11. Did the District Court err in determining that the easement over defendants' property was not extinguished by defendantstactions in keeping a fence inplace across the access location? The two adjacentproperties owned by plaintiff JackHalverson and Shirley J. and Harold Turner (Turners) were once owned by Dahlia Halverson, themother of JackHalversonand ShirleyTurner. In 1963, Dahlia Halverson filed and recorded Certificate of Survey No. 646 (COS 646) establishing a subdivision located in an area of Yellowstone County known as the Blue Creek area. The tracts from COS 646 with which we are concerned were known as Tract B-1 and Tract B-2. Tract B-2 bordered Tract B-1 on its eastern boundary line. 2Dahlia Halverson transferred title to Tract B-2 to Jack Halverson, who in turn recorded a Certificate of Survey (COS) dividingTractB-2 intoTractB-2A, whichwas the northern portion, and B-2B, which was the southern portion. In 1982, Halverson reconveyedTractB-2A toDahliaHalverson, who still owned Tract B1,the adjoining tract. InMay of 1987,Dahlia Halverson recorded Certificate of SurveyNo. 646 2ndAmd. (AmendedTract B-lA), which is referred to as COS 646, 2nd Amd. COS 646, 2nd Amd. divided Tract B-1 (also referred to as B-1A) into two tracts with the northern tract called Tract B1A-1 and the southern tract called Tract B1A-2. COS 646,2nd Amd. also showeda 30-footroad easement extending from the northeast corner of Tract B1A-1 westerly for a distance of 188.52 feet. This easementwas to provide access to a street running to the north from the northerly boundary line of Tract B1A-1. In June 1987, Dahlia Halverson transferred Tract B1A-1 to Shirley Turner by quitclaim deed, which described the tract as follows: Tract B1A-1 of Amended Tract B-1A CERTIFICATE OF SURVEY NO. 646,2ndAmd., YellowstoneCounty, Montana,according to the officialplat thereof on file and of record in the office of the Clerk and Recorder of said County, under Document No. 1442776. On August 30, 1991, Dahlia Halverson's estate transferred ownership of Tract B-2A back to Jack Halverson. COS 646, 2ndAmd. shows a 30-foot road easement at the northern edge of Tract B1A-1 presently owned by the Turners to allow access to Tract B-2A presently owned by Halverson. Without the easement shown on COS 646, 2nd Amd., Tract B-2A is landlocked. Following is a diagramwhich illustrates the relevant tracts as well as the easement claimed by Jack Halverson over Tract BlA-1: (fence) 30' easement

Tract B1A-1 3.160 Acres Gr. 3.030 Acres Net Tract B-2A

Tract B1A-2 Tract B-2B

1 times pertinent to this action, the northern edge Tract BlA-1 has been fenced. The easement in question,which has

never been used by either Dahlia Halverson or Jack Halverson, wouici of necessitynave to pass through apoint where tne existing fence is located on thenorthernboundary of Tract B1A-1. Sometime in 1992, the Turners caused another fence to be erected on the easternboundary of theirproperty whichborders Halversongs Tract B-2A. No suggestionwas ever made prior to the erection of this fence in 1992 that there was no valid road easement over BlA-1 to

access Halversongsproperty. Halverson brought this action to judicially establish the existence of a road easement over the Turnersgproperty. The District Court granted summary judgment to Jack Halverson, determining that an easement was established by Dahlia Halverson when she conveyed Tract BlA-1 to the Turners in June of 1987. Our standard for reviewing a grant of summary judgment is the

same as that used by the district court. Wild River Adventures, Inc. v. Board of Trustees (1991), 248Mont. 397, 399-400, 812 P.2d 4344, 345. Summary judgment is proper when there are no genuine issues of material fact, as in this case. Rule 56(c), M.R.Civ.P. The parties agree on the material facts of this case. Therefore,

our review is limited to a determination of the law applicable to the facts. ISSUE I Did the District Court err by finding that Dahlia Halverson created an easement when she conveyed a portion of her property to defendants? TheDistrict CourtdeterminedthatDahliaHalversoncreated an easementby reservationwhen shequitclaimedTractBlA-1 to Shirley Turner in 1987 by making reference to COS 646, 2nd Amd. The court further stated that when Jack Halverson received Tract B-2A from the Estate of Dahlia Halverson, he also received the easement in favor of Tract B-2A over Tract BlA-1. The June 1987 quitclaim deed from Dahlia Halverson to Shirley Turner referred to COS 646, 2nd Amd., as above-mentioned, and included in that reference Document No. 1442776, under which the COS had been recorded. COS 646, 2ndAmd. clearly shows the 30-foot road easement, 188.52 feet in length from east towest acrossTract BlA-1. No other easements are shown on this document. The purpose of a land description which is a necessary inclusion in an instrument conveying title is to describe the land

so that the extent of the claim to the propertymay be determined. 

# see City of Missoulav. Mix (l95O), 123 Mont. 365, 383-84, 214 P.2d 212, 222. A reference to a map or plat is generally included to express, confirm, or amplify a description. 1 M. Friedman, Contractsand Conveyancesof Real Provertv S 4.9 (1) (5thed. 1991).Although the description of the property being conveyed by the quitclaim deed in this case contains no language expressly reserving an easement to Dahlia Halverson, it does refer to Tract B1A-1 of COS 646, 2nd Amd. and includes the document number for that COS. An easement by reservation must arise from the written documents of conveyance. In determining the existence of an easementby reservationindocuments of conveyance,it isnecessary that the grantee of the property being burdened by the servitude have knowledge of itsuse or itsnecessity. Grahamv. Mack (1985), 216Mont. 165, 174, 699 P.2d 590, 596. In this case,the reference in the quitclaim deed to Document No. 1442776 gave notice to Shirley Turner that the property was being conveyed pursuant to a particular recordeddocument. It alsoput her on "inquirynoticew of the easement and the need for a reservationof a way of ingress and egress. "Knowledge of the existence of a claimwill be imputed to a party who has sufficient information to put it on inquiry notice of that claim." Bensonv. Pyfer (1989),240Mont. 175, 180, 783 P.2d 923, 926. Although the District Court's Order did not allude to an easement by operation of law, Jack Halversonls motion for summary judgment contended that an easement was created by operation of law, according to 76-3-304, MCA, which provides in pertinent part:Where lands are conveyedby referencetoa plat, the plat itself or any copy of the plat properly certified by the county clerk and recorder as being a true copy thereof shallbe regarded as incorporated into the instrumentof conveyance and shall be received in evidence in all courts of this state.Pursuant to § 76-3-304, MCA, reference in documents of conveyance to a plat which describes an easement establishes the easement. Benson, 783 P.2d at 925. Moreover, according to $ 76-3-304,MCA, when land is sold with reference to a properly recordedplat, that plat becomes part of the document conveying the interest in the land.While the deed to Shirley Turner referred to COS 646, 2nd Amd., it also stated "according to the official plat thereof on file and of record 

# . . . under Document No. 1442776." Under the provisions of theMontana Subdivisionand PlattingAct, §§ 76-3-101 to -614, MCA, there is a significant difference between certificates of survey and plats, although both "certificates of surveywand "officialplatsMare filed in the office of the clerk and recorder. We do not conclude that the distinction between "officialplatsuand "certificates of surveywis controllinghere. While the term "officialplat1'was used in the above description, the tract is described as being Tract B1A-1 of the COS under DocumentNo. 1442776. Thedescription is sufficientto accurately refer to the COS even though the term 'vplatlt is incorrectly used. 

### We conclude that the reference in the document of conveyance to a recordedCOS which adequately describedthe easementwas sufficient to establish the easement. This Court's recent opinion in Bache 

### v. Owens (Mont. 1994), P.2d 

## , 51 St.Rep. 1001, held that documents of conveyance - which incorporated a COS by reference established an easement in favor of the grantors as described in the COS. Our conclusion in this case is consistent with the Bache holding that theincorporation of a COS was sufficient to establish an easement. Dahlia Halverson had an amended COS prepared pursuant to her division of Tract B-1A into two smaller tracts. She recorded the COS prior to her conveyanceof Tract BlA-1 to Shirley Turner. Her conveyance of this tract to Shirley Turner included a land descriptionand a reference to the recorded Second Amended COS 646

as required by Montana law. Dahlia Halverson created an express easement of reservation for Tract B2-A over Tract B1A-1 when she conveyed Tract B1A-1 to Shirley Turner and retained Tract B-2A. This easement runs with the land, was not personal to Dahlia Halversonand,therefore, entitles JackHalverson,as successor in interest of Tract B-2A, to the benefit of the easement. We hold that the District Court correctly concluded that Dahlia Halverson created an easementwhen sheconveyed aportion of her property to defendants. ISSUE I1 Did the District Court err in determining that defendantst actions inkeepinga fence inplace across thenorthernboundary of Tract B1A-1 did not extinguish the easement over defendants' property? The easement over the Turnerst property has never been improved and has not been used. The Turners contend that any easement created in favor of Tract B-2A has sincebeen extinguished by adversepossession. Jack Halversoncontendsthathewasunaware that theTurnerscontested the easementuntil the 1992 construction of another fenceon the boundary between Tracts B1A-1 and B-2A. At that time, Halverson objected to the new fence and then learned that the Turners contested his easement. The Turners, however, contend thatby keeping andmaintaining 8the fence on the northernboundary of their property since Shirley Turner acquiredtheproperty in 1987, the easementhas continuously been blocked by the fence. The District Court did not find their maintenance of this fence sufficiently adverse to JackHalverson's dominant tenement. Extinguishmentof an easement throughadverse useby theowner of the servient tenement is determined by applying the principles that govern acquisition of title by adverse possession and acquisition of an easement by prescription: open, notorious, exclusive, adverse, continuous and uninterrupted use for the full statutoryperiod. Shorsv. Branch (l986), 221Mont. 390, 398, 720 P.2d 239, 244; Warnack v. Coneen Family Trust (Mont. 1994), 879 P.2d 715, 723, 51 St.Rep. 739, 744. A permanent easement by express reservationwhich is not used is not lost by prescription during a period of nonuse no matter how long it remains unused unless there is adverseusewhich is clearly inconsistent with the dominant tenement's future use of the easement. City of Billings

v. 0. E. Lee Co. (1975), 168 Mont. 264, 268, 542 P.2d 97, 99. Moreover, the owner of the dominant tenement is not required to make use of the easement as a condition to retaining his interest in the easement. Billinas, 542 P.2d at 99. Thus, where an easement has been created but no occasion has arisen for itsuse, the owner of the servient tenementmay fence the land and thiswill not be deemed adverseuntil suchtime as theneed for theright-ofway arises and the owner of thedominant tenement demands that the easement be opened and the servient tenement owner refuses to do

so. City of Edmond v. Williams (Wash.App. 1989), 774 P.2d 1241,1244, citinq Castle Assocs. v. Schwartz (N.Y.1978), 407 N.Y.S.2d 717, 723. Prior to erecting the boundary fence between the parties' property, both tracts were apparently used as a common pasture. TheDistrict Court correctly concluded that the maintenance of the northern boundary fencewas not an adverseuse and that the newlyconstructed fencebetween theproperties atmost impeded theuse of the easement for a little less than two years. Therefore, the Turners' claim that the easement was extinguished fails. We hold the District Court correctly determined that defendants1actions inkeeping a fence in place acrossthenorthern boundary of Tract B1A-1 did not extinguish the easement over defendants1property. Affirmed.

JusticesJustice Karla M. Gray, specially concurring

I specially concur in the Court's opinion. My disagreements and concerns over the Court's approach were set forth fully and recently in my dissent in Bache v. Owens (Mont. 1994), P.2d

_I 51 St.Rep. 1001. They need not be repeated here; suffice 

### it to say that those disagreementsand concerns have not decreased. Having failed to persuade amajority of the Court of my views in Bache, however, that decision is now the applicable law. For that reason, and that reason alone, I specially concur in the Court's opinion in this case.