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 the Thirteenth Judicial District, 

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, 1994 
Justice 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 defendantst property by reservation and 

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 

defendantst actions in keeping a fence in place across the access 

location? 

The two adjacent properties owned by plaintiff Jack Halverson 

and Shirley J. and Harold Turner (Turners) were once owned by 

Dahlia Halverson, the mother of Jack Halverson and Shirley Turner. 

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. 

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Dahlia Halverson transferred title to Tract B-2 to Jack 

Halverson, who in turn recorded a Certificate of Survey (COS) 

dividing Tract B-2 into Tract B-2A, which was the northern portion, 

and B-2B, which was the southern portion. In 1982, Halverson 

reconveyed Tract B-2A to Dahlia Halverson, who still owned Tract B1, the adjoining tract. In May of 1987, Dahlia Halverson recorded 

Certificate of Survey No. 646 2nd Amd. (Amended Tract 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 showed a 30-foot road easement 

extending from the northeast corner of Tract B1A-1 westerly for a 

distance of 188.52 feet. This easement was 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, 2nd Amd., Yellowstone County, Montana, according 

to the official plat 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, 2nd Amd. 

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 diagram 
which 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 necessity nave to pass through a point where tne existing 

fence is located on the northern boundary of Tract B1A-1. Sometime 

in 1992, the Turners caused another fence to be erected on the 

eastern boundary of their property which borders Halversongs Tract 

B-2A. No suggestion was ever made prior to the erection of this 

fence in 1992 that there was no valid road easement over BlA-1 to 

access Halversongs property. Halverson brought this action to 

judicially establish the existence of a road easement over the 

Turnersg property. 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), 248 Mont. 397, 399-400, 812 P.2d 

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344, 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? 

The District Court determined that Dahlia Halverson created an 

easement by reservation when she quitclaimed Tract BlA-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, 2nd Amd. clearly shows the 30-foot 

road easement, 188.52 feet in length from east to west across Tract 

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 property may be determined. 

see City of Missoula v. 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, 

Contracts and Conveyances of Real Provertv S 4.9 (1) (5th ed. 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 

easement by reservation in documents of conveyance, it is necessary 

that the grantee of the property being burdened by the servitude 

have knowledge of its use or its necessity. Graham v. Mack (1985), 

216 Mont. 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 recorded document. It also put her on "inquiry noticew 

of the easement and the need for a reservation of a way of ingress 

and egress. "Knowledge of the existence of a claim will be imputed 

to a party who has sufficient information to put it on inquiry 

notice of that claim." Benson v. Pyfer (1989), 240 Mont. 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 conveyed by reference to a plat, the plat 

itself or any copy of the plat properly certified by the 

county clerk and recorder as being a true copy thereof 

shall be regarded as incorporated into the instrument of 

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 recorded plat, 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 the Montana Subdivision and Platting Act, §§ 76-3-101 

to -614, MCA, there is a significant difference between 

certificates of survey and plats, although both "certificates of 

surveyw and "official platsM are filed in the office of the clerk 

and recorder. We do not conclude that the distinction between 

"official platsu and "certificates of surveyw is controlling here. 

While the term "official plat1' was used in the above description, 

the tract is described as being Tract B1A-1 of the COS under 

Document No. 1442776. The description is sufficient to 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 

recorded COS which adequately described the easement was 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 the 
incorporation 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 conveyance of Tract BlA-1 to Shirley Turner. Her 

conveyance of this tract to Shirley Turner included a land 

description and 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 

Halverson and, therefore, entitles Jack Halverson, 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 easement when she conveyed a portion of 

her property to defendants. 

ISSUE I1 

Did the District Court err in determining that defendantst 

actions in keeping a fence in place across the northern boundary 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 since been extinguished 

by adverse possession. Jack Halverson contends that he was unaware 

that the Turners contested the easement until the 1992 construction 

of another fence on 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 that by keeping and maintaining 

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the fence on the northern boundary of their property since Shirley 

Turner acquired the property in 1987, the easement has continuously 

been blocked by the fence. The District Court did not find their 

maintenance of this fence sufficiently adverse to Jack Halverson's 

dominant tenement. 

Extinguishment of an easement through adverse use by the owner 

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 

statutory period. Shors v. Branch (l986), 221 Mont. 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 reservation which is not used is not lost by prescription 

during a period of nonuse no matter how long it remains unused 

unless there is adverse use which 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 its use, 

the owner of the servient tenement may fence the land and this will 

not be deemed adverse until such time as the need for the right-ofway arises and the owner of the dominant 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. 

The District Court correctly concluded that the maintenance of the 

northern boundary fence was not an adverse use and that the newlyconstructed fence between the properties at most impeded the use 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 

defendants1 actions in keeping a fence in place across the northern 

boundary of Tract B1A-1 did not extinguish the easement over 

defendants1 property. 

Affirmed. 

Justices 
Justice 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 disagreements and concerns have not decreased. 

Having failed to persuade a majority 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.