No. 88-222 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

CHARLES R. WAGNER, MELISSA L. WAGNER 

AND WILLIAM L. PETERSON, 

Plaintiffs and Appellants, 

-vsANDREA OLENIK, JAMES C. HERBEL, and 

ETHEL HERBEL, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Big Horn, 

The Honorable William Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moses Law Firm; Stephen C. Moses, Billings, Montana 

For Respondent : 

Dorsey & Whitney; John G. Crist, Rillings, Montana 

Submitted on Briefs: Aug. 18, 1988 

Decided: September 26, 1988 

Filed: SEp 2 6 1988 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

This appeal from the Thirteenth Judicial District, in 

and for the County of Big Horn, involves appellants Wagners' 

and Peterson's (Wagners') claim for an easement by necessity 

across the property of respondents Olenik and Herbels. The 

District Court granted Olenik's and Herbels' motion for 

summary judgment holding that no easement by necessity 

existed. We affirm. 

Wagners present the following issues for review: 

(1) Was there a factual issue before the Court 

regarding access to the premises in 1914? 

(2) Can an implied easement be extinguished by adverse 

possession? 

The relevant facts and procedure are as follows: The 

lower court reasoned that no easement existed because the 

common grantor of the parties' predecessors in title, the 

United States, had access out of its property at the time a 

transfer to Olenik's predecessor in title severed unity of 

the parcels. The lower court also held that even if an 

easement had existed at the time the United States severed 

unity of title, adverse possession had extinguished the 

easement prior to the claim made here. FJe agree that no 

facts support Wagnersf contention that an easement by 

necessity has ever existed on the properties at issue, and 

affirm on that basis. 

The alleged easement, a two track unimproved trail the 

width of an automobile, runs through Wagners' property in 

Section 27, Township 3 North, Range 33 East, M.P.M., Big Horn 
County, Montana, and proceeds through property owned by 

Herbels and Olenik in Sections 34 and 35, owns ship 3 North, 

Range 33 East, M.P.M., Big Horn County, Montana. 

The parties agree that after unity of title was broken 

no one person has held all the parcels through which the 

trail runs. The parties also agree that no express easement 

was retained by the government when unity of title was 

severed. 

The following conveyances are listed in the lower court 

as agreed facts: 

11. The following portions of the Olenik 

property were conveyed from the United States 

Government to Olenik's predecessors in interest by 

Patent No. 404785 on May 13, 1914: 

The South half (St) of the Northeast quarter 

(NEI) and the Southeast quarter (SE$) of the 

Northwest quarter (NWi ) of Section 35, 

Township 3 North, Range 33 East, M.P.M. 

according to the Official Plat of the Survey 

of the said Land, returned to the General Land 

Office by the Surveyor-General. 

12. The following portions of the Olenik 

property were conveyed to Olenik's predecessors in 

interest by Patent No. 450810 on December 23, 1914: 

The Southwest quarter (SWI) of the Northwest 

quarter (NW3) of Section 35 and the Northeast 

quarter (NEI) of Section 34 of Township 3 

North, Range 33 East, M.P.M. according to the 

Official Plat of the Survey of the said Land, 

returned to the General Land Office by the 

Surveyor-General. 

13. The following portion of the Herbel 

Property as conveyed to Herbels' predecessors in 

interest by Patent No. 479100 on June 21, 1915: 

The North half (Ni) of the Northwest quarter 

(NWi) of Section 35, Township 3 North, Range 
33 East, M.P.M. according to the Official Plat 

of the Survey of the said Land, returned to 

the General Land Office by the 

Surveyor-General. 

14. The following portion of the 

Wagner/Peterson property as conveyed to 

Wagner/Petersonls predecessors in interest by 

Patent No. 579984 on April 23, 1917: 

The South half (SJ) of Section 27, Township 3 

North, Range 33 East, M.P.M. according to the 

Official Plat of the Survey of the said Land, 

returned to the General Land Office by the 

Surveyor-General. 

15. The following portion of the Olenik 

property was conveyed to Olenik's predecessors in 

interest by Patent No. 579982 on April 23, 1917: 

The Northwest quarter (NWi) of Section 34 

East, Township 3 North, Range 33 East, M.P.M. 

according to the Official Plat of the Survey 

of the said Land, returned to the General Land 

Office by the Surveyor-General. 

The parties agree that the first conveyance, on May 13, 

1914, severed unity of title. The only fact question 

remaining for the lower court on the actual existence of the 

alleged easement was whether the grantor of the parties' 

predecessors in title, the United States, retained an 

easement by necessity because the conveyance cut off access 

to its remaining property. The lower court found in this 

regard : 

[Alt the time of separation of the ownership of the 

property, that is 1914, there was an alternative 

route to the highway in question, hence an easement 

by necessity was not created at that time. 

Facts presented by Olenik and Herbels revealed that no 

physical barriers existed to prevent the United States from 

gaining access to what became Wagners' property across 
property remaining in its ownership following the conveyance 

on May 13, 1914. Wagners offered no facts to refute this 

contention. 

On the first issue Wagners contend the District Court 

erred because it equated the possibility of riding a horse 

across open prairie with "access" for analyzing whether 

necessity to use the alleged easement existed in 1914. 

Olenik and Herbels respond that Wagners incorrectly equate 

"access" with the existence of a road or trail. We agree 

with Olenik's and Herbels' argument. 

Necessity must be strictly defined by the lack of the 

means of ingress and egress. State v. Cronin (1978), 179 

Mont. 481, 488, 587 P.2d 395, 399. A strict definition of 

the lack of a way in and out of property does not include 

lack of a road under the agreed facts of this case. See, 

e.g., Oyler v. Gilliland (Ala. 1980), 382 So.2d 517. The 

agreed facts demonstrate that the United States retained 

access to the South half of Section 27, that is, what became 

Wagners' property, at the time the May 13, 1914, conveyance 

severed unity of title. More specifically, the facts reveal 

that the United States had access in and out of the South 

half of Section 27 from the North half of Section 27, the 

South half of Section 26, the South half of Section 28, and 

beyond. 

Necessity of the alleged easement for access to the 

parcel retained by the grantor must exist at the time unity 

of title is broken. Graham v. Mack (Mont. 1984), 699 P.2~3 

590, 596, 41 St.Rep. 2521, 2528. Otherwise, no easement is 

created. Cronin, 587 P.2d at 399. 

District courts properly grant summary judgment when no 

material fact questions exist, and in light of the 
substantive principles of law involved, the established facts 

entitle the movant to judgment as a matter of law. Fleming 

v. Fleming Farms, Inc. (Mont. 1986), 717 P.2d 1103, 1106, 43 

St.Rep. 776, 779. The lack of a material fact question on 

the absence of necessity at the time the May 13, 1914, 

conveyance entitled Olenik and Herbels to judgment as a 

matter of law. 

The second issue here is rendered moot by resolution of 

the first issue because in the absence of creation of an 

easement by necessity, no showing need be made that Olenik's 

and Herbels' control of the alleged easement extinguished 

such easement. Thus, we affirm on the basis of resolution of 

the first issue for Olenik and Herbels. 

@E Justice &~Z%~B