No. 80-347 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

RANDOLPH S. WHITE and 

NANCY R. WHITE, 

Plaintiffs and Appellants, 

JOHN A. LANDERDAHL and 

BONNIE I. LANDERDAHL , 

Defendants and Respondents. 

Appeal from: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin. 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellants: 

William L,Pepper, Bozeman, Montana 

For Respondents: 

Landoe, Brown Law Firm, Bozeman, Montana 

Submitted on briefs: January 29, 1981 

Decided: March 18, 1981 

Filed: MAR 18 1981 

"""" p* 

Clerk 
Mr. 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 District Court entered findings 

of fact, and conclusions of law, holding that no 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 exists by 

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-acre north 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' 

sketch of the two tracts, was admitted into evidence to 
explain the location of the two tracts and the roadway 

access to the tracts: 

Marchwick Road 

In 1975, defendants moved 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 including 
an easement provision 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 tract provided 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 not make 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 easement provision was due to 

a mistake. Plaintiffs erroneously 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. 

This mistake 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 crosses defendants' 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: 

"Was there an implied easement in the 

instant case? 

"An implied easement is a creature of 

equity. Equity implies out of the graciousness and fairness of 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 the parties involved as to the question 

of an easement; and finally and definitely there 

was a decision by the parties that there was not 

to be an easement granted (road across the property 

involved) . 
"Montana recognizes implied easements, and some 

of the tests for the creation of an implied 

easement actually exist here 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 

there would not be an easement. . 

"Since implied 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, it would be rewriting 

a contract and understanding of the parties. 

"There is real danger and harm to the Defendants 

on the granting of an easement by implication. 

While it does not have anything to do with the law 

of the case, it is clear that such an easement could 

threaten their water supply from the spring; it 

certainly would invade the privacy and diminish the 

enjoyment of their property, the very thing that the 

Defendants wanted. The Defendants came out here to 

the West to enjoy the security of isolation; and to 

say that a road within a few feet of their barn and 

their garden would not affect that privacy and enjoyment of the property for which they spent a great 

deal of money would be to ignore the facts of the 

case. 

"This record will not allow a court of equity to 

imply an easement." 

Our review of the record sustains this finding and 

conclusion of the District Court. Montana case law recognizes 

the doctrine of implied easements. See, State by and through . 

Montana, etc. v. Cronin (1978), Mon t . - , 587 P.2d 395, 

35 St.Rep. 1798; Godfrey v. Pilon (1974), 165 Mont. 439, 

529 P.2d 1372; and Thisted v. Country Club Tower Corporation 

(1965), 146 Mont. 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, 25 Am.Jur.2d Easements - & Licenses § 34. 

Implied easements rest upon the intent of parties gathered 

from the evidence. Pioneer Mining Co. v. Bannack Gold Mining 

Co. (1921), 60 Mont. 254, 198 P. 748. As the District Court 
memorandum explains, the facts in this case indicate that 

the parties did not intend to provide for an easement. 

Defendants were quite adamant during the presale negotiations 

that they did not want any roadway easement to cross their 

property, restricting the enjoyment of their new home. The 

record contains substantial evidence to support the District 

Court's findings, conclusions and judgment. 

The judgment of the District Court is affirmed. 

d' Justice 1 

We Concur: 

Chief Justice 

n