NO. 81-366 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

CHARLES and KAY LINDLEY, AND 

DARYL AND HELEN HOLMES, 

Plaintiffs and Respondents, 

KURTIS add SHIRLEY MAGGERT, AND 

ELWOOD and DEBBIE KLEEMAN, et al., 

Defendants and Appellants. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, The Honorable 

Diane G. Barz, Judge presiding. 

Counsel of Record: 

For Appellants: 

Peterson Law Offices, Billings, Montana 

For Respondents: 

Keefer, Roybal, Hanson, Stacey & Jarussi, 

Billings, Montana 

Submitted on Briefs: March 5, 1982 

Decided : 

:,!.-.-i !. ;) \" .-A Filed : 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Plaintiffs brought an action in the Yellowstone County 

District Court seeking to have the defendants enjoined from 

interfering with the use of a roadway easement. The District 

Court granted judgment to plaintiffs and ordered defendants to 

remove a fence and other obstructions which hindered use of the 

easement. Defendants appeal. 

The easement involved in this dispute is located on land 

purchased by the defendants from Sam Shimamoto. In the warranty 

deed conveying the land to Shimamoto a roadway easement was 

expressly reserved by the grantor, Stephen Pinnow. In March 1980 

Pinnow conveyed the easement to various land owners, including 

plaintiffs, who owned property in a tract of land originally 

owned by Pinnow's father. 

Disagreements over use of the easement followed. On May 

9, 1980, plantiffs filed a complaint seeking a permanent injunction against the defendants ordering them to refrain from 

obstructing use of the easement. Defendants, along with one 

additional party, then filed a complaint against the plaintiffs 

and the cases were consolidated for trial. The second action was 

settled by stipulation prior to trial, so the trial involved 

only the issues raised in the initial complaint filed by the 

plaintiffs. Judgment was granted to the plaintiffs and this 

appeal follows. 

The defendants acknowledge that their land is subject to 

the roadway easement. However, they contend that the District 

Court erred in not determining whether plaintiffs' use of the 

easement would burden their land to a greater extent than contemplated when the easement was created. 

The easement reserved by Pinnow was an easement in gross 

not attached to land. This type of easement is authorized by 

section 70-17-102, MCA: 
"The following land burdens or servitudes upon 

land may be granted and held though not attached 

to land: 

"(5) the right-of-way . . ." 

Under the circumstances of this case we determine that the 

easement reserved by Pinnow was both alienable and apportionable. 

Whether or not such an easement may be alienated and apportioned 

depends upon the manner and the terms of the creation of the 

easement. See Restatement (Second) of the Law of Property 55 492 

and 493 (1944). 

The warranty deed contained this language : "Reserving an 

easement over the East 15 feet of said Tract for roadway 

purposes." There is no language in the warranty deed limiting 

the grantor's right to freely alienate and apportion the 

easement. Defendants were aware of the easement at the time 

they purchased their land; they had no right to believe that 

the easement would not be used. The owner of a reserved easement 

may use it to the full extent of the right retained. City of 

Missoula v. Mix (1950), 123 Mont. 365, 214 P.2d 212. 

Defendants are arguing that the plaintiffs should not 

be allowed to use the easement until the District Court determines whether use of the easement by the plaintiffs will 

increase the burden on the defendantst land beyond that contemplated when the easement was established. It is true that no 

use may be made of the right-of-way different from the use 

established at the time of the creation of the easement so as to 

burden the servient estate to a greater extent than was contemplated at the time the easement was created. Titeca v. State 

by and through Dept. of Fish (1981), Mont. , 634 P.2d 

1156, 38 St.Rep. 1533. The problem with defendantst argument is 

that the easement has thus far not been used and there is no evidence of an increased burden. This Court cannot declare that the 

proposed use will be inconsistent with the reserved easement on 
the basis of speculation as to possible future uses. Titeca, 

supra. 

Af f irmed . 

Chief Justice