No. 91-001 

IN THE 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: District Court 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 Off ices of 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, Flathead County, 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 

in denyingthe plaintiff's motion for summary judgment and 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 foot 
private road easement. The COS contains the language t1 [s] ub j ect 

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. . - . I I The COS was 

prepared for the Thompsons, in anticipation of the land swap. 

On June 1, 1986, Sloan conveyed the property by warranty deed 

to the Thompsons. The grant used the same property 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 intention to convey title to 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 District No. 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]ubject to and together with a 40 foot private road easement." 

By affidavit, the Thompsons allege that they intended to retain the 

"40 foot private road easementu when they conveyed the property 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 Sloan nor Thompson owned or had any interest 

in dominant property which could be served by the claimed easement 
at 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 the West Glacier School Road and by the claimed "40 foot private 

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 District No. 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 subject only to the public easement, the West Glacier 

School Road, and a possibility of reverter should the property no 

longer be used for school purposes. The parties stipulated to 

allow Wild River access while litigation of the matter was pending. 

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 same as 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 the movant to judgment as a matter 
of 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 to Wild 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 District I s 

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 together with a 40 foot private 

road easement," in the Thompson to School District No. 6 deed 

reserved an easement in the Thompsonsl favor and such easement was 

later conveyed to Wild River. It further argues that the 

Thompsons' intent to create this 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 except by 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 case we 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. Since no 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, 

"exceptsI1 or reserve^^^ an easement, is permitted to have 

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: 

The modern conception of conveyancing, however, seeks to 
ascertain the intent of the grantor 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 is properly ascertained, an easement may 

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 rights or connote a reservation 

or retention of property rights. Shell Oil Co., Inc. v. Manley Oil 

Corp., (7 Cir. 1941), 124 F.2d 714, 716; Englestein v. Mintz 

(l93l), 345 Ill. 48, 177 N.E. 746, 752. See also Procacci v. Zacco 

(Fla. 1975), 324 So.2d 180. ItSubject tott 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. 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 the words 

"subject to" in a conveyance is a qualification and 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 

time as our riqht of reverter misht arise, we reserved the disputed 

easement unto ourselves to serve the entire property." The 

District Court correctly noted that the reasoning that is the basis 

of the Thompsons' alleged intent is misguided. If the property 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 

necessarily merge. Thus, we conclude that the wording Itsubject tow 

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 

supporting their positions and then issued its judgment in the form 

of proposed findings of fact and conclusions of law. Technically, 

this procedure is incorrect, for the trial court is precluded from 

determining material 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 reversible error 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 the Thompsonsl intent to create an easement. Viewing the 

plaintiff's factual allegations regarding the Thompsonsl intent in 

the light most favorable to the plaintiff, 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 

defendant Is motion for summary judgment. The order of the District 

Court is 

AFFIRMED. 

We Concur: 

. - 
May 30, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Scott C. Wurster 

Law Offices of Ambrose G. Measure 

P.O. Box 918 

KalispelI, MT 59903 

M. Dean JelIison 

Attorney at Law 

120 First Ave. West 

Kalispell, MT 59901 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA