# ORIGINAL
DA 23-0054 IN THE SUPREME COURT OF THE STATE OF MONTANA 2023 MT 177

THEMARY ELLEN DUKE TRUST dated March 13, 1997, MILLARD COX, MINA COX, and TROUT CREEKRANCH,

Plaintiffs and Appellees,
v. LEE LOU, LLC, a Montana Limited Liability Company,

Defendant and Appellant. 

# FILED SEP 2 0 2023 BOWerl Greenwood Clerk of Supreme Court State of Montana

APPEAL FROM: District Court ofthe Twenty-Second JudicialDistrict,

In and For the County ofStillwater, CauseNo. DV 21-70 Honorable Matthew J. Wald, PresidingJudge COUNSEL OF RECORD:

ForAppellant: W. Scott Green, Patten, Peterman, Bekkedahl & Green, PLLC, Billings, Montana For Appellees: Brandon Hoskins,Moulton Bellingham PC,Billings,Montana

Filed: Submitted on Briefs: August 2, 2023

Cler1 6t cH Decided: September 20, 2023 09/20/2023

Case Number: DA 23-0054Justice Laurie McKinnon delivered the Opinion ofthe Court.

¶1 Lee Lou, LLC (Lee Lou) appeals the denial of its partial motion for summary judgment and the granting of Plaintiffs motion for summary judgment entered in the Twenty-Second Judicial District Court, Stillwater County. We affirm. ¶2 We restate the issue on appeal as follows: Whether theDistrict Court erredin determiningTract 3was the servient estate and Tracts 1and2were the dominant estates regardinga 30'easement.

FACTUAL AND PROCEDURAL BACKGROUND ¶3 In 1989, the Trout Creek Ranch Partnership (TCRP) sought to buy a parcel ofland in Stillwater County from A. Joe Jenni, Jr., Callie W. Jenni, and Robert W. Jenni (the Jennis). The landwastobecollectively owned byTCRP with three individual tractsbeing carved out fromtheJennis' land forseparateownership by each ofthethreeTCRP owners: Millard Cox and Mina J. Cox (Coxes), A. St. George B. Duke and Mary Ellen Duke (Dukes) and R.A. Roehder (Roehder). Before purchasing the property, TCRP commissioned CertificateofSurvey260286 (COS260286)thatcreatedthethreeindividual tracts. The COS 260286 also depicted three different easements, including the 30' easement that is the subject ofthis litigation. The COS 260286 was filed with the Clerk and Recorder in Stillwater County on January 22, 1990. ¶4 On April 17, 1990, the Jennis conveyed the Trout Creek Ranch Property to TCRP and conveyed Tract 1 to the Coxes, Tract 2 to the Dukes, and Tract 3 to Roehder. At the conclusion ofthesetransactions, in addition to the property owned by TCRP itself, each of these TCRP owners possessed their own individual tracts. The warranty deed conveying 2the Trout Creek Ranch Property provides the property is given "TOGETHER with thirty

foot (30') wide easements for ingress and egress as shown on [COS 260286]." The warranty deeds from the Jennis to the Coxes and Dukes also contain the same "together with" languagewhich included a 30' wide easement. However, the deed to Roehder from the Jennis for Tract 3 did not contain any mention ofa 30' easement, and simply conveyed the property "subject to existing rights-of-way, easements, reservations and exceptions of record,"which was standard language also contained in the other two deeds. ¶5 Subsequently, the three TCRP owners executed a series ofquitclaim deeds to each other in May and June of 1990, disclaiming,any interest the parties had in each other's assigned tracts. Similar to the original warranty deeds, the quitclaim deeds for Tracts 1 and 2 contained thephrase "togetherwith athirty foot (30')wide easement for ingress and egress[,]"while the deeds for Tract 3 only contained the standard language of"subject to existing rights-of-way, easements, reservations and exceptions ofrecord." ¶6 A few years after the transactions, Roehder sold his interest in the TCRP but continued to own Tract 3 until his death. Tract 3 was then acquired by Zinvest, LLC (Zinvest)bytaxdeed afterRoehder's estate defaulted onthetaxesfortheproperty. Zinvest then conveyed the property to LeeLou. Tracts 1 and 2 continue to be held by the original parties or their successors. Lee Lou alleged that a historical access road follows the path ofthe 30' easement and provides access to the only residential structure on Tract 3. ¶7 On September 27, 2021,Trout CreekRanch, the Coxes, and theDukes (collectively "Partnership) filed a complaint to quiet title with two counts: (I) a declaratoryjudgment 3thatLee Lou owns no interest in the 30' easement and only the Partnership has an interest

in the easement and (II) a permanent injunction preventing Lee Lou from using any roads
across the Partnership's lands, including the easements depicted on COS 260286. On October 12, 2021, Lee Lou filed an answer and counterclaim, opposing the Partnership's claims and pleading three counts ofits own: (I) a quiet title action for Tract 3 against the Partnershipandthird-partydefendants (II) declaratoryreliefto determinetheparties' rights related to the easements and rights-of-way depicted in COS
.260286, and (III) temporary andpermanent injunctivereliefpreventingthe Partnership from interferingwith LeeLou's
use ofthe easements and rights-of-way to access Tract 3. The Partnership then filed their answer, opposing such relief. LeeLou filed amotion forpartial summaryjudgment on Count II onMay 13, 2022, and thePartnershipopposedthatmotion andrespondedwiththeirownmotion forsummary judgment on their two counts. The parties did not assert there were any issues ofmaterial fact although they disagreed on some collateral issues, and the District Court considered thesemotionswithout ahearing. TheDistrict Court first found that COS260286 could not
on its own havecreated any easement rights sinceit contains no grantinglanguage and was completed while all the property was still under singular ownership. The Court further explained COS 260286 did not describe the easement adequately enough for it to be establishedbythe easement-by-referencedoctrinesince itis notclear from thesurveyitself what the easement's intended uses were, or which estates are dominant and servient. The Court then found there was an easement created by the deeds, but that they established 4Tracts 1 and 2 as the dominant estates and Tract 3 as the servient estate as alleged by the

Partnership. Lastly, the Court found the relevant extrinsic evidence supported the Court's conclusions, although it was not necessary to use extrinsic evidence to reach its conclusions. TheCourtgranted summaryjudgmentin favor ofthe Partnership, concluding that Tract 3 is burdened by the 30' easement and cannot benefit from it. ¶9 Lee Lou timely appealed the decision. STANDARD OF REVIEW ¶10 We review district court grants or denials ofsummaryjudgment de novo, applying the same criteria as the district courts. Hudson v. Irwin, 2018 MT 8, ¶ 12, 390 Mont. 138, 408 P.3d 1283. Summaryjudgment is appropriate when "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." M. R. Civ. P. 56. We review conclusions oflaw for correctness and the district court's findings offact to determine ifthey are clearly erroneous. Hudson, ¶ 12. DISCUSSION 111 Whether the District Court er•redin determiningTract3wastheservientestate and Tracts I and2 were the dominant estates regardinga 30'easement. 112 An easement is a right to use the land ofanother for a specific purpose. Blazer v. Wall, 2008 MT 145,124, 343 Mont. 173, 183 P.3d 84. An easement can be created by an express grant or reservation in a written instrument ofconveyance, by operation oflaw, or by prescription. Blazer,¶26. An easement appurtenantbenefits aparticularpiece ofland, and the benefited piece ofland is called the dominant estate, while the burdened piece of land is called the servient estate. Burleson v. Kinsey-Cartwright, 2000 MT 278,¶ 16, 302 5Mont. 141, 13 P.3d 384. This Court has recognized the easement-by-reference doctrine,

where "an express easement may be created by referring in an instrument ofconveyance to a recorded plat or certificate ofsurvey on which the easement is adequately described." Yorlum Props. v. Lincoln County, 2013 MT 298, ¶ 16, 372 Mont. 159, 311 P.3d 748. For
an easement to be considered adequately described, the dominant and servient estates must be "ascertainable with reasonable certainty" from the transaction documents and the transaction documents must givethe owner ofthe servient estate "knowledge ofits use or its necessity." Yorlum, ¶ 18 (citations oinitted). The instrument of conveyance and the referencedplator certificateofsurveytogethermustshow"clear and unambiguousgrantor intent" to convey an easement and must describe "with reasonable certainty the intended dominant and servient estates, use, and location of the easement." O'Keefe v. Mustang RanchesHOA, 2019 MT 179, ¶ 18, 396 Mont. 454, 446 P.3d 509. A. COS 260286 does not describe the easement with the required specificity to fulfill the requirements ofthe easement-by-reference doctrine. ¶12 COS 260286 does not adequately describe the easement so that th'e dominant and servient estates, the easeinent's use, and its scope can be ascertained with reasonable certainty. The easement at issue is labeled "30' Access Esm't" on COS 260286 and it is depicted by a thin line that appears to run from Stillwater Road across Trout Creek Ranch property, touches Tract 1, traverses Tract 2, and connects to the western border ofTract 3. However, foranundetermined distance,the easementappearstotrackthe easternboundary of Tract 1 and the western boundary of Tract 3, and it is unclear how far, if at all, the easement continues along those boundaries. The ambiguity is reinforced by the partles 6debating about the location ofthe easement on appeal, with Lee Lou maintaining that the

easement ends at the boundary ofTract 3 and the Partnership alleging that the easement continues along the boundary ofTract 3 until it connects to BLM land to the north.' ¶13 It is unclear from COS 260286 alone which are the intended dominant and servient estates. This Court has required thatthe identities ofthe dominant and the servient estates must be "ascertainable with reasonable certainty from the referenced plat or certificate of survey" to fulfill the easement-by-reference doctrine. Blazer,

## ¶54. In Blazer, this Court found those requirements were not met because, while there was a 30-foot easement depicted on the certificate ofsurvey, it was not clear whether the easement was to benefit Tract 4 or to burden Tract 4. Blazer, 

## ¶¶ 56-57. This contrasts with other cases where it
was apparentwith reasonable certaintywhichwerethe dominant and servient estates based
on the certificate of survey or plat. For example, in Bache, this Court concluded it was clear from the depiction ofthe easement that it burdened Tract 2 for the benefit ofTract 1
so that access was provided to the state route. Blazer, ¶ 52 (citing Bache v. Owens, 267 Mont. 279, 285-86, 883 P.2d 817, 821-22 (1994)). Similarly, in Halverson, it was clear that the depicted 30-foot road burdened Turner's tract for the benefit ofDahlia's tract that
was otherwise landlocked and had no access to the public street without the easement. Blazer, ¶52 (citingHalverson v. Turner, 268 Mont. 168, 170-71, 885 P.2d 1285, 1287-88

I Although theparties debate on appeal whether the easementreaches as far as BLM land, neither partymaintainsthattherewasa disputeofmaterial fact,makingsummaryjudgmentinappropriate. Furthermore, how farnorth the easement reaches is immaterial to what is being appealed, namely which land is the dominant estatewiththe rightto use the easement. 7(1994)). Further, in Wilkinson, this Court again found the dominant and servient estates

were clear from the plat and Government Lot 7 clearly needed the easement across Government Lot 3 to access Bear Gulch Road. Wilkinson, LLC v. Scott & Cindy Erler, LLP, 2021 MT 177, ¶ 13, 404 Mont. 541, 491 P.3d 704. ¶14 When-considering this precedent, the present case is more like Blazer where the dominant and servient estates and the easement's use were not clearly ascertainable from the plat or survey. As in Blazer, it is unclear from COS 260286 which parcels are meant to benefit from the 30' easement and which are meant to be burdened by it.

J J

DATA n•aLL.oa Asir °ed

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CORTE DATA

POAD Cs ROUT CREEK RANCH

LEGEND er-q-nl i TEPTIOC

— MOW CAP I SET OM% tiltsLIM
„. PEOAD—ACC eftpLASTIC Lowerpart ofthe 30' easement as it touches Tract 1

8004.on Top ot kin 114 illopurponl lH

t30
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### 5 ts <et . Upperpart of30' easernent and Tracts 2 and 3 73113' 

### na 1 2

•

We conclude it is not clear which estates are dominant or servient and, therefore, the incorporation ofCOS 260286 by the deed to Tract 3 did not establish an easement for the benefit ofTract 3. B. The deeds establish Tract I and2 as dominant estates and Tract 3 as a servient estate. ¶15 Since COS 260286 alone did not contain an adequate description ofthe easement, it can be considered alongside the deeds to see ifthe easement can be ascertained clearly from the combination ofthe deeds and COS 260286. 0 'Keefe,¶ 18. To create an express easement, an instrument ofconveyance and any references to a plat, certificate ofsurvey,
or map ofrecord "must be sufficient together to express clear and unambiguous grantor intent to grant or reserve an easement . . . [describing] the intended dominant and servient estates, use, and location ofthe easement." O'Keefe, ¶ 18 (emphasis in original). Upon 9examination, we concludethe language ofboth the quitclaim and warranty deeds for Tract

3 in combination with COS 260286 is not enough to establish an easement for the benefit ofTract 3. ¶17 The original warranty deed for Tract 3 describes the property as: Tract 3 of Certificate of Survey No. 260286, according to the official plat thereofon file and ofrecord in the office ofthe Clerk and Recorder ofsaid county, under Document No. 260286, containing 21.304 acres more or less, Subject to existingrights-of-way, easements, reservations, and exceptions of record [.] Unlikethe deeds toTracts 1 and 2,there is no languageof"togetherwith athirty foot(30') wide easement for ingress and egress" as part ofTract 3's legal description. There is no reference to any easement; rather, standard language is used describing the property is "subject to" existing easements. The quitclaim deeds for Tract 3 have the same "subject to" language as the warranty deed. ¶18 This Court's precedent clearly establishes that "subject to" language does not generally create an easement. See Blazer, ¶ 28; Bache, 267 Mont. at 286; Wild River Adventures v. Board ofTrustees ofSch. Dist. No. 8, 248 Mont. 397, 401, 812 P.2d 344, 346-47 (1991). We have previously explained: Thewords "subject to"used in their ordinary sense, mean subordinate to, subservient to or limited by. There is nothing in the use ofthe words

. "subject to", in their ordinary use, which would even hint at the creation ofaffirmative rights or connote a reservation or retention ofproperty rights. "Subject to"wording is commonly used in a deed to refer to existing easements, liens, and real covenants that the grantor wishes to exclude from warranties oftitle.
10WildRiver, 248 Mont. at 401, 812 P.2d at 346-47. Therefore, the "subject to" line in the

deeds to Tract 3 could not have created an easement for Tract 3's benefit in combination with COS 260286. 1118 In contrast, the "together with"languagethat includes an easement on the deeds for Tracts 1 and 2 did create an easement for the benefit of Tracts 1 and 2, making them dominant estates. Tracts 1 and 2 have a similar legal description to Tract 3 except they both contain the dispositive language "together with a thirty foot (30') wide easement for ingress and egress as shown in said Certificate ofSurvey." These deeds establish the 30' easement was for the benefit of Tracts 1 and 2. The deed for the Trout Creek Ranch Property also contains this language demonstratingthat the easement Was also intended to benefit the Trout Creek Ranch Property. ¶19 LeeLou argues theDistrict Court failed to give appropriate credit and weight to the following standard appurtenance language in Tract 3's warranty and quitclaim deeds placed just after Tract 3's legal description: "TOGETHER with all and singular the hereinbefore described premises together with all tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining
. . . ." This is standard language that appears in all the deeds to all the tracts, and some version ofsuch language is in most deeds. Lee Lou refers to this Court's decision in Clarkwhere similar language
was found to grant an easement. Clarkv. Pennock, 2010 MT 192,¶9, 357Mont. 338, 239 P.3d 922. However, the language in Clark included an express reference to a particular easement, providing after the standard language: "including a general non-exclusive 11sixty-foot (60') easement for ingress to and egress from the above-described lot or

tract . . . ." Clark, ¶9. This is different from the standard language contained in theTract 3 deeds, especially when contrasted with the deeds to Tracts 1 and 2 that do specifically mention the 30' easement in the legal description ofthe property. Although Clarkallowed for the creation of an easement with language outside of the legal description, it still required specific language identifying the easement and its use, which is absent from the I present facts. While standard appurtenance language can convey easements already in existence when a property is transferred, it cannot create new ones without more specific language." C. The District Court did not improperly use extrinsic evidence to reach its conclusion. ¶20 Lastly, the District Court did not abuse its discretion in addressing extrinsic evidencepresented by the parties as this evidencewas not used to reach its conclusion but, rather, confirm it. A land conveyance is treated like a contract for the purposes of considering extrinsic evidence. Proctor v. Werk, 220 Mont. 246, 248, 714 P.2d 171, 172 (1986) (citing § 70-1-513, MCA). If the language ofthe deed is clear and explicit, the court should not consider extrinsic evidence. Proctor, 220 Mont. at 248, 714 P.2d at 172. Extrinsic evidence may be used to resolve an ambiguity in an otherwise sufficient conveyance. Blazer,¶70-71. A conveyance instrumentmustprovide notice oftheburden to the servient estate owner without reference to extrinsic evidence, otherwise purchasers could not rely on records in the chain oftitle to determine which easements might burden their property. Blazer,

## ¶74. In Woods, this court found the District Court was correct to 12not consider extrinsic evidence because the terms ofthe conveyance stating the easement

was to be used for ingress and egress were clear and specific. Woods v. Shannon, 2015 MT 76, ¶ 14, 378 Mont. 365, 344 P.3d 413. In Clark, this Court concluded the District Court erred in considering extrinsic evidence since the easement language was specific, but it affirmed the result since the same conclusion was reached regardless of whether extrinsic evidencewas considered. Clark, ¶¶27-28. ¶21 The District Court need not have considered extrinsic evidence since the terms of the deed were clear in identifying the eakment and its use. Although the District Court discussed the extrinsic evidence presented by the parties, it made clear "the documents speak for themselves" and the extrinsic evidence was "ultimately unnecessary to the Court's conclusions." WhiletheDistrictCourt couldhavedeclined to discusstheaffidavits at all, its discussion still does not violate the bar against considering extrinsic evidence when the granting language is specific. Additionally, even if the District Court had improperly utilized extrinsicevidence, it still cameto thesame conclusion as warranted by the deed language and, like Clark, arrived at the correct result. CONCLUSION ¶22 The District Court did not err in determining that Tract 3 does not benefit frorn the 30' easement depicted on COS 260286 and Tracts 1 and 2 do benefit from the easement. ¶23 Affirmed.

13We Concur: 

# "r at nor r 

# /94Aer 44,

Justices

14