No. 88-589
INTHE SUPREME COURT OFTHE STATE OFMONTANA 1989

JOHNW. STRAHAN, EVELYN STF!AHAN, and LTERRY b7. STRAHAN,
Plaintiffsand Respondents,-vsDAVID W. BUSH and PAMELA F. RUSH, etal.,
Defendantsand Appellants.

APPEAL FROM: DistrictCourtof the ThirdJudicialDistrict, In and forthe Countyof Granite, TheHonorableTedT,. Mizner, LTudgepresiding.

COUNSEL OF RECORD:
ForAppel-].ant: Sol & Wolfe; Michael Sol, Missoula, Montana

ForRespondent:
Boone

## ,Karlberg & Paddon; David3. Dietrich, Missoul.a, I-Montana r..

---- - Submittedon Briefs: March 23, 1989
Decided: May 31 1989Mr. JusticeJohn Conway Harrisondelivered 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.dicialDistrict, Granite County, Montana, the HonorableTed L. Mizner presiding, to the plaintiffs, JohnW. 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 

### "[florpurposes 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 operationof the gate, the other property owners testified. to a "gentl-eman'sacrreement," stating that what was best for theStrahanswasbest for them. In 1984,the Rushes unilaterally closed the gate, initiating thepresentdispute. The Strahans resideon theproperty year-roundand 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-ocalranchers for cattle grazing purposes. At trial, David Bush testified that the gate is a necessary part of the grazing operationtoprevent cattle from straying and is also needed to protect against acts of vandalism on theirproperty. 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,onJuly 25, 1988, issued an orderpermanently 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 expenseunder the gate controll-edby 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 allnecessaryparties joined? 3. Does the cattle guarcl. impose an additional burden not contemplatedby 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,odgePoleTimber 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.

Inotherwords, [wlhere an easement is claimed under a grant 

# . . .the extent of the rights granted depends upon the terms of the grant, 

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# . . 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 ofproviding 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 isnot specifically defined, it need only be such as is reasonably necessary and convenient for thepurpose forwhich itwas 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 ormanner, 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, existedwhen theparties purchased their properties, subject to the mutual lock agreement. TheBushes allege that the Strahans continued the key-lock arrangement in 1979,and coordinated the cooperationofother 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 remainopen. 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 tomonitor 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 ofMissoula 

### v. Mix (1950),123Mont. 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 easementmay use it to the fulluse of the right retained. The owner of the servient tenement may make use of the land inany 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 gateunreasonably 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 fromthe property. Also, the gate must be kept open during the winter months to facilitate snow removal and formaintenance 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 DistrictCourt fashi.onedan injunctionwhich allowed the Strahans' ingressand egress from theirproperty, 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 reasonableto do so. We find the scope of the injunction isproper. 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 shallbe joined as aparty 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 ownedonly by the Eushes and. the Strahans. We find that the District Court rendered a binding decision between the part5es. Finally,the Bushes argue the cattleguard provided for by the District Court's order imposes an additional burden not contempl-atedby the original easement. While itmay 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), 123Mont. 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

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,/ We concur: 

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ef Justice /