No. 93-533 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

LLOYD BACHE and VIRGINIA BACHE, 

Plaintiffs and Respondents, 

MARK OWENS, d/b/a MARK OWENS LOGGING, 

Defendant, Counterclaimant, ThirdParty Plaintiff and Appellant, 

v. 

TITLE U.S.A. INSURANCE CORPORATION, 

Third-Party Defendant and Respondent. 

LLOYD BACHE and VIRGINIA BACHE, 

Plaintiffs, Third-Party Plaintiffs OCT 19 1994 

and ~espondents, - 

DESHAZER RYAN REALTY, and its agent/ 

employee, COLLEEN MONCUR, 

Third-Party Defendants and Respondents. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

I. James Heckathorn, Murphy, Robinson, Heckathorn 

and Phillips, P.C., Kalispell, Montana 

For Respondents: 

Lon J. Dale, Milodragovich, Dale and Dye, Missoula, 

Montana (Bache); Gary Kalkstein, Quane, Smith, 

Howard & Hull, Missoula, Montana (DeShazer Ryan 

Realty); John K. Tabaracci, Sullivan and Tabaracci, 

Missoula, Montana (Mont. Assoc. Realtors) 

Filed: 

Submitted on Briefs: August 25, 1994 

Decided: October 19, 1994 
chief ~ustice J. A. Turnage delivered the Opinion of the Court. 

Mark Owens, doing business as Mark Owens Logging, appeals from 

an order of the Nineteenth Judicial District Court, Lincoln County, 

granting partial summary judgment to Lloyd and Virginia Bache and 

denying his motion for partial summary judgment. We affirm the 

decision of the District Court. 

The issue is whether the District Court erred in ruling that 

the Baches retain an easement on the land they sold to Owens. 

Lloyd and Virginia Bache owned a 34-acre tract of land in 

Lincoln County, Montana. Mark Owens, doing business as Mark Owens 

Logging, purchased 2.42 acres of the Baches' property (Tract 2) in 

July, 1988. The Baches retained the remainder of the property 

(Tract 1). The instruments of conveyance are: (1) the Agreement to 

Sell and Purchase, dated April 16, 1988; (2) the Contract for Deed, 

dated July 8, 1988; (3) the Warranty Deed, dated July 6, 1988; and 

(4) Certificate of Survey No. 1657 (COS), which was filed on July 

6, 1988. 

The Agreement to Sell and Purchase, dated April 16, 1988, 

required the Baches to convey the property by warranty deed free of 

all encumbrances except those described in the title insurance 

provision. That provision required title insurance to be obtained 

insuring merchantable title free and clear of all liens and 

encumbrances except "encumbrances hereinabove mentioned, zoning 

ordinances, building and use restrictions, reservations in federal 

patents, beneficial utility easements apparent or of record, 
easements of record, and no others." The Agreement did not refer 

to the easement which the Baches now claim. However, the policy of 

title insurance which was required under the Agreement provided: 

PRIOR TO THE ISSUANCE OF TITLE INSURANCE, a complete 

legal description must be placed of record in the office 

of the Lincoln County Clerk and Recorder. 

Both the Warranty Deed and the Contract for Deed first 

describe the property being conveyed by metes and bounds. Both 

documents then refer to the property conveyed as 

being Tract 2 shown on Certificate of Survey No. 1657, 

records of the Lincoln County Clerk and Recorder. 

SUEUECT TO the provisions contained in that certain 

Certificate of Subdivision Plat Approval executed by the 

State of Montana, Department of Health & Environmental 

Sciences, File No. 27-88430-765, records of Lincoln 

County, Montana. 

SUEUECT TO easements, reservations, covenants and 

restrictions apparent or of record. 

The COS provides legal descriptions and a scaled drawing of 

the boundaries of Tracts 1 and 2. In addition, the COS depicts a 

dotted line thirty feet east of the western boundary of Tract 2 and 

running parallel thereto. The area between the dotted line and the 

western boundary of Tract 2 is labeled "P.R. E. " and "P.U. E., " which 

the legend identifies as "private roadway easement" and "public 

utility easement." The relevant part of the COS is reprinted as an 

appendix to this opinion. Attached to the COS are documents that 

are a part of the Department of Health and Environmental Sciences' 

certification of subdivision plat approval 
~uring 1991 and 1992, Owens erected a shop building on Tract 

2. The Baches filed this action seeking removal of the building, 

alleging that it obstructs their access easement parallel to the 

western border of Tract 2. Owens answered, contending that no such 

easement exists. He also counterclaimed against the Baches and 

asserted a third-party complaint against the title insurance 

company. The Baches later added their realty company and its 

employee as third-party defendants. 

Owens asked the District Court for partial summary judgment 

that, as a matter of law, the transaction instruments did not 

create an access easement for the Baches. The Baches filed a 

cross-motion for partial summary judgment asking the court to 

conclude, as a matter of law, that the instruments created an 

easement by express reservation in their favor. 

The District Court granted partial summary judgment to the 

Baches, denied Owensv motion, and certified its order to this Court 

as a final judgment under Rule 54(b), M.R.Civ.P. The court 

subsequently denied Owensv motion for reconsideration. 

Owens appeals. Neither his counterclaim nor the third-party 

actions are part of this appeal. 

Did the District Court err in concluding that the Baches 

retain an easement on the land they sold to Owens? 

Our standard for reviewing a grant of summary judgment is the 

same as that used by the district court. Wild River Adventures v. 
Bd. of Trustees (1991), 248 Mont. 397, 399-400, 812 P.2d 344, 345. 

We determine whether there is an absence of genuine issues of 

material fact and whether the moving party is entitled to judgment 

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

In this case, the material facts are not in dispute. As to 

the issue of law, the District Court ruled: 

By including the Certificate of Survey number as part of 

the legal description in the Contract for Deed and 

Warranty Deed, said certificate is regarded as incorporated in its entirety into said instruments of conveyance 

as a matter of law. 

The court cited 5 76-3-304, MCA. That statute, which is part of 

the Montana Subdivision and Platting Act, provides: 

The recording of any plat made in compliance with the 

provisions of this chapter shall serve to establish the 

identity of all lands shown on and being a part of such 

plat. Where lands are conveyed by reference to a plat, 

the plat itself or any copy of the plat properly certified by the county clerk and recorder as being a true 

copy thereof shall be regarded as incorporated into the 

instrument of conveyance and shall be received in 

evidence in all courts of this state. 

Pursuant to the above statute, reference in documents of conveyance 

to a plat which describes an easement establishes the easement. 

See Benson v. Pyfer (1989), 240 Mont. 175, 179, 783 P.2d 923, 925. 

In divisions of land subject to its surveying requirements, 

the Montana Subdivision and Platting Act requires that either a 

"platvv or a "certificate of surveyvv be filed. Section 76-3-302, 

MCA. The statute further requires that descriptions of the parcel 

or tract in instruments of transfer must describe the parcel or 

tract by reference to the filed certificate or plat. Subdivisions, 
as defined under the Act, must be surveyed and "platted." Section 

76-3-402, MCA. Other divisions of land must be surveyed and Ira 

certificate of surveyr1 must be prepared. Sections 76-3-401 and 76- 

3-404, MCA. The division of land in this case was an "occasional 

sale" as defined at 5 76-3-207(1) (d), MCA (l987), which was 

excepted from most subdivision requirements other than surveying. 

Therefore, a "certificate of surveyr1 was required to be filed 

before the instruments transferring title from the Baches to Owens 

could be recorded. 

"Plat" is defined for purposes of the Act at 1 76-3-103(9), 

MCA : 

"Platr1 means a graphical representation of a subdivision 

showing the division of land into lots, parcels, blocks, 

streets, alleys, and other divisions and dedications. 

"Certificate of survey" is defined at 5 76-3-103(1), MCA: 

IICertificate of survey11 means a drawing of a field survey 

prepared by a registered surveyor for the purpose of 

disclosing facts pertaining to boundary locations. 

Owens argues that, as a "certificate of survey" and not a 

the COS filed in this case does not establish an easement 

pursuant to 76-3-304, MCA. He cites State ex rel. Swart v. 

Stucky (1975), 167 Mont. 171, 536 P.2d 762. In that case, a county 

clerk and recorder refused to accept for filing a survey of a tract 

of land, on the basis that the survey had not been inspected and 

approved by the city county planning board. The district court 

refused to issue a writ of mandamus compelling the clerk to file 

the document. This Court reversed, ruling that the survey was a 
"certificate of survey," not a subdivision "plat" as defined by the 

Act, and that subdivision review by the city county planning board 

was not required before the tlcertificate of survey" could be filed. 

Swart, 536 P.2d at 765. In so doing, this Court discussed the 

difference between a tfplatlt and a "certificate of survey" : 

The terms "certificate of survey, " "plat, and 

"subdivision" have important technical meanings that are 

established by the definition section of the Act. . . . 

The classification of the instrument as a subdivision "platN or as a "certificate of survey" is important 

since the Act requires different treatment, depending 

upon the classification. . . . 

There is no doubt that appellant's document is a 

"certificate of survey" and not a subdivision "plat" as 

defined by the Act. Its purpose is to establish boundaries and the property description for a deed on an 

entire single parcel which contains an area greater than 

the 10 acre requirement established by section 11- 

3861(12), [R.C.M. ,I prior to its amendment to 20 acres in 

1974. Furthermore, the proffered document contains no 

"graphical representation of a subdivision showing the 

division of land into lots, parcels, streets, and alleys, 

and other divisions and dedications" within the meaning 

of section 11-3861(6), [R.C.M.,] which sets forth the 

definition of a "plat.I1 

I Swart 536 P.2d at 764-65. 

In the case at bar, the COS does more than to establish 

boundaries and a property description of a single parcel of land. 

It establishes the division of the land into two parcels, Tract 1 

and Tract 2. The COS shows a right of way thirty feet wide along 

the western boundary of Tract 2 for a "private roadway easement" 

and a lrpublic utility easement. " Additionally, the COS and 
attached documents establish that the sale of Tract 2 underwent 

subdivision review as an "occasional salett pursuant to S 76-3- 

207(1) (d) , MCA (1987). In contrast to the certificate of survey in 

Swart, the COS in the present case meets the definition of a "plat" 

set forth at 76-3-103(9), MCA. 

Moreover, the idea that a map or plat incorporated into an 

instrument of conveyance can establish an easement predates the 

definition of ttplatu in S 76-3-103(9), MCA. In Majers v. Shining 

Mountains (l986), 219 Mont. 366, 711 P.2d 1375, the documents at 

issue were filed before the effective date of the Montana Subdivision and Platting Act. In that case, we cited with approval the 

following language from Ute Park Summer Homes Ass'n. v. Maxwell 

Land Gr. Co. (N.M. 1967), 427 P.2d 249, 253: 

[Wlhere land is sold with reference to a maD or plat 

showing a park or like open area, the purchaser acquires 

a private right, generally referred to as an easement, 

that such area shall be used in the manner designated. 

Maiers, 711 P.2d at 1378 (emphasis added). 

The purpose of the Montana Subdivision and Platting Act is to 

promote the public health, safety, and general welfare by 

regulatingthe subdivision of land; to prevent overcrowding of land; to lessen congestion in the streets and 

highways; to provide for adequate light, air, water 

supply, sewage disposal, parks and recreation areas, 

ingress and egress, and other public requirements; to 

require development in harmony with the natural environment; and to require uniform monumentation of land 

subdivisions and transferring interests in real property 

by reference to plat or certificate of survey. 

Section 76-3-102, MCA. This purpose would not be furthered by 

elevating form over substance and ruling that the COS does not 
establish a road easement because it is denominated as a certificate of survey instead of as a plat. 

Owens also relies on this Court's opinion in Wild River. The 

bases for our holding in wild River were that (1) "subject to" 

language in a document of conveyance does not create an easement, 

and (2) no easement could be created on the owner's own land. 

River, 812 P. 2d at 346-47. In the present case, the Baches rely 

primarily upon incorporation of the COS into the instruments of 

conveyance, not upon "subject to" language, for creation of the 

easement. Further, the conveyance fromthe Baches to Owens results 

in division of the land into two parcels with two different owners. 

Our holding in wild River is therefore inapplicable here. 

The COS identifying the easement in this case was filed with 

the county clerk and recorder, as required by law. The COS 

identifies the easement clearly and specifically. In addition to 

the dotted lines showing the scaled location of the easement, the 

easement is labeled in two places on the COS as "P.R.E." and 

'tP.U.E." Those acronyms are defined in the legend of the COS to 

mean "private roadway easement" and "public utility easement." 

Additionally, the easement is labeled in two places as being thirty 

feet wide. 

We conclude that identification of the establishing document 

as a "plat" pursuant to 76-3-103(9), MCA, is not a critical 

element in the creation of an easement through incorporation of a 

map or plat into documents of sale. We hold that the transaction 
documents concerning the Baches' sale of land to Owens establish an 

easement in favor of the Baches along the western edge of the 

property sold to Owens, as described in the COS. We therefore 

affirm the summary judgment entered by the ~istrict Court. 

We concur: 

Justices 
Justice Karla M. Gray, dissenting. 

I respectfully dissent from the Court's opinion which is, in 

my view, contrary to existing Montana statute and case law. For 

purposes for clarity, I first set forth the appropriate legal 

analysis and resolution of the issue presented in this case; that 

analysis will reflect my overall disagreement with the approach and 

resolution adopted by the Court. I then focus in on more specific 

errors in the Court's reliance on certain authorities. 

This case involves an interest in real property which the 

sellers assert they created in themselves, during the transaction, 

to the detriment of the purchasers. Given the importance of real 

property interests, it is imperative that we be both clear and 

focused in setting forth the issue before us. Here, the narrow 

issues are these: 

(1) Whether showing an easement on a certificate of 

survey creates, in and of itself, the easement; and 

(2) Assuming that it does not, whether such a certificate 

of survey can be incorporated into the transaction 

documents via 5 76-3-304, MCA, with the result that the 

incorporation creates the easement. 

The Court does not analyze the first issue but apparently answers 

it in the affirmative through its holding that "the transaction 

documents . . . establish an easement in favor of the Baches along 

the western edge of the property sold to Owens, as described in the 

COS." It so holds at the end of an opinion which primarily 

addresses and applies the statute at issue here, 5 76-3-304, MCA. 

Thus, despite the quoted holding, the Court appears to answer the 

second issue in the affirmative as well. Notwithstanding my 

11 
disagreement with the entirety of the Court's opinion and result, 

my biggest concern is with the Court's lack of analysis and clarity 

in this important area of property rights. 

An easement is a nonpossessory interest in real property. 

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

While the definition of an easement has remained constant, this 

Court has stated the recognized methods of creating an easement by 

several different means. In Prentice v. McKay (1909), 38 Mont. 

114, 118, 98 P. 1081, 1083, we stated that an easement "cannot be 

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

instrument in writing, or by prescription." We recently reiterated 

that principle in Wild River Adventures v. Bd. of Trustees (1991), 

248 Mont. 397, 400, 812 P.2d 344, 346-47. We also have stated that 

easements can be created by grant, reservation, exception or 

covenant, by implication or by prescription. Kuhlman, 701 P.2d at 

985. In addition, we have recognized the creation of easements by 

necessity, describing such easements as a subspecies of easements 

by implication or, as they are sometimes called, implied easements. 

Graham v. Mack (1985), 216 Mont. 165, 175, 699 P.2d 590, 596. 

The thrust of the Prentice/Wild River approach is that 

easements can be created by an instrument in writing or by 

operation of law. Of the types of easements recognized in Montana 

through the Kuhlman/Graham line of cases, easements created by an 

instrument in writing are those created by express grant, 

reservation, exception or covenant. Because such easements involve 

interests in real property, they must be in writing to comply with 
the statute of frauds. Bruce and Ely, The Law of Easements and 

Licenses in Land, $ 3.01 (1988 & Supp. No. 1 1994). As is 

generally the case in construing instruments in writing, the 

parties* intentions regarding the creation of an easement should be 

determined from the language of the instruments; only where that 

language is ambiguous or uncertain may all of the circumstances 

surrounding the transaction be considered. See, 25 Am. Jur. 2d 

Easements & Licenses 5 23 (1966); Wild River, 812 P.2d at 346-47. 

Easements which are created by operation of law, on the other 

hand, rather than through instruments in writing, have arisen and 

been recognized in order to meet particular needs and 

circumstances. Easements created by operation of law and 

recognized in Montana are easements by prescription; by implication 

(sometimes called implied easements or implied easements by 

reservation; see Woods v. Houle (1988), 235 Mont. 158, 162, 766 

P.2d 250, 253); and by necessity. These easements created by 

operation of law are not favored by courts because they result in 

depriving people of the use of their property by imposing a 

servitude based on considerations not constrained by the 

"instrument in writing" requirement for creating interests in real 

property; each has specific requisite elements which must be proved 

before such an easement is established. See, e.a., Woods, 766 P.2d 

at 252-53. 

Here, the Court dispenses entirely with any reference to the 

type of easement it determines was created in this case. While one 

might surmise from the lack of analysis that the Court agrees that 
the easement was not created through the transaction documents on 

a stand-alone basis and that its result requires the application of 

§ 76-3-304, MCA, its holding suggests otherwise. In any event, the 

District Court at least implicitly rejected the Baches' 'Ieasement 

by express reservation1' (that is, solely through instruments in 

writing) theory in concluding that a private roadway easement was 

created in their favor by "operation of law" via the application of 

5 76-3-304, MCA. To the extent the District Court rejected that 

theory, it was correct. Importantly, in this regard, the Baches 

have abandoned that theory on appeal and argue in support of the 

District Court's "operation of law" conclusion. This Court does 

not bother to state the actual basis of its determination that an 

easement was created here. 

Existing law simply does not support the result reached by the 

Court. As discussed above, we have recognized only three kinds of 

easements created by operation of law: easements by prescription, 

by necessity and by implication. The requisite elements and proofs 

necessary to establish the creation of such easements, as 

summarized in Woods, relate in large part to non-writings-related 

facts and circumstances not discussed or relied on by either the 

District Court or this Court in resolving the limited issues 

presented in this case. See Woods, 766 P.2d at 252-53. 

The Court's determination that an easement was created here at 

least implicitly establishes a new species of easement not 

supported by Montana law. It is an easement which does not fit 

within the categories of creation by an instrument in writing or 
creation by operation of law, as we have recognized those concepts. 

Rather, the Court appears to establish--its *tholding" 

notwithstanding--a llcombined" version of these recognized methods 

of creating an easement by relying on written instruments and then 

applying a statute to--or, stated differently, having the "law 

operate uponv8--those instruments. Even assuming our willingness to 

recognize such an easement, the premise for such an approach 

necessarily would require the existence of a statute applicable to 

such facts and intended by the legislature to accomplish such a 

result. No such statute currently exists. 

The simple fact is this: 5 76-3-304, MCA, has no application 

here. Section 76-3-304, MCA, is part of Montanans Subdivision and 

Platting Act (the Act). It provides in pertinent part: 

Effect of recording complying plat. The recording of any 

plat . . . shall serve to establish the identity of all 

lands shown on and being a part of such plat. Where 

lands are conveyed by reference to a plat, the plat 

itself . . . shall be regarded as incorporated into the 

instrument of conveyance . . . . 

We previously have determined that plats and certificates of survey 

are not the same. In Dep't of Health v. Lasorte (1979), 182 Mont. 

267, 270, 596 P.2d 477, 480, we observed that the Act separately 

defines the terms "certificate of surveyw and "plat. A 

certificate of survey is a l8drawing of a field survey prepared by 

a registered surveyor for the purpose of disclosing facts 

pertaining to boundary locationsrW whereas a plat is a "graphical 

representation of a subdivision showing the division of land into 

lots, parcels, blocks, streets, alleys, and other divisions and 

dedications." Section 76-3-103(1) and (9), MCA. In addition, the 

15 
purposes and use to be made of the two are different. Lasorte, 596 

P.2d at 480-81. Based on these distinctions between a certificate 

of survey and a plat, we declared void an administrative regulation 

equating the two. Lasorte, 596 P.2d at 481. Thus, it is clear 

from the Act and case law that certificates of survey and plats are 

different instruments. Without so much as a fond farewell, the 

Court bids adieu to both the legislature's enactment of separate 

and distinct definitions and purposes relating to certificates of 

survey and plats, and its own case law. I cannot agree. 

More specifically, I disagree with the Court's reliance on 

Benson v. Pyfer (1989), 240 Mont. 175, 179, 783 P.2d 923, 925, for 

any purpose whatsoever in this case. Benson is factually and 

legally irrelevant to the case now before us. It involved a 

seller's use of representations in a u, regarding roadways and 

open common areas, as inducements to purchasers of lots and whether 

such representations were enforceable by the purchasers against the 

seller. Neither the facts nor the legal issues of that case have 

any bearing here. Benson clearly involved a plat to which 76-3- 

304, MCA, was indisputably applicable. 

Moreover, our reliance in Benson on Maiers, also relied on by 

the Court here, is equally without relevance. The Court correctly 

reiterates our Maiers statement that the reservation of an easement 

in a subdivision wlat creates a covenant enforceable against the 

seller. Again, the case before us does not involve a plat. 

Furthermore, the Court concedes the more fundamental irrelevance of 

Maiers here by conceding that Maiers predated the legislature's 
enactment of the statutory definition of a plat. 

Throughout its opinion, the Court focuses on refuting Owensr 

arguments. Via this focus, the Court may hope that the reader will 

miss the total lack of authority to suw~ort what it does here. The 

lack of authority is too clear to be missed. 

In this case, the Court ignores both statute and case law to 

reach its result. While we are free to "amend" our own cases where 

the law allows or requires it, we ought never to ignore it. Doing 

so creates enormous difficulties for district courts and practicing 

lawyers. More importantly, we are free to ignore valid 

legislative enactments or twist them beyond recognition to suit 

ourselves in reaching a result in a particular case. 

Finally, the effects of the Court's decision today will be 

far-reaching with regard to the confusion it produces in the 

vitally important area of property rights and the creation of 

interests in real property. The Court here creates a situation 

where whether a certificate is a certificate of survey or a plat 

necessarily will be decided by courts on a case-by-case basis, 

rather than clearly and cleanly determined pursuant to rules 

established by the legislature. I cannot agree. I dissent. 

Justice James C. 

Karla M. Gray. 

Nelson joins in the 
RPy'~b\x \ CHTiIFlCATE OF SURVEY 

PREPARED FOR AND . OWNERS OF RECORD 

LLOYD E.El VIRGINIA M. BACHE 
October 19, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

1. James Heckathorn 

MURPHY, ROBINSON, HECKATHORN & PHILLIPS, P. C. 

P. 0. Box 759 

KalispelI, MT 59903-0759 

Lon J. Dale 

MILODRAGOVICH, DALE & DYE 

P. 0. Box 4947 

Missoula, MT 59806-4947 

Gary Kalkstein 

QUANE, SMITH, HOWARD & HULL 

619 SW Higgins Avenue, Suite L 

Missoula, MT 59803 

John K. Tabaracci, Esq. 

Sullivan & Tabaracci 

430 Ryman 

Missoula, MT 59802 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA