Dolan v. Guenther

• Court: Montana Supreme Court
• Decided: April 7, 2026
• Docket: DA 25-0190
• Status: Published
• Author: Baker

Opinion

04/07/2026

DA 25-0190 Case Number: DA 25-0190

IN THE SUPREME COURT OF THE STATE OF MONTANA

2026 MT 73

JAMES J. DOLAN, JR. and SAMANTHA L. DOLAN,

Plaintiffs and Appellants,

v.

JAKE CEARTIN and ANDREA CEARTIN,

Defendants,

TRACY GUENTHER, JESSE GUENTHER, and COBB HILL MINOR SUBDIVISION HOMEOWNERS’ ASSOCIATION,

Defendants and Appellees.

APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV-18-633-C Honorable John C. Brown, Presiding Judge

COUNSEL OF RECORD:

For Appellants James J. Dolan Jr., and Samantha Dolan:

W. John Tietz, Hallee C. Frandsen, Browning, Kaleczyc, Berry & Hoven, P.C., Helena, Montana

Calvin J. Stacey, Stacey & Funyak, Billings, Montana

For Appellees Tracy Guenther and Jessie Guenther:

Robert K. Baldwin, William Guy Thomas, Baldwin Law, PLLC, Bozeman, Montana

Submitted on Briefs: February 4, 2026 Decided: April 7, 2026

Filed:

__________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.

¶1 James Dolan, Jr. and Samantha Dolan appeal the Eighteenth Judicial District

Court’s grant of partial summary judgment in favor of Tracy and Jesse Guenther and its

subsequent denial of the Dolans’ partial summary judgment motion. On both motions, the

District Court concluded that the Dolans did not have a ditch easement and, therefore, did

not have a claim against the Guenthers for ditch interference. We restate the following

issues on appeal:

1. Did the District Court correctly determine that the Dolans do not hold an implied easement by existing use to a ditch that crosses the Cobb Hill Minor Subdivision property?

2. Are the Guenthers entitled to attorney fees and costs, including those incurred on appeal?

Though we do not adopt all of the District Court’s rationale, we affirm its rulings. Because

the Guenthers accordingly are entitled to attorney fees and costs incurred on appeal, we

remand for the District Court to determine a reasonable amount of fees and costs.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The Guenthers and the Dolans are homeowners in the five-lot Cobb Hill Minor

Subdivision located in Gallatin County near Four Corners, Montana. The land historically

was used as pasture and hay ground for horses. Previous landowners diverted water from

South Dry Creek through the Myron-Ferris Ditch, which split into two lateral ditches and

delivered water to different areas of the property. In 2006, Cobb Hill, LLC acquired and

subdivided the property.

2 ¶3 As part of the subdivision process, the Department of Environmental Quality (DEQ)

issued Cobb Hill, LLC a certificate of subdivision approval (COSA) under Montana’s

subdivision sanitation regulations. Title 76, ch. 4, part 1, MCA. The COSA required that

“the small ‘feeder’ irrigation ditches across the lots . . . be abandoned,” excluding an

irrigation ditch running along the east boundary of the subdivision.1 The COSA provided

that “no sewage treatment system shall be constructed within 100 feet of . . . [an] irrigation

ditch . . . [or] any domestic water supply source” and that all “water supply systems,

sewage treatment systems, and storm drainage systems [and sanitary facilities] . . . be

located as shown on the approved plans.” The terms of the COSA also required Cobb Hill,

LLC to provide lot purchasers with a copy of the COSA and the plat approval. Subsequent

instruments transferring the lots also needed to reference the COSA’s conditions.

¶4 Cobb Hill Minor Subdivision consists of one cul-de-sac surrounded by five lots.

Lots 1 and 2 are located on the west side of the cul-de-sac, and Lots 3, 4, and 5 are located

on the east side.

1 The referenced ditch on the east boundary of the subdivision is part of the Myron-Ferris Ditch; the Dolans do not argue that it is the ditch at issue in this case. 3 Figure 1: Depiction of final plat for Cobb Hill Minor Subdivision; ownership annotations added by the Guenthers in their response brief filed on appeal.

Cobb Hill, LLC conveyed lot 5 to Michael and Joni Westfall in 2006 and Lots 1, 2, 3, and

4 to Ewing Trust by a single transaction in 2009. Jake and Andrea Ceartin purchased Lot

2 from Ewing Trust in 2009 and conveyed it to the Dolans in 2015. In 2016, the Dolans

purchased Lot 3 from Ewing Trust. That same year, Ewing Trust conveyed Lot 4 to the

Guenthers and transferred Lot 1 to the Ceartins. Running along the east side of the

4 cul-de-sac is a small ditch described variably by the parties as a “feeder ditch, a lateral

ditch, and a seasonal stream.” The ditch flows from the south to the north and cuts through

the Westfalls’ Lot 5 and the west end of the Guenthers’ Lot 4, then through the south end

of the Dolans’ Lot 3, eventually reaching the Dolans’ Lot 2.

¶5 The Ceartins believed that the ditch conveyed the water right appurtenant to their

land and used the water passively to water trees on Lot 2 when they owned the property.

The Dolans continued to water the trees and grass with the water flowing in the ditch after

they acquired the property from the Ceartins. When the Dolans inquired about the water

rights and ditch before purchasing Lot 2, an e-mail from the Ceartins’ realtor to the Dolans’

realtor explained that the ditch was owned by “all the water users,” that all users had an

obligation to maintain the stretch within their property, and that Lot 2’s water rights were

conveyed through the ditch.2

¶6 In May 2016 and shortly after the Guenthers purchased Lot 4, the Gallatin

City-County Health Department (Health Department) received a complaint that Lot 4’s

approved drain field site was within thirty feet of the ditch. In April 2017, the Health

2 On September 30, 2015, the Dolans filed forms in the Water Court to split ownership of the water right that they shared with other Cobb Hill Minor Subdivision landowners. The Guenthers objected to the Dolans’ split request, arguing that the COSA’s requirement to abandon the feeder ditches also required that the Dolans abandon their water right. In November 2019, the Water Court issued findings of fact, conclusions of law, and an order on the Guenthers’ objection. The Water Court noted in its findings, “It is far from clear whether the ‘small feeder ditches’ include the west or east laterals that have delivered water to Lots 2 and 3.” The Water Court found that the Dolans had not abandoned their water right, noting that water rights and ditch rights are separate and distinct rights. See Reiman v. Anderson, 282 Mont. 139, 146, 935 P.2d 1122, 1126 (1997) (“A person may own a water right without a ditch right, or own a ditch right without a water right.” (citation omitted)).

5 Department denied the Guenthers’ drain field installation, noting that the Guenthers “must

have the [COSA] rewritten to allow the ditch to continue conveying surface water” or

present an alternative to the Health Department. That same month, the DEQ sent letters to

all property owners of the Cobb Hill Minor Subdivision, stating that they were in violation

of the COSA and DEQ regulations. The letters explained that the ditch impeded proper

stormwater drainage, affected high groundwater levels, and rendered the drain fields in

violation of setback requirements between surface water and sewage treatment systems.

¶7 To come into compliance with the DEQ’s subdivision regulations, the Guenthers

installed culverts on Lots 4 and 5. The Health Department filed an expedited rewrite of

the COSA identifying the culverts’ locations, which the DEQ approved. With the culverts

installed, the Health Department authorized the Guenthers’ drain field.

¶8 In June 2018, the Dolans filed a complaint against the Guenthers and Westfalls,

alleging that the Defendants’ installation of the culverts unlawfully interfered with their

ditch easement.3 The Dolans prayed for judgment declaring the rights of the parties with

respect to the easement; injunctions mandating removal of the culverts and allowing access

for maintenance to the ditch; an injunction prohibiting any future interference with the

ditch; damages, including punitive damages; and attorney fees and costs pursuant to

§ 70-17-112(5), MCA. The Dolans amended their complaint in April 2019 to include the

3 The Westfalls and Dolans reached a settlement of their claims at trial. 6 Ceartins4 and Cobb Hill Minor Subdivision Homeowners’ Association as Defendants and

added violation of its covenant as a cause of action.5

¶9 In July 2019, the Guenthers filed a motion for partial summary judgment, seeking a

declaratory judgment that the Dolans did not have a prescriptive ditch easement across the

Guenthers’ property. In response, the Dolans moved under M. R. Civ. P. 56(f) for an order

denying the Guenthers’ motion for partial summary judgment or, in the alternative,

continuing the deadline for their response until discovery was completed. The District

Court denied the Dolans’ Rule 56(f) motion as moot on November 5, 2019, reasoning that

enough time had passed between their motion and the court’s ruling to enable the Dolans

to conduct the necessary discovery for a response, and ordered the Dolans to respond to

the Guenthers’ motion by later that month.

¶10 While the Guenthers’ motion for partial summary judgment was pending, the

Dolans cross-moved for partial summary judgment on March 2, 2020, asking for a

declaratory judgment that the Dolans had an implied easement by existing use. The

Guenthers moved to stay briefing on the Dolans’ cross-motion until after the resolution of

their motion. The Dolans objected, arguing that the Dolans’ cross-motion should be

considered concurrently with the Guenthers’ motion for partial summary judgment. The

4 The Ceartins and Dolans reached a settlement during the pendency of this appeal. 5 In their answers to the amended complaint, all Defendants affirmatively alleged that the Cobb Hill Minor Subdivision Homeowners’ Association (HOA) does not exist. The HOA did not file an answer to the Dolans’ complaint and has not engaged in litigation throughout these proceedings. 7 court ordered a stay on briefing for the Dolans’ cross-motion for partial summary

judgment.

¶11 Nearly two years later, the District Court granted the Guenthers’ motion for partial

summary judgment. The District Court concluded that the Dolans did not have an easement

of any kind across the Guenthers’ property, expressly addressing the Dolans’ implied

easement theory. After another two years, following full briefing and oral argument, the

District Court denied the Dolans’ cross-motion for partial summary judgment. The court

first applied the law-of-the case doctrine, stating that it already had considered the Dolans’

argument for an implied easement by existing use. The court nonetheless continued to

consider the merits of the Dolans’ implied easement claim. The court reasoned that the

COSA’s express provision to abandon the feeder ditches negated the intent required for an

implied easement. It added that all subsequent purchasers were “bound” by Cobb Hill,

LLC’s agreement to abandon the ditches and that examination of the circumstances was

not required. The court concluded that the Guenthers wholly defeated the Dolans’ claims

as they were premised on the existence of the ditch easement. The court certified its

judgment as immediately appealable under M. R. Civ. P. 54(b) and awarded the Dolans

and Ceartins their attorney fees and costs pursuant to § 70-17-112(5), MCA. We accepted

certification in accordance with M. R. App. P. 6(6) and now consider the Dolans’ appeal.

STANDARDS OF REVIEW

¶12 This Court reviews a district court’s summary judgment ruling de novo. Baugh v.

H2S2, LLC, 2024 MT 314, ¶ 12, 419 Mont. 472, 560 P.3d 1279 (citation omitted).

8 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. M. R. Civ. P. 56(c)(3). We review

for an abuse of discretion a district court’s determination on M. R. Civ. P. 56(f) motions,

motions to stay, and the application of the law-of-the-case doctrine. Hinderman v. Krivor,

2010 MT 230, ¶ 12, 358 Mont. 111, 244 P.3d 306 (M. R. Civ. P. 56(f) motion); Flying T

Ranch LLC v. Catlin Ranch, LP, 2020 MT 99, ¶ 7, 400 Mont. 1, 462 P.3d 218 (motion to

stay); State v. Keefe, 2022 MT 121, ¶ 13, 409 Mont. 86, 512 P.3d 741 (law-of-the-case

doctrine).

DISCUSSION

1. Did the District Court correctly determine that the Dolans do not hold an implied easement by existing use to a ditch that crosses the Cobb Hill Minor Subdivision property?

Implied Easement by Existing Use

¶13 An easement is a nonpossessory interest in land, granting a person the right to use

another’s land “for a specific purpose or a servitude imposed as a burden upon the land.”

Blazer v. Wall, 2008 MT 145, ¶ 24, 343 Mont. 173, 183 P.3d 84 (citations omitted). An

easement may be created by instrument, by law, or by prescription. Yellowstone River,

LLC v. Meriwether Land Fund I, LLC, 2011 MT 263, ¶ 25, 362 Mont. 273, 264 P.3d 1065

(citations omitted). When “land is severed from common ownership[,]” an implied

easement may arise by law. Waters v. Blagg, 2008 MT 451, ¶ 14, 348 Mont. 48, 202 P.3d

110 (citation omitted), overruled on other grounds by Earl v. Pavex, Corp., 2013 MT 343,

372 Mont. 476, 313 P.3d 154; JRN Holdings, LLC v. Dearborn Meadows Land Owners

9 Ass’n, 2021 MT 204, ¶ 27, 405 Mont. 200, 493 P.3d 340 (citing Hoyem Tr. v. Galt, 1998

MT 300, ¶ 17, 292 Mont. 56, 968 P.2d 1131; Wolf v. Owens, 2007 MT 302, ¶¶ 16-17, 340

Mont. 74, 172 P.3d 124). Because a court’s recognition of implied easements is an

exception to and in derogation of the rule that “written instruments speak for themselves,”

implied easements are regarded with “extreme caution[,]” as courts are “reluctant . . . [to

impose] a servitude through mere implication and without any compensation.”

Yellowstone, ¶¶ 33, 55 (internal quotations omitted; citations omitted).

¶14 An implied easement by existing use is created when a landowner uses one part of

the property (quasi-servient tenement) for the benefit of another part (quasi-dominant

tenement) prior to severance of common ownership, and the parties intended for the use to

continue after the property’s division. Yellowstone, ¶ 30; Hoyem Tr., ¶ 22. The use prior

to division of a tract is sometimes referred to as a quasi-easement because a landowner

cannot hold an easement on their own land. Hoyem Tr., ¶ 22. To establish an implied

easement by existing use, a party must show by clear and convincing evidence, Apecella

v. Overman, 2025 MT 219, ¶ 31, 424 Mont. 202, 577 P.3d 133, that

(1) the dominant and servient tenements are severed from a common ownership (“unity of ownership”); (2) the use of the servient tenement is apparent, continuous, and reasonably necessary for the beneficial use and enjoyment of the dominant tenement at the time of severance; and (3) the parties to the deed that severed the tenements intended the use to continue after the division.

JRN Holdings, ¶ 28 (citing Yellowstone, ¶ 30; Waters, ¶ 14).

¶15 The District Court concluded that the Dolans did not meet their burden for

establishing an implied easement by existing use. It reasoned that the COSA precluded the

10 inference that the parties intended the ditch’s use to continue after the division of the

property. The court added that the COSA legally bound Cobb Hill Minor Subdivision’s

landowners to Cobb Hill, LLC’s intent to abandon the feeder ditches dispersed throughout

the property. The Dolans argue that Ewing Trust’s conduct created a quasi-easement after

it acquired Lots 1, 2, 3, and 4 in 2006. They assert that the implied easement by existing

use arose when Ewing Trust reestablished the ditch conveying water to Lots 2 and 3 and

then represented to the Ceartins—who then sold to the Dolans—that they had a legal right

to use the water flowing in that ditch.

¶16 The intent of the parties is “gathered from the evidence” surrounding the complete

transaction. White v. Landerdahl, 191 Mont. 554, 558, 625 P.2d 1145, 1147 (1981)

(citation omitted); Bruce et al., The Law of Easements and Licenses in Land, § 4:25

(2025-2) (hereinafter “Bruce et al.”). The parties’ intent may be shown by actual use when

the common ownership is severed but also “such uses as the facts and circumstances show

were within the reasonable contemplation of the parties at the time of conveyance.”

Tungsten Holdings, Inc. v. Kimberlin, 2000 MT 24, ¶¶ 25-33, 298 Mont. 176, 994 P.2d

1114, cited in Waters, ¶ 22; accord Graham v. Mack, 216 Mont. 165, 174, 699 P.2d 590,

596 (1984). “[L]anguage in the deed, content of related conveyances, verbal statements,

lot and topography maps of the area, or testimony about the surrounding circumstances”

may indicate the parties’ intent to create an implied easement by existing use. Bruce et al.,

§ 4:25. An implied easement cannot be established where evidence reveals that the alleged

easement is “contrary to the parties’ intention.” Yellowstone, ¶ 55 (citations omitted); see

11 also Bruce et al., § 4:25 (“Implied easements cannot arise in the face of an expression of

intent to the contrary.”); Koestel v. Buena Vista Pub. Serv. Corp., 676 P.2d 6, 9 (Ariz. Ct.

App. 1984) (“Since the implication of an easement from preexisting use is made in the

supposed execution of the parties’ intent, the implication is never made where the evidence

shows the absence of such intent.”).

¶17 The parties argue that central to determining intent is the legality of deviating from

the COSA’s terms. The Dolans contend that because the COSA can be amended to

incorporate the ditch, as illustrated by the Guenthers’ installation of the culverts, it does

not prevent the inference that Ewing Trust and the Ceartins intended to continue to use the

ditch. The Guenthers counter that even with the availability of COSA amendments—made

necessary here by the Dolans’ refusal to abandon the ditch—the law prevents the inference

of an easement because that would require the Court to presume that the parties had an

illegal intent.

¶18 Unless the developer shows some exemption or exception to the subdivision

sanitation regulations, the county clerk and recorder is prohibited from filing a plat that is

still subject to sanitary restrictions. Section 76-4-122, MCA. Developers or owners of an

approved subdivision also must provide purchasers of the subdivided property with a copy

of the COSA or plat specifying the approved locations of the water supply, storm drain,

and sewage disposal systems. Section 76-4-113, MCA. Each subsequent seller must

include reference to the COSA’s conditions. Section 76-4-113, MCA. Filing a COSA

alongside the related plat in the county’s central depository system “imparts constructive

12 notice of its contents to all interested parties” of the terms of that COSA. Blazer, ¶ 73

(citations omitted); Hauseman v. Koski, 259 Mont. 498, 502, 857 P.2d 715, 718 (1993)

(“The recording statutes import notice to all interested parties in matters affecting title to

real property.” (citation omitted)).

¶19 Generally, a landowner may not use or construct a facility that deviates from the

COSA unless it has been approved by the reviewing authority. Section 76-4-130, MCA.

But deviations from COSAs are not illegal per se. Williams v. Schwager, 2002 MT 107,

¶¶ 24-26, 309 Mont. 455, 47 P.3d 839. A landowner may deviate from the COSA but may

do so only when the reviewing authority approves that deviation. Section 76-4-130, MCA;

Admin. R. M. 17.36.112(3) (2023). The reviewing authorities’ approval typically occurs

upon the landowners’ formal application to amend the COSA under DEQ regulations.

Section 76-4-104(7)(j), MCA; Admin. R. M. 17.36.112(3) (2023).

¶20 This Court, in Williams v. Schwager, recognized that a landowner may, upon

approval by the governing entity, deviate from a certification of plat approval. Williams,

¶ 26. There, Williams and Schwager disputed an agreement governing a well shared

between their properties. Williams, ¶ 1. The certification of plat approval required that

each single-family dwelling drill an individual well. Williams, ¶ 5. Despite the plat

approval’s conditions, the two plats’ predecessors shared a well. Williams, ¶¶ 6-8.

Schwager argued that the shared-well agreement was void ab initio because it was in

violation of the certification and contracted an illegal object. Williams, ¶¶ 24-27. This

Court held that because the predecessor followed the certification of plat approval’s

13 provisions requiring that he receive the reviewing authorities’ approval prior to

construction, and when doing so he received approval for the shared well, the well was not

illegal per se and the agreement not void ab initio. Williams, ¶¶ 27-29.

¶21 The Dolans rely on Williams to argue that a formal application to amend the COSA

is not necessary to establish a legal deviation from the COSA. But Williams is readily

distinguishable. There, the reviewing authority approved the shared well, and evidence

showed that shared wells were an encouraged and customary arrangement. Williams,

¶¶ 17-18. Here, once made aware of its continued existence, the reviewing authority has

been adamant that the ditch violates the COSA and related subdivision sanitation

regulations. On several occasions, the DEQ has communicated that the ditch cannot remain

in place without the installation of culverts or other mitigating measures. The Guenthers’

installation of culverts to accommodate the existence of the ditch with approval of both the

Health Department and DEQ demonstrates only that deviation from the COSA is not illegal

per se. But any intent the parties had at the time of conveyance that the alleged right to the

ditch would continue after severance of common ownership must be based on facts and

circumstances indicating continuance was within Ewing Trust’s and the Ceartins’

reasonable contemplations and expectations. Tungsten Holdings, ¶¶ 25-33; Hoyem Tr.,

¶ 31; Waters, ¶ 22; Graham, 216 Mont. at 174, 699 P.3d at 596. Such intent cannot be

formulated at some period subsequent to the severance of common ownership. Bruce, et

al., § 4:25. The Dolans’ reference to actual and potentially available amendments to the

14 COSA does little to illustrate the parties’ reasonable expectations at the time of

conveyance.

¶22 The record is not clear that all parties reviewed the COSA at the time they purchased

their properties; it is clear, however, that the Gallatin County Clerk and Recorder filed the

COSA alongside the plat, and each deed referenced the plat on file. When the DEQ

approved the Cobb Hill Minor Subdivision, it requested that Gallatin County Clerk and

Recorder attach the COSA to Cobb Hill’s final plat. The final plat and the COSA were

simultaneously recorded. The COSA is unambiguous that the Health Department and DEQ

approved the plat upon the mutual understanding of the conditions that “the small ‘feeder’

irrigation ditches across the lots [would] be abandoned” and that water supply, sewage, and

storm drainage systems and sanitary facilities would conform to the approved plans and

setback requirements. The deeds between (1) Cobb Hill, LLC and Ewing Trust, (2) Ewing

Trust and the Ceartins, and (3) the Ceartins and the Dolans conveying Lot 2 did so

“according to the official plat [of Lot 2] on file and of record in the office of the County

Clerk and Recorder, Gallatin County, Montana.” Cobb Hill Minor Subdivision’s past and

present landowners were given constructive notice of the COSA’s conditions placed on

their properties.

¶23 The Dolans correctly point out that, as a COSA may be amended, it does not

irrevocably bind them, Ewing Trust, or the Ceartins to Cobb Hill, LLC’s intent to abandon

the feeder ditches. But Ewing Trust had, at the very least, constructive notice of the COSA

conditions. Any intent to deviate from those conditions must have been within the parties’

15 reasonable expectations. Hoyem Tr., ¶ 31. The Ewing Trust did not install culverts, nor

did it seek the reviewing authority’s approval of the ditch prior to severance of common

ownership. Neither the Health Department nor the DEQ approved the use of the ditch, and

both continue to disapprove of the ditch as it existed when common ownership was severed.

Letters from the DEQ consistently and repeatedly communicate that with the ditch in place

and without mitigation, Lots 1, 2, 3, 4, and 5 do not comply with the COSA or with

subdivision sanitation regulations. The facts and circumstances do not show that continued

use of the ditch was reasonably contemplated or expected at the time of conveyance to the

Ceartins. Instead, the COSA, Ewing Trust’s failure to seek amendment of the COSA or to

install mitigating measures to accommodate the ditch, and the reviewing authorities’

continued insistence that the ditch be abandoned as it existed prior to severance of common

ownership is evidence contrary to the parties’ intent that the Dolans allege. The subdivision

was approved on the understanding that the feeder ditches would be abandoned.

¶24 Finally, the Dolans did not show that the ditch is reasonably necessary for use and

enjoyment of the property. JRN Holdings, ¶ 28. As implied easements are “not favored”

but “considered with ‘extreme caution,’” Yellowstone, ¶ 33, we have not allowed such an

easement on the basis of convenience, short of proven necessity. The District Court

correctly determined that the Dolans did not meet their burden of proving their implied

easement theory.

16 Procedural Claims

¶25 The Dolans raise several procedural claims on appeal. They argue that the District

Court abused its discretion in denying their M. R. Civ. P. 56(f) motion and motion to stay,

in deeming the Dolans’ argument for an implied easement waived, and in applying the

law-of-the-case doctrine to the Dolans’ motion for partial summary judgment. An abuse

of discretion occurs when a court “acts arbitrarily, without employment of conscientious

judgment, or exceeds the bounds of reason resulting in substantial injustice.” Stephenson

v. Lone Peak Preserve, LLC, 2025 MT 148, ¶ 12, 423 Mont. 46, 571 P.3d 1042 (citation

omitted). We will not reverse for an error that “would have no significant impact upon the

result; if there is no showing of substantial injustice, the error is harmless.” In re A.N.,

2000 MT 35, ¶ 39, 298 Mont. 237, 995 P.2d 427 (citation omitted).

¶26 The Dolans’ contentions rest on the District Court’s alleged failure to fully consider

their argument that Ewing Trust created an implied easement by existing use. They suggest

that because they were unable to complete discovery, they could not fully respond to the

Guenthers’ argument that the Dolans did not hold an easement on their property. The

Dolans add that the District Court abused its discretion when it granted the Guenthers’

motion to stay briefing on Dolans’ motion for partial summary judgment and failed to

consider the parties’ motions for partial summary judgment concurrently. The Dolans

assert that the final affront and abuse of discretion occurred when the District Court applied

waiver and the law-of-the-case doctrine to their motion for partial summary judgment.

17 ¶27 The Guenthers moved for partial summary judgment in July 2019, nearly fourteen

months after the Dolans filed their complaint in June 2018. The Dolans filed a Rule 56(f)

motion on August 29, 2019, requesting more time to conduct discovery, specifically to

depose Jake Ceartin and Jody Ewing. The court issued its ruling on November 5, 2019,

finding that the Dolans had sufficient time to conduct those depositions and concluding

that the issue was moot. The court gave the Dolans until November 22, 2019, to file their

response to the Guenthers’ motion for partial summary judgment.

¶28 The Dolans take issue on appeal with the fact that discovery was still ongoing when

the District Court ruled against their Rule 56(f) motion. The Dolans had nearly a year and

a half to conduct discovery, including the deposition of two obviously key players in this

litigation—the former landowner of Lot 2 and the common owner of Lots 1, 2, 3, and 4.

See Rosenthal v. Cnty. of Madison, 2007 MT 277, ¶¶ 37-43, 339 Mont. 419, 170 P.3d 493

(holding that litigant had sufficient time to conduct discovery during the eight months

between filing their initial claim and the opposition’s summary judgment motion). The

Dolans do not identify on appeal any facts they ostensibly could have discovered that

would have altered the outcome of the Guenthers’ partial summary judgment motion.

See Miller v. Goetz, 2014 MT 150, ¶¶ 15-18, 375 Mont. 281, 327 P.3d 483; Rosenthal,

¶¶ 37-43. They have not shown cause for reversal by the court’s denial of their Rule 56(f)

motion.

¶29 The Dolans next claim that the District Court should have addressed the Geunthers’

motion and their cross-motion for partial summary judgment concurrently. The cases the

18 Dolans cite in support of this argument are unavailing. In those cases, this Court explained

that a district court must consider a party’s motion for summary judgment on the merits

even when there are simultaneous cross-motions for summary judgment. Ike v. Jefferson

Nat. Life. Ins. Co., 267 Mont. 396, 399-400, 884 P.2d 471, 474 (1994); Hajenga v. Schwein,

2007 MT 80, ¶¶ 18-19, 336 Mont. 507, 155 P.3d 1241; Kilby Butte Colony, Inc. v. State

Farm Mutual Auto. Ins. Co., 2017 MT 246, ¶ 7, 389 Mont. 48, 403 P.3d 664. For example:

[W]hen faced with cross-motions for summary judgment, a district court is not required to grant judgment as a matter of law for one side or the other . . . . Rather, the court must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.

Hajenga, ¶¶ 18-19 (internal quotations omitted). This authority does not suggest that the

District Court was required to consider the motions for partial summary judgment

simultaneously. The court ultimately evaluated each motion on its merits, and the Dolans

have had the opportunity to appeal its rulings, which we have considered here.

¶30 The Dolans finally suggest that, because the District Court mentioned waiver and

the law-of-the-case doctrine, it abused its discretion in denying their motion for partial

summary judgment. The Dolans correctly observe that the District Court cited the incorrect

legal standard for waiver. See Roe v. City of Missoula, ex rel. Missoula City Council, 2009

MT 417, ¶ 45, 354 Mont. 1, 221 P.3d 1200 (holding that litigant’s lack of discussion on

legal arguments waived those arguments on appeal); Mountain W. Farm Bureau Mut. Ins.

Co. v. Brewer, 2003 MT 98, ¶ 9, 315 Mont. 231, 69 P.3d 652 (holding that litigant waived

issued raised for the first time on appeal). But the Dolans fail to acknowledge the court’s

19 agreement that the Dolans did not waive their argument for an implied easement by existing

use. The Dolans similarly are correct that the District Court should not have raised the

law-of-the-case doctrine on their motion for partial summary judgment. Again, though,

the Dolans fail to acknowledge the ten ensuing pages where the court provided reasoned

consideration of the merits of their argument for an implied easement by existing use.

¶31 Though the District Court erroneously invoked waiver and law-of-the-case doctrine

in its order denying the Dolans’ motion for partial summary judgment, it did not earnestly

apply these legal standards, and its subsequent conclusions on the creation of an implied

easement by existing use were correct. State v. Marcial, 2013 MT 242, ¶ 10, 371 Mont.

348, 308 P.3d 69 (“We will affirm the district court when it reaches the right result, even

if it reaches the right result for the wrong reason.” (citation omitted)). Its error was

harmless. In re A.N., ¶ 39. The District Court fully considered the merits of the parties’

arguments on the Dolans’ motion for partial summary judgment. The court’s decisions

employed conscientious judgment and reason when it reached its conclusion that the

Dolans had not met their burden to establish an implied easement. Even though we do not

accept all of its reasoning, the District Court did not abuse its discretion.

¶32 2. Is the prevailing party entitled to attorney fees and costs, including those incurred on appeal?

¶33 After the District Court ruled on the parties’ partial summary judgment motions,

they stipulated to a Rule 54(b) certification and to an award of fees and costs to the

Guenthers for $145,000 and to the Ceartins for $85,000 pursuant to § 70-17-112(5), MCA.

Both parties concede that the amounts of attorney fees and costs in that stipulated judgment

20 were reasonable. The Dolans contend, however, that because the District Court erred in its

summary judgment decision, the Guenthers are not the prevailing party and are not entitled

to attorney fees and costs either for the District Court proceedings or for those accrued on

appeal.

¶34 When a party brings legal action based on interference with a ditch easement, the

prevailing party is entitled to reasonable attorney fees and costs. Section 70-17-112(5),

MCA. We have held that under § 70-17-112(5), MCA, the “costs and reasonable attorney’s

fees include those fees incurred [on] appeal.” Espy v. Quinlan, 2000 MT 193, ¶ 28, 300

Mont. 441, 4 P.3d 1212. As we uphold the District Court’s decision, we affirm its award

of fees. In addition to the award determined by the court’s stipulated order, the Guenthers

are entitled to reasonable fees and costs incurred on appeal. We remand for the

determination of that amount.

CONCLUSION

¶35 We affirm the District Court’s determination that the Dolans do not hold an implied

easement by existing use on the Guenthers’ property. We remand for the determination of

reasonable attorney fees and costs on appeal and for other proceedings as may be

appropriate.

/S/ BETH BAKER

We Concur:

/S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ INGRID GUSTAFSON /S/ JIM RICE