ORIGINAL 

DA 23-0054 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2023 MT 177 

THE MARY ELLEN DUKE TRUST dated March 13, 1997, 

MILLARD COX, MINA COX, and TROUT CREEK RANCH, 

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 of the Twenty-Second Judicial District, 

In and For the County of Stillwater, Cause No. DV 21-70 

Honorable Matthew J. Wald, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

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 23-0054
Justice Laurie McKinnon delivered the Opinion of the Court. 

¶1 Lee Lou, LLC (Lee Lou) appeals the denial of its partial motion for summary 

judgment and the granting of Plaintiff s 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 the District Court erred in determining Tract 3 was the servient estate and 

Tracts 1 and 2 were the dominant estates regarding a 30' easement. 

FACTUAL AND PROCEDURAL BACKGROUND 

¶3 In 1989, the Trout Creek Ranch Partnership (TCRP) sought to buy a parcel of land 

in Stillwater County from A. Joe Jenni, Jr., Callie W. Jenni, and Robert W. Jenni (the 

Jennis). The land was to be collectively owned by TCRP with three individual tracts being 

carved out from the Jennis' land for separate ownership by each of the three TCRP 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 Certificate of Survey 260286 (COS 260286) that created the three individual 

tracts. The COS 260286 also depicted three different easements, including the 30' 

easement that is the subject of this 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 of these transactions, in addition to the property owned by TCRP itself, each of 

these TCRP owners possessed their own individual tracts. The warranty deed conveying 

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the 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" language which included a 30' wide easement. However, the deed to Roehder from 

the Jennis for Tract 3 did not contain any mention of a 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 of quitclaim 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 the phrase "together with a thirty 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 of record." 

¶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) by tax deed after Roehder's estate defaulted on the taxes for the property. Zinvest 

then conveyed the property to Lee Lou. 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 

of the 30' easement and provides access to the only residential structure on Tract 3. 

¶7 On September 27, 2021, Trout Creek Ranch, the Coxes, and the Dukes (collectively 

"Partnership) filed a complaint to quiet title with two counts: (I) a declaratory judgment 

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that Lee 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 of its own: (I) a quiet title action for Tract 3 against the 

Partnership and third-party defendants (II) declaratory relief to determine the parties' rights 

related to the easements and rights-of-way depicted in COS.260286, and (III) temporary 

and permanent injunctive relief preventing the Partnership from interfering with Lee Lou's 

use of the easements and rights-of-way to access Tract 3. The Partnership then filed their 

answer, opposing such relief. 

Lee Lou filed a motion for partial summary judgment on Count II on May 13, 2022, 

and the Partnership opposed that motion and responded with their own motion for summary 

judgment on their two counts. The parties did not assert there were any issues of material 

fact although they disagreed on some collateral issues, and the District Court considered 

these motions without a hearing. The District Court first found that COS 260286 could not 

on its own have created any easement rights since it contains no granting language 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 

established by the easement-by-reference doctrine since it is not clear from the survey itself 

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 

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Tracts 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. The Court granted summary judgment in favor of the 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 of summary judgment de novo, applying 

the same criteria as the district courts. Hudson v. Irwin, 2018 MT 8, ¶ 12, 390 Mont. 138, 

408 P.3d 1283. Summary judgment 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 of law for correctness and the district court's 

findings of fact to determine if they are clearly erroneous. Hudson, ¶ 12. 

DISCUSSION 

111 Whether the District Court er•red in determining Tract 3 was the servient estate and 

Tracts I and 2 were the dominant estates regarding a 30' easement. 

112 An easement is a right to use the land of another for a specific purpose. Blazer v. 

Wall, 2008 MT 145,1 24, 343 Mont. 173, 183 P.3d 84. An easement can be created by an 

express grant or reservation in a written instrument of conveyance, by operation of law, or 

by prescription. Blazer, ¶ 26. An easement appurtenant benefits a particular piece of land, 

and the benefited piece of land 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 

5 
Mont. 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 of conveyance 

to a recorded plat or certificate of survey 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 of the servient estate "knowledge of its use or 

its necessity." Yorlum, ¶ 18 (citations oinitted). The instrument of conveyance and the 

referenced plat or certificate of survey together must show "clear and unambiguous grantor 

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 

Ranches HOA, 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 of the 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 of Tract 3. 

However, for an undetermined distance, the easement appears to track the eastern boundary 

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 

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debating about the location of the easement on appeal, with Lee Lou maintaining that the 

easement ends at the boundary of Tract 3 and the Partnership alleging that the easement 

continues along the boundary of Tract 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 that the identities of the 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 of survey, 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 apparent with reasonable certainty which were the 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 of the easement that it burdened Tract 2 for the benefit of Tract 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 of Dahlia's tract that 

was otherwise landlocked and had no access to the public street without the easement. 

Blazer, ¶ 52 (citing Halverson v. Turner, 268 Mont. 168, 170-71, 885 P.2d 1285, 1287-88 

I Although the parties debate on appeal whether the easement reaches as far as BLM land, neither 

party maintains that there was a dispute of material fact, making summary judgment inappropriate. 

Furthermore, how far north the easement reaches is immaterial to what is being appealed, namely 

which land is the dominant estate with the right to 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. 

JJ

DATA 

n•aLL.oa 

As ir °ed.

I-di late 

7546761' 

CORTE DATA 

POAD Cs 

ROUT CREEK RANCH 

LEGEND 

er-q-nliTEPTIOC 

— MOW CAP I 

SET OM% 

tilts LIM 

„. PEOAD—ACC 

eftpLASTIC 

Lower part of the 30' easement as it touches Tract 1 

8 
004.on 

Top ot kin 

114 illopurponl 

lH 

t30. k774 is 

Els71. 

5 

ts<et . 

Upper part of 30' 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 of COS 260286 by the deed to Tract 3 did not establish an easement for the 

benefit of Tract 3. 

B. The deeds establish Tract I and 2 as dominant estates and Tract 3 as a servient 

estate. 

¶15 Since COS 260286 alone did not contain an adequate description of the easement, 

it can be considered alongside the deeds to see if the easement can be ascertained clearly 

from the combination of the deeds and COS 260286. 0 'Keefe,¶ 18. To create an express 

easement, an instrument of conveyance and any references to a plat, certificate of survey, 

or map of record "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 of the easement." O'Keefe, ¶ 18 (emphasis in original). Upon 

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examination, we conclude the language of both the quitclaim and warranty deeds for Tract 

3 in combination with COS 260286 is not enough to establish an easement for the benefit 

of Tract 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 

thereof on file and of record in the office of the Clerk and Recorder of said 

county, under Document No. 260286, containing 21.304 acres more or less, 

Subject to existing rights-of-way, easements, reservations, and exceptions of 

record [.] 

Unlike the deeds to Tracts 1 and 2, there is no language of "together with a thirty foot (30') 

wide easement for ingress and egress" as part of Tract 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 of Trustees of Sch. Dist. No. 8, 248 Mont. 397, 401, 812 P.2d 344, 

346-47 (1991). We have previously explained: 

The words "subject to" used in their ordinary sense, mean subordinate 

to, subservient to or limited by. There is nothing in the use of the words 

. "subject to", in their ordinary use, which would even hint at the creation 

of affirmative rights or connote a reservation or retention of property 

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 of title. 

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Wild River, 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" language that 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 of Survey." 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 demonstrating that the easement Was also intended to 

benefit the Trout Creek Ranch Property. 

¶19 Lee Lou argues the District 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 of such language 

is in most deeds. Lee Lou refers to this Court's decision in Clark where similar language 

was found to grant an easement. Clark v. Pennock, 2010 MT 192, ¶ 9, 357 Mont. 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 

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sixty-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 the Tract 

3 deeds, especially when contrasted with the deeds to Tracts 1 and 2 that do specifically 

mention the 30' easement in the legal description of the property. Although Clark allowed 

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 

evidence presented by the parties as this evidence was 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 of the 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 instrument must provide notice of the burden 

to the servient estate owner without reference to extrinsic evidence, otherwise purchasers 

could not rely on records in the chain of title to determine which easements might burden 

their property. Blazer, ¶ 74. In Woods, this court found the District Court was correct to 

12 
not consider extrinsic evidence because the terms of the 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 evidence was 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." While the District Court could have declined to discuss the affidavits 

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 extrinsic evidence, it still came to the same 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. 

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We Concur: 

"r at

nor r 

/94 Aer 44, 

Justices 

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