No. 88-589 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

JOHN W. STRAHAN, EVELYN STF!AHAN, 

and LTERRY b7. STRAHAN, 

Plaintiffs and Respondents, 

-vsDAVID W. BUSH and PAMELA F. RUSH, 

et al., 

Defendants and Appellants. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Granite, 

The Honorable Ted T,. Mizner, LTudge presiding. 

COUNSEL OF RECORD: 

For Appel-].ant : 

Sol & Wolfe; Michael Sol, Missoula, Montana 

For Respondent: 

Boone , Karlberg & Paddon; David 3. Dietrich, Mi ssoul.a, 

I- Montana r.. 

---- - 

Submitted on Briefs: March 23, 1989 

Decided: May 31 1989 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendants, David FJ. and. Pamela F. Bush (the Pushes), 

appeal from a permanent injunction granted in the District 

Court, Third ,Tu.dicial District, Granite County, Montana, the 

Honorable Ted L. Mizner presiding, to the plaintiffs, John W. 

Strahan, Evelyn Strahan an2 Jerry Strahan (the Strahans). 

The injunction ordered the Rushes to refrain from interfering 

with the Strahans' ingress and egress from their property. 

We affirm. 

The property involved in the matter is located in 

Granite County, south of Tnterstate 90 near Drummond, 

Montana. In 1977, the parties purchased their respective 

properties from a common owner, Maxine Rurruss. Contained in 

the conveyance to the Rushes, Rurruss reserved an easement 

" [flor purposes of providing ingress and egress to the above 

described land which easement shall be over and across the 

existing road . . . " The easement right granted by virtue 

of the deed provided the Strahans the only access to their 

sole residence. 

At the time of the conveyances, a locked gate existed 

on the road easement. Burruss controlled the gate and 

provided the owners access with a combination to the lock. 

In 1979, the Strahans replaced the combination lock with a 

key-lock and provided other property owners with keys. The 

Strahans notified all concerned parties and asked for their 

cooperation. Shortly thereafter, the Strahans opened the 

gate. Except for the 1980 and 1981 hunting seasons, the 

gate remained open for approximately four years without 

objection from other property owners who used the road. 

Additionally, the gate was closed when no one was in 

attendance on any of the properties. As to the operation of 

the gate, the other property owners testified. to a 

"gentl-eman's acrreement," stating that what was best for the 
Strahans was best for them. In 1984, the Rushes unilaterally 

closed the gate, initiating the present dispute. 

The Strahans reside on the property year-round and have 

maintained the private road, including snow removal during 

the winter months. Also, Evelyn Strahan suffers from a back 

condition which makes opening the gate extremely difficult, 

if not impossible. 

The Bushes are residents of Arizona and spend a few 

weeks during the summer camping on their property and lease 

the property to 1-ocal ranchers for cattle grazing purposes. 

At trial, David Bush testified that the gate is a necessary 

part of the grazing operation to prevent cattle from straying 

and is also needed to protect against acts of vandalism on 

their property. 

On july 2, 1987, the Strahans filed a verified 

complaint in the Pistrict Court, requesting a temporary 

restraining order and a permanent injunction to enjoin the 

Bushes from closing the gate. The temporary restraining 

order was granted on July 31, 1987. After the hearing, the 

District Court, on July 25, 1988, issued an order permanently 

restraining the Bushes from interfering with the Strahans" 

unrestricted access to their property. The court's order 

stated that the Rushes may install a cattle guard at their 

own expense under the gate controll-ed by the Stra-hans. 

We rephrase the Rushes' issues as follows: 

1. Did the District Court err in construing the terms 

of the easement which granted the Strahans' ingress and 

egress? 

2. Were all necessary parties joined? 

3. Does the cattle guarcl. impose an additional burden 

not contemplated by the easement? 

On appeal, we limit our review to the question of 

whether the District Court abused its discretion in granting 

the injunction. Sampson ~7. Grooms (Mont. 19E38), 748 P.2d 

960, 45 St.Rep. 133; Madison Fork Ranch v. T & f? T,odge Pole 
Timber Products (1980), 189 Mont. 292, 615 ~.2d 900. To 

determine if an abuse is present, we review the scope of the 

injunction. The extent of an easement is governed by 

§ 70-17-106, MCA: 

The extent of a servitude is determined 

by the terms of the grant or the nature 

of the enjoyment by which it was 

acquired. 

In other words, 

[wlhere an easement is claimed under a 

grant . . . the extent of the rights 

granted depends upon the terms of the 

grant, . . . properly construed . . . If 

it is specific in its terms, it is 

decisive of the limits of the easement. 

Titeca v. State By And Through Dept. Of ~ish (~ont. 1981), 

634 P.2d 1156, 1159, 38 St.Rep. 1533, 1537, citing 25 

Am.Jur.2dI Easements and Licenses, Sec. 73, at 479. However, 

the instant case involves an easement described generally as 

"an easement for purposes of providing ingress and egress to 

the above described land which easement shall be over and 

across the existing road . . . " Given the ambiguous nature 

of the easement, the court must exercise a different role: 

If the easement is not specifically 

defined, it need only be such as is 

reasonably necessary and convenient for 

the purpose for which it was created. It 

is sometimes held . . . where the grant 

or reservation of an easement is general 

in its terms, that an exercise of the 

right, with the acquiescence and consent 

of both parties, in a particular course 

or manner, fixes the right and limits it 

to that particular course or manner. 

25 Arn.Jur.2dI Easements and Licenses, Sec. 73, at 479. What 

may be considered reasonable is determined in light of the 

situation of the property and the surrounding circumstances. 

Historically, the gate remained closed to discourage 

trespassers and, in fact, existed when the parties purchased 

their properties, subject to the mutual lock agreement. The 
Bushes allege that the Strahans continued the key-lock 

arrangement in 1979, and coordinated the cooperation of other 

landowners to keep the gate closed. Because of their use, 

the Bushes contend that the Strahans waived any claim of a 

restricted access and are therefore estopped from asserting 

that the gate should remain open. Finally, the Bushes desire 

to use the property for cattle grazing, necessitating a 

closed qate. 

On the other hand, the Strahans assert that they took 

control of the gate in 1979, and continued to monitor access 

to the easement. The gate was closed during the 1980 and 

1981 hunting seasons, or during periods when the Strahans 

were away from the property for an extended period of time. 

Further, the other property owners agreed to allow the 

Strahans to control the gate because the Strahans reside on 

the property year-round. In addition, the Strahans assert 

that Evelyn Strahan cannot open the gate due to her back 

condition. 

In City of Missoula v. Mix (1950), 123 Mont. 365, 372, 

214 P.2d 212, 216, this Court set forth the limitations on 

the right of an owner of land subject to an easement to 

interfere with the use of the reserved easement, stating: 

The owner of a reserved easement may use 

it to the full use of the right retained. 

The owner of the servient tenement may 

make use of the land in any lawful manner 

that he chooses, which use is not 

inconsistent with and does not interfere 

with the use and right reserved to the 

dominant tenement or estate. 

See also, Flynn v. Siren (19861, 219 Mont. 359, '1.1 P.2d 

1371, and Titeca, supra. While we acknowledge the Rushes' 

interest of leasing their property for a cattle grazing 

operation, nonetheless, the gate unreasonably interferes with 

the Strahans' reserved easement rights. As found by the 

lower court, Evelyn Strahan cannot open the gate without 

assistance, and is therefore restricted in her movement from 
the property. Also, the gate must be kept open during the 

winter months to facilitate snow removal and for maintenance 

of the road. Because the road is the only access to the 

Strahans' sole residence, t.he District Court denied the 

Rushes' contention that the gate should remain closed. 

Accordingl-y, the District Court fashi.oned an injunction which 

allowed the Strahans' ingress and egress from their property, 

and ordered an appropriate solution to address the Bushes' 

interest of leasing the property for a cattle grazing 

operation. To further minimize the impact of his decision, 

the District. Court admonished the Strahans to respect the 

rights of the Bushes and cooperate by closing the gate 

whenever it is reasonable to do so. We find the scope of the 

injunction is proper. 

Next, the Bushes contend the court did not join all 

parties necessary to the controversy. Rule 19(a), 

M.R.Civ.P., provides: 

A person who is subject to service of 

process shall be joined as a party in the 

action if (1) in his absence complete 

relief cannot be accorded among those 

already parties, or (2) he claims an 

interest relating to the subject of the 

action and is so situated that the 

disposition of the action in his absence 

may (i) as a practical matter impair or 

impede his ability to protect that 

interest or (ii) leave any of the persons 

already parties subject to a substantial 

risk of incurring double, multiple, or 

otherwise inconsistent obligations by 

reason of his claimed interest. . . 

Whenever feasible, persons materially interested in the 

subject of an action should be joined as parties so they may 

be heard and a complete disposition made. See, Commission 

Comments, Rule 19(a), M.R.Civ.P. However, no evidence exists 

to support the Bushes' assertions that the other property 

owners are indispensable. The easement subiect to this 

action lies completely within the perimeter of the !and owned 
only by the Eushes and. the Strahans. We find that the 

District Court rendered a binding decision between the 

part5 es. 

Finally, the Bushes argue the cattle guard provided for 

by the District Court's order imposes an additional burden 

not contempl-ated by the original easement. While it may be 

that the easement did not specifically contemplate the 

construction of a catt1.e guard, nonetheless, we note that a 

court sitting in equity causes is empowered to determine the 

questions involved in the case and do complete justice. 

Hames v. City of Polson 11950), 123 Mont. 469, 215 P.2d 950. 

"The court has all of the power requisite to render justice 

between the parties. . . I' F.ase v. Castle Mountain Ranch, 

Tnc. (Mont. 1981), 631 P.?d 680, 687, 38 St.Rep. 992, 1000. 

Affirmed . 

,/ 

We concur: ,+' 

ef Justice /