Fabers v. Raty

2025 MT 66N

• Court: Montana Supreme Court
• Decided: April 1, 2025
• Docket: DA 24-0520
• Status: Unpublished

Opinion

04/01/2025

DA 24-0520 Case Number: DA 24-0520

IN THE SUPREME COURT OF THE STATE OF MONTANA

2025 MT 66N

ELGIN FABER and COLLEEN FABER,

Plaintiffs, Appellants, and Cross-Appellees,

v.

KEITH RATY, COLLEEN RATY, and all other persons, unknown, claiming or who might claim any right, title, estate, or interest in or lien or encumbrance upon the real property described in the complaint adverse to plaintiffs’ ownership or any cloud upon plaintiffs' title, whether the claim or possible claim is present or contingent,

Defendants, Appellees, and Cross-Appellants.

APPEAL FROM: District Court of the Twelfth Judicial District, In and For the County of Hill, Cause No. DV-16-003 Honorable John A. Kutzman, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Michael F. McGuinness, Patten, Peterman, Bekkedahl & Green, P.L.L.C., Billings, Montana

For Appellees:

Devon M. Conroy, Davis, Hatley, Haffeman & Tighe, P.C., Great Falls, Montana

Submitted on Briefs: March 19, 2025 Decided: April 1, 2025 Filed:

ir,-6L-.--if __________________________________________ Clerk Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion, shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Elgin and Colleen Faber (“the Fabers”) appeal from the Twelfth Judicial District

Court, Hill County’s July 10, 2024 Second Amended Findings of Fact and Conclusions of

Law, and Judgment, and Order to Close modifying its prior Judgment to conform with our

opinion in Faber v. Raty, 2023 MT 227, 414 Mont. 144, 539 P.3d 1096 (Faber I). Keith

and Colleen Raty (“the Ratys”) cross-appeal.

¶3 Relevant to the present appeal, in Faber I we reversed the District Court’s prior

Judgment and remanded “with instructions to conform the . . . Judgment to reflect our

holding that the Ratys’ prescriptive easement [over the Olson Road] is limited in scope to

the historic agricultural, recreational, and residential uses of the road by the Ratys and their

predecessors between approximately 1948 and 1997.” Faber I, ¶ 53. Specifically, we held

that “the Ratys’ easement is properly limited to trailing approximately 200 cow-calf pairs,”

not the 300 pairs originally allowed by the District Court.1 Faber I, ¶ 50. On remand, the

District Court modified its Judgment to read, in relevant part, that the Ratys’ Olson Road

easement “includes, but is not limited to, moving up to 200 cow-calf pairs,” and that “the

1 We also reversed the District Court’s determination that the Ratys had a prescriptive easement over Quarter Gulch Road, and the District Court conformed its July 10, 2024 Judgment accordingly. That issue is not part of this appeal.

2 Ratys are expected to use best efforts to keep their cattle as close to the road as is reasonably

possible, but the cattle are not required to remain at all times within the sixty-foot width of

the easement.”

¶4 On July 15, 2024, the Fabers moved to reopen the case, arguing that the July 10,

2024 Judgment did not comply with our instruction in Faber I to limit the scope of the

Ratys’ easement to “uses of the road by the Ratys and their predecessors between

approximately 1948 and 1997.” The Fabers argued that the District Court was required to

include specific language in its Judgment limiting the frequency of the Ratys’ use of the

road to move cattle and specifying that they could not rest their cattle on the road while in

transit. The Ratys responded that the District Court was not required to make the changes

the Fabers had requested, but that it was required to change the phrase “up to 200 cow-calf

pairs” to “approximately 200 cow-calf pairs.”

¶5 The District Court issued an Order Refusing Further Amendments to the Judgment

on August 12, 2024. In its Order, the District Court declined to specify “the precise dates

each Spring and Fall when the Ratys can move their cattle up and down the Olson Road”

or “the precise time the cattle have to be off of the Faber property.” It also declined to

unnecessarily amend the order to address the “alleged ambiguit[y]” stemming from the

difference between “up to” and “approximately.”

¶6 Whether the District Court has complied with the remand instructions is a question

of law, which we review for correctness. Brown & Brown of MT, Inc. v. Raty, 2013 MT

338, ¶ 8, 372 Mont. 463, 313 P.3d 179 (Brown II).

3 ¶7 Both parties raise on appeal substantially the same arguments they made to the

District Court after it entered its July 10, 2024 Judgment. What these arguments boil down

to is that both parties would prefer further clarification of the scope of the Ratys’ easement.

The Fabers seek further clarity on the frequency and duration of the Ratys’ right to move

cattle across their land. The Ratys seek further clarity on the number of cattle they are

permitted to move across the Fabers’ land. While we have certainly required district courts

to set out the scope of an easement with sufficient clarity to put the parties on notice of

their rights and duties, we have never endorsed the level of granularity requested by the

parties in this case. See Brown II, ¶¶ 13-14 (discussing Warnack v. Coneen Family Tr.,

278 Mont. 80, 85-86, 923 P.2d 1087, 1090-91).

¶8 The Ratys point to the District Court’s finding that “[t]he Ratys’ predecessors used

the Olson Road for [moving cattle] under a claim of right, whenever they wanted,” to assert

that they may move cattle up and down the Olson Road with any frequency they choose.

The Fabers point to testimony from one of the Ratys’ predecessors that he only trailed

cattle on the Olson Road “twice per year” to assert that the Ratys may only move their

cattle across the Fabers’ property with that frequency. These are not irreconcilable

findings. The Ratys may only have the right to trail each cow or calf up the road once a

year and down the road once a year consistent with the historical use of the easement. But

this does not foreclose the possibility that circumstances may require some of the allotted

200 cow-calf pairs to be moved at different times, again consistent with the historical use

of the easement.

4 ¶9 The District Court entered detailed findings of fact regarding the relevant conduct

of the respective parties and their predecessors-in-interest between 1948 and 1997. The

District Court’s July 10, 2024 Judgment, along with its August 12, 2024 Order, established

that the Ratys may move “up to” 200 cow-calf pairs across the Fabers’ land twice per year,

as the record reflects was done for almost 50 years without incident. Five decades of

conduct provides a more than adequate exemplar for the parameters moving forward.

¶10 To the extent that the difference between “up to” and “approximately” has caused

some confusion, that confusion is of our making, not the District Court’s. When we used

the word “approximately” in Faber I, it was in an attempt to mirror the testimony at trial,

not to alter the specifications of the easement, as found by the District Court. The District

Court properly phrased the upper limit on the number of cattle the Ratys may trail across

the Fabers’ land, consistent with the record before it, as “up to 200 cow-calf pairs.”

¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. This appeal presents

no constitutional issues, no issues of first impression, and does not establish new precedent

or modify existing precedent. Affirmed.

/S/ JAMES JEREMIAH SHEA

We Concur:

/S/ KATHERINE M BIDEGARAY /S/ BETH BAKER /S/ INGRID GUSTAFSON /S/ JIM RICE