### No. 14578 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

JAMES MAePHERSON et al.

## , Plaintiffs and Respondents,

VS. 

### FRANKLIN R. SMOYER et al., Defendants and Appellants.

Appeal from: District Court of the First Judicial District, In and for the County of Lewis and Clark. Honorable Peter G. 

### Meloy, Judge presiding. Counsel of Record: For Appellants: Petaja, Smoyer and Berry, Helena, Montana Jeanette Berry argued, Helena,Montana Far Respondents: Hughes, Bennett, Kellner and Sullivan, Helena,

Montana John Sullivan argued, Helena,Montana

Submitted: November 19, 

### 1980 Decided:

## DEC

## 3

## 0

# 1986

-- - m-* 2 

### Filed: >Y,, 2Mr. Justice John Conway Harrison delivered the Opinion of the Court. Plaintiffsbrought this action inthe DistrictCourt of theFirstJudicial District seeking injunctive relief and to quiet title torealproperty. Defendants counterclaimed for injunctive relief and toquiet 

### title to the property in question. The 

### District Court entered judgment in favor of plaintiffs and denied defendants' counterclaim in

### its entirety. From thisjudgment defendants appeal. Atissue inthis appeal isa small tractof land, perhaps no larger than 25 feetinlength. Easement issues, therefore, make up the bulk of the argument. Property as 

### wellascivilprocedure issues

### werepresented for review. The case 

### is a dispute among neighbors who are owners of certainproperty on the north face of a hill located on the south boundary of Helena, Montana. Specifically, the property includes Lots 11 through 23 of Block 41of the Corbin Subdivision of the City of Helena; most of the closed and vacated north-south alley to thewest of these Lots 11 through 23; Lots 24 through 36 of Block 42 of the Corbin Subdivision; and the closed and vacated Cooke Street located between Lots 11 through 23 of Block 

### 41 and Lots 24 through 36 of Block 42. Within this 

### tract of land there is

### a road providing access to 

### allresidences on the hill.The following facts

### were derived from the extended findings of factmade by the DistrictCourt. The only platon record is the Corbin Subdivision recorded inLewis and Clark County. The original owners, the Schillers, petitioned the City of Helena for vacation of

a portion of Cooke Street and the north-south alleys located within the 400 block of Cooke Street.In 1952 the City of Helena granted the petition by

means of 

### a resolution. The resolution vacated and discontinued thatportion of Cooke Street located within the disputed area, subject to a requirement that no building be built thereon and also subject tothe rights of any public utility company, including the City, touse the land vacated for servicing the area and adjacent area inthe City of Helena. In 1958, the Schillersquitclaimed to the City of Helena 

### allof their "rights, 

### title, interest, claim and demand" to

### allthe vacated alleys and the portion of vacated Cooke Street located within the exterior boundaries of Blocks 

### 41and 42. The Schillers then repetitioned for the closing and vacation of the north-south alleys and the portion of Cooke Street located within Blocks 

### 41and 

### 42. This petition 

### was granted effectiveDecember 29, 1958, by the City of Helena. The 1958 resolution did not contain any conditions orrequirements which forbids the construction of buildings on the vacated areas. In 1960 the Schillers conveyed toplaintiff, James Macpherson, the property inquestion. The land 

### atthat

### time

was not developed and served ashorse pasture. In 1961 the Macphersons built a house atthe highest point on the property inquestion, marked as "M" on the diagram. Macphersons builta switchback road starting atthe northeast corner of Lot 36, Block 42, which led to their house. From 1963 through 1970 Macpherson sold and conveyed other tracts of land within this block to several other persons. Through a 

### series of conveyances, Macpherson attempted toretain an easement on an access road to his

### house. In 1970Macpherson sold and conveyed land to the Ecks, predecessors in interest of defendants Smoyer of Lots 21 through 23. Lots 21 through 23 

### have a steep east to west slope, with the higher ground located to the east. The east 25 feet of these lots, the property in dispute on which the

access road is located, is a bench-like area which is approximately on the same level as that on which the Macphersons' house is built. Immediately to the west of the bench-like area, the property drops off steeply to the west.

Macphersons offered to sell the Ecks the west 100 feet of Lots 21 through 23, Block 41. A 

### buy-sell agreementwas entered into. Later, itwas discovered that because of recent ordinance changes the sale, as proposed in the buysell agreement,would not leave the Ecks with sufficient lottoallow construction of 

### a house thereon. Macphersons agreed toconvey to the Ecks the 

### east 25 feet of Lots 21 through 23Block 41,and toreserve thereon an easement for Macphersons to ingress and egress for driveway purposes. The deed for the salewas recorded. Plaintiffs did not intend to convey tothe Ecks any part of closed and vacated Cooke Streetto the eastof Lots 21 through 23, Block 

### 41, and thiswas known toand understood and accepted by the Ecks.During the Ecks' ownership of the tractof land now owned by defendants, they occasionally drove up 'the switchback road, beyond the point atwhich 

### it firstentered into plaintiffs' property atthe 

### westend of Lots 28 and 29, Block 42. The Ecks' activity inthisregard 

### was todetermine whether it would be possible tohave cement trucks pour concrete for the Ecks' planned residence from a point off plaintiffs' driveway on the east 25 feetof Lots 21 through 23. StanleyEck understood thathe needed plaintiffs' permission todrive up the road beyond the point atwhich it firstentered into plaintiffs' property atthe

### westend of Lots 28 and 29, Block 42, and he sought and obtained such permission from plaintiffs. On January 30, 1973, the Ecks conveyed the tractof land toErvin and Katherine Chester. On September 19, 1975, theChesters conveyed todefendants, Franklin R. and Ann L. Smoyer, husband and wife, Lots 21 through 23, Block 

### 41, all of the closed and vacated alley to the 

### westof said Lots 21 and 22 and the east one-half of the closed and vacated alley tothe

### west of said Lot 23. Atthe 

### timeof defendants' purchase of the property, there were no structures located thereon. Defendants subse-quently constructed a residence on thisproperty, which was firstoccupied by defendants inJune 1976. Access todefendants' residence 

### isby means of an asphaltdriveway constructed by defendants during the summer of 1976 on the

### westportions of Lots 21and 22, Block 

### 41, and on the eastportion of the closed and vacated alley to the

### westof said lots. Defendants' driveway leads from the switchback road to a two-car garage located inthe 

### west ground floor portion of defendants' residence. The switchback road, from the point atwhich it first entersonto plaintiffs' property atthe

### westend of Lots 28 and 29, Block 42, tothe point atwhich 

### it dead-ends at plaintiffs' residence, has, since the 

### timeof 

### its construction in 1961, been considered by plaintiffs tobe their private driveway. Since 1961allof the maintenance and improvement of thisportion of the road has been atthe sole discretion and expense of plaintiffs. In 1973plaintiffs placed a post-and-chain gate on thisportion of the road. During the 

### summer of 1976 defendants drove their vehiclesup the switchback road tothe eastof their asphalt driveway and residence and onto plaintiffs' property. Defendants would then negotiate the u-turn located within the lots, would proceed along the road to the west and would park and leave their vehicles in the area where the road

crosses the east 

### 25 feetof Lots 

### 21 through 23. Defendants parked their vehicles on the disputed property, located and marked as "A" on the diagram. plaintiffsmade repeated requests to defendants toremove their vehicles. Defendants continued topark their vehicles in this area.Plaintiffs filed a declaratory action todetermine the nature of the property interests of the disputed area. Defendants answered and counterclaimed. Prior tothe conveyance of the land to the Ecks 

### in 1970, plaintiffs openly and continuously used and maintained



### a largeportion of the area of closed and vacated Cooke Streetbetween Lots 21 through 23, Block 41, and Lots 

### 24 through 26, Block 42, fordriveway purposes and as a means of ingress and egress to theirresidence. Prior todefendants'filing of 

### a counterclaim, there was no challenge or obstruction or any contest on the road. Defendants 

### raise numerous issues on this appeal, creating the appearance of a complex land dispute. Upon close review 

### we find one issue

### willdispose of the entireproperty dispute: Whether the reserved easements in the deed from the plaintiffs tothe Ecks, the predecessors ininterest of defendants, conclusively establish thatdefendants have no right of access over plaintiffs' private driveway. We 

### limitour consideration of this

### matter to the deed from plaintiffs to the Ecks, by which plaintiffs first conveyed the land now owned by defendants. This instrument and 

### its interpretation 

### iscontrolling. The Eck deed contains two reserved easements infavor of plaintiffs, 

### as firstparties. The reserved easements provided as follows: "excepting and reserving outof the granted premises tothe FirstParties, their heirs and assigns, the following: "An easement, right-of-way and right of private driveway upon and over allof the East TwentyfiveFeet (E 25') of each of said Lots 21, 22 and 23, for the exclusive use as

### a driveway and means of ingress and egress by the FirstPar

### ties, their heirs and assigns, together with

### the use, maintenance, repair and/or reconstruction of the private driveway presently located on the East Twenty-five Feet (E 25') 

### of each of said Lots 21, 22 and 23; and "An easement, right-of-way and right of ingress and egress over and upon a certain strip of land Twenty Feet (20') in width following the present access roadway furnishing ingress and egress to all of the lands of the First Parties, running over and across the premises herein conveyed, for the purpose of using (in common with Second Parties, their heirs and assigns), maintaining, repairing and improving said roadway which presently crosses said tract and provides access to the tract herein conveyed and access to the lands of the First Parties, together with the right in the First Parties, their heirs and assigns, to maintain and/or reconstruct said roadway." The reserved easements are binding on defendants, as they are the successors in interest of the Ecks. Defendants have no right to use the access road known as Cooke Lane or South Cooke located within the exterior boundaries of the property atwhich point the access road first crosses onto plaintiffs' retained property at the west end of Lots 28 

### and 29 of Block 42. Upon a complete review of the record,we

come to that conclusion based on the following considerations: The Document 1. The reserved easements in the deed from plaintiffs to the Ecks are reservationsand exceptions out of the granted premises and do not expressly provide anyone with 

### a right-of-way over the land retained by plaintiffs. 2. 

### Defendants' claim of a right to use the access road beyond the point it first crossesplaintiffs' property at 

### the west end of Lots 28 and 29, Block 42, is inconsistent with the reading of the first reserved easement in the deed. The easement expressly reserves "all of the east 25 feet of

[defendants'] property as a private driveway 

# .

# . . the

### exclusive use 

### as a driveway and means of ingress and egress tothe property retained by [plaintiffs] to the east." Defendants areexcluded from the use of this area of the driveway. The east 25 feetof defendants' property 

### is for plaintiffs' "exclusive use." 3. 

### The firstreserved easement in the deed from plaintiffs to the Ecks does 

### - not contain any provisions for "in common" use of the access road beyond plaintiff&'property for other persons. This 

### is instark contrast to the existence of an express provision for an "incommon" use inthe second reserved easement inthe Eck deed relating to the certain stripof land located on the 

### westend of Lot 21, which 

### was clearly intended toinsure access on the road for residents who livehigher up on the hill. 4. 

### Section 70-1-516, MCA, 

### provides that 

### a reservation outof the grant of properties 

### is tobe interpreted infavor of the grantor. The Intent 

### -- of the Parties 1. 

### Stanley Eck, who originally handled the negotiations with plaintiffs which led to the drafting and execution of the "Eck" deed, understood the reservation tomean thathe needed plaintiffs' permission to travel on the

access road after thepoint where the road firstentered on plaintiffs' property atthe

### westend of Lots 28 and 29, Block 42. Eck, infact, asked for and received permission from plaintiffs before driving on the road beyond that point. This layman's understanding of his limited property interests inthat small

### parcel of land 

### is consistent with the readings of the reservation, the intent of the grantor (plaintiffs), thephysical location of the property and other findings made by the District 

### Court. Here, the parties,by their conduct, intended toconsider it an exclusive easement forplaintiffs. StateBy and Through Montana, Etc.

v. Cronin (1978), -Mont. 

## , 587 P.2d 395, 35 St.Rep. 1798; Larson v. Burnett (1972), 158Mont. 421, 492 P.2d 921. 2. The expressed intentof plaintiffs indrafting the deed was that the area was reserved for a private driveway for their exclusive use. The Location of the Area and Physical Facts 

### ---- Our reading of the firstreserved easement 

### is consistentwith the physical facts of the property. The 

### east 25 feetof defendants' property 

### is geographically a benchlike extension of plaintiffs1property. The reason for this 

### is that atthe 

### westend of the 

### east 25-foot portion of defendants' property, the ground level drops sharply to the 

### west to the point where defendants' residence 

### is located in the western portion of their lot. In addition, the road dead-ends atthe plaintiffs' residence, which 

### is located at the highest point of the property inquestion. These facts, taken together, 

### are consistentwith the conclusion that the "incommon" use of the switchback road ends where the paving ends, atthe point atwhich the road firstenters onto plaintiffs1retained property atthe 

### westboundary of Lots 28 and 29, Block 42. Defendants' assertions that they own or have an in

### terest in thatparcel of land by alternative property theoriesdo notmeet thisCourt's agreement. The litigation in thiscase isclear. The issue surrounds the interpretation and reading of the deed with the facts applied to that reading. We find no merit inthe other property theories advanced tothisCourt and shall not address them specificallyonly touphold the District Court's extensive and proper findings of factand conclusions of 

### law.

### The residentialhill in dispute has been overburdened by claims and counterclaims of alternative property theories that surpass most complex land cases before this Court. There is no need here to further impose that burden on this small tract of land. Among numerous alleged errors raised by defendants during the course of this litigation, this Court finds it imperative to address one in particular: Whether defendants' affidavits of disqualification of the district judge,which were filed after the entry of the district judge's findings of factand conclusions of law, prevented the judge from entering judgment in favor of plaintiffs in accordance with the findings and conclusions. Defendants contend that they effectively disqualified the district judge from entering judgment in this case by the filing of affidavits of disqualification after entry of findings of fact and conclusions of law in favor of plaintiffs. In addition, defendants suggest that the judge should not have accepted jurisdiction of this case because of certain business dealingswhich the judge and his wife have had with JamesMacpherson and with the attorney for plaintiffs, John Sullivan. We find that the filing of the affidavitswas untimely and that the allegations of bias were without merit. Briefly, the record reflects the following facts: The district judge entered his findings and conclusions

on September 18, 1978,atwhich time he directed plaintiffs "toprepare a judgment in accordance with the 

# . 

# . . Findings of Fact and Conclusions of Law, and to present the same to the Court on or before the 26th day of September, 1978."

### On September 25, 1978,defendants filed an affidavit of disqualification of the district judge, together with a motion for disqualification which stated that itwas being made "pursuant to Supreme Court Rule, 34 State Rep. 26." The affidavit of disqualificationwas signed by defendant Franklin R. Smoyer and was certified to have been made in "good faith" by counsel for defendants, Charles E. Petaja and J. 

### Mayo Ashley. The affidavit alleged that Smoyer had observed actions by the district judge throughout the course of the trial "thatindicated that he was biased and prejudiced against [defendants] and in favor of Plaintiffs." On September 27, 1978, the district judge held an inchambers conference with counsel for both parties to discuss the effect of defendants' affidavit of disqualification. The September 27 conference was not reported, but the topics discussed were mentioned during a similar conference the next day which was reported. In addition, counsel for defendants conceded that they themselves did not agree with their clients' allegations of bias and prejudice on the part of the judge, noting that they had "tremendous personality problems with [theirclients]." On September 28, 1978,defendants pointed out that the affidavit of disqualification was an attempt to disqualify the judge "forcause," and that under subsection 6 of the Supreme Court's new disqualification rule, a hearing would have to be held on the allegations contained therein before

a judge assigned by the Chief Justice of the Supreme Court. Plaintiffs argued that the attempted disqualification was untimely and that the courthad jurisdiction to enter judgment under the decision in In re Miller's Estate (1924), 71 Mont. 330, 

### 229 P. 851. Plaintiffs filed a motion for entry of judgment on October 2, 1978.On October 31, 1978, counsel for defendants initiated

an unscheduled, unnoticed ex parte conference with the dis

### - trictjudge, atwhich 

### time they advised the judge that they had "discovered" (inthe public records of Lewis and Clark County) certain other business affairs that affected their ability toreceive a fairtrial. On November 1, 1978, the districtjudge entered judgment. It

### was then filedwith the clerk of court and notice of entrywas given by both the clerk of coart and counsel forplaintiffs. Shortly thereafter, the court filed a minute entry stating: "The motion for entry of judgment in the above-entitled matter was granted this day. The judgment having been entered, the Court withdraws from further proceedings inthis cause." Later that afternoon, defendants filed a "Supplemental Affidavit for Disqualification of Judge," inwhich they 

### set forth other transactions which they contended demonstrated 

### a "conflictof interest"

on the part of the judge, which "led tobias and prejudice against [defendants] during the course of this litigation." Defendants filed their disqualification as one "for cause" under subsection 6 of thisCourt's new disqualification rule--which 

### was promulgated on December 29, 1976, tobe effective for actions filed on or afterMarch 1, 1977. his

case was filedon February 15, 1977, prior to the effective date of the new disqualification rule. The controlling disqualification rule, therefore, 

### was former section 93-901, R.C.M. 1947. In addition to the factorswhich amount to an automatic disqualification under subdivisions (1)through (3) of section 93-901, R.C.M. 1947, subdivision 

### (4) provides that

### a party may disqualify a districtjudge upon making and filingan affidavit that the party

# ".



# . . has reason tobelieve, and does believe, he cannot have 

### a fair and impartial hearing or 

### trial before a districtjudge by reason of the bias

or prejudice of suchjudge." Under thisprovision, a judge could be disqualified even after trial toprevent him from ruling on post-trial motions, such 

### as a motion for a new trial. Statev. DistrictCourt of Fourth Judicial Dist. (1962), 140Mont. 447, 450, 373 P.2d 314, 316. Nevertheless, thisCourt has recognized an exception for the entry of judgment incases where the disqualification 

### is attempted after the decision in a case but prior to the entry of judgment pursuant to that decision. Thus, inInreMiller's Estate, supra, one of the issueswas whether "the districtjudge, having been disqualified after the verdict, was without authority torender judgment." This Court held: "This court decided in State ex 

### rel. Carleton 

### v. DistrictCourt, 33 Mont. 138, 8Ann. Cas. 752, 82 Pac. 789, that an affidavit imputing bias and prejudicemay be filed after 

### a trial has been had and while 

### a motion for a new trial 

### ispending, atany 

### timebefore the date 

### set for the hearing of such motion. In so far as that decision permits a change of judge, when application 

### ismade under Section 8868 [section 93- 901, R.C.M. 19471 prior to the date 

### set for a hearing upon a motion for a new 

### trial upon the ground that it is 

### --- pro hac vice a proceeding independent of the trial of the cause on the 

### merits, we have no particular faultto findwith 

### it. 

### -- 

## he rule there-announced may not, however, be extended topermit the filingof a disquali- 

### -- fying affidavit after verdict and prior 

### --- tothe entry of judgment. The rendition of judgment is toomuch a partof the trial oftheaction - -

### -- 

### -- 

### - -- on themerits tobe characterized as a separate, 

### -- 

### -- independent 

# inthe sensethat the 

### termisused inthe foregoing section. The 

## ----- trial court committed no error indisregarding the affidavit and rendering judgmev Mont. at336, 229 P. at852. (Emphasis added.) The ruleof 

### Miller's Estate 

### is applicable here. The findings and conclusions entered by the districtjudge,prior to the filing of the affidavit of disqualification, expressly directed that a judgment be prepared "in accordance with" the findings and conclusions. Rule 58, M.R.Civ.P., required thatwhere the court directs entry of judgment for relief other than money or costs, "the judge shallpromptly settle or approve the form of the judgment and direct that it be entered by the clerk." Under these circumstances the judgment was 

### as much a part of the findings and conclusions

asthe judgment required by the jury's verdict in

### Miller's Estate. Accordingly, although the disqualification prevented the districtjudge from ruling on post-trial motions under Rules 59 and 60, M.R.Civ.P., and from withdrawing the findings and conclusions previously entered, it was not effective toprevent entry of judgment in favor of plaintiffs inaccordance with the findings and conclusions entered on September 18, 1978. We find that defendants' filing of an affidavit for an attempted disqualification of the districtjudge was untimely made. The districtjudge was correct inentering his judgment and withdrawing from the case. This case 

### is, from 

### its inception, a splendid example of

an abuse of the judicial system. The DistrictCourt was burdened by excessive arguments and procedures many 

### times the amount that actually should have occurred. This Court

was alsoburdened by briefs of extraordinary length. However, plaintiffs' request that

### we impose and assess a penalty against defendants inthis case iswithout merit. The application of Rule 32, M.R.App.Civ.P., isnot applicable asthere

### were legitimate issues regarding deed interpretation and construction of real property law presented.

### Affirmed.

We concur: 

# %~CP%%&,& Chief Justice