NO. 93-331 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

ROBERT SCHERPENSEEL and SHIRLEY 

SCHERPENSEEL, husband and wife; 

ROBERT EICKERT and THERESA EICKERT, 

husband and wife, 

Plaintiffs and Appellants, 

-vDUANE BITNEY and BETTY BITNEY, 

husband and wife; EDGAR GRANRUD and 

DEC 22 1993 

D 

HELEN GRANRUD, husband and wife; 

and FLATHEAD COUNTY, MONTANA, a 

22 Xz;i.$ CLERK OF SUPRC'~?~' CQ~JR~ 

political subdivision of the State STATE OF I:IOIUT,~NA 

of Montana, by and through its Board 

of County commissioners, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael H. Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Patrick M. Springer, Kalispell, Montana 

For Respondents: 

M. Dean Jellison, Murphy, Robinson, Heckathorn & 

Phillips, Kalispell, Montana (Bitneys), James C. 

Bartlett, Hash, O'Brien & Bartlett, Kalispell, 

Montana (Granruds) , Dennis J. Hester, Deputy 

Flathead County Attorney, Kalispell, Montana 

Submitted on Briefs: November 10, 1993 

Filed: 

Decided: December 22, 1993 
Justice James C. Nelson delivered the Opinion of the Court. 

Plaintiffs/Appellants appeal an order of the Eleventh Judicial 

District Court, Flathead County, granting summary judgment to the 

defendants and denying plaintiffs' motion to alter or amend that 

judgment. We reverse. 

The issues on appeal are as follows: 

1. Does the Covenant to Dedicate, entered into by the 

defendants in 1975, run with the land? 

2. Does the eight-year statute of limitations bar the 

plaintiffs' cause of action? 

3. Did the District Court err in granting summary judgment 

in favor of the defendants? 

In 1975, the defendants Edgar and Helen Granrud and Duane and 

Betty Bitney (the defendants) owned certain real property in 

Flathead County known as Stillwater Terrace, Unit 2 (Unit 2). The 

defendants applied for summary review of their subdivision 

application on February 18, 1975, and a summary review report was 

subsequently prepared. On May 19, 1975, the defendants entered 

into a "Covenant to Dedicate" with Flathead County and its Board of 

County Commissioners. This document provided, in pertinent part: 

. . . in consideration of the Board of County 

Commissioners of Flathead County, Montana, approving the 

covenantors map or plat of Stillwater Terrace, Unit 2 . . . the Covenantors agree in the future to donate as a 

County Road [portions of Lots 8 and 91. Covenantors 

agree to donate the beforementioned Easterly 60 feet of 

Lots 8 and 9 of Stillwater Terrace, Unit 2, 233.54 feet 

in length in the future if the Covenantee will agree to 

approve the Stillwater Terrace, Unit 2 map for recording. 

The Covenantors further agree for the consideration 
before stated that any future conveyance of Lots 8 or 9 

of Stillwater Terrace, Unit 2, Flathead County, Montana, 

will be subject to the terms of this Agreement, and the 

Covenantors further agree that they will improve the 

Easterly 60 feet of Lots 8 and 9 of Stillwater Terrace, 

Unit 2 said 60 foot section being 233.54 feet in length, 

and that such improvements on the portions of Lots 8 and 

9 will comply with the standards for County Roads. . . . 

The same day, the Board of County Commissioners accepted the plat 

for Unit 2 subject to the "restrictive covenants to dedicate." 

Thereafter, on June 12, 1975, the plaintiff Shirley 

Scherpenseel purchased Lot 9 of Unit 2 from the Granrud defendants. 

Although not in the record, it is alleged that, on July 28, 1975, 

the plaintiffs Robert and Theresa Eickert purchased Lot 8 in Unit 

2 from the Granrud defendants, and the defendants have not denied 

this allegation. 

On July 31, 1990, the plaintiffs made a formal demand to the 

defendants requesting that they perform in accordance with the 

Covenant to Dedicate. On July 8, 1991, the plaintiffs filed a 

complaint against the defendants, alleging that they had an 

obligation to construct a road abutting the plaintiffs' property to 

county specifications. The plaintiffs also sued Flathead County, 

requesting that, after the road was constructed, the county be 

required to accept and maintain that road as a county road. 

On October 9, 1991, the plaintiffs filed a Motion for 

Determination of Plaintiffs1 Standing to Seek Declaratory Relief. 

On December 10, 1991, the District Court issued an order finding 

that the plaintiffs had standing to pursue the action. Thereafter, 

on September 30, 1992, the Bitney defendants filed a Motion for 

Summary Judgment. Although the other defendants did not file 

3 
similar summary judgment motions, the Bitneysr motion was 

apparently considered to be inclusive of all defendants. On March 

15, 1993, the District Court granted summary judgment in favor of 

all the defendants on the basis that the plaintiffs' action was 

time-barred by the statute of limitations. On March 26, 1993, the 

plaintiffs filed a Motion to Alter or Amend Order Granting Summary 

Judgment, which was denied by the District Court on April 26, 1993. 

From the March 15, 1993 and April 26, 1993, orders, the plaintiffs 

appeal. 

Our standard in reviewing a grant of summary judgment is the 

same as that initially utilized by the district court. McCracken 

v. City of Chinook (1990), 242 Mont. 21, 24, 788 P.2d 892, 894. 

Summary judgment is proper when there is no genuine issue as to any 

material fact and the moving party is entitled to judgment as a 

matter of law. Rule 56(c), M.R.Civ.P. 

I - COVENANT RUNNING WITH THE LAND 

The plaintiffs contend that the Covenant to Dedicate runs with 

the land, thus benefitting their property and binding the 

defendants to make the agreed-upon road improvements. We agree. 

It is undisputed that, in 1975, when the subdivision plat and 

Covenant to Dedicate at issue here were accepted by the Board of 

County Commissioners and were respectively filed and recorded in 

Flathead County, the subdivision and plat were subject to the 

requirements of the Montana Subdivision and Platting Act (the Act), 

99 11-3859, et seq., RCM, 1947, as amended, (now §§ 76-3-101, et 

seq. , MCA) . 
The purposes of the Act were set forth at 5 11-3860, RCM, 

1947, as amended, (now 5 76-3-102, MCA), as follows: 

It is the purpose of this act to promote the public 

health, safety, and general welfare by regulating the 

subdivision of land; to prevent overcrowding of land; to 

lessen congestion in the streets and highways: to provide 

for adeuuate light, air, water supply, sewage disposal, 

parks and recreation areas, inqress and earess, and other 

public requirements; to require development in harmony 

with the natural environment; to require that whenever 

necessary, the appropriate approval of subdivisions be 

contingent upon a written finding of public interest by 

the governing body; and to reauire uniform monumentation 

of land subdivisions and transferrinq interests in real 

propertv bv reference to plat or certificate of survey. 

(emphasis added) 

With minor amendments not at issue here, those purposes have 

remained in the Act to the present. 

Under the statutory definition in place in 1975, a subdivision 

was a division of land which created one or more parcels containing 

less than twenty acres. Section 11-3861(12) , RCM, 1947, as 

amended. That remained true at all times pertinent to this 

litigation. See g 76-3-103(15), MCA. 

In this case, the warranty deed from the Granruds to Shirley 

Scherpenseel described the real property as follows:' 

Lot 9 of Stillwater Terrace - Unit 2, as shown on the 

plat or map thereof on file and of record in the office 

of the Clerk and Recorder of Flathead County, Montana. 

The plat referred to in this real property description is the one 

accepted by the Board of County Commissioners on May 19, 1975 and 

' We note that the record in this case has not been 

extensively developed; for example, the Eickerts are named 

plaintiffs, but their deed of conveyance is not in the record. 

However, this opinion applies to them with equal weight, assuming 

that their deed contains the same or similar language as the deed 

from the Granruds to Shirley Scherpenseel. 
subsequently filed. The plat was accepted after the Covenant to 

Dedicate was executed by the defendants and "in consideration of 

the Board of County Commissioners of Flathead County, Montana, 

approving the covenantors map or plat of Stillwater Terrace, Unit 

Section 11-3870(3), RCM, 1947, as amended, (now 5 76-3-304, 

MCA) provided in 1975, and still provides that: 

The recording of any plat made in compliance with the 

provisions of this act [now referred to as chapter] shall 

serve to establish the identity of all lands shown on and 

being a part of such plat. 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. 

Section 11-3869, RCM, 1947, as amended, (now 5 76-3-306, MCA) , 

provided in 1975, and still provides, that: 

All covenants shall be considered to run with the land, 

whether marked or noted on the subdivision plat or 

contained in a separate instrument recorded with the 

plat. 

In this case, the Covenant to Dedicate was a separate instrument 

which was recorded with the Clerk and Recorder. Although not in 

the record, the plaintiffs also contend that the Covenant to 

Dedicate is noted on the recorded plat, and the defendants have not 

denied this contention. This contention is supported by the Board 

of County Commissioners1 minutes, dated May 19, 1975, which state 

that the plat of Unit 2 was accepted "with restrictive covenants to 

dedicate." 

Accordingly, we hold that, under the above-cited provisions of 

the Act, the Covenant to Dedicate at issue here clearly was and is 
one running with the land for the benefit of the plaintiffs and 

binding upon the defendants and, further, that the covenant was 

incorporated in plaintiffs' deed of conveyance by operation of law. 

Ruling to the contrary, the District Court relied solely on 

the case of Majers v. Shining Mountains (1986), 219 Mont. 366, 711 

P.2d 1375, in granting summary judgment to the defendants. 

However, Maiers is not on point. In that case, the defendant 

subdivided a 7,000 acre ranch. In order to sell the lots, the 

defendant prepared and filed subdivision plat maps. These plats 

were filed prior to the effective date of the Montana Subdivision 

and Platting Act and were not subject to its provisions. The 

plaintiffs purchased lots within the subdivision and allegedly were 

told by the defendant's personnel that roads would be constructed 

and maintained by the defendant and that a dam would be constructed 

across a creek to form a lake suitable for fishing and other 

recreational pursuits. When the plaintiffs requested that the 

defendant construct the roads, the defendant refused. The 

plaintiffs then filed an action alleging an implied covenant based 

on the verbal representations allegedly made by the defendant's 

personnel. Maiers, 711 P.2d at 1376. We held that the plats 

themselves did not give rise to a promise to construct roads, and 

we remanded for a determination of what verbal representations were 

made when the defendant sold the lots to the plaintiffs. Maiers, 

711 P.2d at 1378. We also held that the appropriate statute of 

limitations on an implied covenant arising from the use of written 

documents was eight years, the limitation for actions based on a 
written contract. Maiers, 711 P.2d at 1378-79. 

We disagree with the District Court's conclusion that Maiers 

is "very similar" to the case at hand. First, the subdivision and 

plat at issue in Maiers were not subject to the Montana Subdivision 

and Platting Act, as are the subdivision, plat and covenant at 

issue in the present case. Second, Maiers dealt with oral 

representations giving rise to an implied covenant. In the case at 

hand, an express, written covenant was executed and recorded. 

Therefore, we conclude that Maiers is not sufficiently similar to 

the instant case so as to warrant reliance thereon. 

In passing, we note that the Board of County Commissioners' 

minutes refer to the covenant at issue as a "restrictivew covenant. 

A restrictive covenant is defined as a "[p]rovision in a deed 

limiting the use of the property and prohibiting certain uses." 

Black's Law Dictionary 1182 (5th ed. 1979). On the other hand, an 

affirmative covenant is defined as a covenant "in which the party 

binds himself to the existence of a present state of facts as 

represented or to the future performance of some act." Black's Law 

Dictionary 327 (5th ed. 1979). We conclude that, in actuality, the 

covenant at issue here is an affirmative covenant, instead of a 

restrictive covenant, notwithstanding the reference in the Board of 

County Commissioners1 minutes. 

I1 - STATUTE OF LIMITATIONS 

Plaintiffs filed their action in 1991, some sixteen years 

after purchasing their properties from the Granruds, but within 

eleven months of demanding, in writing, that the Bitneys and 
Granruds perform in accordance with the Covenant to Dedicate. The 

District Court ruled that plaintiffs1 cause of action was timebarred by the eight-year statute of limitations provided for in § 

27-2-202, MCA. The plaintiffs contend that their action is not 

time-barred by the statute of limitations. We agree with the 

plaintiffs. 

Section 27-2-202, MCA, provides that an action upon any 

obligation founded upon an instrument in writing must be commenced 

within eight years. We have previously held that a deed 

constitutes a contract founded upon a written instrument for 

purpose of invoking the eight-year statute of limitations 

applicable to written contracts. Neils v. Deist (1979), 180 Mont. 

542, 545-46, 591 P.2d 652, 654-55. Similarly, we have applied the 

eight-year statute of limitations to cases involving covenants. 

See, for example, Maiers, 711 P.2d at 1378-79; U.V. Industries, 

Inc. v. Danielson (1979), 184 Mont. 203, 228, 602 P.2d 571, 586 

(action to enforce an implied covenant in an oil and gas lease). 

Accordingly, the eight-year statute of limitations is applicable 

here to an action to enforce an affirmative, written covenant 

running with the land incorporated by operation of law in 

plaintiffs' deed of conveyance. 

However, while the eight-year statute of limitations is the 

appropriate statute, we must, nevertheless, determine when the 

eight-year limitations period began to run in this case. 

The plaintiffs contend that the statute of limitations did not 

begin to run until they made a demand for performance. The 
defendants argue that the eight-year limitations period began to 

run on May 19, 1975, the day the Covenant to Dedicate was signed. 

This is an issue of first impression in Montana. What little 

case law there is from other jurisdictions is annotated at 17 ALR 

2d 1251. Those cases, however, in addition to being relatively 

old, are not factually analogous to the instant case, nor do such 

authorities consider the statute of limitations question in the 

context of the requirements of a land use law such as the Act. 

As a point of departure, however, we note that other courts 

have generally taken one of three different approaches in 

determining when a statute of limitations begins to run on an 

action to enforce an affirmative, written covenant running with the 

land. One approach holds that the statute of limitations does not 

begin to run until an actual demand for performance is made. A 

second approach modifies the first by requiring, through 

application of the doctrine of laches to old, stale or untimely 

claims, that the demand be made within a reasonable period of time. 

A third approach dispenses with the necessity for a demand by 

taking the position that there is a continuing breach so that a new 

cause of action arises from day to day. 

Taking into consideration the facts of this case, our State's 

comprehensive scheme of land use laws and regulations, and 

Montanans' unique inalienable right to a clean and healthy 

environment embodied in Article 11, Section 3, of our Constitution, 

we conclude that the first approach above-mentioned best 

effectuates the purposes and public policy of the Act, while, 
coincidentally, providing a definite and easily determinable time 

frame within which actions must be commenced to enforce 

affirmative, written covenants running with the land. 

As in this case, developers of real property often enter 

into affirmative, written covenants and agreements as a part of the 

subdivision process in order to obtain the approval of the 

governing body to file a subdivision plat. In many cases, roads 

and other improvements required by the local government, by 

applicable laws or rules and/or by the developer's covenants and 

agreements are not made immediately, but, rather, are constructed 

over a period of time as parcels or units of the subdivision are 

sold. 

When developers fail to timely construct roads and 

improvements agreed upon or otherwise required, innocent purchasers 

of the property, and in some instances the local government and its 

taxpayers, are left to shoulder the burden and expense involved in 

constructing and financing the roads and improvements that were 

properly the responsibility of the developers. 

Worse, the purposes of the Act, as set forth at length in 5 

76-3-102, MCA, are frustrated to the ultimate detriment of the 

public, the environment and the orderly, safe and harmonious 

development of Montana's lands. Simply put, public policy, as 

expressed in the Act, demands that real estate developers be 

strictly held to their covenants and agreements, and that they not 

be allowed to gain the advantage of their failure to perform by the 

fortuitous passage of time. 
Accordingly, we hold that the eight-year statute of 

limitations in which to commence an action to enforce an 

affirmative, written covenant running with the land does not begin 

to run until the date on which an actual demand for performance is 

made. 

In this case, the plaintiffs demanded performance in writing 

on July 31, 1990, and filed a formal complaint on July 8, 1991. 

Based on the rule, set forth above, that the eight-year statute of 

limitations did not begin to run until the demand for performance 

was made, we hold that the plaintiffs' complaint, filed on July 8, 

1991, was not time-barred by the eight-year statute of limitations 

of 5 27-2-202, MCA. 

I11 - SUMMARY JUDGMENT 

The plaintiffs contend that the District Court erred in 

granting summary judgment to the defendants. We agree. 

Summary judgment is proper when there is no genuine issue as 

to any material fact and the moving party is entitled to judgment 

as a matter of law. Rule 56(c), M.R.Civ.P. In this case, the 

defendants acknowledged that there was no genuine issue of material 

fact when they moved for summary judgment. However, we cannot 

agree that the defendants are entitled to judgment as a matter of 

law. Clearly, they are not. 

As we held above, the Covenant to Dedicate is an affirmative, 

written covenant running with the land and, as such, is meant to 

benefit plaintiffs' property. Therefore, there is an obligation on 

the defendants to perform pursuant to the terms of their covenant. 
In addition, the plaintiffsJ action is not time-barred by the 

applicable eight-year statute of limitations. Therefore, we hold 

defendants. 

Reversed and remanded for further proceedings consistent with 

this opinion.