### SYNOPSIS OF THE CASE

2011 MT 244 , DA 11 - 0190: GARY MYERS , Plaintiff and Appellant, v. W. STEPHEN DEE, VICTORIA R. DEE AND ALL OTHER PERSONS UNKNOWN , claiming or who might claim any right, title, estate, or interest in, or lien or encumbrance upon, the real property described in the Complaint or any thereof, adverse to the Plaintiff's ownership, Defendant s and Appellees. 1
Myers filed an action in the District Court for the First Judicial District, Lewis and Clark County, asking the court to grant him a ccess to his landlocked property across property owned by the Dees based on the right of eminent domain. Section 70

- 30

- 102(36), MCA, provides in part that “the right of eminent domain may be exercised for the following public uses: . . . private roads leading from highways to residences or farms
. . . .” The District Court granted the Dees’ Motion for Summary Judgment on the basis that the dilapidated buildings on Myers’ property that had not been inhabited for several decades did not qualify as a resi dence. On appeal, the Supreme Court held that since the word “residence” was not defined in the MCAs for purposes of § 70

- 30

- 102(36), MCA, that term must be construe d according to its plain meaning. Thus, under the rationale of two prior Supreme Court c ases and the dictionary definitions of the word, the Supreme Court defined “residence” in § 70

- 30

- 102(36), MCA, to refer to a habitable structure or dwelling place

— i.e., a place where people are living. The Supreme Court also determined that while normall y the question of whether there is a residence on the property would be a question of fact for the jury, in this case it was undisputed that the buildings on Myers’ property were uninhabitable and that no one had lived in them for several decades. Therefo re, the Supreme Court held that because there was no residence on Myers’ property, access could not be granted across the Dees’ property based on the eminent domain statutes.

1 This sy nopsis has been prepared for the convenience of the reader. It constitutes no part of the Opinion of the Supreme Court and may not be cited as precedent. October 4 2011DA 11

- 0190 IN THE SUPREME COURT OF THE STATE OF MONTANA 2011 MT 244
GARY MYERS, Plaintiff and Appellant,
v. W. STEPHEN DEE, VICTORIA R. DEE AND ALL OTHER PERSONS UNKNOWN, claiming or who might claim any right, tit le, estate, or interest in, or lien or encumbrance upon, the real property described in the Complaint or any thereof, adverse to the Plaintiff ’ s ownership, Defendant s and Appellees.

APPEAL FROM: District Court of the First Judicia l District, In and For the County of Lewis and Clark , Cause No. BDV

- 2009

- 610 Honorable Jeffrey M. Sherlock, Presiding Judge
COUNSEL OF RECORD: For Appellant: David B. Gallik , Gallik Law Office, PLLC, Helena, Montana For Appellee: Rick Pyfer , Patrick T. Fox, Doubek & Pyfer, LLP, Helena, M ontana
Submitted on Briefs: August 17, 2011 Decided: October 4, 2011 Filed:

__________________________________________ Clerk2 Justice James C. Nelson delivered the Opinion of the Court. ¶1 Gary Myers fil ed this action in the District Court for the First Judicial District, Lewis and Clark County, seeking to condemn a strip of land owned by Stephen and Victoria Dee (the De es) to create a private road allow ing access to property owned by Myers. The court gr anted the Dees’ Motion for Summary Judgment and Myers appeals. We affirm. ¶2 Myers raises two issues on appeal which we have restated as follows: ¶3 1. Whether § 70

- 30

- 102(36), MCA, requires proof of an existing farm or residence
. ¶4 2. Whether the existence of a farm or residence and the necess ity of a road to access that farm or residence are determinations for the jury. Factual and Procedural Background ¶5 George Vincent inherited a 160

- acre parcel of mountainous property near Canyon Creek in Lewis and Clark Co unty (tract B in the diagram below ) . His three siste rs inherited the contiguous 160

- acre parcel as tenants in common (tract A in the diagram below ) . Myers purchased a one - third interest in tract A from one of the sisters, while Vin cent purchased the rema ining two

- thirds interest in tract A from the other two sisters. ¶6 In April 2000, Myers brought a partition action ag ainst Vincent regarding tract A
. While the partition action wa s pending, Vincent sold tract B and his two
- thirds interest in tract A to the Dees . The Dees were then add ed as real parties in interest in the partition action. Over the next several years, t he District Court issued numerous orders in the3 matter, one of which was appealed to this Court. See Myers v. Vincent , 2004 MT 176N, 2004 M ont. LEXIS 343. ¶7 Eventually, o n January 23, 2008, the District Court entered an order awarding the southernmost one

- third of tract A to Myers and the northernmost two

- thirds of tract A to the Dees. The c ourt also denied Myers access from the county road (also referred to as Empire Road or Lost Horse Creek Road) to his property. Since the c ounty road runs through tract B , which is owned entirely by the Dees, t his access would have required Meyers to travel acr o ss 62 feet of the Dees’ tract B property to r each Myers’ portion of tract A
. T he District Court denied M yers access to his property across tract B because tract B was outside of the parcel of property partitioned. The court also determined that Myers had not established that either an easement by n ecessity or an implied easement existed across the Dees’ property. This ruling of the court has not been appealed.

¶8 Myers filed the present action against the Dees on July 1 0, 2009. In his Complaint, Myers asked the court to grant him a ccess to his property across the Dees’ 

### A

B  County Road4 tract B property based on the right of eminent domain. Myers’ property contains several dilapidated buildings including a historic cabin in which no one has lived for decades. My ers alleged that the cabin qualifies as a residence, and that pursuant to § § 70

- 30

- 102(36) and

- 107 , MCA, the right of eminent domain may be exercised to create a private road leading from a highway to a residence or farm
. ¶9 On May 20, 2010, the Dees mov ed for summary judgment arguing that be cause the historic cabin is uninhabitable, no residence or farm exists on Myers’ property , and the eminent domain statutes can not be applied
. After a hearing on the matter, t he District Court determined that Myers was required to make a prima facie showin g under § 70

- 30

- 102(36), MCA, as to the current existence of a residence or farm on the property before he was entitled to a jury trial under § 70

- 30

- 107, MCA, relating to the necessity and value of the property to be taken. Because Myers failed to make s uch a showing, the court granted the Dees’ Motion for Summary J udgment and awarded the Dees their costs. Myers appeals. Standard of Review ¶10 We review a district court’s grant or denial of a summary judgment motion de
novo. Lee v. Great Divide Ins. Co. , 20 08 MT 80, ¶ 9, 342 Mont. 147, 182 P.3d 41 (citing Farmers Union Mut. Ins. Co. v. Horton , 2003 MT 79, ¶ 10, 315 Mont. 43, 67 P.3d 285). Under M. R. Civ. P. 56(c), summary judgment is proper only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Moreover, the party moving for summary judgment has the initial burden of proving that no genuine issues of material fact exist. See Roy v. Blackfoot Telephone Co

- op. , 20045 MT 316, ¶ 11, 324 Mont. 30, 101 P.3d 301. The burden then shifts to the non

- moving party to prove by more than mere denial and speculation that a genuine issue of material fact does exist. Roy , ¶ 11. Issue 1. ¶11 Whether § 70

- 30

- 102(36), MCA, requires proof of an existing farm or residen ce . ¶12 E minent domain is the right to take private property for public use. Richter v. Rose , 1998 MT 165, ¶ 15, 289 Mont. 379, 962 P.2d 583 (citing § 70

- 30

- 101, MCA). We noted in Richter , that the procedures for taking property pursuant to eminent domain are entirely statutory in Montana. Richter , ¶ 15 (citing Title 70, c hapter 30, MCA ). And, under Montana’s eminent domain statutes, a private right exists to create a road leading from a highway to landlocked property containing a residence or farm. Rich ter , ¶ 15 (citing § 70

- 30

- 102( 6), MCA (now § 70

- 30

- 102(36), MCA) )
. ¶13 In this case, Myers contends that the historic cabin on his property is a residence for purposes of § 70

- 30

- 102(36), MCA. He argues that the statutes g overning eminent domain do not requi re proof that a farm or residence is presently in use before eminent domain may be applied. Hence, Myers contends that the District Court erred in reading that requirement into the statutes and in granting the Dees’ Motion for Summary Judgment. ¶14 The Dees argue on th e other hand that the eminent domain statutes require a showing of a presently

- used farm or residence. The Dees maintain that on the facts before us here, because there is no presently

- used farm or residence on Myers’ property, the District Co urt was correct in granting their Motion for Summary Judgment.6 ¶15 There are no cases in Montana that define the term “residence” for purposes of § 70

- 30

- 102(36), MCA. There are, however, two cases that define the term “farm” as used in that statute. ¶16 In Groun dwater v. Wright , 180 Mont. 27, 588 P.2d 1003 (1979), the plaintiff owned a tract of land with no access, so he sought to condemn an access route from a county road to his property over defendant’s land using the eminent domain statutes. 1

¶17 On appeal, this Court stated that in order to prevail, plaintiff must show that eminent domain would be exercised to provide necessary access from a highway to a residence or farm. The Court held that because the evidence presented showed that the land was not presently being farmed or used as a residence, plaintiff failed to es tablish that his proposed condemnation was necessary. Groundwater , 180 Mont. at 29

- 30, 588 P.2d at 1004

- 05. The evidence pro duced at trial showed that plaintiff’s property was not being farmed or
u sed as a residence at that time, although the p laintiff did testify that he would like to build a home on the property when he retires. Because the jury found that there presently
wa s no necessity for the road, as there was no farm or residence on the property, the court entered judgment for defendants. Groundwater , 180 Mont. at 2 8

- 30 , 588 P.2d at 1004

- 05
.

1 Myers attempts to distinguish Groundwater from the instant case claiming that Groundwater was decided prior to the enactment of the statutes at issue here. However, t he statutes cited in Groundwater

— §§ 93

- 9902(6) and 93

- 9923, RCM (1947)

— are the predecessors to §§ 70

- 30

- 102(36) and

- 107, MCA, respectively, and contain nearly identical language.7 ¶18 Similarly, in the Richter case, plaintiffs sought a declaration that a public right

- of

way had been established across defendants’ property in the early 1900s or, alternatively, a condemnation order granting plaintiffs an easement across the property. The district court rejected the public right

- of

- way claim, but entered a preliminary condemnation order and judgment in plaintiffs’ favor. Richter , ¶ 1. ¶19 On appeal, we analyzed the term “farm” to determine whether the facts in that case fit within the requirements of the eminent domain statutes. We noted in Richter that while “farm” is not defined in Title 70, c hapter 30, MCA, it is defined in several other chapters of the MCA. We rejected each of those definit ions, however, because they are limited in their application to the particular statutor y scheme in which they a re found. Richter , ¶¶ 17

- 20. “ [ W ] hen a word is defined in any part of the MCA, the same definition applies wherever the word appears unless ‘a contrary intention plainly appears.’ ” Richter , ¶ 17 (quoting § 1

- 2

- 107, MCA) (emphasis added)
. ¶20 Because “farm” was not defined for purposes of § 70

- 30

- 102(6), MCA (now § 70

- 30

- 102(36), MCA) an d because other definitions of the term in the MCAs were not applicable to this statute, we concluded in Richter that we must construe the term according to its plain meaning. Richter , ¶ 21 (citing § 1

- 2

- 106, MCA; State v. Nye , 283 Mont. 505, 510, 943 P.2 d 96, 99 (1997)). And, based on the plain meaning of the term “farm,” we held in Richter that because plaintiffs had not prepared, fertilized, tilled or otherwise cultivate d their property for agricultural purposes, the property could not be considered a “farm.” Richter , ¶ 22. Consequently, we reversed the district court’s8 condemnation order because plaintiffs failed to establish a public use on behalf of which eminent domain could be exercised. Richter , ¶ 23. ¶21 J ust as the term “farm” is not defined in t he eminent domain statutes for purposes of § 70

- 3 0

- 102(36), MCA, the term “residence” is not defined there either. While “residence” is defined in other sections of the MCA, none of those definitions are applicable here as each of those definitions is exp ressly limited in its application to the section of the MCA in which it appears , 2

¶22 As we did in Richter with the term “farm,” we must construe the term “residence” accord ing to its plain meaning because it is not defined for purposes of § 70

- 30

- 102(36), MCA, and because other definitions of the term in the MCAs are not applicable in this
case. In cases too numerous to mention here, we have utilized dictionaries when seeki ng to define the common use and meaning of a term . Ravalli County v. Erickson , 2004 MT with the exception of § 1

- 1

- 215, MCA. And, even though § 1

- 1

- 215, MCA, does not contain the limiting language of the other statutory definitions of the term “residence,” it is not applicable in this case as it refers to an individual’s legal residence as, for example, pointing out that a minor’s legal residence is with the minor’s parents.

2 Section 10

- 2

- 501, MCA, defines “residence” in terms of interment allowances for veterans; § 15

- 30

- 2336, MCA, defines “residence” in terms of property tax levies; § 15

- 63

- 102, MCA, limits that definition of “residence” to Title 15, c hapter 63; § 42

- 10

- 121, MCA, defines “residence” in terms of the state in which an adoptive parent resides; § 46

- 23

- 502, MCA, limits that definition of “residence” to Title 46, c hapter 18, p art 2 and c hapter 23, p art 5; § 61

- 3

- 712, MCA, limits that definition of “residence” to §§ 61

- 3

- 711 through

- 733, MCA; § 61

- 8

- 102, MCA, limits that definition of “residence” to Title 61, c hapter 8; § 70

- 19

- 426, MCA, limits that definition of “residence” to §§ 70

- 19

- 426 through

- 428, MCA; and § 70

- 24

- 103, MCA, limits that definition of “residenc e” to Title 70, c hapter 24, MCA.9 35, ¶ 13, 320 Mont. 31, 85 P.3d 772 (citing Town of Whitehall v. Preece , 1998 MT 53, ¶

¶ 20

- 21 , 288 Mont. 55, 956 P.2d 743). We will utilize this same method to determi ne the plain meaning of the term “residence” as that term i s used in § 70

- 30

- 102(36), MCA. ¶23 Webster’s New American Dictionary 445 (Merriam

- Webster , Inc. 1995) defines “residence” as “the act or fact of residing in a place as a dweller or in disch arge of a d uty or an obligation,” “ the place where one actually lives ,” or “ a bu ilding used as a home .” Similarly, Black’s Law D ictionary 1423 (Bryan A. Garner ed., 9 th ed., Thomson Reuters 200 9) defines “r esidence” as “[t]he act or fact of living in a given place f or some time,” “[t]he place where one actually lives, as distinguished from a domicile,” or “[a] house or other fixed abode; a dwelling.” ¶24 Under the rationale of Groundwater and Ric ht er , and with the foregoing dictionary definitions in mind, we conclude t hat requiring some sort of on

- going use or physical activity to constitute a residence is not an unreasonable i nterpretation for purposes of § 70

- 30

- 102(36), MCA. Thus, we further conclude that the term “residence” in § 70

- 30

- 102(36), MCA, refers to a hab ita ble structure or dwelling place

— i.e., a place where people are living. ¶25 Accordingly, we hold that the District Court did not err in concluding that § 70

- 30

- 102(36), MCA, requires proof of an existing farm or residence for application of the eminent dom ain statutes. Issue 2. ¶26 Whether the existence of a farm or residence and the necessity of a road to access that farm or residence are determinations for the jury.10 ¶27 The District Court concluded that Myers must make a prima facie showing under § 70

- 30

- 102(3 6), MCA, as to the current existence of a farm or residence on his property before he is entitled to a jury trial under § 70

- 30

- 107, MCA , relating to the necessity and value of the property taken
. Because Myers failed to make such a showing, the court gra nted summary judgment in favor of the Dees. ¶28 Myers argues that this was error on the District Court’ s part because the determination of whether there is a farm or residence on his property is inextricably intertwined with the necessity for access which is statutorily left to the determination of the jury. The Dees argue on the other hand that a necessity analysis under § 70

- 30

- 107, MCA, is not required here because it is undisputed that there is not a presently

- used residence on Myers’ property. ¶29 Section 70

- 30

- 107, MCA, provides: Private roads. P rivate roads may be opened in the manner prescribed by [Title 70, c hapter 30, MCA] , but in every case the necessity of the road and the amount of all damage to be sustained by the opening of the road must be firs t determined by a jury , and the amount of damages, together with the expenses of the proceeding, must be paid by the person to be benefited. [Emphasis added.] In addition, we stated in Groundwater that “[t]he question of necessity is one of fact to be de termined as other questions of fact in the light of all the evidence.” Groundwater , 180 Mont. at 30, 588 P.2d at 1004 (quoting Montana Power Co. v. Bokma , 153 Mont. 390, 397

- 98, 457 P.2d 769, 774 (1969)). ¶30 We conclude that the District Court erred here bec ause whether there is a residence on the property as we defined it in the previous issue, see ¶ 24, and whether a11 necessity exists to condemn another’s property to create a road to access that residence
are generally question s of fact for a jury to determi ne . Nevertheless, we affirm the District Court on this issue because it is undisputed that the historic cabin on Myers’ property has not been lived in f or decades. It is also undisputed that the cabin has no windows or doors, no running water, and no san itary system, thus it is completely uninhabitable. As such, the cabin cannot be considered a “residence” for purposes of § 70

- 30

- 102(36), MCA
. ¶31 In other words, had there been disputed issues of material fact about whether the historic cabin was a farm or residence, as our case law defines those terms (see Richter, Groundwate r and ¶ 24 above), then a jury should have resolved that factual issue before going on to resolve matters of necessity, damages and expenses under § 70

- 30

- 107, MCA. Here, however, Myer s failed to first establish the predicate that there w as a genuine factual issue regarding the existence of a farm or residence under § 70

- 30

- 102(36), MCA
. ¶32 We will not reverse a district court’ s decision when it reaches the correct result , even if it reach ed that result for the wrong reason.

¶33 Accordingly, we affirm the District Court’s decision to gra nt summary judgment in favor of the Dees. In re Marriage of Szafryk , 2010 MT 90, ¶ 18, 356 Mont. 141, 232 P.3d 361 (citing Wells Fargo Bank v. Talmage , 2007 MT 45, ¶ 23, 336 Mont. 125, 152 P.3d 1275).

¶34 Affirmed.12 /S/ JAMES C. NELSON

We Concur:
/S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ JIM RICE