No. 02-534 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 104

_______________________________________ NANCY E. WATSON, Plaintiff and Appellant,

v. GEORGE and MARGO DUNDAS, GEORGE WILLIAM and GRACE BERBERET, BROADWATER COUNTY BOARD OF COUNTY COMMISSIONERS, and THE MONTANA DEPARTMENT OF STATE LANDS, Defendants and Respondents.

______________________________________ APPEAL FROM: District Court of th e Eighteenth Judicial District, In and for the County of Gallatin, Cause No. DV 94-352 The Honorable Mike Salvagni, Judge presiding. COUNSEL OF RECORD: For Appellant: Thomas M. White, Sedivy, White & White, P.C., Bozeman, Montana For Respondents George and Margo Dundas: Thomas E. Towe, Towe, Ball, Enright, Mackey & Sommerfeld, PLLP, Billings, Montana For Respondent Broadwater Count y Board of County Commissioners: John T. Flynn, Broadwater County Attorney, Townsend, Montana For Respondent Montana Department of State Lands: Tommy H. Butler, Special Assistan t Attorney General, Helena, Montana

____________________________________ Submitted on Briefs: February 28, 2006 Decided: May 9, 2006 Filed:

______________________________________ ClerkJustice Brian Morris delivered the Opinion of the Court. ¶1 Nanc y Wa tson (Wats on) a ppeal s from a decision of the Eighteenth Judicial District Court, Gallatin County, in an action by Wats on to gain access to her property across the lands of Geor ge and Margo Dundas (Dundases). We af firm in part, reverse in part, and remand for further proceedings. ¶2 We consider the following issues on appeal: ¶3 Whether t h e District Court pr operly gran ted su mmary ju dg men t in favor of the Dundases regarding Watson’s claim to an easement by grant. ¶4 Whether t h e District Court pr operly gran ted su mmary ju dg men t in favor of the Dundases regarding Watson’s claim to an easement by necessity. ¶5 Whether t h e District Court hel d Watson to the correc t bur den of proof on her claim that the Lower Road cons titutes a public right of way? ¶6 Whether the District Court properly gr a n ted sum m a ry judgm ent on C o unts VIXIII, by considering t h e Dundas e s’ counter cl aim for damages, and by e n tering judgme n t awarding damages to the Dundases? FACTUAL AND PROCED URAL BACKGROUND ¶7 The Dundases sold th e northeast quarter of Section 34, T5N, R3E, Gallatin County, to their son, Roger Dundas, and Watson, his wife at the time, in 1983. The Dundas’s land surr ounds the par cel that they conve y ed to their son and t h en- d aughter-inlaw on the east, west, and nort h. The Dunda s es own Se ctions 15, 22, 23, 26, 27, 35 and the northw est quarter of Section 34. See attached m a p. A n other private landow ner hol ds the land to the sout h of this parcel and no ou tlet exists across this private land that would

2have provided Roger or Wats on access to a public road. The only apparent access to a public road then, and now, exists acr oss the propert y owned by the D u ndases. ¶8 Watson a n d R o ger purchased the land fr om th e D u ndases for $40, 000. They c oul d not affor d t o pa y the purchase pri c e in cash, so they fi na nced t h e pur chase of the property through a loan from the Farmer’s Home A d m i nistration ( F H A ). The FH A r e quired t h a t Roger and Watson a c quire a n easem e nt to access the property before F H A w oul d approve the loan in light of the fact that they coul d not access their property without traveling across the Dundas’s remaining la nds. ¶9 Roger requested that his parents provi de an easement to access the property. The Dundases represented to the FHA that they gran ted a pe rm anent easem e nt to Roger and Watson to facilitate the loan . The FHA approved the loan w ith the easement provided by the Dundas e s. George Dundas testified that they did not execute th e Gra n t of Easem e nt and Right-of-Way document un til 1986, however, because their attorney did not complete the paper work in a timely manner. ¶10 The recitals portion of the grant s t ated that it m e ant to provi de Wat s on a n d R o ger Dundas with a “permanent easement and ri ght-of-wa y over a n d across the undersigne d’s

rem a ining lands for purposes of egress and i ngress.” The grant portion of the doc um ent stated that it granted a “permanent easement and right-of- w ay over and across Section 27 . . . along the historic road now traversing Se c tion 27 and historically used for ingress and egress to the lands above de scribe d in Section 34.” ¶11 The granted easement permits Watson to fo l l ow a n old road, known as the Lower
Roa d , that runs north and slightly west fro m Watson’s land across Section 27. The r o ad

3also crosses Section 22, howev er , anot her portion of la nd owne d by the Dundases. See attached map. It then crosses over Sec tion 21 to the west, owned by Geor ge William (“Bill”) and Grace Berberet (Berberets). The ro ad proceeds to the nor thwest into Section 16, ow ne d by t h e Stat e of M onta n a, then tur n s west into Section 17 and intersects with Sixm ile Road, a count y road. W a tson and Roge r accessed their property along this roa d from the time of purchase in 1983 thro ugh 1994. ¶12 Watson and Roger Dundas ente red into a property settleme nt agreement in 1993 as part of their dissolution. The property settlement agreemen t for their divorce provided that Watson would obtain fu ll title to the land purchased from the Dundas es. George Dundas sent a letter to Watson in Febr uary of 1994 t o inf o rm her for the first time that the granted easement permitted her to cross onl y Section 27. Dundas further inform ed Watson, “I hereby gi ve you pe rmission to cross section 22 but this permission is limited to you only.” ¶13 Watson filed suit to enforce the terms of the eas e m e nt in May 1994. S h e contended that the eas ement granted her the ri ght to cross both S e ction 22 a n d Section 27. 1 The Di strict Court issued a tem porary re straining or der and a preliminary injunction

1 The Thir d Am ende d Com p laint filed on April 14, 1997, lists thirteen counts. The first two identified the claims as against the Berberets, the Montana Departm e nt of State Lands (State), and the Broa dwater Count y Board of County Commissioners (Broadwater County). The remaining counts either identified the Dundases as defenda nts or stated the claim generally. The counts were as follo ws: (I) Public/County Road as a Matter of Montana Law, (II) Public Righ t-of-Way Road as a Matter of Federal Law, (III) Prescriptive Easement, (IV) Easement by Necessity, (V) Grant Eas e ment, (VI) Declaratory Judgment, (VII) Permanent Injunction—Estoppel, (VIII) Fraud, (IX) Reformation, (X) Tortious Interference with Contractual Relationship, (XI) Ba d Faith— Breach of Implied Covenant of Good Faith and Fair Dealing, (XII) Intentional Infliction of Emotional Distress, and (XIII) Punitive Damages.
4permitting Watson to cross Sect ions 22 and 27 during the litig ation. The Dundases filed a counterclaim on August 14, 1995, alleging, inter alia , that Watson dam a ged their crops planted i n Section 22 by driv ing over them. The partie s filed various motions for

sum m a ry judgm e nt after conducting substantial discovery. ¶14 The District Court gra n ted t h e D u ndas es’ motion for s u mmary judgment relating to Count IV (Easement by N ecessity) and to C o unt V (Grant Eas e m e nt) on August 11, 2000. The parties entered into a stipulation on October 26, 2001, pe rmitting the District Court to de cide C o unt s I (pub lic road Montana law) and II (p ublic road federal law) on the basis of the depos itions, affidavits, and ex hibits fi led wit h t h e court. The District Court issued a judgm ent relatin g to Counts I and II on April 4, 2002 , finding that no public right of way or easem ent ex isted over Sections 16 and 21. ¶15 In its August 2000 order and a separate April 4, 2002, order, the District Court dismissed Count III (prescriptiv e easement) in accordance with a concession by Wats on and granted summary judgme nt to the Dundases on Counts VI-XIII (declaratory judgm e nt and various tort based claims). The District Court issued findings of fact and conclusi ons of la w on June 18, 2002, after a bench trial on the Dundases counterclaim, ruling i n part that Watson owe d $4,200 to the Dundases for damages to their crops. Watson appeals the judgments i n favor of the D u ndas e s, th e Berberets, the State, and
Broa dwater Count y. STANDARD OF REVIEW ¶16 This C o urt reviews a district court’s gra n t of s u m m a ry judgm ent de novo

. Farmers Union Mut. Ins. Co. v. Staples , 2004 MT 108, ¶ 18, 321 Mont. 99, ¶ 18, 90 P. 3d

5381, ¶ 18. We appl y the criteria c ontained in R u le 56, M. R. Civ.P. St aples , ¶ 18. Accordi n g to this rule, the m ovi ng party m u st establish both the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Grimsrud v. Hagel , 2005 M T 194, ¶ 14, 328 M ont. 142, ¶ 14, 119 P

. 3 d 4 7 , ¶ 14 . Th e bu rd en th en sh ifts to the non-m o ving party t o pr ove, by m o re than m e re denial and speculation, that a genui ne issue does exist. Grimsrud , ¶ 14. If the court determines th at no genuine issues of fact exist, the court must then de termine whether the moving part y is entitled to judgment as a matter of law. Grimsrud , ¶ 14. We review legal determ in ations m a de by a district court to establish whether the conclusions are correct. Grimsrud , ¶ 14. ¶17 We review a district court’s findings of fact to dete rm ine if they are clearly

erroneous. Ramsay v. Yellowstone Neur osurgical Assocs. , 2005 MT 317, ¶ 13, 329 Mont. 489, ¶ 13, 125 P.3d 1091, ¶ 13. We us e a three pa rt te st when determining whether a district court’s findings are clearly errone ous: 1) whether the findi ngs are supporte d by substantial evidence in the record; 2) wh et her the trial court has m i sapprehende d t h e effect of ev idence; and 3) if substantial evid ence exists and the effe ct of the evidence has not been misapprehended, the Court may still de termine that the trial court’s findings are clearly erroneous when, although evidence supports it, a review of the record leaves this Court with the definite and firm convic tion that a mistake has been committed. Ramsay , ¶ 13. We review a dis t rict court’s conclusions of law for correctness. G a lassi v. Linc oln County Bd. of Com’rs , 2003 MT 319, ¶ 7, 318 M ont . 288, ¶ 7, 80 P

. 3d 84, ¶ 7.

6DISCUSSION Grant Ease ment ¶18 The District Court gra n ted sum m a ry judgm e nt to the Dundases that the easement granted to Watson a p plied onl y to Section 27. The c ourt f o und that the more specific language of the grant por tion of the document trumped the recital’s more general language. See Section 1-4- 103, MCA. ¶19 The recitals portion of the easement documen t provides that th e Dundases sought to grant to Roger and Watson a “perm a nent easem e nt and ri ght-of -way over and across the [Dundases’s] remaining lands for pur pos es of egress and ingress to the said northeast quarter of Section 34.” (E m p hasis added.) The language i n the grant por tion of the doc um ent, however, appears to limit the easement to “the hi storic road now t r aversing Section 27 and historically used for ingress a n d e g ress” to t h e parcel owne d by Roger a n d Watson. The grant ea sem e nt does not specifically m e ntion Section 22. ¶20 General pr inciples of contra ct law appl y in interpreting a n easem e nt by grant. Mul a roni v. Bing , 2001 MT 215, ¶ 32, 3 06 Mont. 405, ¶ 32, 34 P.3d 497, ¶ 32. A grant should be interpreted in favor of the grantee. Secti on 70-1- 5 16, MC A. In cases of uncertainty “the language of a contract shou ld be inte rpreted m o st strongl y against the party w h o caused the uncertainty to exist.” Section 28-3-206, MC A

. ¶21 A presumption also exists that the Dundases granted Roger and Watson an

easem ent through S ection 22. One of “Montana’s lo ng-standing m a xim s of jurisprudence” states that one who grants a thing is presumed to grant also whatever is essential to its use. Erker v. Kester , 1999 MT 231, ¶ 23, 296 M ont. 123, ¶ 23, 988 P.2d

71221, ¶ 23. Section 1-3-213, M C A, specifica lly codifies this principle. The Dundases represented to the FHA that th e y had gra n ted R oger a n d Watson an easement to provide a route by w h ich the y coul d access their prope rt y. A n easem ent over Secti on 22, also

ow ned by t h e Dundases, proves essential to the use of an easem e nt through Sec tion 27 for that pur pos e. ¶22 This Court will “not isolate cer tain phrases of the instrument to garner the intent of the parties, but will grasp the instrument by its four corners and in light of the entire instrument, ascertain the paramount an d guiding intent of the parties.” Rum ph v. D a le Edwar d

s, Inc. (1979), 183 M o nt. 359, 368, 600 P.2d 163, 168. In Erker , the Kesters sold a piece of property at Big Sky with a house to the Erkers for $310,00 0. The Erkers used an asphalt driveway to access th e property and house for a si x-year period. The as phalt driveway represented the only ingress and egress to the Erkers ’s propert y and house. The Kesters later sought t o bloc k the Erkers’s use of the asphalt drivewa y on t h e basis that the $310,000 purchase pri ce did not include the asphalt driveway an d that the parties were to negotiate a separate sale and purchase of the asphalt driveway for additional consideration. The agreements documenti ng the transaction were inconsistent on whether the parties intended to include th e asphalt driveway i n the origi n al $310, 000 purchase. ¶23 We applied the m a xim codified i n § 1-3- 213, MCA, in determ ining that “access was necessary and ess e ntial to the complete u s e an d en joy m en t by Erkers of the house and pr opert y w h ich Ke sters sold them .” Erker , ¶ 23. We graspe d th e sale and purchas e agreement by its four corners an d evaluated the doc um ent “in its entirety” in reaching t h is

8conclusi on. Erker , ¶ 2 7

. ¶24 The Dissent contends that § 70-1-515, MCA, preven ts this Court from even examining the recitals portion of a grant unless the “ operative wor d s of a grant are doubtful.” Dissent, ¶ 48. We have yet to interpret what constitutes “doubtful” language in a grant as set forth in § 70- 1-515, MC A. Section 70-1-514, MCA, a companion statute, however, sets forth the inverse proposition. It states that a “clear and distinct limitation in a grant is not cont rol l ed by othe r wor d s less clear and distinct.” Section 70- 1-514, MC A. This statute applies when the granting document itself contains no

am biguity. For e x am ple, the Court in Park County Rod & G un C l ub v. Department of Hwys. (1973), 163 Mont. 372, 517 P. 2d 352, relied upon what is now § 70-1 -514, MCA, in rejecting a claim of ambigu ity in a granting document. ¶25 There a controversy arose about whether a private part y ha d gra n t e d the Stat e fee title to a piece of property along the Yellowst one River or onl y an easement to use the property as a public park. The private part y executed an instrume nt entitled “Easement,” in favor of the State. Park County Rod & Gun Club , 163 M ont. at 374, 517 P

. 2d at 353. The granti ng doc um ent noted t h at the pri v ate pa rty retained the right to use and enjoy the property except as to the ri ght s granted t o the State

. The por tion of the doc um ent granting the rights to the State twice referred to the fact that the land was t o be used “as a Public Park,” and specifically described “said easement.” Park C o unty Rod & G un Club , 163 M o nt. at 374, 517 P.2d at 354. ¶26 The State later abandoned th e public park a nd e x ecute d a quit claim deed in favor of the private party. The local gun club challenged the revers ion of the easem e nt back to

9the pri v ate party on t h e gr ound s that the State had failed to f o llow statutes governi n g the sale of public land, including an appraisal requirem e nt. The C o urt applied § 67-1516, R.C.M. (1947), the predecessor to what now is codified at § 70-1- 5 14, MC A. The Court noted that the instrument was titled “Easement,” that it referre d specifically to the limited grant for “use as a Public Park ,” and the fact that the State provided the pri v ate party no consideration for the easement. In light of the absence of any ambi guities in the granting instrument, the Court recognized the “clear and distinct limita tion” in the instrument that the grant was to be an easement only. Park County Rod & G un C l ub , 163 M ont. at 377, 517 P. 2d at 355. ¶27 The granting instrument in this case, how ever, drafted by t h e D u ndases, containe d a significant ambiguity. This significant am biguity must be interpreted against the Dundases as the drafting party. See Section 28-3-206, MCA. The document’s stated
pur pose was to provide Roger and Watson a permanent easement across all of the Dundases “rem aining l a nds f o r purposes of egre ss and ingress” to t h e nort h east quarter of Section 34. The grant portion of the docum en t contradictorily limits the easement to cover only Section 27. Section 70-1- 5 14 , MCA, and § 70-1-515, MC A, have n o application under thos e circumstan ces. ¶28 Instead we m u st not isolate the phrase limiting the easement to Section 27 and must evaluate the parties’ intent in light of the entire document. Rum p h , 183 Mont. at 368, 600 P. 2d at 168. We also must interpret the grant in favor of Watson as the grantee. Section 70- 1-516, MC A. A review of the entir e document leads us to conclude that the District Court im properly granted sum m a ry j udgm ent i n favor of the Dundases that they

10did not grant Watson an ea sem e nt across Section 22 of their property. ¶29 The conflicting language in th e granting document permitte d the District Court to consider extrinsic evidence regarding the parties’ intent. Doble v. Bernhar d , 1998 MT 124, ¶ 19, 289 M o nt. 80, ¶ 19, 959 P.2d 488 , ¶ 19. The undis p ut ed extrinsic evidence dem onstrated that Roger and W a tson coul d not access their propert y in Section 34 without traveling across all of the Dundases’s remaining la nds, inc l udi ng Section 22 and Section 27. They pr ovide d $40, 000 consid eration to the Dundases for the landl ocke d parcel in Section 34. The State in Park County Rod & Gun Club ha d provide d no consideration f o r the grant. See 163 M ont . at 374, 517 P. 2d at 353. The $40, 000 consideration in this case stemmed from the FHA’s loan to Roger and Watson, a loan continge nt upon the D u ndases’s grant of an easem ent to Roger and Watson tha t provi ded access to their newly purchased pr operty. The Dundases made no claim that th ey sold the parcel to Watson and Roger for a reduced price to reflect the lack of access. The Dundases made no claim that the $40,000 pur c h ase price reflected anythi ng ot her tha n fair-ma r ket value. George Dundas even con ceded that they intend ed to provide Roge r and Watson with an easem ent across bot h sections: Attorney: Okay. In other words, if you’re going to leave the [Watson’s] house here and go up to [Section] 27, if you can’t get out of [Section] 27, you ne ver get to Six Mile Road? Dundas: No. Attorney: Right? Dundas: That’s right. Attorney: And that wasn’t what you inte nde d, is it?

11Dundas: No. ¶30 The extrins i c evidence leads us to conclude that Roger and Watson did not pa y fair

m a rket value for the m e re hope of a perm i ssive easem e nt for a s long as Roger and Watson remained married. The parties di spute whet her Watson tim ely filed a crossmo tio n fo r su mmary ju dg men t

. We require no cross-m o tion, however, w h e n the m o vi ng party had a full and fair opport unity to consider the propos ition and all other criteria for

su mmary j u dg men t are met. See Canal I n s. Co. v. Bunday (1991), 249 Mont. 100, 108, 813 P. 2d 974, 979. ¶31 We conclude, as a matter of law, that th e gra n ting instrum e nt, when considere d as a whole, and i n conj unction with the undi s put ed extrinsic evidence , provided Watson with an easement across the Dundases re maining property, incl udi ng Section 22 a n d Section 27. Similar to the asphalt driveway in Erker , the permanent easement granted by the Dundas e s “was necessary and essential to the com p lete use and enjoym ent” by Roger and Watson of the la ndl ocke d parcel in Sec tion 34 that the Dundases earlier had sold them. Erker , ¶ 23; § 1-3-213, M C A. We refuse to allow the D u ndases to benefit from an

am biguity of their own m a ki ng and to skirt the overriding i n tent of t h e granti ng doc um ent: to provide Roger and Watson ingre ss and egress to their landloc ked parcel—a landloc ked parcel sold to them by the Dundases.
Easem e nt by Necessity ¶32 The two elements of an easement by nece ssity are unity of ow nership a n d strict necessity. Loomis v. Lur a ski , 2001 MT 223, ¶ 49, 306 Mont . 478, ¶ 49, 36 P.3d 862, ¶ 49. Thus, an easement exists by necessi ty when the owner of a tract of land sells a part of

12the tract that has no outlet to a public roa d except over th e ot her lands of the seller. Kullik v. Skyline Homeowners Ass’n, Inc. , 2003 MT 137, ¶ 22, 316 Mont. 146, ¶ 22, 69 P.3d 225, ¶ 22. Strict necessity means a lack of practical access to a public road for ingress and egress. 

### Kelly v. Burlington Northern R.R. Co. (1996) , 279 Mont. 238, 243, 927 P.2d 4, 7. Strict necessity must exist both at the time the unified tracts are severed
and the time of exercise of the easement. Loomis , ¶ 50. ¶33 The impos ition of an easement by necess ity will arise only in very s p ecific circumstan ces, “where an owner of land convey s a parcel thereof whic h has no outlet to a highway except over the remainin g lands of the grantor or ov er t h e lands of strangers, a way of ne cessity exists over the rem a ining lands of the grant o r.” 

### Graham v. Mack (1984), 216 Mont. 165, 17 5, 699 P.2d 590, 596. The party se eking t o es tablish an easement by necessity carries the burden to prove a ll elements required to establish that

easement. Loomis , ¶ 51. Additionally, a w a y of neces s ity only exists across land that had access to a public road when the prope rty was divided. Schmid v. McDowell (1982), 199 M o nt. 233, 238, 649 P.2d 431, 433. ¶34 The District Court based its gra n t of s u m m a ry judgment solely on unity of title grounds. The c ourt s t ated in its order grant i ng t h e D u ndases sum m a ry judgm ent on the easement by necessity count that “there is no unity of title from Plai ntiff’s property to a public road.” This statement is in correct. The Dundases ow n Secti ons 15, 22, 23, 26, 27, 35, a nd t h e nort h west quarter of Section 34, w h ich are contiguous lands. The m a ps in the record demonstrate that the pu blic Sixmile Road crosses Sec tion 15. Indeed, i n its or der entered two years later on Counts I and II, rela ting to public rights of way over Sections

1316 and 21, the District Court as the trier of fact found that the Dundases ow ned Sections 15, 22, 23, 26, 27, 35, and the nor t hwest quar t er of Section 34, thus dem onstrating unity of title over lands from Watson’s pr operty to the public road. ¶35 The District Court also failed to rule on th e strict nece ssity of an easement in the face of conflicting evidence. Watson testifie d in her deposition th at there is only one road, the Lower Road , into and out of her propert y. ¶36 Several pr oblem s em erge, howe ver, with r e spect to the Lower Road. First, the Berberets own Section 21 and therefore Watson cannot satisfy the unity of title element for an easement by necessity. Moreover, no public right of way e x ists over Section 21,
purs u ant to our holding in ¶¶ 39-42 below. The Dundases note that Bill Berberet described i n his depos ition anot her road to Watson’s property. On a casual reading of the colloquy between Berberet and the questioning attorney, it wo uld seem that this road avoi ds the Dundases’ land. A review of the maps in th e record, how ever, reveals that to use this road Watson would have to cr oss land belonging t o the D u ndases. ¶37 Watson asserts that various other possibl e routes exist from her property to a public road, including the “Upp er Roa d .” Ge orge D u nda s construct e d the U pper Roa d i n 1978 or 1980 and it passes from Watson’s pr operty nor t h thr o ugh Sections 27, 22, a nd part of 15, ultimately connectin g with Sixmile Road in Section 15. Wa tson des c ribed the “Upper Road” as more of a shifting trail than a roa d . Watson notes that m a king t h is route passable woul d invol ve considerable expe nse. Watson further cont ends that her easem e nt claim is not restricted to the Lower an d Upper Roa d s, but rather would pass over whatever of the Dundases’ con tiguous sections that permit he r to reach the nearest public

14road, though she offers no specific s beyond the two m e ntione d routes. ¶38 Given the District Court’s in correct statement with regard to unity of title directly between Watson’s land and a public road, the ab sence of any r u ling on strict necessity, and the conflicting evidence about strict necess ity, we concl ude t h at the Dis t rict Court’s grant of s u m m a ry judgm e nt on t h is issue w a s in error. We revers e the judgment against Watson on Count IV and rema nd the cause for further pr oceedings. Although we have determined that the Dundases granted an easem e nt to Wa tson to cross Section 22 and Section 27, Watson still has no ou tlet to a public road in lig ht of the District Court’s rulings with respect to a public road acr o ss propert y ow ne d by the State and t h e Berberets. The District C ourt al so de nied Watson’s c l aim of a prescriptive easem e nt across thos e same lands. Thus, the District Co urt still must resolve th e issue of Watson’s claim on an easement by necessity upon remand.
B u rd en o f P r oo f ¶39 Watson argues that t h e District Court im pr operl y found that s h e m u st pr ove her public right of way on the Low e r Road by clear and convi ncing e v ide n ce. Watson contends that she needed to pr ove her case o n ly by a preponderance of the evidence. See Richter v. Rose , 1998 MT 165, 289 Mont . 379, 962 P. 2d 583. ¶40 We ha ve addressed the issue of burde n of pr oof f o r prescriptive easements, including public rights of wa y, and have estab lished a “long line of clear precedent setting fort h the burden of pr oof in prescr iptive easement cases as that of clear and convincing evidence.” Wareing v. Schreckendgust (1996), 280 M o nt. 196, 205, 930 P.2d 37, 43. We inadve rtently m a y have i n troduce d am biguity on this point in Ric h ter by

15stating “that the District Court correctly conc luded that the Richters did not establish the existence of a publi c highwa y pursua n t to R.S. § 2477 by a preponderance of the evidence .” Richter , ¶ 32 (em phasis added). ¶41 We therefore reaffirm the Wa rein g li ne of precedent on t h is issue, that clear and convincing evidence constitu tes the applicable burden of proof for prescriptive easements, including public righ ts of wa y. We conclude th at the District Court pr operl y applied t h e clear and convinci ng s t andard i n Watson’s case. ¶42 Watson also conte nds that the District Cour t m i sapprehended the applicable rule of law and im properly required her to prove fi ve years of continuous use of the Lowe r Road prior to July 1, 1895, in order to establ ish the road as a public right of wa y. Watson cites no authority, however, that indicates th at a different length of tim e should be applied. The State and Broa dwater County resp ond that the five-y ear requirement is
correct. W e agree with the State and the County. Our precedent is clear that to establish a public right of wa y by prescription in thes e circumstances, Watson had t h e bur den t o prove that the public used th e Lower Roa d over Sections 16 and 21 for five years prior t o July 1, 1895. See City of Butte v. Mikos o witz (1909), 39 Mont. 350, 354-55, 102 P. 593, 594-95. We affirm the District Court’s holdings on Counts I and II. Counts VI-XIII and Damages ¶43 Watson argues that the District Court pr edicated its ruling on Counts VI-XIII upon its grant of sum m a ry judgm e nt on Count IV (Easement by Ne cessity) and Count V (Grant
Easem e nt) to the Dundases. Watson c onte n ds that because the District Court incorrectly entered judgm e nt on t h ese alleged pre d icat e counts, the judgment on Counts VI-XIII

16should be reversed. We agr ee and remand to the District Court for further proceedings consistent with our de cision. We reverse Count VI only to t h e exte nt that t h e court based its determ ination on t h e lack of an easem e nt across Section 22 of the Dundases land. We do not dist urb t h e Dis t rict Court’ s conclusion th at no public right of way exis ts across the Berberet’s property or that Watson had obtained a prescriptive easement across this property as alleged in Counts I, II, and III. We further reve rse the District Court’s award of damages to the Dundases cau sed by Watson’s use of the ro ad across Section 22 in light of our conclusion tha t the Dundases had gr anted an easement to Watson across Section 22 a nd Section 27. CONCLUSION ¶44 For the f o regoi ng re asons, we affirm the District Court’s order regarding the public right of way issues. We reverse the D i strict Cour t’s order re lating t o the grante d

easem ent across Section 22 a nd hol d that the easement granted by the Dundases allows
Watson t o cross Section 22 and Section 27. We furthe r revers e the District Court’s or der relating to the easeme n t by necessity acro ss the Dundases’ property, and the damage s issues, and we remand the cause for furt her proceedings on t h e rem a ining count s. ¶45 Affirmed in part, reversed in part , and rem a nded f o r further procee dings.

/ S / B R I A N M O R R I S

We Conc ur: /S/ JOHN WARNER /S/ PATRICIA COTTER /S/ W. WILLIAM LEAPHART

17Justice Ji m Rice dissenting in part. ¶46 I dissent from the Court’s first holding herein, regarding the easem e nt grant. ¶47 The Court finds am biguity i n t h e easem e nt docum e nt by com p aring the grant language with the recital language, see ¶ 19, a nd res o lves that am biguity by a p plying general pri n ciples of contract law, includin g resort to extrinsic evidence. However, the Court fails to apply the statute which specifically controls this matter. ¶48 The applic ation of recital and grant lang uage within grant docum e nts is gove rne d by § 70- 1 -515, M C A, whic h pr ovides as follows: 70- 1-515. Recitals–w hen resort ed to. If the operative words of a grant are doubtful, recourse m a y be had to its recitals to a ssist the construction. ¶49 This statute subjugates a grant document’s recitals to the oper ative wording of the grant itself; the recitals and th e grant do not stand on equal f ooting. The statute directs that recitals may be looked to only if the words of the grant are doubtful . Here, no doubt whatsoever emanates from th e operative words of the grant: the easement was clearly granted ove r Section 27 onl y . Thus, the Court’s obligation he re is to apply the governing statute and reach the conclusion which the statute requires us to reach—that the easement does not extend over S ection 22, or any ot her property owne d by the Dundases. ¶50 Instead, however, the Court lo oks past the clear langua ge of t h e grant in favor of nebulous phrases within the re citals which refer to “the pu r pose ” of the docum e nt as granting an easement “over and across the un dersigned’s rem a ining lands,” and the n

em barks on a jour ney t o determ ine, using e x tr insic evidence, to whic h of t h e “rem aining lands” the recitals are referring. Given th at the Dunda ses own m a ny other “rem aining

18lands” in the surrounding area, the Court opens a Pandora’s Bo x of ambiguity that well illustrates both the purpose serv ed by the statute and the Court’s ill-advised decision to discard it. ¶51 Furt her, the Court be nds other of our princ i ples to com p lete its journey. Citing Mul a roni v. Bing , the Court claims that “[g]eneral pr inciples of contract law appl y in interpreting an eas ement by grant.” See ¶ 20. This is indeed true— if the grant i s unclear and t h e m eaning of t h e grant nee d s to be int e rpreted. See Mular o ni , ¶ 32 (“In interpreting the meani n g of an eas e ment gr ant , contract principles appl y.” (emphasis added)). The general contract principles offered by the C o urt are not applied when an easement’s grant language is crystal clear and requires no interpretation. ¶52 The Court then cites the general contract interpretational princi ples whic h instruct that we will “not isolate certain phrases of th e instrument,” but will “grasp the instrument by its four corners and in light of the en tire instrument, ascertain the param ount and gui ding int e nt of the parties.” See ¶ 22. However, inst ead of grasping the docum ent, the Court releases it, particularly the clear lan gua ge of t h e gra n t, and l o oks t o extrinsic evidence. ¶53 The Court then uses that evidence to create its own ve rsion of a r o ad story, asserting that “[t] he undis puted e x trinsic ev idence demonstrated th at Roger and Watson could not access their property in Section 34 without traveli ng across all of the Dundases’

rem a ining l a nds, incl uding Section 22 a n d S e ction 27.” See ¶ 29. Of course, “all of the Dundases’ rem a ining l a nds” incl ude not onl y Section 22 and Section 27, but Section 15, Section 23, Section 26, part of Section 34 and Section 35 as well. Thus, the Court’s

19focus on the recitals has led it to conc lude that the easem e nt som e how granted a circuitous a ccess route over s o m e seven sections of D undases’ property, finally endi ng in Watson’s l a nd i n Sec tion 34. That is a lo ng way home. I submit that the Court’s rationale well matches this route. ¶54 I would a p ply t h e clear instruction pr ovi de d by § 70- 1-515, MC A, and affirm the District Court on that issue. I concur with th e Court’s remaining holdings.

/S/ JIM RICE

Chief Justice Karla M. Gray and Justice Ja mes C. Nelson join the dissent of Justice Rice.

/S/ KARLA M. GRAY /S/ JAMES C. NELSON

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