Sunday v. Harboway

2006 MT 95, 136 P.3d 965, 332 Mont. 104, 2006 Mont. LEXIS 164
CourtMontana Supreme Court
DecidedMay 4, 2006
Docket05-078
StatusPublished
Cited by5 cases

This text of 2006 MT 95 (Sunday v. Harboway) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sunday v. Harboway, 2006 MT 95, 136 P.3d 965, 332 Mont. 104, 2006 Mont. LEXIS 164 (Mo. 2006).

Opinions

JUSTICE WARNER

delivered the Opinion of the Court.

¶1 Kirk D. Sunday (Sunday) appeals from an Order of the Eighth Judicial District Court, Cascade County, declaring that he does not have an easement across property owned by Donald Harboway and Tina Harboway (Harboways).1 Harboways cross-appeal from another part of the District Court’s Order which declares that an easement exists around the perimeter of one parcel of Harboways’ property, which is a part of this litigation, but that Sunday cannot access it. We affirm.

¶2 We restate and address the following issues on appeal:

¶3 1. Did the District Court err in concluding that Sunday does not have an easement for a road across Harboways’ property?

¶4 2. Did the District Court err in concluding that an easement existed for a road around the perimeter of a part of Harboways’ property?

¶5 3. Are Harboways entitled to attorney fees on appeal?

BACKGROUND

¶6 The land at issue is located in Cascade County in the area commonly known as Sudden Valley. Prior to July 23, 1971, all of the land in question was owned by John L. and Anna Barrett. The Barretts conveyed this land to Harold Poulsen, subject to easements visible on the property. Mr. Poulsen and his wife conveyed the land to James R. Gist (Gist) and Carl Heishman (Heishman). Gist and Heishman divided the land into multiple parcels. Three parcels were eventually [106]*106acquired by Harboways and one parcel was eventually acquired by Sunday.

¶7 The land owned by Harboways is separated from that owned by Sunday by a tract owned by Darrel Evert (Evert), who is not involved in this litigation.

¶8 The property in question, the Alleged Road, and the 30 foot easement in question, are generally depicted as follows:

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¶9 Gist and Heishman conveyed Parcel A to Marlin J. Dimmer and Joy M. Dimmer (Dimmers), “subject to all... easements ... appearing of record against said land or now visible....” Harboways acquired Parcel A by separate conveyances from the Dimmers, neither of which was subject to visible easements.

¶10 Gist and Heishman conveyed Parcel B to L. Kent Poulsen and Mary Kay Poulsen (Poulsens), “subject to all... easements... appearing of record against said land or now visible....” The Poulsens in turn conveyed Parcel B to Harboways. This conveyance was not subject to visible easements.

¶11 Gist conveyed Parcel C to Timothy F. Valerie and Anna H. Valerie (Valeries), “free from all incumbrances except all visible road easements and hereditaments.” This conveyance was made September 24, 1976, nearly two years before Sunday’s predecessors in interest, the Scotts, purchased Parcel D. The deed from Gist to Valeries specifically contained the language: “reserving unto the Grantor, his [107]*107heirs, successors and assigns, however, a Thirty (30) foot wide easement on all sides of the inside perimeter of the said described property for the purposes of construction, maintenance and use of roads, water, sewer, and utility facilities.” Harboways acquired Parcel C following four conveyances that were not subject to visible easements.

¶12 By contract for deed made December 23,1976, Gist sold to Evert’s predecessor in title, Dwight A. Darrah, Annie Bell Darrah, Harry C. Darrah, and Esther L. Darrah (Darrahs), Parcel E. On May 8, 1978, Gist conveyed Parcel D to Calvin B. Scott and Judy R. Scott (Scotts). Sunday subsequently acquired Parcel D. Thus, prior to the time that Sunday’s predecessor in interest, Scotts, acquired Parcel D from Gist, the 30 foot easement on Parcel C could not provide access to Sunday’s land. There is no record of an easement across Parcel E for access to Parcel D.

¶13 Sunday sometimes traveled over Harboways’ land using the way depicted above as the Alleged Road. He refers to this route as a road, while Harboways refer to it as an indistinct two-rut trail. Harboways blocked the Alleged Road with a fence. Sunday sued, claiming an easement giving him the right to cross Harboways’ land on the Alleged Road. He first claimed the Alleged Road constitutes an easement that was visible at the time of conveyances to Harboways’ predecessors in interest. Alternatively, Sunday claimed an easement by prescription over the Alleged Road.

¶14 Sunday’s claims were tried to the District Court sitting without a jury. On December 22, 2004, the District Court filed its Findings of Fact, Conclusions of Law and Order (Order). The District Court concluded that Sunday failed to establish the Alleged Road as a visible easement reserved in prior deeds, and further that he did not establish a prescriptive easement over it to access his property.

¶15 Also in its Order, the District Court concluded that “a 30 foot easement was created on Harboways’ property by the Gist to Valerie deed. However, Sunday does not have an easement across the northern portion of Harboways’ land (original Kent and Poulsen property, original Dimmer and Calvert property) to access this ‘road’ easement.” This appeal and cross-appeal followed.

¶16 Harboways have moved this Court for an injunction pending resolution of this appeal. Harboways claim Sunday is preparing to build a road along the 30 foot easement. This Opinion renders the motion for an injunction moot.

[108]*108STANDARD OF REVIEW

¶17 We review the findings of a district court sitting without a jury to determine if they are clearly erroneous. Tomlin Enters., Inc. v. Althoff, 2004 MT 383, ¶ 12, 325 Mont. 99, ¶ 12, 103 P.3d 1069, ¶ 12. We will consider the findings to be clearly erroneous if they are not supported by substantial credible evidence, if the district court misapprehended the effect of the evidence, or if a review of the record leaves us with the definite and firm conviction that a mistake has been committed. Tomlin, ¶ 12. We review a district court’s conclusions of law for correctness. Tomlin, ¶ 12.

DISCUSSION ISSUE ONE

¶18 Did the District Court err in concluding that Sunday does not have an easement for a road across Harboways’ property?

¶19 The District Court specifically found credible a licensed engineer and surveyor presented by Harboways. He testified that no visible road existed at the times claimed by Sunday. The District Court also considered testimony concerning what roads and trails did exist, examined maps of the area, and testimony to the effect that the road claimed by Sunday never existed. The District Court also considered the witnesses and evidence presented by Sunday. It found that at least some of the testimony of Sunday’s witnesses was inaccurate as to the time of use, extent of use, and location of the road at issue. After reviewing conflicting evidence, the District Court found as a matter of fact that at the various times that Gist and Heishman conveyed the property traversed by the Alleged Road, there was no visible road in existence.

¶20 The essence of Sunday’s argument on appeal is that the District Court’s findings of fact are clearly erroneous as it ignored the testimony of several witnesses that the Alleged Road was visible and in use when Gist and Heishman conveyed it and reserved an easement for visible roads. The evidence is indeed conflicting. And, if Donald Harboway’s testimony is taken out of context as urged by Sunday, it could be said that he admitted that there was a trail across his property at one time.

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Sunday v. Harboway
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Cite This Page — Counsel Stack

Bluebook (online)
2006 MT 95, 136 P.3d 965, 332 Mont. 104, 2006 Mont. LEXIS 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sunday-v-harboway-mont-2006.