DA 07
- 0602 IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 451
GARY L. WATERS and PATRICIA WATERS, Plaint iffs and Appellants,
v. CAMERON A. BLAGG, JERRY PAUL OVERMAN, DELBERT E. BOWE and LINDA M. BOWE, and all other persons, unknown, claiming or who might claim any right, ti

tle, estate, or interest in or lien or encumbrance upon the real property

described in the Complaint adverse to Plaint iffs, ownership or any cloud upon Plaint iffs’ tit le thereto, whe ther such claim or possible claim be present or con tingent, Defendants and Appellees.

APPEAL FROM: Di strict Court of the Twentieth Judicial District,

In and For the County

of Sanders, Cause No. DV
- 06
- 08 Honorable C.B. McNeil, Pre siding Judge COUNSEL OF RECORD:

For Appellants: Randall A. Snyder; Snyder Law Officer; Bigfork, Montana For Appellees: Darrell S. Worm; Ogle and Worm; Kalispell, Montana Submitted on Briefs: August 13, 2008 Decided: December 30, 2008 Filed:

__________________________________________ Clerk December 30 20082

Justice W. William Leaphart delivered the Opinion of the Court. ¶1 Gary and Patricia Waters (“the Waters”) c ommenced ana ction in Sanders County District Court to quiet title to their property, seeki ng declaration that the property was unencumbered by anye asements in favor of n eighbors Blagg, Bowe, and Overman, ( collectively “the Defendants”) ; and that B lagg’s r ock harvesting operation on the adjoining propertyw as anuisance. The Defendants counterclaim that they acquired easement by implication or by prescription. The District Court granted summary judgment i n the Defendant s ’ f

avor, d eclaring a blanket implied easementb y pre - existing
use and b y necessity , and a prescriptive easement as to all Def endants on existing

r oa ds crossing the Waters ’ p roperty
. T he District Court subsequently held ab enchtrialt o resolve those issues not subject to summary judgment , and det ermined that the D efendants’ use of the easement was within the permissible scope, and that Blagg’s rock harvesting

o peration did

n ot c onstituteanuisance. T he Waters appeal from both the summary judgment and final judgment. We affirm in part, reverse in part, and remand to the District Court for proceedings consistent with this opini on.

FACTUAL AND PROCEDURAL BACKGROUND ¶2 The parties own property in Section 17 of rural Sanders County, Montana. Access to the properties commences from Montana Highway 56, continuing a cross approximately one mile of United States Forest Service (“USFS”) p rope rty where it enters Section 17 at the eastern boundary of Waters’ ParcelE
. B efore the mainr oad continues into Waters’ ParcelC
- 2, a southerly sp ur provides access to the Bowe p roperty, ParcelJ. The main road continues into ParcelC
- 2, where it aga in divides into an “upper”3

and “lower” road
. T he upper road cuts diagonally across Parcel C
- 2, providing access to the Blagg( Parcel s C, C
- 1, G, and H) and Overman ( Parcel s K, A) p roperties and the lower road continues along the boundary line between Parc elC
- 2 and ParcelE, providing
access both t o Blagg ’ s properties and for landowners not party to this action
. W aters’ residence is located on ParcelC
- 2. The roads described provide the only practical access to all properties i n Section 17
. T he parties’ u se o f the USFS road is permissive
. A diagram of the subject properties is appended to this Opinion for reference. ¶3 As of 1963, WH Field and Company , Inc. ( “ Field Co. ”) owned the east half o f Section 17, including the parties’ property , in one unified tract
. Field Co. conveyed each of the p arcel s at i ssue between 1964 and 197 6 , but faile d to e ffectivelyr eserve o r grant easements for the benefit of any of the properties it conveyed
. All parties to this action therefore h old title to propertyl acking le gal access . 1 The Waters purchased first Parcel C
- 2, and then ParcelE , with the knowledge that there was no legal access across the USFS property to any of the properties in Section 17, including their own. ¶4 The a ccess r oad in questioni s a dirt road typ ical of old logging roads found in Western Montana. In places, it is not wide enough for two cars to pass. The use of the road has been similarly typical. At the time Field Co. purchased its interest inSection 17, the network of roads on the propertyh ad beenutilized e xclusivelyf

or logging purposes. 1 T he record on appeal indicates the parties’ agreement that Blagg reserved an easement over Waters ’ Parcel

C
- 2 f or the benefit of the remainder of his property in Parcel C. However, neither the parties nor the District Court co nsidered the effect of suc h an easement in their respective analyses o f the i ssues in this case, and the deed from Blagg to Waters which purportedly contains the easement language was not made a part of the record on appeal. O ur analysis of the respective rights of

the part ies to this case does not therefore take int o account the existence of the purported reserved easement fo r the benefit of B lagg’s prop erty

a cross the Waters’ Parcel C
- 2.4

Eachof the p arcel s at issue continued to belogged to some extent after they were severed from common ownership under Field Co. ¶5 In 199 6 , Blagg began small scale rock harvesting and sale from his property . Th e scale of his operation and corresponding use of the road has increased s ignificantlys ince that time , peaking in 200 6
. There i s now approximatelyo ne loaded truck per day traveling the road, and Blagg’s em ployees use the road to get to work. Overman sold a substantial quantity of rock to a third party in 1996 or 1997, and has not sold or harvested rock since then , although he plans to do so in future
. In 2004, Blagg began harvesting rock from the Bowe property, requiring travel between th ose prope rties over both the Waters’ p arcel s. Prior to the Waters’ construction of their residence from 1997
- 2000, residential use of the road was s poradic and limited
. Since that time, use of the road has become increasingly residential. The Waters do not objec t t o use of the road for residential purposes. ¶6 Blagg’s rock harvesting and hauling operations are typical, with the attendant dust, noise, and travel one would expect of such ano peration. Blagg acknowledged that his operation was negatively affecting the Waters, and has made attempts to address the Waters’ concerns regarding both the harvesting operationand the associated travel on the road in question. D espite these attempts, the Waters maintain that the operation continues to inhibit the quiet peace and enjoyment of their property , constituting a nuisance
. ¶7 The District Court granted s ummary judgment in favor of the Waters with respect to their claim that none of the named D efendants have a granted or recorded easement to5

cross the Waters’ property
. The court denied the Waters’ motion as to their claim that the Defendant s l ack implied or prescriptive easements, instead granting s ummary judgment in favor of the D efendants o n those i ssue s . The District Court then held a bench trial to determine the s cope of use o f the declared easements , and t o e valuate the merits of the Waters’ nuisance claim. From that trial, the court determined that Blagg has an express easement over th e Waters’ property, and that eacho f the Defendants have easements by necessity, by pre
- existing use, and by prescription across the Waters’ property. The court further concluded that the u se o f the roads a ssociated with the c ommercial transport of rock was within the permissible scope o f the declared easements , and that Blagg’s ro ck hauling and quarrying operations did not constitute a private nuisance. The Waters appealf our aspects of the District Court’s judgment. 2 F irst, that the Defendants are

2 I n br iefing to thi s Court, the Waters do not appeal the District Court’s apparent determinat io n that Blagg has an express easement over the Waters’ property . However, because declaration of the parties’ respect ive easement rights is cri tical to determining the scope of u se those easement rights will support, we are co mpelled to co rrect the Di strict Court’s erroneous co nclusio n that Blagg has an express easement to cross the Waters’ property
. I n reaching this concl usion , the court apparently relied upon the fo llo wing language in the 1969 deed transferring Parcel Cf rom Field Co. to Hoge: “A pe rmanent road easement is granted to Purchaser of above described property . . . .” The language in question appears in a deed that is wi th in the chain of

ti tle of the dominant estate, here Parcel C
. T here is no evidence of r ecord indicating that language purporting to burden the servient estate, here Parcel E, appears wit hin the corresponding chain of ti tle. We have held that “[ i] t is not enough fo r an encumbrance to be recorded in the chain of ti tle of an easement ’ s dominant estate. I n order fo r the l andowner of the servient estate to be bound, the encumbrance must also be found in the servient estate’s chain of t it le. In determining the ul timate effect of

an easement or restrict io n on the land of another, the general rule is that ‘ [i]n the absence of

a ctual notice bef

ore or at the time of
. . . purchase or of o ther except io na l ci rcumstances, an owner of l and is only bound by restrict io ns if they appear in some deed of record in the conveyance to [ that owner] or [that owner’s] di rect predecessors in ti

tle. ’” Nelson v. Barlow, 2008 MT 68, ¶ 16, 342 Mont. 93, ¶ 16, 179 P.3d 529, ¶ 16 (internal citations omitted). Since there is nothing in the record before us indicat ing an express easement over the Waters’ property, we proceed on the assumption that none of the party D efendants, including Blagg, have a granted or recorded easement to cross that property
.6

entitled to an implied easement by pre - existing use or necessity. S econd, that th e Defendants are entitled to an easement by prescription. T hird, that the scope of the Defendants ’ easement rights allow the u ses associated with the commercial harvest of rock. Finally, that Blagg ’ s operations do no t constitute a private nuisance
. STANDARD OF REVIEW ¶8 We review a district court’s grant of summary judgment de novo. Bowyer v. Loftus , 2008 MT 332, ¶ 6, 346 Mont. 182, ¶ 6, 194 P.3d 92, ¶ 6. Le gal conclusions and mixed questions of law and fact are also reviewed de novo. Stanley v. Lemire , 2 006 MT 304, ¶ 25, 334 Mont. 489, ¶ 25, 148 P.3d 643, ¶ 25. ¶9 We resolve the following dispositive issues on appeal: ¶10 I. Did the District Court err in concluding that the Defendants were entitled to declaration of an implied easement by pre
- existing use ? ¶11 II. Did the District Court err in concluding that the scope of the Defendants’ easement permitted uses associate d with the commercial harvesting of rock? ¶12 III. Did the District Court err i nd etermin ingthat Blagg’s r ock harvesting operation did

not constitute a nuisance?

DISCUSSION ¶13 I. Did th e District Court err incon cluding that th e Defendants we re en title d to declaration of an implied easement by pre - existing use? ¶14 An implied easement is created by operation of law at the time a contiguous tra ct of land is severed from common ownership. Wolf v. Ow ens , 2007 MT 302, ¶ 16, 340 Mont. 74, ¶ 16, 172 P.3d 124, ¶ 16. I f, prior to the timeo f severance from common ownership, “ a use exists on the ‘ servient part ’ that is reasonably necessary for the enj oyment of the ‘ dominant part, ’ and a court determines that the parties intended the use7

to continue after division of the property,” then an implied easement by pre - existing use is created. Wolf

, ¶ 17, citing Albert G. Hoyem Trust v. Galt, 1998 MT 300, ¶ 22, 292 Mont. 56, ¶ 22, 968 P.2d 1135, ¶ 22. F or the use at issue to give rise to an easement by pre - existing use, it must be apparent and continuous at the time the tract is divided. Wolf , ¶ 17. P ut another way, three elements must be satisfied: 1) th e tracts at issue must have bee n severed from common ownership; 2) the use that exists on the servient tractm ust be apparent, continuous, and r easonably necessary for the b eneficialu se and enjoyment of the dominant tractat the time of severance ; and 3) the parties to the deed must have intended the use to continue after division of the property. ¶15 The Waters challenge only the second element of this test
. Specifically, they argue that because the parties access Section 17 b y permissiveu se of a USFS roa d , the proposed easement by implication will not provide true legal access, thus it cannot be necessary for

b eneficial use and enjoyment o f the D efendants ’ l and
. Essentially, they assert that an easement by implication cannot be declared where there is no connection to a public road. The Defendants argue that for the purposes of our analysis , the USFS road is a “public road , ” and that moreover , connection to a public road is not required where, as here, there is a pre
- existing use of the proposed implied easement
. ¶16 The Waters cite several cases for the proposition that an implied easement by pre
existing use cannot exist where there is no direct connection to a public road : Schmid v. McDowell , 199 Mont. 233, 649 P.2d 431 (1982); Graham v. Mack, 216 Mont. 1 65, 699 P.2d 590 (1984); and Rathbun v. Robson , 203 Mont. 319, 661 P.2d 850 (1983)
. However, th e cases cit ed by Waters recite this requirement only in situations where an8

implied easement by necessityi s being clai me d. There is no s uch requirement wher e an implied easement by pre - existing usei s claimed. The Waters’ argument fails to give effect to the c ritical distinction between the two types of implied easements: unlike an easement by necessity, an easement by pre - existing use depends upon a route already in existence. ¶17 The r ationale behind this distinction is more practical then academic. Where a party seeks recognition of an implied easement by pre - existing use, the road in question is already being used for access to the outside world. C onvers ely, whenan easement by necessity is being claimed w here there is no connectiont o a public roadway, “the basic
reason for the creation of a way of necessity, namely, to permit communication with the
o utside world, is not present.” Schmid v. McDow ell , 19 9 Mont. 233, 238, 649 P.2d 431 , 43 3 (1982) (internal citations omitted). Such an easement would represent th e proverbial “road to nowhere.” In each of the cases the Waters cite, the proposed easement did not physically exist at the time the properties we re severed from common ownership. T his critical fact is not present in the instant case. ¶18 We conclude that ac onnection to a public road is not required where a landowner seeks declaration of an implied easement by pre
- existing use. The Waters’ argument that the rationale behind requiring a connection to a public road is present in the instant case is not persuasive
. The pre - existing road that all parties have used to access their property in Section 17 is in fact a road t o somewhere

— namely, to aU SFS r oad that i n turnl eads to the public highway. The Waters ’ assertionthat the roadcrossing their propertymerely represents a ccess to federal land a s opposed to access to the outside world i s somewhat9

disingenuous in light of the Waters’ depend ence upon the USFS road for access to their
ownp roperty. The D istrict Court correctly concluded that the Defendants were e ntitled to declaration of an implied easement by pre - existing use across the Waters’ land. T his conclusion renders moot a determinationo f whe ther the Defendants were e ntitled to declaration of an implied easement by necessity or of a prescriptive easement. W e therefore turn to the issue of the scope of the Defendants’ easement rights
. ¶19 II. Did the District Court err in concluding that the sc ope of the Defendants’ easem ent permits uses associated with the commercial harvest in gof rock ? ¶20 The scope of an implied easement i s controlled by the apparent intent of the landowner who e ffected as everance of the dominant and servient estates. See e . g. Tungsten Holdings, I

nc. v. Kimberlin , 2000 MT 24 , ¶ 27, 298 Mont. 176, ¶ 27, 994 P.2d 1114, ¶ 27, overruled on unrelated grounds , Shammel v. Canyon Resources Corp. , 2003 MT 372, 319 Mont. 132, 82 P. 3 d 912. An easement by implication arises by operationof law at the time the dominant and servient estates are s evered from common ownership. Wolf , ¶ 16. ¶21 Here, the D efendants’ implied easement by pre - existing use t o cross the Waters’ ParcelC was created by operation of law in1969, when Field Co. severed ParcelC from its common ownership of the remainder of its holdings in Section 17. The easement over ParcelEw as c reated in like manner in 1972. Therefore, our inquiry regarding the scope of the Defendants’ easement focuses on Field Co. ’s intent with r espect to the use of the roads in Section 17 i n 1969 and 1972 respectively. The D istrict Court foundthat at the time the Defendants ’ e asement by implication arose , the roads in Section 17 were b eing10

used in a manner associated with commercial logging ope rations ; and that the Defendants ’ u se of the road for c ommercial rock harvesting operations fell w ithin the permissible scope of the easement
. ¶22 We discernthe intent of the original owner with respect to the scope of an implied easementb y considering “no t o nly the actual uses being made at the time of the severance [from common ownership], but also to such uses as the facts and circumstances show were within the reasonable contemplation of the parties at the time of the conveyance.” Tungsten Holdings, In c. , ¶ 27. The scope of an easement by implication is not permanently frozen at the time of severance, but rather it is measured “by such uses
as the parties might reasonably have expected from future uses of the dominant tenement.” Tungsten Holdings, Inc

. , ¶ 27 , 33 , citing Restatement of Property§ 484, cmt. b (1944). W e assume that the person who severs two p arcel s from common ownership creating an easement by implication “anticipated such uses as might reasonably be required by a normal development of the dominant tenement.” Tungsten Holdings, I nc. , ¶ 33
. ¶23 The Waters first

urge this Court to overrule our holding in Tungsten Holdings, Inc.
as inconsistent with the scope of use rules for recorded and prescriptive easements. They
argue that litigants wi ll b e motivated to assert implied easement claims over any other formo f e asement

s ince the scope of an implied easement is potentially far more expansive than the scope of an express or prescriptive easement. T his argument inexplicably presumes that any party with an easement dispute will , at their convenience, be able to establish the elements of an easement by implication, thereby forcing the court11

to automatically award

them expansi ve easement rights. M oreover, the Waters ’ argument ignores that the sc ope of an implied easement is dictated by proof of the intent of the property owner at the time of the severance. The Waters’ suggestion that anyparty asserting an implied easement will be granted expansive easement rights as a matter of
course is not we ll taken. T he extent of an easement by im plication is limited to the uses existing at the time of the severance, and other uses the circumstances s how the parties might reasonably have expected from future uses of the dominant estate. Tungsten Holdings, Inc. , ¶

¶ 27, 3 3
. Allowing for normal development of an easement simply permits a court to accommodate the inevitable changes in use that occur on rural properties. ¶24 In the i nstant case, the parties agree that at the time of severance, the road in questio n had been used in a manner associated with c ommercial logging operations. It is apparent from the District Court’s findings and conclusions that it determined Field Co. might reasonably have expected that the road would e ventuallyb e used in a manner
ass ociated with a small scale commercial rock harvesting operation
. W e agree. At the time of severance, the entirety of Field Co .’ s property in Section 17 had been utilized almost exclusively for the purpose of exploiting its natural resources, and in all p robability, Field Co. c ontemplated that such natural resource development would continue
. Importantly, the record reflects that the network of roads in Section 17 was created in order to facilitate commercial logging operations, and that the road in question
was used almost exclusively for that purpose until very recently, when residential development occurred. Finally, the burden imposed on the road by the Defendants’ rock12

harvesting operation is less onerous than that of the logging operations that prec eded it. For example, the weight of a given load of rock is approximately 16,000 pounds, versus 80,000 pounds for a load of logs. ¶25 In sum, the evidence supports the conclusionthat Field Co. “ might r easonably have expected” the commercial hauling of ano ther natural resource
—decorative rock

— over the easement in question. Tungsten Holdings, I nc. , ¶ 27. Ultimately, the Waters’ objection is t o the perceived incompatibility of residential use of the road and those uses associated with resource e xtraction. However, the only evidence of record indicates that at the time of severance , Field Co. reasonably expected continued re source extraction, not residential use, of the roads in question. That the character of Section 17 has become increasingly residential in recent years is of no consequence to our analysis. W e therefore conclude that the scope of the Defendants ’ i mplied easement by pre - existing use permits the use s associated with the commercial harvesting of rock. ¶26 III. Did th e Distri ct Court err ind e terminingt hat th e Defendants’ ro ck harvesting operation didnot constitute a nuisance? ¶27 The Waters assert that the District Court received undisputed evidence that Blagg’s rock harvesting operation and associated rock hauling constituted a nuisance, yet
c oncluded without supportive findings that Blagg’s activity was not a nuisance. The yask this C ourt to reverse the District Court with instructions to find and enjoin Blagg’s operations as a nuisance. T he Defendants acknowledge the District Court’s lack o f findings with respect to its conclusion that Blagg’s operations did no t c onstitute a13

nuisance, but urge this C ourt to apply the doctrine of implied findings and uphold the District Court’s judgment. ¶28 The doctrine of implied findings provides that where “findings are general in terms, any findings not specifically made, but necessary to the [ determination ] are deemed to have been implied, if supported by the evidence.” Caplis v. Caplis , 200 4 M T 145, ¶ 32, 321 Mont. 4 50, ¶ 32, 91 P.3d 1282, ¶ 32 ( internalc itations omitted). The doctrine of implied findings is inapplicable to the instant ca se. Where, as here, there is a glaring absence of any findings, general or otherwise, to support ag ivenc onclusion of law, we must reverse. W e therefore r emand to th e District Court for additional findings specific to the question of whether B lagg’s rock harvesting operation and associated hauling do or do not

constitute a nuisance. ¶29 We affirm in part, reverse in part, and remand to the District Court for pr oceedings consistent with this O pinion. /S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY /S/ JOHN WARNER /S/ PATRICIA COTTER /S/ BRIAN MORRIS14 APPENDIX The fo llo wing diagram

i s reproduced from

the record, wi

th extraneous informat io n r emoved.