No. 95-421

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

DENNIS RUANA, ROBERT W. BIELBY,

CARLA J. BIELBY, PAM MCCOY and

KARL HEINZ-FINKEN,

Plaintiffs and Respondents,

v

LEONARD GRIGONIS and

KATHY J. GRIGONIS,

Defendants and Appellants.

APPEAL FROM: District Court of the Twenty-First Judicial District,

In and for the County of Ravalli,

The Honorable Jeffrey H. Langton, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Don Torgenrud, Attorney at Law, St. IgnatiUS,

Montana

For Respondents:

Zane K. Sullivan; Sullivan & Tabaracci, Missoula,

Montana

j!f c';%% Submitted on Briefs: February I

4% i,. _,i_.~ ? :;; , 1996

ii

Filed:
Justice W. William Leaphart delivered the Opinion of the Court.

The Grigonises appeal from the Ravalli County, Twenty-first

Judicial District Court's Order and Judgment granting Dennis Ruana,

Robert W. Bielby, Carla J. Bielby, PamMcCoy and Karl Heinz-Finken,

Respondents, summary judgment. The Respondents, Bielby and Ruana,

are the developers of "Paradise Acres," Pam McCoy and Karl HeinzFinken are purchasers of one of the "Paradise Acres" lots which

abuts the Grigonis property. Together, the Respondents moved for

summary judgment arguing that they have a reserved sixty-foot

easement crossing the Grigonises' property as a matter of law.

They base their argument on two recent decisions by this Court,

Halverson v. Turner (1994), 268 Mont. 168, 885 P.2d 1285, and Bathe

v. Owens (1994), 267 Mont. 279, 883 P.2d 817. The District Court

granted the Respondents' motion. We reverse.

1 .

2 .

3 .

4 .

5 .

The following issues are presented by the Grigonises:

Did the District Court err in holding, as a matter of law,

that Respondents have an easement by reservation across a

sixty-foot wide private road and public utility easement on

the Grigonises' property, where the certificate of survey for

Respondents' property does not include or depict the easement

nor is it recorded on any other pertinent documents?

Are the Grigonises entitled to summary judgment on the issue

of easement by prescription?

Are the Grigonises entitled to summary judgment on the issue

of easement by implication?

Are the Grigonises entitled to judgment on the issue of

lathes?

Are the Grigonises entitled to summary judgment on the issue

of trespass, based on the Respondents' construction of Blue

Sky Lane and the raising of the surface of North Hidden Valley

Road?

2

-.
6 . Are the Grigonises entitled to attorney's fees expended in

defense of their land?

The property at issue is located in Ravalli County, Montana,

and is situated north and south of the section line between

Sections 8 and 17 of Township 10 North, Range 19 West, M.P.M. The

Respondents allege that they have rights to two easements. The

first is a sixty-foot private road and public utility easement

running east-west just south of the E-17 section line. North

Hidden Valley Road runs roughly through the center of this easement

continuing east to a dead end, and continuing west until it joins

the East Side Bitterroot Highway. The second potential easement,

Blue Sky Lane, comes off North Hidden Valley Road. Respondents

built Blue Sky Lane to access their 56-lot "Paradise Acres"

subdivision to the north of North Hidden Valley Road. Blue Sky

Lane originates on the Grigonises' property.

The properties owned by the Grigonises and the Respondents

were originally contained in a much larger parcel of property, the

Cook Ranch. In 1976, the Cooks sold a portion of the ranch to

Wilbur and Ila Hensler. The Henslers' property encompassed the

parcels now owned by the Grigonises and the Respondents. In 1977,

the Henslers sold a portion of their property to John Reely,

William Reely, and Delbert Ashmore (Reely-Ashmore). The Henslers

to Reely-Ashmore sale included property south of the 8-17 section

line including within it the property now owned by the Grigonises.

The Henslers retained the property to the north of the 8-17 section

line that is now owned by the Respondents. Thus, it was this 1977

3
sale that split the properties now at issue from single ownership.

In 1988, the Grigonises purchased 10.76 acres south of the 8-17

section line from Reely-Ashmore's successors in interest. In 1990,

the Henslers sold Respondents approximately 133 acres north of the

B-17 section line, including the land just to the north of the

Grigonises. The northern border of the Grigonis property abuts the

property of the Respondents.

When the Grigonises purchased their property, there was a

grassy strip extending southward approximately fifteen feet from

the northern border of their property. The grassy strip contains

public utility lines. North Hidden Valley Road abuts the grassy

strip to the south and runs roughly down the center of the sixtyfoot wide public utility, private road easement. North Hidden

Valley Road is a dirt road, approximately twenty to twenty-five

feet wide that runs east-west. Both the grassy strip and North

Hidden Valley Road fall within the "private road and public utility

easement" that extends south sixty feet from the B-17 section line

into the Grigonises' property (see diagram).

m %fPorJDErJTS’ PRd’E’i2.~7’
The Grigonises acknowledge that when they bought their

property it was plainly subject to the North Hidden Valley Road

east-west easement. This easement allowed homeowners to the east

to access their properties. However, they argue that this easement

does not extend north, that is, no easement to the north off of

North Hidden Valley Road such as Blue Sky Lane was ever reserved or

created.

A fence separates the Respondents' and Grigonises' properties.

In 1991, without the Grigonises' permission, Bielby, one of the

Respondents, took down the fence and constructed a dirt road, Blue

Sky Lane. Blue Sky Lane originates from North Hidden Valley Road

in the Grigonises' property and heads north through the grassy

strip into Respondents' property. Blue Sky Lane provides access

onto North Hidden Valley Road for the 56-lot "Paradise Acres"

subdivision.

The Grigonises were unhappy with the construction of Blue Sky

Lane on their property and offered to sell Respondents easement

rights. Respondents did not reply to the Grigonises' offer and

there were no further negotiations. Leonard Grigonis re-erected

the fence and posted signs stating that use of Blue Sky Lane was

unpermitted trespass. Bielby removed the signs and a portion of

the fence and Respondents continued to use Blue Sky Lane as their

access to North Hidden Valley Road.

Respondents sought and obtained an injunction to prevent the

Grigonises from interfering with Respondents' use of Blue Sky Lane.

Respondents asserted easement rights based on a number of theories:

5
easement by reservation, easement by grant, public road by

prescription, and easement by necessity, all with the accompanying

right to build an access road, i.e., Blue Sky Lane. The Grigonises

asserted that Respondents have no easement rights in North Hidden

Valley Road, have no right to build an access road to intersect

North Hidden Valley Road, and that in building Blue Sky Lane,

Respondents wrongfully occupied, trespassed, converted, and

physically damaged the Grigonises' property. The Grigonises sought

Rule 11, M.R.Civ.P., sanctions against Respondents in the form of

attorney's fees and costs, as well as damages under the tort

theories of wrongful occupation, trespass, conversion and property

damage. The parties filed numerous motions and cross-motions for

summary judgment on the following grounds: public prescriptive

easement, tortious interference with easement rights, easement by

estoppel, trespass, wrongful occupation, easement by grant,

easement by reservation, easement by necessity, lathes and Rule 11,

M.R.Civ.P., sanctions.

Initially, the court denied summary judgment to either party

for easement by grant and/or reservation and for public road by

prescription; denied both parties summary judgment for lathes,

tortious interference, trespass and/orwrongfuloccupation; granted

summary judgment in favor of the Grigonises on Respondents' claim

of easement by estoppel; dismissed Respondents' claim of easement

by necessity and substituted a claim of easement by implication in

its place; granted summary judgment to Respondents as to whether

any rights to use North Hidden Valley Road automatically included

6
rights to use and build within the entire sixty-foot easement area

thereby limiting argument at trial to whether Respondents have

rights in the sixty-foot easement containing North Hidden Valley

Road, and; granted summary judgment to Respondents for the

Grigonises' claims of Rule 11, M.R.Civ.P., violations and abuse of

process. The Grigonises sought and were denied a Motion for

Reconsideration.

Respondents subsequently filed another motion for summary

judgment based on this Court's recent decisions in Halverson v.

Turner (1994), 268 Mont. 168, 885 P.2d 1285, and Bathe v. Owens

(1994), 267 Mont. 279, 883 P.2d 817. After reconsideration, and

relying on Halverson and Bathe -I the District Court granted

Respondents' Motion for Summary Judgment on their claim of easement

by grant or reservation. The court ruled that Respondents have:

as a matter of public record, a sixty (60') foot road/

utility easement by reservation which crosses Defendants'

[Grigonises'] property and lies adjacent to Plaintiffs'

[Respondents'] property as described in Certificate of

Survey 1733. Such easement right includes the

accompanying right to build access roads or drive ways,

such as Blue Sky Lane, in order to exercise their

easement right to use North Hidden Valley Road which lies

within the north and south boundaries of their sixty foot

easement and any other use consistent with the road and

utility purposes of the easement.

The Grigonises appeal the District Court's grant of summary

judgment as well as its prior rulings denying their cross-motions

for summary judgment.

1 . Did the District Court err in holding, as a matter of law,

that Respondents have an easement by reservation across a

sixty-foot wide private road and public utility easement on

the Grigonises' property, where the certificate of survey for

Respondents' property does not include or depict the easement

nor is it recorded on any other pertinent documents?

7
Our standard of reviewing a grant of summary judgment is the

same as that used by the district court. Halverson, 885 P.2d at

1288; Wild River v. Board of Trustees (1991), 248 Mont. 397, 399-

400, 812 P.2d 344, 345. Summary judgment is proper when there are

no genuine issues of material fact and the moving party is entitled

to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Bathe, 883

P.2d at 820. Thus, we determine whether a genuine issue of

material fact exists and whether the moving party is entitled to

judgment as a matter of law. Motarie v. Northern Mont. Joint

Refuse Disposal Dist. (Mont. 1995), 907 P.2d 154, 156, 52 St.Rep.

1209, 1210.

An easement is a non-possessory interest in land, a right

which one person has to use the land of another for a specific

purpose or a servitude imposed as a burden upon land. Kuhlman v.

Rivera (1985), 216 Mont. 353, 358, 701 P.2d 982, 985 (citations

omitted). "in easement is an interest in land that cannot be

created, granted or transferred except by operation of law, by an

instrument in writing, or by prescription." Wild River, 812 P.2d

at 846 (quoting Prentice v. McKay (1909), 38 Mont. 114, 118, 98 P.

1081, 1083). An easement by reservation must arise from the

written documents of conveyance. Halverson, 885 P.2d at 1288. In

determining the existence of an easement by reservation in

documents of conveyance, it is necessary that the grantee of the

property being burdened by the servitude have knowledge of its use

or its necessity. Halverson, 885 P.2d at 1288.

8
Concerning North Hidden Valley Road, the District Court noted

that:

the public record clearly evidenced the long term

existence of the 60' private road/public utility easement

dating at least as far back as the 197Os, and that the

public record, as well as testimony before the Court,

evidenced the existence of the road which lies within the

boundaries of the easement dating as far back as the

early 1900s. However, there did not appear to be any

instruments of conveyance containing specific language

"creating" the easement of record and/or the road.

Because an easement by reservation must arise from the written

documents of conveyance, we examine the chains of title in

question. Halverson, 885 P.2d at 1288. Examination of the chain

of title to the Grigonises' property reveals when the North Hidden

Valley Road easement was created for the properties at issue.

Property must be divided between or among separate owners for an

easement to be created because it is fundamental that one property

owner cannot have an easement across his or her own land. Wild

River, 812 P.2d at 347. The first time the properties that are

now the Grigonises' and the Respondents' were divided from a singly

owned property was in 1977, when the Henslers sold part of their

property to Reely-Ashmore. Thus, this transfer of title is

decisive in establishing the granted or reserved easement rights as

between the Respondents and the Grigonises. The Henslers retained

the part of their property to the north of the 8-17 section line

that they ultimately sold to Respondents in 1990. The 1977 deed

from the Henslers to Reely-Ashmore, which included the 10.76 acres

south of the 18-7 section line now owned by the Grigonises, stated:

SUBJECT TO an access easement being sixty (60) feet wide

and lying south of and adjacent to the following

9
continuous line; the north line of the NEi/4NWi/4 of

Section 17; the north line of the NEi/4 of Section 17;

and the north line of the Nw1/4 of Section I6 [i.e.,

North Hidden Valley Road].

The deed also stated:

Section 17: All of the NEi/4 except that land as recorded

on Certificate of Survey No. 1316; also all of the NW1/4

except that land as recorded on Certificate of Survey No.

1316.

Certificate of Survey (COS) number 1316 does not depict the sixtyfoot private road (North Hidden Valley Road) and public utility

easement just south of the 8-17 section line.

Reely-Ashmore assigned the parcel of land to Hidden Valley

Ranches in 1977. The deed to Hidden Valley Ranches contained the

same "subject to" language and reference to COS number 1316 stated

above. In 1978, Hidden Valley Ranches sold twenty-one and one-half

acres to John Reely. However, rather than the "subject to"

language and reference to COS number 1316, the deed from Hidden

Valley Ranches to John Reely recited the property description and

stated "[alccording to survey data, monuments and easements as

shown on Certificate of Survey No. 1503." Certificate of Survey

number 1503 clearly depicts the sixty-foot private road and public

utility easement just south of the 8-17 section line.

In 1978, John Reely, in anticipation of splitting his acreage

further, had COS number 1733 prepared. Certificate of Survey

number 1733 also clearly depicts the sixty-foot private road and

public utility easement just south of the 8-17 section line.

Neither COS number 1503 nor COS number 1733 depict any property

north of the 8-17 section line, they only portray property south of

1 0
the section line. The subsequent deeds that continued to split the

property into smaller parcels up and until the 1988 sale to the

Grigonises, included a reference to COS number 1733.

In Wild River, we held that, normally, the words "subject to"

do not create an easement. Wild River, 812 P.2d at 346.

The words "subject to" used in their ordinary sense, mean

subordinate to, subservient to or limited by. There is

nothing in the use of the words "subject to," in their

ordinary use, which would even hint at the creation of

affirmative rights or connote a reservation or retention

of property rights.

Wild River, 812 P.2d at 346-47 (citations omitted). Thus the

"subject to" clause in the 1977 Hensler to Reely-Ashmore deed did

not create or reserve easement rights in North Hidden Valley Road.

On the other hand, we held in Bathe and Halverson that an

easement by reservation can be established when, in conjunction

with a division of land, the subject easement is shown on the

certificate of survey and the certificate of survey is referred to

and incorporated in the deed of conveyance. Halverson, 885 P.2d at

1289; Bathe, 883 P.2d at 822. Halverson concerned two tracts of

land, originally owned by one person, Dahlia Halverson. Halverson

filed and recorded a COS subdividing her land with the office of

the clerk and recorder. The COS concerning the tracts in question

showed an easement providing access to a street. This Court held

that Dahlia Halverson created an easement by reservation when she

quitclaimed one of the tracts and made reference to the COS which

showed the easement in question. We concluded that the reference

in the document of conveyance to a recorded COS which adequately

11
described the easement was sufficient to establish the easement.

Halverson, 805 P.2d at 1289.

In the instant case, COS number 1316, filed in June 1977 in

conjunction with the Hensler to Reely-Ashmore deed when the

properties in question were split, does not depict the sixty-foot

wide private road and public utility easement just south of the 8-

17 section line. However, COS number 1503, filed in July of 1978

in conjunction with the Hidden Valley Ranches to John Reely deed,

clearly shows the sixty-foot wide private road and public utility

easement just south of the 8-17 section line. Certificate of

Survey number 1503 identifies the easement clearly and

specifically. Bathe, 883 P.2d at 822. Certificate of Survey

number 1733, prepared for John Reely in 1978, splitting his twentyone and one-half acres into two 10.76 acre lots, also clearly

depicts the sixty-foot wide, east-west easement.

Based on Wild River, Bathe and Halverson, the North Hidden

Valley Road easement was not granted or reserved as to the

Grigonises' property until there was a reference in a document of

conveyance to a recorded COS adequately describing the easement.

Accordingly, the easement was not granted or reserved when the

Henslers sold to Reely-Ashmore because neither the language of the

deed nor COS number 1316 established the easement. Thus, the

easement was not granted or reserved when what are now the

Griyonises' and Respondents' properties were split from single

ownership. The Griyonis property was not subjected to the easement

until 1978 when Hidden Valley Ranches sold twenty-one and one-half

12
acres to John Reely. It WAS granted by the 1978 deed which

described the property according to the data, monuments and

easements shown on COS number 1503. Certificate of Survey number

1503 clearly depicts the east-west private road and public utility

easement just south of the 8-17 section line. This easement by

reservation could only apply to east-west travel on North Hidden

Valley Road because the parcels of land being divided were to the

east and west of each other, and because the land to the north of

section line 8-17, i.e., the Respondents' property, had been split

off earlier without reservation of an easement. Additionally, both

COS number 1503 and COS number 1733 only depict property south of

the 8-17 section line, neither portray nor refer to property north

of the 8-17 section line. Consequently, under Wild River, Bathe

and Halverson, the conveying documents in the Grigonises' chain of

title establish that their property cannot be servient to an

easement by grant or reservation held by the Respondents to the

north because Respondents' predecessors in interest, the Henslers,

did not reserve or create any easement rights in North Hidden

Valley Road when they sold that portion of their property south of

the 8-17 section line. The Grigonises' property is only servient

to the east-west easement created by the 1970 deed from Hidden

Valley Ranches to John Reely.

The Respondents' chain of title supports this conclusion that

the Henslers did not grant or reserve any easement rights to North

Hidden Valley Road or Blue Sky Lane. In 1990, the Henslers sold

Respondents 133 plus acres north of the 8-17 section line. The

13
August 2, 1991, deed from the Henslers to the Respondents granting

the 133 plus acres did not contain any language referring to the

claimed easements at issue. Subsequent to the filing of this

lawsuit, on October 29, 1993, the Henslers executed an Amended Deed

expressing their intent to replace and supersede the August 2, 1991

deed. The Amended Deed from the Henslers to Respondents included

the following provision:

8. An easement for access over the 60 foot private road

and public utility easement known as North Hidden Valley

Road, to the extent of those rights reserved by the

Grantors.

However, as explained above, the Henslers had not created or

reserved easement rights to North Hidden Valley Road when they

retained the property to the north of the 8-17 section line in

their 1977 conveyance to Reely-Ashmore. The Hensler to ReelyAshmore deed did not create or reserve an easement because the

language "subject to" is insufficient to grant or reserve an

easement. Wild River, 812 P.2d at 347. Additionally, COS number

1316 referred to in the Hensler to Reely-Ashmore deed did not

delineate the easement. It was not until Hidden Valley Ranches

sold the property to John Reely, with the deed's reference to COS

number 1503 clearly describing the easement, that the easement was

granted or reserved. Halverson, 885 P.2d at 1289. This grant or

reservation was after the Hensler to Reely-Ashmore sale and thus

could not inure to the Henslers' benefit. Consequently, the

Henslers could not convey easement rights to Respondents because

the Henslers did not have any easement rights to convey. Their

amended deed could not remedy the failure to reserve an easement in

14
1977. Therefore, we hold that the District court erred in

determining that Respondents have, as a matter of public record, a

sixty-foot road/utility easement by reservation as described in COS

number 1733.

Appellate review of the remainins issues:

Having reversed the District Court's 1995 Final Order and

Judgment, a question arises as to whether the court's earlier

rulings on various motions for summary judgment are now also

reviewable. Once a final judgment has been entered, all

nonappealable intermediate orders or decisions, to which there has

been a proper objection, are reviewable on appeal from the final

judgment. Kirchner v. Western Mont. Mental Health Ctr. (1993), 261

Mont. 227, 230, 861 P.2d 927, 929; Brown v. Midland Nat'1 Bank

(1968), 150 Mont. 422, 435 P.2d 878. In Brown -, we established that

although a motion for summary judgment is a nonappealable order at the time it is made because of its

interlocutory character . . all non-appealable

intermediate orders or decisions properly excepted or

objected to which involve the merits or necessarily

affect the judgment are reviewable on appeal from a final

judgment. . . . This review includes reviewing an order

denying a motion for summary judgment.

Brown, 435 P.2d at 881-82 (citations omitted).

In its order of May 1994, the District Court granted summary

judgment with regard to the following issues:

1 . easement by estoppel

2 . Rule 11, M.R.Civ.P., violations and abuse of

process.

15
Since these issues have not been appealed, we need not discuss

them. The court denied summary judgment as to the following

issues:

1 . easement by public prescription

2 . lathes

3 . tortious interference

4. trespass and/or wrongful occupation.

The court dismissed Respondents' claim o f easement by

necessity and, sua sponte, substituted a claim of easement by

implication in its place. The court also granted Respondents

summary judgment as to whether any rights to use North Hidden

Valley Road automatically included rights to build within the

entire sixty-foot easement area. The Grigonises appeal from the

court's denial of summary judgment in their favor as to the above

issues.

Our standard of reviewing a grant, or in the present case,

denial, of summary judgment is the same as that used by the

district court. Halverson, 885 P.2d at 1288; Wild River, 812 P.2d

at 345. Summary judgment is proper when there are no genuine

issues of material fact and the moving party is entitled to

judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Bathe, 883

P.2d at 820. Thus, we determine whether a genuine issue of

material fact exists and whether the moving party is entitled to

judgment as a matter of law. Motarie, 907 P.2d at 156.

Easement bv Prescriotion:

We agree with the District Court that material questions of

fact remain as to whether Respondents have an easement by

16
prescription, including the issue of whether the construction of

Blue Sky Lane exceeds the use allegedly made of North Hidden Valley

Road during the period of prescription. We remand for trial on

this issue.

Easement bv Imolication:

We note that the District Court made no ruling on the issue of

easement by implication. Rather, in its May, 1994 Order and

Opinion addressing Respondents' claim of easement by necessity, the

District Court found sufficient evidence to support a claim of an

implied easement over the Grigonises' property based on this

Court's decision in Graham v. Mack (1985), 216 Mont. 165, 699 P.2d

590. The District Court stated “easement by implication, rather

than easement by necessity, is the proper claim." The court

ordered that Respondents' Amended Complaint be conformed to the

evidence by substituting a claim of easement by implication in

place of Respondents' claim of easement by necessity. See Rule

15(b), M.R.Civ.P. Sua sponte, the court found material questions

of fact regarding the intent of the parties and whether an easement

by implication had been created.

The Grigonises argue that Respondents cannot meet the high

standard of establishing an easement by implication. They argue

that Respondents cannot produce evidence to show manifest, obvious

or permanent use of what is now Blue Sky Lane prior to 1977.

Graham, 699 P.2d at 596. We agree with the Grigonises that this is

the burden Respondents must meet, however, they must be granted the

17
opportunity to do so. Because the District Court has not ruled on

this theory, we remand for a trial on the issue of easement by

implication including the issue of whether or not the evidence

supports a finding that, in the 1977 separation of title, ReelyAshmore (Grigonises' predecessors) bought the property with notice

that the Henslers (Respondents' predecessors) had an easement that

included north bound traffic on what is now Blue Sky Lane.

Do riahts to use the sixtv-foot easement containins North Hidden

Vallev Road automatically include rishts to build an access road

such as Blue Skv Lane?

The District Court holding that any easement rights

Respondents might have in the sixty-foot easement containing North

Hidden Valley Road automatically include the right to build Blue

Sky Lane is in error. Based on our discussion of easement by

prescription and easement by implication, it is apparent that any

right Respondents may have to use North Hidden Valley Road does not

automatically include a right to build Blue Sky Lane to the north.

"No use may be made of the right of way, different from that

established at the time of creation so as to burden the servient

estate to a greater extent than was contemplated at the time of the

grant." Titeca v. State, Dep't of Fish & Game (1981), 194 Mont.

209, 214, 634 P.2d 1156, 1159; see also Sampson v. Grooms (1988),

230 Mont. 190, 195, 748 P.2d 960, 963. Similarly, for prescriptive

easements, the use of a roadway cannot exceed the use made of it

during the prescriptive period. Warnack v. Coneen Family Trust

18
(1994), 266 Mont. 203, 218, 879 P.2d 715, 723. Further, the extent

of an easement is governed by § 70-17-106, MCA, which states:

The extent of a servitude is determined by the terms of

the grant or the nature of the enjoyment by which it was

acquired.

Consequently, assuming Respondents can establish an easement

to use North Hidden Valley Road, they must then either: 1)

establish that construction and use of Blue Sky Lane is encompassed

within and does not exceed the scope of their easement, whether by

implication or prescription, on North Hidden Valley Road, or; 2)

establish that, in addition to their easement on North Hidden

Valley Road, they have an easement by prescription or implication

on Blue Sky Lane.

The ouestions of lathes, tresoass, and attorney's fees:

Concerning the issues of lathes, trespass, and attorney's

fees, the District Court, in its May 1994 Order and Opinion,

stated:

Until the issues are resolved as to whether Plaintiffs

[Respondents] have any rights in the easement, ruling on

issues regarding damages for interference with or

trespass on property rights is premature.

We agree. The issues of lathes, trespass, and the propriety of

attorney's fees must await determination of the easement question.

Accordingly, we remand for trial on all remaining issues.

Reversed and remanded for proceedings consistent with this opinion.

/rc%hxa

Justice /

19
Jus iEes

20