DA 16-0768

IN THE SUPREME COURT OF THE STATE OF MONTANA

2017 MT 255N

ROGER and LAURA EDMISTON,

 Plaintiffs and Appellees,

 v. 

KENNETH and DEBRA GERKEN,

 Defendants and Appellants.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and For the County of Gallatin, Cause No. DV-12-62B

Honorable Mike Salvagni, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Alanah Griffith, Griffith Law Group, Bozeman, Montana

For Appellees:

Sky S. Jones, Jones Law, P.C., Bozeman, Montana

Submitted on Briefs: August 30, 2017

 Decided: October 24, 2017

Filed:

__________________________________________

Clerk

10/24/2017

Case Number: DA 16-0768
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Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating 

Rules, this case is decided by memorandum opinion and shall not be cited and does not 

serve as precedent. Its case title, cause number, and disposition shall be included in this 

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana 

Reports.

¶2 Kenneth and Debra Gerken (the Gerkens) appeal from findings of fact and 

conclusions of law entered by the Eighteenth Judicial District Court, Gallatin County,

granting Roger and Laura Edmiston (the Edmistons) an easement. We affirm.

¶3 The Edmistons own Tract 44 in a subdivision commonly referred to as Battle 

Ridge Ranch. The Gerkens own Tract 37. Julie Cox (Cox) currently owns Tract 45 and 

was the prior owner of both Tracts 37 and 44. On October 22, 2004, Cox sold Tract 37 to 

the Gerkens. Subsequent to a title search and the title company’s request, Cox granted 

the Gerkens an easement to Tract 37 through Tracts 44 and 45 in a document titled

Easement for Right-of-Way for Ingress, Egress, and Underground Utilities (Easement). 

The Easement stated it “intended to be a driveway to serve Tracts 44 and 37 and is not 

intended to establish or create a roadway, easement, or travel corridor to serve any other 

Tract or property other than that described herein.” The Easement also included a 

provision on gates: “No gate or obstruction shall be placed over, through, or across the 

easement granted herein at any point on Tract 44, 45, or 37 without the prior written 

consent of the owners of each such tracts.” 
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¶4 The route referred to in the Easement, established prior to Cox’s sale to the 

Gerkens, is described from north to south as traveling through Tract 37, entering Tract

44, reentering Tract 37, reentering and traveling through Tract 44, and then traveling

through Tract 45. On August 30, 2005, Cox sold Tract 44 to the Edmistons. The 

Edmistons plan to build on their property either on the southwest or northeast corner. 

After the Edmistons purchased Tract 44, the Gerkens removed timber and brush from 

their property and placed it in a pile on the Edmistons’ property. Prior to September 24, 

2009, the Gerkens constructed a gate on their Tract 37 without obtaining written consent 

from Cox or the Edmistons. The gate obstructs the Edmistons’ use of the easement to 

access the northeast corner of Tract 44. 

¶5 As a result of the timber and brush pile and the gate, the Edmistons filed a 

complaint against the Gerkens alleging trespass, nuisance, and seeking a declaratory 

judgment finding the Gerkens’ gate illegal. The District Court found the timber and 

brush pile was a nuisance and the Gerkens’ construction of a gate required permission 

from Cox and the Edmistons. The District Court ordered the “Edmistons, and any 

subsequent owners of Tract 44 in the Battle Ridge Ranch Subdivision, are entitled to use 

the portion of the road that enters onto Tract 37 before returning to Tract 44 for the 

purposes of accessing the northeast portion of Tract 44.” The District Court denied the 

Edmistons’ claims for damages for trespass and nuisance and ordered the Edmistons and 

the Gerkens to each pay their own costs and attorney fees. The Gerkens appeal.

¶6 The Gerkens raise three issues on appeal. First, the Gerkens argue the District 

Court erred in recognizing the owners of Tract 44 have an easement over Tract 37. “A 
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grantor may expressly reserve an easement over granted land in favor of retained land by 

using appropriate language in the instrument of conveyance.” Blazer v. Wall, 2008 MT 

145, ¶ 27, 343 Mont. 173, 183 P.3d 84 (citations omitted). On October 22, 2004, Cox 

sold the Gerkens Tract 37. Contemporaneous to the conveyance, the parties executed the 

Easement, which was “intended to be a driveway to serve Tracts 44 and 37.” The

Easement was recorded with the Gallatin County Clerk and Recorder’s office on October 

25, 2004. 

¶7 This document created an express easement reserved over granted land, Tract 37, 

in favor of land Cox retained, Tract 44. The intention was that Tracts 37 and 44 would 

share the Easement as a driveway. The Edmistons now own Tract 44 and intend to use 

the Easement as a driveway if they build on the northeast corner of their property. The 

Edmistons’ planned use is in accord with the Easement. The Gerkens argue Cox, as the 

owner of both Tract 44 and 45, could not have created an express easement over one of 

those parcels in favor of the other because the servitude would simply merge back into 

fee, see Broadwater Dev., LLC, v. Nelson, 2009 MT 317, ¶ 36, 352 Mont. 401, 219 P.3d 

482; however, the District Court correctly concluded there is an express easement over 

granted land, Tract 37, in favor of retained land, Tract 44. We conclude the District 

Court was correct and it is therefore unnecessary to address the Gerkins’ argument 

pertaining to merger. The District Court did not err in recognizing the Edmistons, and 

any subsequent owners of Tract 44, are entitled “to use the portion of the road that enters 

onto Tract 37 before returning to Tract 44 for the purposes of accessing the northeast 
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portion of Tract 44.” Because the express easement resolves the issue, we do not address 

the Gerkens’ arguments regarding the Battle Ridge Ranch subdivision covenants.

¶8 Second, the Gerkens argue the District Court erred in requiring them to obtain 

permission to erect a gate across the shared Easement. “In the construction of an 

instrument, the intention of the parties is to be pursued if possible.” Section 1-4-103, 

MCA. The intended purpose of the Easement was to be used as a driveway for Tracts 37 

and 44. The Easement states, “No gate or obstruction shall be placed over, through, or 

across the easement granted herein at any point on Tract 44, 45, or 37 without the prior 

written consent of the owners of each such tracts.” (Emphasis added.) The Gerkens 

argue this provision could be read to require written consent only if an owner of one tract 

planned to build a gate across any point of the Easement located on another owner’s tract. 

The District Court concluded it required written consent of all the owners of Tracts 37, 

44, and 45 for any gate built at any point on the Easement no matter its location. The 

purpose of using the easement as a driveway would be frustrated if any individual tract 

owner could erect a gate blocking the easement on his or her own property without 

obtaining permission from the remaining tract owners. The District Court did not err in 

concluding the Gerkens violated the Easement provision “by constructing a gate without 

prior written consent [of] the owners of Tracts 44 and 45.”

¶9 Third, the Gerkens argue that if they prevail on their claim regarding the 

Easement, then they prevail on all claims and the District Court’s conclusion that each 

party is responsible for their own attorney fees because each party partly prevailed, is 

incorrect. Because we conclude the District Court did not err in granting the Edmistons 
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an easement, by the Gerkens’ logic, we do not address its denial of both parties’ requests

for costs and attorney fees. 

¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of 

our Internal Operating Rules, which provides for memorandum opinions. This appeal 

presents no constitutional issues, no issues of first impression, and does not establish new 

precedent or modify existing precedent.

¶11 Affirmed.

/S/ LAURIE McKINNON

We Concur: 

/S/ MICHAEL E WHEAT

/S/ JAMES JEREMIAH SHEA

/S/ BETH BAKER

/S/ JIM RICE