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,, 2 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Plaintiffs brought this action in the District Court of 

the First Judicial District seeking injunctive relief and to 

quiet title to real property. Defendants counterclaimed for 

injunctive relief and to quiet title to the property in 

question. The District Court entered judgment in favor of 

plaintiffs and denied defendants' counterclaim in its entirety. From this judgment defendants appeal. 

At issue in this appeal is a small tract of land, 

perhaps no larger than 25 feet in length. Easement issues, 

therefore, make up the bulk of the argument. Property as 

well as civil procedure issues were presented for review. 

The case is a dispute among neighbors who are 

owners of certain property 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 

41 of the Corbin Subdivision of the City of Helena; most of 

the closed and vacated north-south alley to the west 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 all residences on the 

hill. 

The following facts were derived from the extended 

findings of fact made by the District Court. 

The only plat on record is the Corbin Subdivision 

recorded in Lewis 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 that portion of Cooke Street located within the 

disputed area, subject to a requirement that no building be 

built thereon and also subject to the rights of any public 

utility company, including the City, to use the land vacated 

for servicing the area and adjacent area in the City of 

Helena. 

In 1958, the Schillers quitclaimed to the City of 

Helena all of their "rights, title, interest, claim and 

demand" to all the vacated alleys and the portion of vacated 

Cooke Street located within the exterior boundaries of 

Blocks 41 and 42. The Schillers then repetitioned for the 

closing and vacation of the north-south alleys and the 

portion of Cooke Street located within Blocks 41 and 42. 

This petition was granted effective December 29, 1958, by 

the City of Helena. The 1958 resolution did not contain any 

conditions or requirements which forbids the construction of 

buildings on the vacated areas. 

In 1960 the Schillers conveyed to plaintiff, James 

Macpherson, the property in question. The land at that time 

was not developed and served as horse pasture. 

In 1961 the Macphersons built a house at the highest 

point on the property in question, marked as "M" on the diagram. Macphersons built a switchback road starting at the 

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 to retain an easement on an access road to his 
house. In 1970 Macpherson 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 agreement was 

entered into. Later, it was discovered that because of 

recent ordinance changes the sale, as proposed in the buysell agreement, would not leave the Ecks with sufficient lot 
to allow construction of a house thereon. Macphersons 

agreed to convey to the Ecks the east 25 feet of Lots 21 

through 23 Block 41,and to reserve thereon an easement for 

Macphersons to ingress and egress for driveway purposes. 

The deed for the sale was recorded. Plaintiffs did not 

intend to convey to the Ecks any part of closed and vacated 

Cooke Street to the east of Lots 21 through 23, Block 41, 

and this was known to and understood and accepted by the 

Ecks. 

During the Ecks' ownership of the tract of land now 

owned by defendants, they occasionally drove up 'the switchback road, beyond the point at which it first entered into 

plaintiffs' property at the west end of Lots 28 and 29, 

Block 42. The Ecks' activity in this regard was to determine whether it would be possible to have cement trucks pour 

concrete for the Ecks' planned residence from a point off 

plaintiffs' driveway on the east 25 feet of Lots 21 through 

23. Stanley Eck understood that he needed plaintiffs' 

permission to drive up the road beyond the point at which it 

first entered into plaintiffs' property at the west end of 

Lots 28 and 29, Block 42, and he sought and obtained such 

permission from plaintiffs. 

On January 30, 1973, the Ecks conveyed the tract of 

land to Ervin and Katherine Chester. On September 19, 1975, 

the Chesters conveyed to defendants, Franklin R. and Ann L. 

Smoyer, husband and wife, Lots 21 through 23, Block 41, all 

of the closed and vacated alley to the west of said Lots 21 

and 22 and the east one-half of the closed and vacated alley 

to the west of said Lot 23. 

At the time of defendants' purchase of the property, 

there were no structures located thereon. Defendants subse- 
quently constructed a residence on this property, which was 

first occupied by defendants in June 1976. 

Access to defendants' residence is by means of an 

asphalt driveway constructed by defendants during the summer 

of 1976 on the west portions of Lots 21 and 22, Block 41, 

and on the east portion of the closed and vacated alley to 

the west of said lots. Defendants' driveway leads from the 

switchback road to a two-car garage located in the west 

ground floor portion of defendants' residence. 

The switchback road, from the point at which it first 

enters onto plaintiffs' property at the west end of Lots 28 

and 29, Block 42, to the point at which it dead-ends at 

plaintiffs' residence, has, since the time of its construction in 1961, been considered by plaintiffs to be their 

private driveway. Since 1961 all of the maintenance and 

improvement of this portion of the road has been at the sole 

discretion and expense of plaintiffs. In 1973 plaintiffs 

placed a post-and-chain gate on this portion of the road. 

During the summer of 1976 defendants drove their vehicles up the switchback road to the east of 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 feet of Lots 21 through 23. 

Defendants parked their vehicles on the disputed 

property, located and marked as "A" on the diagram. plaintiffs made repeated requests to defendants to remove their 

vehicles. Defendants continued to park their vehicles in 

this area. 
Plaintiffs filed a declaratory action to determine the 

nature of the property interests of the disputed area. 

Defendants answered and counterclaimed. 

Prior to the conveyance of the land to the Ecks in 

1970, plaintiffs openly and continuously used and maintained 

a large portion of the area of closed and vacated Cooke 

Street between Lots 21 through 23, Block 41, and Lots 24 

through 26, Block 42, for driveway purposes and as a means 

of ingress and egress to their residence. Prior to defendants'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 will dispose of the entire property 

dispute: 

Whether the reserved easements in the deed from the 

plaintiffs to the Ecks, the predecessors in interest of 

defendants, conclusively establish that defendants have no 

right of access over plaintiffs' private driveway. 

We limit our 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 is controlling. The Eck deed contains two reserved easements in favor of plaintiffs, as 

first parties. The reserved easements provided as follows: 

"excepting and reserving out of the granted 

premises to the First Parties, their heirs and 

assigns, the following: 

"An easement, right-of-way and right of private 

driveway upon and over all of the East Twentyfive Feet (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 First Parties, 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 at which 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 reservations and 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 crosses plaintiffs' 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 

to the property retained by [plaintiffs] to the east." 

Defendants are excluded from the use of this area of the 

driveway. The east 25 feet of defendants' property is for 

plaintiffs' "exclusive use." 

3. The first reserved 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 in stark contrast to the existence of an express provision for an "in common" use in the 

second reserved easement in the Eck deed relating to the 

certain strip of land located on the west end of Lot 21, 

which was clearly intended to insure access on the road for 

residents who live higher up on the hill. 

4. Section 70-1-516, MCA, provides that a reservation 

out of the grant of properties is to be interpreted in favor 

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 to mean 

that he needed plaintiffs' permission to travel on the 

access road after the point where the road first entered on 

plaintiffs' property at the west end of Lots 28 and 29, 

Block 42. Eck, in fact, asked for and received permission 

from plaintiffs before driving on the road beyond that 

point. This layman's understanding of his limited property 

interests in that small parcel of land is consistent with 

the readings of the reservation, the intent of the grantor 

(plaintiffs), the physical location of the property and 

other findings made by the District Court. Here, the parties, 
by their conduct, intended to consider it an exclusive 

easement for plaintiffs. State By and Through Montana, Etc. 

v. Cronin (1978), - Mont. , 587 P.2d 395, 35 St.Rep. 

1798; Larson v. Burnett (1972), 158 Mont. 421, 492 P.2d 921. 

2. The expressed intent of plaintiffs in drafting 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 first reserved easement is consistent with the physical facts of the property. The east 

25 feet of defendants' property is geographically a benchlike extension of plaintiffs1 property. The reason for this 

is that at the west end 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 at the plaintiffs' residence, which is located at 

the highest point of the property in question. These facts, 

taken together, are consistent with the conclusion that the 

"in common" use of the switchback road ends where the paving 

ends, at the point at which the road first enters onto 

plaintiffs1 retained property at the west boundary of Lots 

28 and 29, Block 42. 

Defendants' assertions that they own or have an interest in that parcel of land by alternative property theories do not meet this Court's agreement. The litigation in 

this case is clear. The issue surrounds the interpretation 

and reading of the deed with the facts applied to that 

reading. We find no merit in the other property theories 

advanced to this Court and shall not address them specifically only to uphold the District Court's extensive and 

proper findings of fact and conclusions of law. 
The residential hill 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 fact and 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 dealings which the judge and his wife 

have had with James Macpherson and with the attorney for 

plaintiffs, John Sullivan. 

We find that the filing of the affidavits was 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, at which time he directed plaintiffs 

"to prepare 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 it was being 

made "pursuant to Supreme Court Rule, 34 State Rep. 26." 

The affidavit of disqualification was 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 "that indicated 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 [their clients]." 

On September 28, 1978, defendants pointed out that the 

affidavit of disqualification was an attempt to disqualify 

the judge "for cause," 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 court had 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 district judge, at which time they advised the judge that they 

had "discovered" (in the public records of Lewis and Clark 

County) certain other business affairs that affected their 

ability to receive a fair trial. 

On November 1, 1978, the district judge entered judgment. It was then filed with the clerk of court and notice 

of entry was given by both the clerk of coart and counsel 

for plaintiffs. 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 in this cause." Later that afternoon, defendants filed a "Supplemental Affidavit for Disqualification 

of Judge," in which they set forth other transactions 

which they contended demonstrated a "conflict of interest" 

on the part of the judge, which "led to bias and prejudice 

against [defendants] during the course of this litigation." 

Defendants filed their disqualification as one "for 

cause" under subsection 6 of this Court's new disqualification rule--which was promulgated on December 29, 1976, to be 

effective for actions filed on or after March 1, 1977. his 

case was filed on 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 factors which 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 district judge upon making and filing 
an affidavit that the party ". . . has reason to believe, 

and does believe, he cannot have a fair and impartial hearing or trial before a district judge by reason of the bias 

or prejudice of such judge." Under this provision, a judge 

could be disqualified even after trial to prevent him from 

ruling on post-trial motions, such as a motion for a new 

trial. State v. District Court of Fourth Judicial Dist. 

(1962), 140 Mont. 447, 450, 373 P.2d 314, 316. 

Nevertheless, this Court has recognized an exception 

for the entry of judgment in cases where the disqualification is attempted after the decision in a case but prior 

to the entry of judgment pursuant to that decision. Thus, 

in In re Miller's Estate, supra, one of the issues was whether "the district judge, having been disqualified after the 

verdict, was without authority to render judgment." This 

Court held: 

"This court decided in State ex rel. Carleton 

v. District Court, 33 Mont. 138, 8 Ann. Cas. 

752, 82 Pac. 789, that an affidavit imputing 

bias and prejudice may be filed after a trial 

has been had and while a motion for a new trial 

is pending, at any time before the date set for 

the hearing of such motion. In so far as that 

decision permits a change of judge, when application is made 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 fault to find with 

it. -- he rule there- announced may not, however, 

- be extended to permit the filing - of - a disqualifying affidavit after verdict and prior --- to the 

entry of judgment. The rendition of judgment 

- is - toomuch - - a part - - of - the trial -- ofthe action 

-- on the merits -- to be characterized as a separate, 

independent in the sensethat the 

----- term is used in the foregoing section. The 

trial court committed no error in disregarding 

the affidavit and rendering judgmev 

Mont. at 336, 229 P. at 852. (Emphasis added.) 

The rule of Miller's Estate is applicable here. The 

findings and conclusions entered by the district judge, 
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 that where the court directs entry of judgment for 

relief other than money or costs, "the judge shall promptly 

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 

as the judgment required by the jury's verdict in Miller's 

Estate. Accordingly, although the disqualification prevented the district judge 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 to prevent entry of judgment in favor of plaintiffs in accordance with the findings and conclusions entered 

on September 18, 1978. 

We find that defendants' filing of an affidavit for an 

attempted disqualification of the district judge was untimely 

made. The district judge was correct in entering his judgment and withdrawing from the case. 

This case is, from its inception, a splendid example of 

an abuse of the judicial system. The District Court was 

burdened by excessive arguments and procedures many times 

the amount that actually should have occurred. This Court 

was also burdened by briefs of extraordinary length. However, plaintiffs' request that we impose and assess a 

penalty against defendants in this case is without merit. 

The application of Rule 32, M.R.App.Civ.P., is not applicable as there were legitimate issues regarding deed interpretation and construction of real property law presented. 
Affirmed. 

We concur: 

%~CP%%&,& 

Chief Justice