No. 80-347 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

RANDOLPH S. WHITE and NANCY R. WHITE, Plaintiffs and Appellants,

JOHNA. LANDERDAHL and BONNIE I. LANDERDAHL

## , Defendants and Respondents.
Appeal from: District Court of the Eighteenth Judicial District, In and for the County of Gallatin. HonorableW. W. Lessley, Judgepresiding. Counsel of Record: ForAppellants: William L,Pepper, Bozeman, Montana For Respondents: Landoe,Brown Law Firm,Bozeman, Montana

Submitted on briefs: January 29, 1981 Decided: March 18, 1981 Filed: 

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ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court. Plaintiffs Randolph and Nancy White appeal from the judgment of the Eighteenth Judicial District Court, Gallatin County, denying plaintiffs' claim to a roadway easement crossing property owned by defendants John and Bonnie Landerdahl. Following a nonjury trial, the DistrictCourt entered findings of fact, and conclusionsof law, holding thatno implied easement of necessity exists across defendants' property providing access to plaintiffs' property. Plaintiff attributes two errors to the holding of the District Court for our review: 1. Whether the record contains substantial credible evidence to support the court's refusal to find an implied easement of necessity; and 2. Whether an implied easement of necessity existsby operation of law given the facts of this case? After a review of the record of this case and the argument of counsel,we affirm the judgment of the District Court. Randolph White is a Bozeman-area real estate salesman and land developer. In 1974, he and his wife purchased 27
acres cf land located near Bozeman Pass and Eridgez Bowl ski area. Plaintiffs subdivided the land into a 16-
acre south tract and an 11-acrenorth tract, built a home on the 11-acre tract, and offered both tracts for sale. These two tracts lay to the south of Marchwick Road, the access road. A dirt wagon trail runs from Marchwick Road through the 11-acre tract to the 16-acre tract, providing roadway
access to the 16-acre tract. Exhibit No. 13,plaintiffs' sketchof the two tracts, was admitted into evidence toexplain the location of the two tracts and the roadway
access to the tracts:

Marchwick Road
In 1975,defendantsmoved to the Bozeman area and began to look for a new home. Defendants toured plaintiffs' properties and decided to purchase the 11-acre tract. Defendants testified at the District Court trial that they preferred this property because of its isolation and pristine nature. In the negotiations between the parties prior to purchase, defendants continuously objected to any use of the wagon trail as a roadway access to the 16-acre tract. Defendants refused to enter into any agreement with plaintiffs includingan easementprovision for a roadway to serve the adjoining tract. The contract for deed finally agreed to by all parties for the sale of the 11-acre tractprovided the following language governing any easements: "13. Easements. Buyers (defendants) agree to permit no additional easements or encumbrances against said property without the written consent of the sellers (plaintiffs)." The contract for deed did notmake any reference to the wagon trail or its use as an access roadway to the 16-
acre tract. Plaintiffs explained to the District Court that the omission of a wagon trail easementprovision was due to
a mistake. Plaintiffserroneously thought they had an existing easement crossing the 11-acre tract at the time the contract for deed was executed and the property was sold. Thismistake leaves the 16-acre tract landlocked and legally inaccessible. Following unsuccessful attempts to secure access, plaintiffs brought this court action against defendants, requesting the court to hold that an implied roadway easement crossesdefendants' property, providing access to the landlocked 16-acre tract. The District Court refused plaintiffs' request. In a memorandum accompanying its judgment, the court explained its action as follows: "Wasthere an implied easement in the instant case? "An implied easement is a creature of equity. Equity implies out of the graciousness and fairnessof its principles an intent to convey or reserve an easement. "The facts of this case clearly argue against equity implying and thus creating an easement. There were over eight offers and counteroffers between theparties involved as to the question of an easement; and finally and definitely there was a decision by the parties that therewas not to be an easement granted (roadacross the property involved)

# ."Montanarecognizes implied easements, and some of the tests for the creation of an implied easement actually existhere in this case; this case is out of the norm in that the parties negotiated time after time on the question of easement; and by final and mutual consent agreed therewould notbe an easement.

. "Sinceimplied easements are creatures of equity, they rest on the implication of an intent by a court of equity to do justice to the matter. Here there is no reason to so imply. As a matter of fact, if the Court did imply, itwould be rewriting a contract and understanding of the parties. "Thereis realdanger and harm to the Defendants on the granting of an easement by implication. While it does not have anything to dowith the law of the case, it is clear that such an easement could threaten their water supply from the spring; it certainlywould invade the privacy and diminish the enjoymentof their property, the very thing that the Defendantswanted. The Defendants came out here to the West to enjoy the security of isolation; and to say that a roadwithin a few feet of their barn and their garden would not affect thatprivacy and enjoyment of the property forwhich they spent a great deal of money would be to ignore the facts of the case. "Thisrecord will not allow a court of equity to imply an easement." Our review of the record sustains this finding and conclusion of the DistrictCourt. Montana case law recognizes the doctrine of implied easements. See, Stateby and through

. Montana, etc. v. Cronin (1978), Mont

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### , 587 P.2d 395, 35 St.Rep. 1798;Godfrey v. Pilon (1974),165Mont. 439, 529 P.2d 1372; and Thisted v. Country Club Tower Corporation (1965),146Mont. 87, 405 P.2d 432. A court, however,may not create as a matter of law, an implied easement where the facts indicate the parties did not intend that an easement be created. See, 25Am.Jur.2d Easements - & Licenses § 34. Implied easements rest upon the intent of parties gathered from the evidence. PioneerMining Co. v. Bannack Gold Mining Co. (1921), 60Mont. 254, 198 P. 748. As the DistrictCourtmemorandum explains, the facts inthiscase indicate that thepartiesdidnot intend toprovide for an easement. Defendants werequiteadamant during thepresale negotiations thatthey didnotwant any roadway easement tocross their property, restricting the enjoyment of theirnew home. The record contains substantial evidence tosupport the District Court's findings, conclusions and judgment. The judgment of the DistrictCourt is affirmed. 

# d' Justice 

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WeConcur:

Chief Justice 

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