### NO. 81-366 IN THE SUPREME COURTOF THE STATE OF MONTANA 1982

CHARLES and KAY LINDLEY,AND DARYLAND HELEN HOLMES, Plaintiffsand 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, Judgepresiding.
Counsel of Record: ForAppellants: PetersonLawOffices, 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.
Plaintiffsbrought an action in the Yellowstone County District Court seeking to have the defendants enjoined from interferingwith 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 thisdispute 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 additionalparty, then filed a complaint against the plaintiffs and the caseswere consolidated for trial. The second action was settledby 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 toland:
"(5)the right-of-way 

# . .." Under the circumstances of thiscase we determine thatthe 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 creationof the easement. See Restatement (Second) of the Law of Property 

### 55 492 and 493 (1944). The warranty deed contained thislanguage: "Reserving an easement over the East 15feetof saidTract forroadway purposes." There is no language in the warranty deed limiting the grantor's right 

### to freelyalienate and apportion the easement. Defendants 

### were aware of the easement atthe time theypurchased 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 fullextent of the right retained. City of Missoula v. Mix (1950), 123Mont. 365, 214 P.2d 212. Defendants 

### are arguing thatthe plaintiffsshould 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 thatcontemplated when the easement 

### was established. It is true thatno
use may be made of the right-of-way different from the use established atthe timeof the creationof the easement so as to burden the servient

### estate to a greater extentthan was contemplated at the timethe easement 

### was created. Titeca v. State by and through Dept. of Fish (1981), Mont. 

## ,634 P.2d 1156, 38 St.Rep. 1533. The problemwith defendantst argument is thatthe easement has thus farnot been used and there is no evidence of an increased burden. This Court cannot declare thatthe proposed use willbe inconsistentwith the reserved easement onthe basisof speculation as 

### to possible future uses. Titeca, supra. Affirmed

# .

Chief Justice