No. 91-600 

IN THE SUPFU3ME COURT OF THE STATE OF MONTANA 

JOHN R. MURRAY and JUDITH R. MURRAY, 

husband and wife, ERIK F. NEVA and 

LAURA L. NEVA, husband and wife, and 

C. GENE ENDRESEN and ARDYCE E. ENDRESEN, 

husband and wife, 

Plaintiffs and Appellants, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial ~istrict, 

In and for the County of Stillwater, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Bruce E. Lee, Attorney at Law, Billings, Montana 

For Respondents: 

Robert Edd Lee, Crowley, Haughey, Hanson, 

Toole & Dietrich, Billings, Montana 

Submitted on Briefs: April 23, 1992 

Filed: 

Decided: September 29, 1992 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

This is an appeal from an order of the Thirteenth Judicial 

District Court, Stillwater County, ruling that appellants8 

"equitableN easement claim is barred by laches. We affirm. 

Appellants raise only the "equitable" easement question for 

this Court to consider, however we find the following issue raised 

by respondents to be dispositive. 

Is appellants' claim for an "equitable" easement through 

Tract 143 barred by laches? 

In 1972, respondents, Charles J. Heringer, Jr., Richard C. 

Hoefle, and Donald E. Dubeau formed a limited partnership known as 

the Countryman Creek Ranch (hereinafter "partnership"). Sometime 

in 1970, Heringer became aware of a 2025 acre ranch situated south 

of the Yellowstone River and a few miles west of Columbus which was 

being offered for sale. Heringer and Hoefle ultimately purchased 

the ranch with the intention of developing it for resale as 

recreational homesites. 

In 1972, the partnership employed the Bud Hansen Agency for an 

initial sales campaign during that summer. In the beginning of the 

year, the layout, engineering, and legal work was well underway. 

Sales information packets were assembled and closing document forms 

were printed. Throughout the early period from 1970 to 1972, 

several developments were considered. The final scheme called for 

the land to be subdivided into 141 residential tracts, with each 

tract containing at least 10 acres. 
The initial sales campaign began by June 1972. Dubeau, a 

general manager of the project, was also at that time a principal 

in the Bud Hansen Agency, a real estate broker operation out of 

Billings, Montana. Through DuBeau's activities for the partnership, Bud Hansen Sales' representatives negotiated and closed sales 

with tract buyers. A sales office was opened in an existing ranch 

house on the partnership ranch land one-half mile from the 

Yellowstone River. Diagrammatic maps and aerial photographs were 

placed on the walls of the sales office and reduced for 

distribution to prospective buyers to aid in location of the tracts 

being offered for sale. 

The subdivision was subjected to certain use restrictions 

defined by the declaration of covenants and restrictions, which 

together with the certificate of survey plat, were filed with the 

Clerk and Recorder of Stillwater County on July 7, 1972. The 

recorded plat and covenants were expressly referenced in all 

contracts for sale and warranty deeds for all purchasers of tracts 

at the Countryman Creek Ranch development, including the 

appellants. One of the first sales went to appellants C. Gene and 

Ardyce E. Endresen. On September 8, 1972, the Endresens received 

a warranty deed conveying Tract 88. In May 1973, appellant John R. 

Murray purchased Tract 62. 

In the late 1970s, the Countryman Creek Ranch Homeowners 

Association (hereinafter "association") was formed. This was a 

nonprofit corporation formed to carry out operational activities 

for all tract owners. Platted Tract 142 was designated on the maps 
as "recreation area" land and was immediately deeded by the 

partnership to the association and held in common for the 

association. The recreational land was to be managed for use of 

all tract owners by the association as "common area" pursuant to 

the declaration of covenants and restrictions as soon as sufficient 

tracts had been sold to activate the association. The partnership 

retained ownership of adjacent "ranch landv platted as Tract 143 

along the river bottom, which the partnership continued to farm, 

and across which the association was granted an express 

right-of-way for traverse and for access along the bank of the 

Yellowstone River. 

The original declaration of covenants was amended on two 

occasions. The first amendment to the declaration of covenants 

concerned changes with respect to grazing and was signed by 

appellants on April 9, 1979. The second amendment concerned a sale 

of some ranch buildings located on Tract 143. Apparently, this 

sale created some confusion between the association and the 

partnership because the land sold was originally intended to be a 

recreational complex for the subdivision. As a result, an 

agreement was reached between the partnership and the association. 

The land would be sold in exchange for it being bound by the 

declaration of covenants and for some adjacent property to be 

deeded over to the association for recreational purposes. This 

second amendment was intended to clear up any confusion as to what 

was common area land and what was ranch land. Appellants John R. 
Murray and C. Gene Endresen signed the amended declaration of 

covenants on May 10, 1983. 

Appellants believed that they had acquired certain 

recreational rights on or over the ranch land of the partnership 

similar to those enjoyed in the vvcommon area." On November 14, 

1980, they filed a complaint against the partnership with the 

Montana Realty Board. The Montana Realty Board cleared the 

partnership of any wrong doing. 

In 1988, the partnership subdivided a river front "ranchettev1 

from a portion of Tract 143 and sold it to Wayne Schile, a person 

who is not part of this action. Schile placed a fence around his 

"ranchette" and limited tract owners to a 50-foot river bank 

easement described in the declaration of covenants. This sparked 

a long-smoldering resentment of the appellants who, since 1980, had 

argued with the partnership overtheir understanding concerning the 

ranch land. 

In 1989, appellants filed their claim in District Court. The 

case was originally scheduled as a jury trial. Prior to trial, the 

District Court bifurcated the cause and set the matter for hearing 

before the court, without a jury, on what were perceived to be 

equitable issues. Appellants Nevasv claim was severed from the 

other appellants because the Nevas had not purchasedtheir property 

directly from respondents. 

On May 2, 1991, the District Court entered its findings of 

fact and conclusions of law, finding that appellants did not have 

an vvequitablevl easement for common use and enjoyment of the lands 
in question. The court held that no implied covenant of good faith 

and fair dealing existed, and with regard to a contract claim for 

recreational improvements, the court awarded appellants the return 

of ten percent of their purchase price of their lots. Appellantsv 

appeal is limited to the easement question. 

The only question we need to discuss is whether appellantsv 

claim for an "equitable" easement through Tract 143 is barred by 

the equitable doctrine of laches. 

Respondents contend that by at least 1980 there was not an 

easement of any nature or any other intangible undefined rights 

over partnership ranch land when the partnership changed its 

ownership maps to preclude any implication that the partnership 

ranch land was to be included as recreation or common area, and 

therefore, the doctrine of laches applies. 

We have previously stated that: 

Laches exists where there has been an unexplainable delay 

of such duration or character as to render the 

enforcement of an asserted right inequitable, and is 

appropriate when a party is actually or presumptively 

aware of his rights but fails to act. 

Larson v. Undem (1990), 246 Mont. 336, 340, 805 P.2d 1318, 1321. 

The appropriate time to apply laches to a certain set of facts 

can be evaluated by an analogy to the equivalent statute of 

limitations: 

Under ordinary circumstances, a suit in equity will not 

be stayed for laches before, and will be stayed after, 

the time fixed by the analogous statute, but if unusual 

conditions or extraordinary circumstances make it 

inequitable to allow the prosecution of a suit after a 

briefer, or to forbid its maintenance after a longer, 

period than that fixed by the analogous statute, a court 
of equity will not be bound by the statute, but will 

determine the extraordinary case in accordance with the 

equities which condition it. When a suit is brought 

within the time fixed by the analogous statute, the 

burden is on the defendant to show, either from the face 

of the complaint or by his answer, that extraordinary 

circumstances exist which require the application of the 

doctrine of laches. On the other hand, when the suit is 

brought after the statutory time has elapsed, the burden 

is on the complainant to aver and prove circumstances 

making it inequitable to apply laches to his case. 

Brabender v. Kit Manufacturing Co. (1977), 174 Mont. 63, 68-69, 568 

P.2d 547, 550 (quoting Shell v. Strong (10th Cir. 1945), 151 F.2d 

In this instance, appellants stipulated that they had known of 

their rights prior to this action but did not enforce them. In 

1980, the partnership changed its ownership maps to preclude any 

implication that the partnership ranch land was to be included as 

recreation or common area. The maps clearly distinguish between 

Tract 142 (common area) retained by the association and Tract 143 

(ranch land) retained by the partnership. It was the recording of 

the common area deed to the association and the allocation of farm 

lease proceeds between the association and the partnership, based 

upon their respective ownerships, as well as the change in the maps 

to show the distinction, which gave rise to the 1980 complaint with 

the Montana Board of Realty. 

These actions placed the appellants on notice since 1980 that 

there was not an easement of any nature or any other intangible 

undefined rights over partnership lands. Appellants admittedly 

knew of their rights for nine years and failed to exercise them. 

Without determining that an wequitablew easement exists, we hold 
that appellants' claim for an "equitable" easement is barred by 

laches. 

We affirm the District Court. 

We concur: 

Chief Justice 

Chief Justice J. A. Turnage, specially concurring: 

I concur with the result in this opinion. I would like to make 

it clear that the Court has not indicated that there is such a legal 

theory as "equitable easement." 

Such a theory does not exist in Montana law and certainly 

should not be considered as possibly existing because of any statements in this opinion. 
September 29, 1992 

CERTIFICATE OF SERVICE 

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

following named: 

Bruce E. Lee 

Attorney at Law 

P.O. Box 1222 

Billings, MT 59103 

Robert Edd Lee 

Crowley, Haughey, Hanson, Toole & Dietrich 

P.O. Box 2529 

Billings, MT 59103-2529 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA