Titeca v. State Ex Rel. Department of Fish, Wildlife, & Parks

634 P.2d 1156, 194 Mont. 209, 1981 Mont. LEXIS 825
CourtMontana Supreme Court
DecidedSeptember 15, 1981
Docket80-396
StatusPublished
Cited by22 cases

This text of 634 P.2d 1156 (Titeca v. State Ex Rel. Department of Fish, Wildlife, & Parks) 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
Titeca v. State Ex Rel. Department of Fish, Wildlife, & Parks, 634 P.2d 1156, 194 Mont. 209, 1981 Mont. LEXIS 825 (Mo. 1981).

Opinion

JUSTICE SHEEHY

delivered the Opinion of the Court.

Plaintiffs, John H. Titeca and Clara L. Titeca, appeal from the summary judgment granted in the District Court, Sixth Judicial District, Sweet Grass County, to defendant, the State of Montana, acting by and through the Department of Fish, Wildlife and Parks (hereinafter department).

The property involved in this matter is located on the Boulder River within Section 15, Township 2 South, Range 13 East, Sweet Grass County, Montana. The site is approximately 20 miles south of Big Timber, Montana, and approximately 3 miles east of McLeod, Montana.

In 1954, by a recorded document entitled “Deed of Right of Way over Existing Road”, W.T. Rule, Jr. and Edith Rule, his wife, predecessors in interest to the department, transferred an interest in property to Annice B. Abarr (Somers), predecessor in interest to plaintiffs and appellants, John H. Titeca and Clara L. Titeca. The document states:

“[T]he said parties of the first part... do hereby grant and convey unto said party of the second part, her heirs and assigns; a permanent right of way, twenty feet wide, for use as a private road across and over a strip of land in Sweet Grass County, Mont., more particularly described as that land now being used as a private road over and across a twenty foot strip of land ...”

This right of way over the Rule property provided access to the Abarr property. The road still provides the only access to Titeca’s property (formerly Abarr’s property).

Through various mesne conveyances, the department acquired the Rule property (servient estate) and Titeca acquired the Abarr property (dominant estate). The department intends to pave the road and open it to the public. The road will serve a dual purpose: It will provide a route to the Titeca property and to the proposed Boulder Forks fishing access site, located on the department’s land.

Titeca brought an action seeking damages of $500,000 and an injunction to prevent the department from developing and using the department’s property as a public fishing access site, and to prevent the paving of the road.

Titeca’s complaint was based on a claimed fee title to the roadway, allegations of improperly made environmental studies, of creating a nuisance, of exposing Titeca to personal liability, and of maintaining a trespass, disturbing peace and contentment, depreciating land values and taking without just compensation. The complaint was supported by *212 the affidavit of John Titeca which alleged that he owned fee title in the right of way and that “irreparable injuries, trespass, damages and losses” would occur by reason of the proposed use of the right of way and development of the access site.

A hearing was held and testimony taken from John Titeca and the department’s regional parks manager, Ray Bemtsen. No decision was rendered at the hearing.

Subsequently, the department moved for summary judgment. The motion was supported by affidavits from Don Abarr (husband of Annice Abarr when the deed of right of way was granted) and Annice Abarr (Somers). Both affidavits indicated the deed was intended to provide only an easement from the Rules. The motion was further supported by an environmental assessment and a prehminary environmental review together with affidavits, made by a department program manager, Ron Aasheim, and a department civil engineer, Walt Anderson. Completion of the environmental assessment was apparently required to qualify the purchase for matching federal funds. The conclusions of both affidavits were that the environmental studies were properly made. Each study concluded that the impacts of the project would be minor and each resulted in a finding that the drafting of an environmental impact statement was not necessary.

In opposition to the motion for summary judgment, Titeca introduced affidavits from Edith Pule, one of the original grantors, and, another from Annice Abarr (Somers), the original grantee. Thus, each party submitted an affidavit from Annice Abarr in support of their position.

The District Court found the department had met its burden and that there were no genuine issues of material fact summary judgment was entered as a matter of law on behalf of the department.

We affirm the judgment of the District Court.

In granting summary judgment, the District Court ordered:

“1. That title to the property in question is quieted in the State of Montana, Department of Fish, Wildlife and Parks, subject to an easement for roadway purposes held by plaintiffs.
“2. That defendant acted under proper authority in acquiring the property in question and did so without depriving plaintiffs of their constitutional right of due process.
“3. That defendant made all necessary and proper environmental assessments before acquiring the property and before undertaking the project thereon.
“4. That defendant’s acquisition, management, and use of the property is not a taking of plaintiff a property without compensation.”

It is this order of the District Court which we review upon appeal.

An appropriate statement of the law with regard to summary judgment can be found in Byrd v. Bennett, White and American Title & Escrow of Billings (1981), [193Mont. 193.] 631 P.2d 695, 38 St.Rep. 1083:

*213 “In recent opinions, this Court explained the purpose of summary judgment under Rule 56, M.R.Civ.P., and we outlined the proper procedure for entry of summary judgment. See, Anaconda Co. v. General Acc. Fire & Life (1980), [187 Mont. 447,] 616 P.2d 363, 37 St.Rep. 1589; Reaves v. Reinbold (1980) [189 Mont. 284,] 615 P.2d 896, 37 St.Rep. 1500. Under Rule 56(c), M.R.Civ.P., summary judgment shall be entered if ‘... the pleadings, depositions, answers to interrogatories, and admissions on file [together with the affidavits if any] show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ The purpose of summary judgment is to encourage economy through the elimination of unnecessary trial, delay and expense, a but the procedure is never to be a substitute for a trial if a material factual controversy exists. Engebretson v. Putnam (1977), 174 Mont. 409, 571 P.2d 368. In a summary judgment proceeding, the formal issues presented by the pleadings are not controlling. The question to be decided in a motion for summary judgment is whether there exists a genuine dispute over material facts. The party moving for summary judgment has the burden of showing the complete absence of material factual questions. The proof proffered by the movant is closely scrutinized.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kelly Miller v. Robert L. Lucas
Indiana Court of Appeals, 2025
Musselshell Ditch v. JD BAR D
2025 MT 63 (Montana Supreme Court, 2025)
Archer v. Tait
2024 MT 322 (Montana Supreme Court, 2024)
Melinda Crowe v. Chris Allen Drenter
Indiana Court of Appeals, 2023
Thomas Mann Post v. Knudsen Family
2022 MT 150 (Montana Supreme Court, 2022)
Musselshell Ranch Company v. Seidel-Joukova
2011 MT 217 (Montana Supreme Court, 2011)
Steed v. SOLSO
2010 MT 264 (Montana Supreme Court, 2010)
Mason v. Garrison
2000 MT 78 (Montana Supreme Court, 2000)
Ruana v. Grigonis
913 P.2d 1247 (Montana Supreme Court, 1996)
Bridger v. Lake
896 P.2d 406 (Montana Supreme Court, 1995)
Strahan v. Bush
773 P.2d 718 (Montana Supreme Court, 1989)
Sampson v. Grooms
748 P.2d 960 (Montana Supreme Court, 1988)
BM by Berger v. State
698 P.2d 399 (Montana Supreme Court, 1985)
Latham v. Garner
673 P.2d 1048 (Idaho Supreme Court, 1983)
Lindley v. Maggert
645 P.2d 430 (Montana Supreme Court, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
634 P.2d 1156, 194 Mont. 209, 1981 Mont. LEXIS 825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/titeca-v-state-ex-rel-department-of-fish-wildlife-parks-mont-1981.