No. 91-001 INTHE SUPREME COURT OF THE STATE OF MONTANA

WILD RIVER ADVENTURES, INC., Plaintiff and Appellant,-vsBOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 8 OF FLATHEAD COUNTY, Defendant and Respondent.

APPEAL FROM: DistrictCourt of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Michael R, Keedy, Judge presiding.

COUNSEL OF RECORD: For Appellant: Scott C. 

### Wurster;Law Officesof Arnbrose G. Measure, Kalispell, Montana For Respondent: M. Dean Jellison; Kalispell, Montana

### Justice R. 

### C. McDonough delivered the Opinion of the Court

This is an appeal from a grant of summary judgment to the defendant in a quiet title action. The plaintiff Wild River Adventures, Inc. (Wild River) appeals the order of the Eleventh Judicial District Court,FlatheadCounty,granting summary judgment to the defendant, Flathead County School District No. 8 

### on the grounds that School District's predecessors in interest did not create an easement in plaintiff's favor across the School District's land. We affirm. The sole issue on appeal is whether the District Court erred indenyingtheplaintiff's motion forsummary judgmentand granting the defendant's motion for summary judgment. The uncontested facts in this case are as follows. Prior to February 20, 1986, 

### the United States Forest Service owned the property that is the subject of this dispute. The suit involves several conveyances of the property as part of a unified complex land swap accomplished over a period of months involving School District No. 8 

### and its predecessors in interest: School District No. 6, 

### the Thompsons,Sloan et. al., and the United States Forest Service (USFS)

# . On February 20, 1986, 

### the property was conveyed by deed from the USFS to Sloan et. al. The deed was recorded on June 9, 1986. 

### Prior to this conveyance, a certificate of survey (COS) was prepared in conjunction with the transfer. The COS shows two distinct roads, the West Glacier School Road and 

### a forty footprivate road easement. The COS contains the language t1[s] ubject to and together with a 40 foot public road known as the West Glacier School Road; [slubject to and together with a 40 foot private road easement as shown hereon. 

# . - 

# . II The COS was prepared for the Thompsons, in anticipation of the land swap. On June 1, 1986, Sloan conveyed theproperty by warranty deed to the Thompsons. The grant used the sameproperty description as contained in the COS: "[slubject to and together with 

### a 40 foot private road easement1'. In their affidavit, SLoan et. al. alleged that it was their intentionto convey titleto the property as they received it from the USFS and they did not intend to reserve any easement across the property in making the conveyance. On June 3, 1986,Thompson conveyed by Gift Deed the property to School District No. 6 for school purposes. On March 5, 1987, School DistrictNo. 6 conveyed the property to School District No. 8, the defendant here, to complete the land swap. The property descriptions in both conveyances again contained the language lt[s]ubjectto and together with 

### a 40 foot private road easement." By affidavit,theThompsonsallege that they intended toretain the "40 foot private road easementuwhen they conveyed theproperty to the School District; they allege that this intent 

### is further evidenced by 

### their later conveyance of the easement to Wild River 

### in a separate instrument. Despite this allegation, the record indicates that neither Sloannor Thompson owned orhad any interest in dominantproperty which could be served by the claimed easementat the time of the conveyances. Wild River operates a raft guide service on property leased from the Burlington Northern Railroad. The business is accessible by theWest Glacier SchoolRoad and by the claimed "40 footprivate road easement." In an instrument entitled "Easement,"recorded on May 16, 1989, Thompson purports to have granted use of this easement to Wild River and its customers for business purposes. The defendant School DistrictNo. 8 subsequently erected two chain link fences with a gate blocking the "easement." Wild River filed this quiet title action on June 22, 1989 to obtain a judicial determination that it had a valid right of way

across the School District's property. Respondent answered and counterclaimed for a decree determining that it owned the property in fee simple subjectonly to thepublic easement, theWest Glacier School Road, and a possibility of reverter should the property no longer be used for school purposes. The parties stipulated to allowWild River access while litigation of thematterwaspending. Each party moved 

### for summary judgment on 

### its claims. The court issued its order on August 6, 1990, denying Wild River's motion and granting the School District's motion. Wild River now appeals. The standard of review of summary judgment is the sameas that used by the trial court granting the judgment. In order for summary judgment to issue, the movant must show that there is no genuine issue as to all facts that are material in light of the substantive principles entitling themovant to judgment as a matterof law. Rule 56 (c)

## ,M.R.Civ.P. ;Frigon v. Morrison-Maierle, Inc., (1988), 233 Mont. 113, 117, 760 P.2d 57, 60,Cerek

### v, Albertsonls, Inc. (l98l), 195 Mont. 409, 411, 637 P.2d 509, 511. Wild River alleged in its motion for 

### summary judgment the absence of a genuine issue of material fact. It alleged that the record before the court on the motion clearly showed that the Thompsons intended to reserve an easement for themselves and then later conveyed that easement toWild River. Alternatively, if the trial court were to reject this argument,Wild River alleged that a genuine disputed material fact issue regarding the grantors1 

### intent precluded the court from granting the School 

### DistrictIs motion for summary judgment. Wild River relies on the rule that I1[a] grant is to be interpreted in favor of the grantee, except that a reservation in 

### any grant 

# . . . is to be interpreted in favor of the grantor.I1 Section 70-1-516, MCA. See also City of Missoula v. Mix (l95O), 123 Mont. 365, 372, 214 P.2d 212, 215-16. Thus,Wild River argues that the language, "subject to and togetherwith a 40 foot private road easement," 

### in the Thompson to School District No. 6 deed reserved an easement in the Thompsonslfavor and such easement was later conveyed to Wild River. It further argues that the Thompsons' 

### intenttocreatethis easement 

### is clearly 

### shown in their affidavit. The School District, on the other hand, argues that while the deed noted that the property was "subject to1'the above language neither the Thompsons nor any 

### of their predecessors had

### ever reserved an easement and thus no easement was ever created. "An easement is an interest in land that cannot be created, granted or transferred exceptby operation of law,by an instrument in writing, or by prescription." Prentice v. McKay (1909), 38 Mont. 114, 118, 98 P. 

### 1081,1083. In this casewe have a purported easement alleged to have been created by language in a deed as follows: "subject to and together with a 40 foot private road easement." Thus, we are faced with the question of whether the language "subject to" constitutes an exception or reservation sufficient to create an easement. The modern trend is to avoid overly technical interpretations of words in favor of ascertaining the actual intent of the parties: In the older English conveyancing, the term "exception" denoted some physical part of the conveyor's land which was excluded from the conveyance; while the term "reservation" denoted a retained tenurial right issuing from the granted land, as for example rents or services. Thus,neither of these technical terms fitted a retained easement with respect to the granted land. Sinceno man can have an easement in his own land, a conveyor could not technically claim to have withheld an easement at the time of conveyance. In short,he could not withhold something which did not exist. 

# . . . In the United States a less technical attitude has helped to simplify the law and to effectuate better the real intent of the parties. A conveyor who, in terms, "exceptsI1orreserve^^^ 

### aneasement, ispermitted tohave the rights thereby intended to be enjoyed by him. 

# . . . A reservation has been differentiated from an exception on the ground that a reservation connotes an implied regrant, while an exception operates as an exclusion of a right existent in the conveyor. 

## . 

# . . 3 

### Powell on Real Property, 5407,pp. 34-39 to 34-42. In City of Missoula v. Mix, supra, 

### this Court stated: Themodern conception of conveyancing,however, seekstoascertain the intent of thegrantor from a consideration of the entire instrument, without regard to the position of the several clauses, and, in order to give effect to such intent when ascertained, an exception will be construed as a reservation, and visa versa. 

### Mix, 214 P.2d at 215, quoting Marias River Syndicate v. Big West Oil Co. (1934), 98 Mont. 254, 264, 38 P.2d 599, 601. Thus, when the intent of the parties isproperly ascertained,an easementmay be created by an exception as well as a reservation. See Kuhlman

v. Rivera (1985), 216 Mont. 353, 359, 701 P.2d 982, 985. Normally, however, the words "subject to" do not create an easement. See generally, 23 Am.Jur. Deeds, 5 293 (1983). 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 rightsor connotea reservation

or retention ofproperty rights. Shell Oil Co., Inc. 

### v. Manley Oil Corp., (7 Cir. 1941), 124 F.2d 714, 716; Englestein v. Mintz (l93l), 345 Ill. 48, 177N.E. 746, 752. See also Procacciv. Zacco (Fla. 1975), 324 So.2d 180. ItSubjecttott wording is commonly used in a deed to refer to existing easements, liens,and real covenants that thegrantorwishes to exclude fromwarranties of title. Bruce and Ely, The Law of Easements and Licenses in Land, 5 3.05[3 3-13; accord Medhus v. Dutter (1979), 184 Mont. 437, 444, 603 669, 673;Wilson v. Chestnut (1974), 164 Mont. 484, 492, 525 24, 28; see also, 23 Am.Jur. Deeds, $293 (1983). Use of thewords "subjectto" in a conveyance isa qualificationand rarely requires

### a court to look to the intent of the parties. Moreover, the parties intent is immaterial in this case, because regardless of their intent the Thompsons could not have created the easement in question. In their affidavit dated March 1, 1990, the Thompsons alleged that "to ensure access, at such a timeas our riqht of revertermisht arise,we reserved thedisputed easement unto ourselves to serve the entire property." The District Court correctlynoted that the reasoning that is thebasis of theThompsons'alleged intent 

### ismisguided. If theproperty did in fact revert to the Thompsons, there would be no reason for the Thompsons to have an easement across their own property. As the District Court noted, it is fundamental that no man can have an easement in his own land; the easement and the fee title would necessarilymerge. Thus,we conclude that thewording Itsubjecttow here does not create an easement. Finally, we note that the trial court requested the parties to submit proposed findings of fact and conclusions of law supportingtheirpositions and then issued its judgment in the form of proposed findings of fact and conclusions of law. Technically, thisprocedure is incorrect, for the trial court isprecluded from determiningmaterial fact issues on a motion for summary judgment. See Rule 56(c),

### M.R.Civ.P. While we do not condone this practice,

we find no reversibleerror in this case. The facts set out in the District Court's order are virtually uncontested, and any fact issue regarding intent is immaterial in this case.We hold that there is no material fact issue in this case regarding theThompsonslintent to createan easement. Viewing the plaintiff's factual allegations regarding the Thompsonslintent 

### in the lightmost favorable

### to theplaintiff, the Thompsons 

### could 

### not have reserved an easement, and 

### thus they had 

### no easement to grant. Accordingly, the 

### District Court did not 

### err in granting the defendantIsmotion for 

### summary judgment. The order of 

### the District Court 

### is AFFIRMED.

We 

### Concur:

.

# -

### May 30, 1991 

### CERTIFICATEOF

### SERVICE Ihereby certifythat thefollowingorderwas sentby United Statesmail,prepaid,tothe following named:

Scott

### C. Wurster Law Offices ofAmbrose G.Measure P.O.

### Box 918 KalispelI,

### MT 59903 

### M.Dean JelIison Attorney at Law 120

### FirstAve. West Kalispell,

### MT 59901 

### EDSMITH 

### CLERKOF

### THE

### SUPREMECOURT 

### STATEOFMONTANA