author: Malone, J.:

text:
    COASTAL CREDIT, LLC, Appellee, v. Brian Bland MCNAIR, Appellant.
    No. 119,798
    Court of Appeals of Kansas.
    Opinion filed July 12, 2019.
    Noah K. Garcia, of Knight Nicastro, LLC, of Kansas City, Missouri, for appellant.
    David A. Kraft, of David A. Kraft & Associates, LLC, of Kansas City, for appellee.
    Before Leben, P.J., Malone and Gardner, JJ.
   Malone, J.:

Brian Bland McNair appeals the district court's order denying his motion to set aside a default judgment granted in favor of Coastal Credit, LLC. McNair claims the district court erred by finding that Coastal Credit properly served him with process by leaving the summons and petition with McNair's wife at the family's residence in Manhattan while he was deployed overseas for six months in the military. We agree with McNair that the district court erred in finding there was proper residence service under Kansas law. As a result, we reverse the district court's order and remand with directions to set aside the default judgment against McNair.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2012, McNair entered into a financing contract with Coastal Credit to buy a car. After McNair defaulted on the loan, Coastal Credit repossessed the car and sold it, applying the proceeds to the balance McNair still owed on the contract. On February 6, 2014, Coastal Credit filed a limited action lawsuit against McNair alleging breach of contract and seeking to recover the remaining balance of $8,854.99 plus interest.

From about two months before Coastal Credit filed the lawsuit until about May 30, 2014, McNair, who was in the United States Army, was stationed in Africa. His wife and their four children lived in an off-base apartment in Manhattan, Kansas. On February 19, 2014, a process server executed service by "serving a true copy at [McNair's] usual place of abode to" McNair's wife at the residence in Manhattan. The process server noted on his field sheet that McNair was in the military and deployed in Africa until June.

McNair did not file an answer to the petition, nor did he appear at a scheduled docket hearing on March 12, 2014. On March 25, 2014, the district court denied Coastal Credit's request for a default judgment because it had not provided a military service affidavit. Two months later, Coastal Credit filed an affidavit stating that McNair was "active in the service of the United States." On June 2, 2014, the district court again denied Coastal Credit's request for a default judgment, finding that it must appoint an attorney to represent McNair because of his active service in the military as required by the Servicemembers Civil Relief Act (SCRA). On April 6, 2015, the district court appointed counsel to represent McNair.

On August 31, 2015, the district court granted a default judgment for Coastal Credit, noting that McNair's appointed counsel had informed the court that he was "unable to reach or communicate with" McNair. On February 16, 2016, the district court allowed McNair's appointed counsel to withdraw.

In October 2017, McNair noticed that his wages were being garnished. On January 5, 2018, McNair moved to set aside the default judgment and disgorge the garnished funds.

In his motion, McNair asserted that when he was purportedly served with process in February 2014, he was deployed at Camp Lemonnier in Africa. He contended that service to his wife in Manhattan was improper and did not comply with controlling federal regulations and the SCRA. He also contended the garnished wages resulted from an improper default judgment and asked the court to return all funds.

Coastal Credit responded to McNair's motion, arguing that federal regulations did not apply and that leaving a copy of the petition and summons with McNair's wife at their off-base residence in Manhattan was sufficient under the Kansas law. Coastal Credit also contended that the SCRA did not apply because McNair had not argued that he had a meritorious or legal defense to any part of the action. Finally, Coastal Credit asserted that there was no statutory authorization for the disgorgement of the garnished funds.

McNair later filed additional written support of his motion to set aside the default judgment. He claimed that his wife was never served with process at the Manhattan residence as reflected in the return summons, and he filed an affidavit to support this claim. In the affidavit, McNair asserted that his family did not reside at 1425 Flint Hills Place in Manhattan in February 2014. Instead, he asserted that his family resided at 1425 Flint Hills Place, Apt. 2306 , in Manhattan. He also attached mail from the Department of Treasury dated February 24, 2014, showing 1425 Flint Hills Place, Apt. 2306, in Manhattan as the mailing address for him and his wife.

In a telephone conference between the court and counsel on January 31, 2018, the district court ruled that Kansas state law, not federal law, governed service of process here "due to the fact that service on [McNair] took place on exclusive state property." McNair abided by this ruling throughout the rest of the district court proceedings, and he does not challenge this ruling on appeal.

Before the evidentiary hearing, McNair filed supplemental briefing and argued that the purported service upon him was invalid under the Kansas Court of Appeals' opinion in Coleman v. Wilson , No. 72,404, --- Kan.App.2d ----, 906 P.2d 187, unpublished opinion filed December 1, 1995 (Kan. App.). In that case, this court held that a military service person's usual place of abode is where the person lives, eats, sleeps, and works at the time of the attempted service. Slip op. at 7. Based on Coleman , McNair argued that his usual place of abode in February 2014 was at Camp Lemonnier in Africa. Coastal Credit responded, asserting that Coleman was factually distinguishable and that McNair's usual place of abode in February 2014 was his family's residence in Manhattan.

The district court held an evidentiary hearing on April 4, 2018, but a transcript of that hearing is not included in the record on appeal. Even so, the record on appeal reflects that McNair's wife testified at the hearing and disputed that she was ever served with process on February 19, 2014. The process server also testified and confirmed that he served McNair's wife with the process at the Manhattan residence on February 19, 2014, and that she told him that her husband was deployed in Africa until June.

On June 18, 2018, the district court filed its order denying McNair's motion to set aside default judgment and disgorge funds. The district court noted the disputed testimony about service of process and found that "[a]lthough [McNair] disputes that his wife received service at the family residence, after consideration of the evidence presented by the parties the court finds that [McNair's] wife was served by the process server at the family residence." The district court then found that McNair "had active duty status as a member of the United States Army, and had been deployed to Africa approximately two months prior to residential service and was deployed there for approximately six months." The district court also found that McNair acknowledged in an affidavit that his family residence was in Manhattan in February 2014, and that during that time the Department of Treasury sent mail to McNair and his wife at that address.

The district court then found that Coleman was factually distinguishable and that, under the facts here, service on McNair's wife at the family residence in Manhattan "was service at [McNair's] dwelling house or usual place of abode, and valid service under Kansas state laws and rules of procedure." The district court also found that McNair had "not met his burden to show that he has a meritorious or legal defense to the action," so he had no right to set aside the default judgment under the SCRA. McNair timely appealed the district court's decision.

ANALYSIS

McNair claims the district court erred in finding that service on his wife at his family's residence in Manhattan while he was deployed overseas for six months was valid residence service. He contends the district court should have applied the holding in Coleman and found that at the time of the attempted service of process his usual place of abode was at Camp Lemonnier in Africa. McNair does not challenge the district court's ruling that Kansas law governs the proper method of service of process. Thus, Kansas state law is the operative framework to address McNair's claim on appeal.

Coastal Credit argues that the district court did not err in finding that McNair's usual place of abode in February 2014 was his family's residence in Manhattan. Coastal Credit asserts that Coleman is distinguishable and that service of process on McNair's wife in Manhattan was valid residence service under Kansas law.

As both parties recognize, Kansas appellate courts seldom reverse a district court's decision on a motion to set aside a default judgment unless the district court abused its discretion. See Garcia v. Ball , 303 Kan. 560, 565-66, 363 P.3d 399 (2015). But this is not so when a judgment is attacked as void for lack of service. "A district court has no discretion to exercise in such a case; either a judgment is valid or it is void as a matter of law. Thus, a reviewing appellate court must apply a de novo standard once a district court has made the necessary findings of fact. [Citations omitted.]" In re Adoption of A.A.T. , 287 Kan. 590, 598-99, 196 P.3d 1180 (2008). McNair does not challenge the district court's factual findings, only its legal conclusion that service was effected because the Manhattan residence was McNair's "usual place of abode" at the time of the purported service. We exercise unlimited review over this legal conclusion.

Before addressing McNair's claim under Kansas law, we briefly observe that McNair, because of his active duty status as a member of the United States Army, would have a right to seek relief from a default judgment under the SCRA whether he had been legally served with process. The applicable provision of the SCRA states:

"If a default judgment is entered in an action covered by this section against a servicemember during the servicemember's period of military service ... the court entering the judgment shall, upon application by or on behalf of the servicemember, reopen the judgment for the purpose of allowing the servicemember to defend the action if it appears that-
(A) the servicemember was materially affected by reason of that military service in making a defense to the action; and
(B) the servicemember has a meritorious or legal defense to the action or some part of it." 50 U.S.C. § 3931(g)(1) (2012).

Under the SCRA, McNair would be entitled to relief from a default judgment if he could show that (1) he was materially affected by reason of his military service in making a defense to the action; and (2) he had a meritorious or legal defense to the action or some part of it. McNair at first claimed in his motion to set aside the default judgment that he was entitled to relief under the SCRA, but he abandoned that claim by the time of the evidentiary hearing. In any event, the district court found that McNair had no right to relief under the SCRA because he had not met his burden to show that he had a meritorious or legal defense to the action, and he does not appeal that ruling. McNair's only claim is that the default judgment is void for lack of legal service of process.

The district court granted judgment against McNair after finding him "to be in default," and the parties do not dispute the characterization of the court's judgment against McNair as a default judgment. Under the Kansas Code of Civil Procedure for Limited Actions (limited actions code), a defendant must move to set aside a default judgment "not more than 14 days from the date of such judgment in a lawsuit where the defendant was personally served with summons within the state, or not more than 45 days where service of summons was by other than personal service within the state." K.S.A. 2018 Supp. 61-3301(c). But "where no service is had, for good cause shown, the court may set aside a default judgment pursuant to the applicable provisions of subsection (b) of K.S.A. 60-260, and amendments thereto." K.S.A. 2018 Supp. 61-3301(d).

Under K.S.A. 2018 Supp. 60-260(b)(4) and (c), the district court may set aside a default judgment within a reasonable time if the judgment is void. It is well-established that if a defendant does not appear and a district court grants default judgment, " 'the record must show a legal service, or the judgment will be void.' " See Hajda v. University of Kansas Hosp. Auth. , 51 Kan. App. 2d 761, 767, 356 P.3d 1 (2015), rev. denied 303 Kan. 1077 (2016). McNair moved to set aside the default judgment based on insufficient service of process about two-and-a-half years after the judgment was granted, and Coastal Credit has not argued that McNair's motion was untimely.

The sole issue here is whether the district court erred by finding that residence service was effected on McNair by serving his wife at the family's residence in Manhattan while McNair was stationed in Africa for six months. Kansas law permits "residence service" in the limited actions code. K.S.A. 2018 Supp. 61-3003(d)(1) states:

"The party may file a written request with the clerk for personal or residence service.... Residence service shall be made by leaving a copy of the process and petition, or other document to be served, at the dwelling house or usual place of abode of the person to be served with some person of suitable age and discretion residing therein."

Here, the district court found that the Manhattan residence was McNair's "dwelling house or usual place of abode" and that residence service was effected by leaving a copy of the summons and petition with his wife at that address. On appeal, both McNair and Coastal Credit focus only on the term "usual place of abode," and they do not address the district court's complete finding that the Manhattan residence was McNair's "dwelling house or usual place of abode." But the parties' failure to address the term "dwelling house" does not affect our disposition of this appeal. We cannot find any Kansas statutory definition of the term "dwelling house" as applied to service of process. But the term is commonly defined as "[t]he house or other structure in which one or more people live; a residence or abode." Black's Law Dictionary 641 (11th ed. 2019). We have no reason to find that the term "dwelling house" materially differs from the term "usual place of abode" under K.S.A. 2018 Supp. 61-3003(d)(1), so we will confine our analysis to the term "usual place of abode" as the parties argue.

The term "usual place of abode" when applied to service of process is defined by Kansas statute. K.S.A. 2018 Supp. 77-201 Twenty-fourth explains:

" 'Usual place of residence' and 'usual place of abode,' when applied to the service of any process or notice, means the place usually occupied by a person. If a person has no family, or does not have family with the person, the person's office or place of business or, if the person has no place of business, the room or place where the person usually sleeps shall be construed to be the person's place of residence or abode."

Resolution of McNair's claim requires statutory construction. The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, 659, 367 P.3d 282 (2016). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Ullery v. Othick , 304 Kan. 405, 409, 372 P.3d 1135 (2016).

When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute not readily found in its words. Ullery , 304 Kan. at 409, 372 P.3d 1135. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the Legislature's intent. 304 Kan. at 409, 372 P.3d 1135.

In both district court and on appeal, the parties have focused their arguments on this court's 1995 unpublished decision in Coleman . McNair argues that the holding in Coleman controls the outcome of this case, while Coastal Credit argues that Coleman is factually distinguishable. Thus, we will examine this court's ruling in Coleman in detail.

Judith Coleman suffered injuries during an automobile accident with Cal Wilson in May 1991. At the time of the accident, Wilson lived with his parents in Council Grove, Kansas, but in November 1992, he left for army training in Kentucky. He returned to Kansas for two weeks at Christmas and then went back to Kentucky. In February 1993, after completing basic training, Wilson was transferred to Texas, where he served on active duty until July 1993.

In May 1993, a few days before the statute of limitations expired, Coleman filed a negligence action against Wilson. On June 8, 1993, a return of service was filed which stated, "served to father Jack Wilson. Cal Wilson is in Texas." Slip op. at 2. A note attached to the return of service showed Wilson's forwarding address at Fort Sam Houston, Texas, and reflected Wilson's status as a member of the armed forces. On August 17, 1993, an alias summons was issued for Wilson's Texas address. The return, dated August 30, 1993, stated that Wilson was no longer stationed at Fort Sam Houston and that his whereabouts were unknown.

Meanwhile, in July 1993, Wilson returned to his parents' home and stayed there until August 20, 1993, when he moved to Lawrence to attend college. Eventually, Wilson was personally served on December 28, 1993, 215 days after the statute of limitations had run.

Wilson filed a motion for summary judgment, claiming he was not served within the grace period of the applicable statute of limitations. In response, Coleman argued that timely residence service was effected when a copy of the summons and process were left with Wilson's father in June 1993. The district court disagreed, finding that Wilson's parents' address was not Wilson's "usual place of abode" at the time of service and that service was not properly effected until the untimely personal service in December 1993. Slip op. at 3.

On appeal, this court noted the statutory definitions of "usual place of residence" and "usual place of abode," which are the definitions that remain in effect today. Slip op. at 5-6; see also K.S.A. 2018 Supp. 77-201 Twenty-fourth . The Coleman court held that under the facts before it, the Council Grove address where Wilson's father resided was not Wilson's usual place of abode at the time of the purported residence service:

"First, Wilson, as an active member of the armed forces, 'usually' lived and slept at a place other than [the Council Grove address]. Although he returned to his parents' home during Christmas, and for approximately 1 month prior to attending college, the place usually occupied by Wilson on June 7, 1993, was a place in Texas. Additionally, as a member of the armed forces, he had no choice but to live where the army directed him to live. Moreover, the statute does not allude to or equate 'usual place of abode' with domicile.
"Second, although the factual circumstances of each case will undoubtedly create difficulty in determining what constitutes a person's 'usual place of abode,' a soldier who regularly lives, sleeps, eats, and works in another state for 6 months prior to and at the time of purported residential service in this state is improperly served under these facts as a matter of law. Coleman did not achieve 'substantial compliance' with K.S.A. 60-303(c). Accordingly, Wilson's actual notice is irrelevant." Slip op. at 6-7.

This court agreed with the district court that Wilson was not properly served with process until the personal service was effected in December 1993. Slip op. at 8-9. As a result, this court affirmed the district court's judgment that Coleman's negligence action against Wilson was barred by the applicable statute of limitations. Slip op. at 9.

Returning to our case, the district court made the following factual findings: (1) McNair's "family residence" was in Manhattan; (2) about two months before the purported service, McNair was deployed to Africa, where he was stationed for about six months; (3) McNair's wife and their four children remained living at the Manhattan "family residence" during his deployment; and (4) a February 24, 2014 Department of Treasury document showed the Manhattan residence as the mailing address for McNair and his wife. Based on these findings, the court concluded that service on McNair's wife at the family residence in Manhattan "was service at [McNair's] dwelling house or usual place of abode, and valid service under Kansas state laws and rules of procedure."

McNair points out that at the time of the purported service of process, he was living, sleeping, eating, and working in Africa, and had been for two months. Thus, under Coleman , he contends that the district court erred as a matter of law by finding that the Manhattan residence was his usual place of abode.

Coastal Credit asserts two arguments. First, it seeks to distinguish Coleman , noting that McNair's wife and children lived at the Manhattan residence and that McNair lived there with them when in the area, unlike Wilson, who Coastal Credit asserts only "temporarily stayed with his parents." Second, Coastal Credit argues that McNair "directly contradict[ed] the position advocated in this appeal" by filing an affidavit in district court stating that his family resided in Manhattan and that the Department of Treasury sent mail to him and his wife at that address.

We will address Coastal Credit's latter argument first. The district court correctly found that McNair filed an affidavit in district court stating that his family resided in Manhattan. Although McNair's statement in his affidavit might be relevant to McNair's family's usual place of abode, the statement does not control whether McNair's usual place of abode was in Manhattan while he was deployed overseas. And Coastal Credit cites no authority for its assertion that the Manhattan residence was McNair's usual place of abode in February 2014 just because mail was being sent to McNair at that address.

Turning to Coastal Credit's first argument, we agree that Coleman is factually distinguishable from McNair's case. But just because it is factually distinguishable does not mean that the district court correctly found that the Manhattan residence was McNair's usual place of abode in February 2014. To resolve this issue, we must apply the applicable statutes to the facts here, just as this court did in Coleman .

K.S.A. 2018 Supp. 61-3003(d)(1) provides that residence service shall be made by leaving a copy of the process and petition "at the dwelling house or usual place of abode of the person to be served with some person of suitable age and discretion residing therein." K.S.A. 2018 Supp. 77-201 Twenty-fourth defines the term "usual place of abode," so we will focus our attention on that statutory definition.

K.S.A. 2018 Supp. 77-201 Twenty-fourth equates the term "usual place of abode" with the term "usual place of residence." The statute does not equate the term "usual place of abode" with "domicile." A person's domicile is usually intended to mean the person's "permanent home, to which that person intends to return and remain even though currently residing elsewhere." Black's Law Dictionary 614 (11th ed. 2019). Kansas caselaw generally recognizes that a person does not abandon his or her domicile by mere physical presence elsewhere unless that presence is accompanied by an intention to not return to the original domicile. See In re Marriage of Anderson , 25 Kan. App. 2d 754, 757, 969 P.2d 913 (1998). We do not discern a person's "intent to return" as being an element of the term "usual place of abode," based on the plain language of K.S.A. 2018 Supp. 77-201 Twenty-fourth . In any event, Coastal Credit does not argue that we should equate the term "usual place of abode" with domicile.

K.S.A. 2018 Supp. 77-201 Twenty-fourth contains two sentences defining the terms "usual place of residence" and "usual place of abode" when applied to the service of any process. While the definition may not be a model of clarity, this does not mean the statute is ambiguous to the extent that it is subject to more than one reasonable interpretation. The first sentence of the statute provides that a person's usual place of abode "means the place usually occupied by a person." We agree with McNair that the place he usually occupied in February 2014 was Camp Lemonnier in Africa.

The second sentence of the statute is harder to follow, but we break it down into two parts. If a person has no family or does not have a family with the person, then the person's usual place of abode is "the person's office or place of business." If the person has no office or place of business, then the person's usual place of abode is "the room or place where the person usually sleeps." McNair did not have his family with him when he was purportedly served with process, so his usual place of abode would be his office or place of business. But since he did not have an office or place of business, his usual place of abode was the room or place where he usually slept. Again, in February 2014, the place where McNair usually slept was at Camp Lemonnier in Africa.

The second sentence of K.S.A. 2018 Supp. 77-201 Twenty-fourth does not say that when a person is away from his or her family for an extended period of time, then the person's usual place of abode is where his or her family resides. But that is how Coastal Credit asks us to interpret the statute. We find this interpretation is contrary to the statute's plain language. If the Kansas Legislature intended a person's usual place of abode always to be where the person's family resides, the Legislature could have easily expressed this intent with clear language in the statute.

A person's usual place of abode is determined by applying the statutory definition to the facts of each case. Had McNair been away from his family's Manhattan residence on a brief business trip or personal excursion when he was purportedly served with process, then the Manhattan residence would constitute his usual place of abode within the meaning of K.S.A. 2018 Supp. 77-201 Twenty-fourth . But under our facts where McNair was deployed to Africa for active military service for six months, we find that Camp Lemonnier in Africa-not his family's residence in Manhattan-was McNair's usual place of abode for the purpose of residence service under Kansas law.

To sum up, applying the language of K.S.A. 2018 Supp. 61-3003(d)(1) and K.S.A. 2018 Supp. 77-201 Twenty-fourth to the facts here, we conclude the district court erred by finding that Coastal Credit properly served McNair with process by leaving the summons and petition with McNair's wife at the family's residence in Manhattan while he was deployed overseas for six months in the military. As a result, Coastal Credit's judgment against McNair is void for lack of legal service of process. We reverse the district court's order denying McNair's motion to set aside the default judgment and remand with directions for the district court to set aside the judgment.

Reversed and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Shawn C. WATERMAN, Appellant.
    No. 119,425
    Court of Appeals of Kansas.
    Opinion filed August 16, 2019.
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    STATE of Kansas, Appellee, v. John Jeremiah RUTHERFORD, Appellant.
    No. 121,132
    Court of Appeals of Kansas.
    Opinion filed August 23, 2019.
    Affirmed.


text:
    Brie A. KERSCHEN, ON BEHALF OF Z.U., Appellee, v. Kingsley Uduzei UWADIA, Appellant.
    No. 119,629
    Court of Appeals of Kansas.
    Opinion filed August 23, 2019.
    Dismissed.


text:
    STATE of Kansas, Appellee, v. Joseph Darrell GUILLEN, Appellant.
    No. 120,925
    Court of Appeals of Kansas.
    Opinion filed August 23, 2019.
    Dismissed.


text:
    In the MATTER OF the MARRIAGE OF Cheree LAFOREST, Appellant, and Jeremy LaForest, Appellee.
    No. 119,221
    Court of Appeals of Kansas.
    Opinion filed August 16, 2019.
    Affirmed in part. Reversed in part. Remanded with directions.


text:
    Barbara A. NEEDHAM, individually and as Personal Representative of the Estate of Charles Kelly Kluver, Plaintiffs and Appellees, v. Karson KLUVER and Genie Land Company, a Montana Corporation, Defendants and Appellants.
    DA 18-0627
    Supreme Court of Montana.
    Submitted on Briefs: April 3, 2019 Decided: August 6, 2019
    For Appellants: Christopher J. King, Clark King & Michel, P.C., Worland, Wyoming
    For Appellees: John R. Christensen, Christensen Fulton & Filz, PLLC, Billings, Montana Joseph L. Breitenbach, Hedger Friend, PLLC, Billings, Montana
   Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Appellants Karson Kluver and Genie Land Company, a Montana Corporation, (collectively "Kluver") appeal the Order of Sixteenth Judicial District Court, Rosebud County, granting summary judgment in favor of Barbara Needham, in her capacity as the Personal Representative of the Estate of Charles Kelly Kluver (Estate), and denying Kluver's cross-motion for summary judgment. We address the following issue:

Whether the District Court erred in granting summary judgment in favor of the Estate and by denying Kluver's cross-motion for summary judgment.

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 On September 13, 1977, Genie Land Company (Genie) was incorporated by its first president, Genie Philbrick Fulmer. Fulmer was the grandmother of brothers Charles Kelly Kluver (Kelly) and Karson Kluver (Karson). On June 4, 2005, after Fulmer passed, Kelly and Karson became the sole shareholders of Genie. Each received one-half of Genie's corporate stock.

¶4 When Kelly and Karson became the sole shareholders, Article IV, Section 4 of Genie's corporate by-laws contained a transfer restriction provision, which provided:

Shares of stock shall be transferred only on the books of the company by the holder thereof and may be transferred only to (1) the corporation, (2) one or more descendants of GENIE PHILBRICK FULMER, or (3) a third party, however, any transfer to a third person who is not already a stockholder in the corporation must be approved in advance by vote or written consent of all of the remaining stockholders of the corporation.
Further, upon the death of any stockholder, the corporation shall have the right to redeem the stock at its book value and for this purpose, book value is defined as the amount at which stock is carried in the books of the corporation on the basis of tangible assets and any undivided profits, but not including intangible assets.

Article I, Section 8 of Genie's by-laws additionally provided that: "Any action required to be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all the shareholders entitled to vote with respect to the subject matter thereof." Finally, Article VII, Section 1 of Genie's by-laws provided that: "Amendments to these by-laws may be made by a vote of the stockholders representing a two-thirds majority of all the stock issued outstanding at any annual stockholders meeting; or at any special stockholders meeting ...."

¶5 During Kelly's lifetime, he and his wife Barbara Needham were concerned that Genie's by-law's transfer restriction provision would prevent Kelly's family members from inheriting his one-half interest in Genie if he was the first of the two brothers to die. Subsequently, Kelly and Karson discussed amending Genie's by-laws to ensure each of the brother's families would inherit their respective share of Genie's stock.

¶6 In 2010, Kelly retained counsel to review Genie's by-laws. Counsel advised that the current by-laws had the potential to undervalue each brother's half interest depending on who died first because it allowed for each brother's respective share of stock to be redeemed by the corporation at book value, which would be significantly lower than fair market value. Counsel recommended amending Genie's by-laws. However, neither brother took immediate action.

¶7 In November 2012, Karson began suffering from significant medical issues that he feared were life-threatening. On November 16, 2012, Kelly and Karson signed and entered into a written agreement (2012 Agreement) in which both agreed that: "[We] each want our shares in Genie Land Company to go to our respective families, and we are in agreement that by-laws or anything else should not prevent this in case of death of one of us or both or [sic] us." At the time the 2012 Agreement was executed, Karson and Kelly were the sole shareholders, directors, and officers of Genie.

¶8 On January 6, 2017, Kelly unexpectedly died. Needham was appointed personal representative of his Estate. On February 15, 2017, Kelly's Last Will and Testament was admitted to probate. In his will, Kelly devised his residuary estate to Needham, which included his stock in Genie.

¶9 On June 28, 2017, Karson and Needham attended a joint meeting of the shareholders and directors of Genie. By unanimous vote, Karson and Needham were elected to serve as directors and co-presidents of Genie. Karson and Needham agreed to a reduction in the number of directors and discussed options for an orderly division of the corporate assets.

¶10 On August 29, 2017, Needham was informed by Karson's counsel that Karson had decided: (1) the 2012 Agreement was unenforceable and not executed in strict accordance with Genie's by-laws; (2) Needham was not entitled to any ownership in Genie; and (3) Karson disavowed his obligations under the 2012 Agreement.

¶11 On September 8, 2018, the Estate filed a Verified Complaint for Declaratory Judgment and for Dissolution of Genie against Kluver. The Complaint alleged four counts: (I) Declaratory Judgment; (II) Breach of Contract; (III) Promissory Estoppel; and (IV) Judicial Dissolution of Corporation. On December 11, 2017, the Estate filed for partial summary judgment on Counts I, II, and III, seeking a declaratory judgment that Needham was entitled to Kelly's interest in Genie pursuant to the 2012 Agreement, and arguing that Karson had breached the 2012 Agreement. On January 2, 2018, Kluver filed a response and cross-motion for summary judgment, arguing that the 2012 Agreement was unenforceable and did not constitute a proper amendment to Genie's by-laws.

¶12 On April 5, 2018, the District Court granted partial summary judgment in the Estate's favor on Counts I and II and denied Kluver's cross-motion for summary judgment in its entirety. The District Court ruled that Needham was entitled to a declaratory judgment, that she is the rightful owner of Kelly's interest in Genie, that Karson breached the 2012 Agreement by impeding the transfer of Kelly's stock to Needham, and that Karson must specifically perform his obligations under the 2012 Agreement. The District Court additionally held that Count III of the Estate's Complaint was moot following its resolution of the first two counts. On October 16, 2018, the District Court found that all issues relating to Genie's stock ownership had been determined in its Order granting summary judgment, certified its decision as a final judgment for purposes of appeal, and bifurcated the Estate's Judicial Dissolution of Corporation claim.

STANDARD OF REVIEW

¶13 We review a district court's summary judgment ruling de novo, applying the criteria of M. R. Civ. P. 56.

Capital One, NA v. Guthrie , 2017 MT 75, ¶ 11, 387 Mont. 147, 392 P.3d 158 (citing Pilgeram v. Greenpoint Mortg. Fund., Inc. , 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839 ). The determination of whether a party is entitled to judgment on the facts is a conclusion of law, which we review for correctness. Yorlum Props., Ltd. v. Lincoln County , 2013 MT 298, ¶ 12, 372 Mont. 159, 311 P.3d 748 (citing Gordon v. Kuzara , 2012 MT 206, ¶ 13, 366 Mont. 243, 286 P.3d 895 ).

¶14 Summary judgment is appropriate only when no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3) ; Guthrie , ¶ 11 (citing Roe v. City of Missoula , 2009 MT 417, ¶ 14, 354 Mont. 1, 221 P.3d 1200 ). The evidence, as well as all justifiable inferences drawn from it, must be viewed in a light most favorable to the non-moving party. Svaldi v. Anaconda-Deer Lodge County , 2005 MT 17, ¶ 12, 325 Mont. 365, 106 P.3d 548 (citing Renville v. Fredrickson , 2004 MT 324, ¶ 9, 324 Mont. 86, 101 P.3d 773 ). Once the moving party has met its burden of demonstrating an absence of a genuine issue of material fact and the entitlement to judgment as a matter of law, the non-moving party must present material and substantial evidence, rather than mere conclusory or speculative statements, to raise a genuine issue of material fact. Smith v. Burlington N. & Santa Fe Ry. , 2008 MT 225, ¶ 10, 344 Mont. 278, 187 P.3d 639 (citing Rich v. Ellingson , 2007 MT 346, ¶ 12, 340 Mont. 285, 174 P.3d 491 ; Hiebert v. Cascade County , 2002 MT 233, ¶ 21, 311 Mont. 471, 56 P.3d 848 ).

DISCUSSION

¶15 Whether the District Court erred in granting summary judgment in favor of the Estate and by denying Kluver's cross-motion for summary judgment.

¶16 The purpose of the Uniform Declaratory Judgment Act, §§ 27-8-101 through -313, MCA, is to settle and afford " 'relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be liberally construed and administered.' " Murray v. Motl , 2015 MT 216, ¶ 11, 380 Mont. 162, 354 P.3d 197 (quoting § 27-8-102, MCA ). Any party to a written contract, or whose rights, status, or other legal relations are affected by a contract, may have its construction and validity determined and obtain a declaration of rights, status, or other legal relations from a district court. Sections 27-8-201, -202, MCA ; Murray , ¶ 11. A district court has the statutory authority to construe the terms of a contract, either before or after a breach. Section 27-8-203, MCA.

¶17 Under Montana law, a contract exists where there are: (1) identifiable parties capable of contracting; (2) consent of the parties; (3) a lawful object; and (4) a sufficient cause or consideration. Section 28-2-102, MCA. The consent of the parties to a contract must be free, mutual, and "communicated by each to the other." Section 28-2-301, MCA. Sufficient consideration is exchanged where "[a]ny benefit conferred or agreed to be conferred upon the promisor by any other person, to which the promisor is not lawfully entitled, or [where] any prejudice suffered or agreed to be suffered by the person, other than prejudice that the person is at the time of consent lawfully bound to suffer, as an inducement to the promisor ...." Section 28-2-801, MCA.

¶18 Under Montana corporate law, the shareholders may amend a corporation's by-laws without a meeting if all the shareholders entitled to vote on the action consent. Section 35-1-519(1), MCA. The action must be evidenced by at least one written consent "describing the action taken, signed by all the shareholders entitled to vote on the action, and delivered to the corporation ...." Section 35-1-519(1), MCA.

¶19 In this case, the District Court concluded the 2012 Agreement and residuary clause in Kelly's will entitled Needham to Kelly's shares of stock in Genie. The District Court additionally held that the 2012 Agreement was a valid, unambiguous, and enforceable contract that Karson breached by failing to transfer Kelly's shares to Needham. Finally, the District Court held that the 2012 Agreement effectively amended Genie's by-laws due to Kelly and Karson's unanimous consent, as the sole stockholders of Genie, to a new stock transfer provision, as reflected in the 2012 Agreement.

¶20 Kluver generally argues that the District Court relied on disputed facts in granting summary judgment in favor of the Estate. Kluver argues that the 2012 Agreement was an invalid amendment to Genie's by-laws because (1) it was entered absent the formality required by Genie's by-laws and Montana corporate law, and (2) the 2012 Agreement was ambiguous. Kluver additionally argues that the 2012 Agreement did not constitute a valid contract because Karson was not competent to enter into the 2012 Agreement in 2012 due to his health scare.

¶21 The Estate counters that Genie's by-laws did not require a formal amendment to modify transfer of its stock, and that the 2012 Agreement was a valid contract. Therefore, the Estate argues that Needham is entitled to Kelly's half of Genie's stock pursuant to Kelly's will. We agree.

¶22 The formation of the 2012 Agreement created a valid contract that entitled Needham to Kelly's shares of stock after his death. The 2012 Agreement was valid because: (1) Karson and Kelly were identifiable parties; (2) Karson and Kelly's consent to the 2012 Agreement was free and mutual-despite his allegations, Karson failed to present evidence that he entered into the 2012 Agreement by mistake or that he was under duress in 2012 due to his health scare; (3) the 2012 Agreement had a lawful object, that being the transfer of corporate stock in accordance with the by-laws of a corporation; and (4) Karson and Kelly exchanged sufficient consideration when they gave up their ability to solely own Genie upon the death of the other brother in exchange for the assurance that their respective families would receive each brother's interest in Genie regardless of their order of death. See §§ 28-2-102, -301, -801, MCA.

¶23 Genie's by-laws make clear that its stock can be transferred to any third-party, without amendment, so long as it is approved "in advance by vote or written consent of all the remaining stockholders of the corporation." See § 35-1-236(2), MCA ("[t]he bylaws of a corporation may contain any provision for managing the business and regulating the affairs of the corporation that is consistent with law or the articles of incorporation. ..."). Kelly and Karson were the sole stockholders of Genie when they signed and entered into the written 2012 Agreement relating to the transfer of Genie's stock. Therefore, both Kelly and Karson validly approved the stock transfer arrangement in the 2012 Agreement under Genie's by-laws. See § 35-1-236(2), MCA.

¶24 Although a formal amendment was not required to modify the transfer of Genie's corporate stock under its by-laws, Kelly and Karson undertook the 2012 Agreement with the formality required for amendments under Genie's by-laws and under Montana law. The 2012 Agreement was made by a stockholder vote at a meeting representing a two-thirds majority of all the stock issued, satisfying Genie's by-law requirement for amendments. See § 35-1-236(2), MCA. Similarly, under Montana law, a formal meeting to amend Genie's by-laws was not required if all of the shareholders entitled to vote on the action consented-which occurred with the formation of the 2012 Agreement. See § 35-1-519(1), MCA. Thus, the District Court did not err in determining that the 2012 Agreement allowed for the stock transfer to Needham as Kelly's respective family member. See §§ 27-8-202, -203, MCA ; Murray , ¶ 11.

¶25 Kluver fails to present material and substantial evidence that the formation of the 2012 Agreement was deficient. See Smith , ¶ 10 ; Hiebert , ¶ 21. Viewing the evidence in the light most favorable to Kluver, there are no genuine issues of material fact regarding the 2012 Agreement and its implications to Genie's by-laws, and Needham is entitled to judgment as a matter of law. See M. R. Civ. P. 56(c)(3) ; Guthrie , ¶ 11 ; Svaldi , ¶ 12. The District Court correctly granted partial summary judgment in favor of the Estate. See Yorlum Props. , ¶ 12 ; Gordon , ¶ 13.

CONCLUSION

¶26 The District Court did not err in granting partial summary judgment in favor of the Estate pursuant to the 2012 Agreement and Genie's by-laws. We affirm.

We Concur:

DIRK M. SANDEFUR, J.

BETH BAKER, J.

LAURIE McKINNON, J.

INGRID GUSTAFSON, J.


author: Justice Dirk M. Sandefur delivered the Opinion of the Court. Justice Jim Rice, dissenting.

text:
    Audrey O'KEEFE and Tim Beardsley, Plaintiffs and Appellants, v. MUSTANG RANCHES HOA, Dustin Brown, Roy Hill, and Joe Veland, Defendants and Appellees.
    DA 18-0494
    Supreme Court of Montana.
    Submitted on Briefs: March 6, 2019 Decided: August 6, 2019
    For Appellants: Brian K. Gallik, Gallik, Bremer & Molloy, P.C., Bozeman, Montana
    For Appellees: Wayne Jennings, Jennings Law Office, P.C., Bozeman, Montana
   Justice Dirk M. Sandefur delivered the Opinion of the Court.

¶1 Plaintiffs Audrey O'Keefe and Tim Beardsley appeal the judgment of the Montana Fifth Judicial District Court, Madison County, granting Defendants Mustang Ranches Association, et al., summary judgment that the pertinent deeds of conveyance and referenced subdivision plat established a 60' wide roadway easement straddling the boundary of Plaintiffs' adjoining lots to the benefit of the other platted subdivision lots for ingress and egress to and from the subdivision and adjoining off-plat land. Plaintiffs also appeal the court's subsequent grant of summary judgment denying their damages claims in trespass and for property damage resulting from a self-help removal and destruction of the gate(s) placed across the roadway by Plaintiffs to limit access to the adjoining land to themselves and their guests. We affirm.

¶2 We address the following restated issues on appeal:

1. Whether the District Court erroneously concluded that Elk Valley Road burdened Lots 70 and 71 to the benefit of other subdivision lot owners for ingress and egress to and from the adjoining off-plat land?
2. Whether the District Court erroneously concluded that Plaintiffs had no right to obstruct Elk Valley Road and thus no right to compensatory damages in trespass and for removal of the obstruction?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Mustang Ranches Subdivision (Mustang Ranches) is a rural residential subdivision in Section 29, Township 6, Range 1 East, Madison County, Montana. The former ranch property includes 86 twenty-acre lots with platted roadways and common areas. Shining Mountains North, a limited partnership, was the subdivider and most recent common owner of the property. Shining Mountains North subdivided the property in 1973 by filing an unreviewed subdivision plat prior to the effective date of the 1973 Montana Subdivision and Platting Act (Title 76, chapter 3, MCA). The Lee Metcalf Wilderness (hereinafter "USFS land" ) borders on the eastern perimeter of the subdivision along the eastern boundaries of Lots 41-45, 54, 55, 70, 71, and 86. The Mustang Ranches plat does not identify, describe, or depict the adjoining USFS land.

¶4 Upon filing of the subdivision plat, Shining Mountains North filed a separate written declaration of protective covenants reciprocally burdening and benefitting the subdivision lands. In pertinent part, the covenants limited use of subdivision lands to "residential purposes only" and charged the Mustang Ranches Association (Association), a Montana non-profit corporation, with oversight and maintenance "of all common areas," including "grading and maintenance of the major traverse roads," and maintenance of "the existing ranch fencing around the perimeter of the property. ..." Pursuant to the covenants and unrecorded Association bylaws, the Association membership includes all record owners of subdivision lots who are current on their membership dues. Though the non-record rules and regulations of the Association reference the adjoining USFS land, the recorded Mustang Ranches covenants do not.

¶5 The Mustang Ranches plat clearly depicts and labels a connected network of 60' wide roadways within the subdivision. Every subdivision lot borders on at least one of the platted roadways. The platted roadway network thus provides multiple points of ingress and egress to and from the subdivision and adjoining exterior lands at various points around the perimeter of the subdivision. Subdivision lots currently access the public road system by direct or indirect connection to a county road from the west terminus of the platted Airport Road running along the southern boundary of the subdivision to its southwest corner (southwest corner of Lot 8).

¶6 Four of the platted interior roadways (McDeed Creek Road, Elk Valley Road, Shell Creek Road, and Cedar Mountain Road) run east to west with eastern termini on the eastern boundary of the subdivision and adjoining USFS land. The mid-line of the Elk Valley Road runs along the southern boundaries of Lots 71-78 and the adjoining northern boundaries of Lots 63-70. The road thus runs over a 30' strip of land within each of those lots. Any ingress or egress to or from the subdivision and adjoining USFS land via Elk Valley Road must necessarily pass over one or both of the 30' wide strips within and along the adjoining boundary between Lots 70 and 71. See Figures 1-2. Like other interior subdivision roadways, Elk Valley Road currently remains unimproved-essentially two wheel tracks across a barren field.

Figure 1 - Mustang Ranches Subdivision Figure 2 - Platted Elk Valley Road

¶7 By 1985 warranty deed (recorded 1987), Shining Mountains North conveyed Lot 71 to Bob and Audrey Chamberlin by reference to the previously filed Mustang Ranches plat but "[s]ubject to easements and restrictive covenants and reservations of record. ..." In 2012, Plaintiff Audrey O'Keefe (formerly Audrey Chamberlin), acquired sole title to Lot 71 from Bob Chamberlin via a recorded quitclaim deed that conveyed the lot by reference to the Mustang Ranches plat "together with all tenements" and "appurtenances."

¶8 By 1982 warranty deed (recorded 1992), Shining Mountains North conveyed Lot 70 to Ronald Lerch by reference to the previously filed Mustang Ranches plat but "[s]ubject to easements and restrictive covenants and reservations of record. ..." Following mesne conveyances by recorded deeds from Lerch to Lennis and Connie Williams (1992) and then from Connie to Lennis (1999), Plaintiff Tim Beardsley acquired Lot 70 in 2002 by recorded warranty deed from Lennis Williams. The 1992, 1999, and 2002 deeds all conveyed Lot 70 by reference to the previously filed Mustang Ranches plat.

¶9 Beardsley and his guests have used Lot 70, via Elk Valley Road, for seasonal access to and from the adjoining USFS land for recreational purposes, primarily elk hunting. There is no record evidence of any other use of Lot 70 or 71 by the current or prior owners of those lots. Like Elk Valley Road, Lots 70 and 71 remain unimproved lots platted over a barren field.

¶10 For some time after the 1973 subdivision of the former ranch land, a preexisting stock fence continued to exist along the eastern perimeter of the subdivision and adjoining USFS land. There is no evidence that the stock fence had any purpose other than to control ranging ranch stock. The record indicates that the stock fence was gone, down, or otherwise open at the east end of the Elk Valley roadway before the dispute arose in this case.

¶11 Sometime prior to 2015, Beardsley became aggrieved with other Mustang Ranches landowners "trespassing" over his land on the platted Elk Valley Road to access the adjoining USFS land for elk hunting or other seasonal recreational purposes. According to Beardsley, the perceived trespassers would occasionally drive down and park their vehicles on Elk Valley Road either as a vantage point for spotting elk coming down from the mountains on the adjoining USFS land or as a point of entry thereto. With O'Keefe's "knowledge and consent," Beardsley placed a cable gate (a cable hung between two wooden posts) across the platted Elk Valley Road where it crosses the western boundaries of Lots 70 and 71, along with approximately 100 feet of fencing running north and south from each end of the gate along the western boundary of each lot, thereby blocking access on the road over those lots from the interior of the subdivision to and from the eastern terminus of the road and adjacent USFS land. The gate remained undisturbed and unchallenged for several years until taken down by persons unknown. Within months, Beardsley installed another gate to again similarly block access over the eastern end of Elk Valley Road.

¶12 Another onsite incident occurred at some point in 2013 or 2014 when a Mustang Ranches lot owner, who was also an Association officer, passed through the gate when left open by one of Beardsley's friends who had left his vehicle unattended on the road. While Beardsley's friend was away on the adjoining USFS land, the Mustang Ranches landowner immobilized the unoccupied truck by removing one of its wheels and then left. Following a criminal prosecution of the landowner, the roadway dispute later flared up again when two Mustang Ranches lot owners, who were also Association officers, took a backhoe down the east end of Elk Valley Road and dug up Beardsley's cable gate posts, leaving the posts and cable on the ground.

¶13 On April 20, 2015, Beardsley and O'Keefe responded by filing a complaint in the Montana Fifth Judicial District Court for declaratory and injunctive relief. The plaintiffs asserted that the east end of Elk Valley Road, from the western boundary lines of Lots 70 and 71 to the east terminus of the road on the eastern boundary of the subdivision, benefitted only those lots to the exclusion of the other Mustang Ranches lots. Plaintiffs further sought compensatory and punitive damages based on trespass and asserted property damage to Beardsley's cable gate and fencing. In 2017, following hearing on the parties' cross motions, the District Court granted the Association, et al., summary judgment that the Mustang Ranches Plat and pertinent conveyances of subdivision lots by the common owner created a roadway easement over the disputed segment of Elk Valley Road to the benefit of the other Mustang Ranches lots for ingress and egress to and from the adjoining off-plat land. In 2018, the Court further granted summary judgment to the Association, et al., on Plaintiffs' damages claims based on its earlier ruling and resulting conclusion that Plaintiffs thus had no right to compensation for property damage to a wrongfully placed gate removed from the road easement way by easement holders. Upon entry of final judgment encompassing the District Court's summary judgment rulings, Plaintiffs timely appealed.

STANDARD OF REVIEW

¶14 We review district court grants or denials of summary judgment de novo for conformance to M. R. Civ. P. 56. Alexander v. Mont. Developmental Ctr. , 2018 MT 271, ¶ 10, 393 Mont. 272, 430 P.3d 90 (citing Borges v. Missoula Cty. Sheriff's Office , 2018 MT 14, ¶ 16, 390 Mont. 161, 415 P.3d 976 ). A court may grant summary judgment only upon a sufficient record showing that no genuine issue of material fact remains and a party "is entitled to judgment as a matter of law." M. R. Civ. P. 56(c)(3). We review district court conclusions and applications of law de novo for correctness. Alexander , ¶ 10 (citing Borges , ¶ 16 ).

DISCUSSION

¶15 1. Whether the District Court erroneously concluded that Elk Valley Road burdened Lots 70 and 71 to the benefit of other subdivision lot owners for ingress and egress to and from the adjoining off-plat land?

¶16 An affirmative easement is a nonpossessory interest in land authorizing one to use the property of another for a particular purpose. Blazer v. Wall , 2008 MT 145, ¶ 24, 343 Mont. 173, 183 P.3d 84. Easements arise by express grant or reservation in a written instrument of conveyance, written declaration of covenant, operation of law (implication from necessity or prior use), or prescription. Blazer , ¶ 26 ; Restatement (Third) of Property (Servitudes) § 2.1 (2000). See also §§ 70-21-201(1), -301, -302, MCA (public recording of real property instruments, definition of "conveyance," and effect of recording). Easements are either "appurtenant" or "in gross." Blazer , ¶ 24. See also §§ 70-17-101, -102, MCA. Appurtenant easements benefit a particular parcel of land to the burden of another and perpetually run with title to both. Blazer , ¶ 24. See also §§ 70-15-101(3), -105, 70-17-10l, MCA. Appurtenant easements must have a servient estate and a dominant estate. Blazer , ¶ 24. See also § 70-17-103, MCA. Except as otherwise provided by the originating instrument of conveyance or covenant, an easement created by express grant or reservation is presumed appurtenant to the servient and dominant estates. Broadwater Dev., L.L.C. v. Nelson , 2009 MT 317, ¶ 34, 352 Mont. 401, 219 P.3d 492.

¶17 Express easements must satisfy certain title, severance, and substantive requirements. First, a grantor must have title to both the intended dominant and servient estates. See §§ 70-1-519, 70-17-104, MCA ("transfer vests in the transferee ... the actual title" held by the transferor in "the thing transferred" and "servitude can be created only by one" with "a vested estate in the servient tenement"). Second, an express easement by grant or reservation arises only upon severance of the intended dominant and servient estates from common ownership. Ruana v. Grigonis , 275 Mont. 441, 448-51, 913 P.2d 1247, 1252-54 (1996) ; Restatement (Third) of Property (Servitudes) § 2.1 cmt. c (2000). See also §§ 70-17-105, -111(1)(a), MCA ("owner of the servient tenement" cannot hold "servitude thereon"-extinguishment of servitude upon vesting of title to servient and dominant estates in same owner); Broadwater Dev. , ¶ 36 (effect of merger of title); Mularoni v. Bing , 2001 MT 215, ¶ 29, 306 Mont. 405, 34 P.3d 497 (merger of title). Third, an express easement must arise from a written instrument of conveyance that is substantively sufficient to convey the severed estate, grant or reserve the intended easement, identify the dominant and servient estates, and indicate the nature and scope of the right reciprocally burdening and benefitting the servient and dominant estates. Walker v. Phillips , 2018 MT 237, ¶¶ 14-18, 393 Mont. 46, 427 P.3d 92 ; Yorlum Props. Ltd. v. Lincoln Cty. , 2013 MT 298, ¶¶ 14-27, 372 Mont. 159, 311 P.3d 748 ; Davis , ¶¶ 19-34.

¶18 A transfer of fee title or creation of lesser non-possessory easement or servitude by grant or reservation must generally occur in a signed writing identifying the grantor and grantee and which further includes language sufficient to both describe the fee or lesser interest conveyed or reserved and effect the conveyance. See §§ 70-1-501, -502, -507, -519, 70-20-101, -103, MCA. A conveyance of real property by reference to a record subdivision plat, certificate of survey (COS), or attached map incorporates the plat, certificate, or map into the instrument as if set forth therein in its entirety. Section 76-3-304, MCA (reference to statutorily compliant subdivision plats);

Kosel v. Stone , 146 Mont. 218, 222, 404 P.2d 894, 896-97 (1965) (reference to pre-1973 statutory subdivision plat); City of Billings v. Pierce Packing Co. , 117 Mont. 255, 261, 161 P.2d 636, 638 (1945) (reference to common law subdivision plat); Restatement (Third) of Property (Servitudes) § 2.13 cmt. a (2000) (reference to plat or map). Consequently, to create an easement by express grant or reservation, an instrument of conveyance and any referenced subdivision plat, certificate of survey, or map of record must be sufficient together to express clear and unambiguous grantor intent to grant or reserve an easement in a manner that clearly and unambiguously describes or otherwise manifests with reasonable certainty the intended dominant and servient estates, use, and location of the easement. Walker , ¶¶ 14-18 (deed language, referenced COS, and subsequently filed corrected COS not signed by grantor sufficiently manifested grantor intent, easement elements, and compliance with statute of frauds); Yorlum , ¶¶ 14-27 (amended subdivision plat and deed reference to original subdivision plat sufficient to create express easement despite lack of precise location description); Davis , ¶¶ 19-34 (deed and referenced COS and declaration of covenants sufficient together to manifest intent to reserve easement and indicate the purpose/burden, on-survey servient estates, and on and off-survey dominant estates); Blazer , ¶¶ 26-76 (deed and referenced COS insufficient to clearly and unambiguously indicate either an intended off-survey or on-survey dominant estate); Pearson v. Virginia City Ranches Ass'n , 2000 MT 12, ¶¶ 18-26, 298 Mont. 52, 993 P.2d 688 (conveyance of lots by reference to subdivision plat sufficient to reserve a depicted bridle path easement burdening affected lots to benefit of all other subdivision lots); Kelly v. Wallace , 1998 MT 307, ¶ 51, 292 Mont. 129, 972 P.2d 1117 (deed language conveying property "subject to existing [60' wide] easements ... as depicted on" attached "plat" insufficient to create apparently intended easement due to failure to clearly express intent to reserve an easement and adequately indicate intended dominant estate); Tungsten Holdings, Inc. v. Parker , 282 Mont. 387, 390, 938 P.2d 641, 642-43 (1997) (deed and reference plat depicting 40' wide meandering strip labeled "[L]ot 34" insufficient to expressly reserve roadway easement due to ambiguity as to whether subdivider intended a roadway or irregular lot); Ruana , 275 Mont. at 448-51, 913 P.2d at 1252-54 (deed and referenced COS insufficient to clearly express intended easement elements); Bache v. Owens , 267 Mont. 279, 285-86, 883 P.2d 817, 821-22 (1994) (deed and referenced COS sufficient to reserve depicted roadway easement over severed tract to benefit of retained tract); Halverson v. Turner , 268 Mont. 168, 172-74, 885 P.2d 1285, 1288-89 (1994) (deed and reference to COS sufficient to reserve depicted roadway easement over severed tract); Benson v. Pyfer , 240 Mont. 175, 178-80, 783 P.2d 923, 925-26 (1989) (conveyances of lots by reference to subdivision plat burdens affected lots with sufficiently described/depicted easement to common benefit of other subdivision lots); Majers v. Shining Mountains , 219 Mont. 366, 369-71, 711 P.2d 1375, 1377-78 (1986) (conveyance of lots by reference to subdivision plat substantively sufficient to reserve easements for depicted streets, parks, and other open areas over affected lots to benefit of all other subdivision lots); Kuhlman v. Rivera , 216 Mont. 353, 359, 701 P.2d 982, 985 (1985) (unilateral grant of easement across existing roadway sufficient to create easement despite lack of consideration from grantee). See also §§ 70-1-501, -502, -507, 70-17-103 through -106, 70-20-101, -103, -201(6), MCA ; Restatement (Third) of Property (Servitudes) § 2.7 cmt. f (2000). Only in this manner can the instruments of conveyance provide the requisite record notice to property owners and buyers of the dominant and servient estates and the benefit and burden respectively appurtenant thereto. See Walker , ¶¶ 17-18 ; Blazer , ¶¶ 51, 54. See also §§ 70-21-201(1), -301, -302, MCA (purpose and effect of recording instruments of conveyance).

¶19 While the qualifying deed language "subject to" is generally insufficient alone to create an easement by grant or reservation, Wild River , 248 Mont. at 400-02, 812 P.2d at 346-47, the deeds that severed Lots 70 and 71 from common ownership in this case expressly conveyed them by reference to the previously filed Mustang Ranches Plat "[s]ubject to easements and ... reservations of record. ..." (Emphasis added.) Compare Wild River , 248 Mont. at 400-02, 812 P.2d at 346-47 (conveyance "subject to ... easement ... shown" on referenced COS without indicia of intent to reserve an easement). Taken together in order as a whole, the qualifying deed language in this case refers to the previously filed plat as earlier referenced in the deeds. However, even with the additional qualifying language of "reservation" not present in the Wild River deed, the original conveyances severing Lots 70 and 71 from common ownership and the referenced Mustang Ranches plat were sufficient to newly reserve the disputed easement over those lots only to the extent that the referenced plat clearly and unambiguously indicates the intended servient and dominant estates, use, and location of the new easement. See Restatement (Third) of Property (Servitudes) § 2.2 cmt. d (2000). Accord Walker , ¶ 13 ("coupled with" a plat, COS, or map of record incorporated by reference, the qualifying deed language "subject to" may be together sufficient to newly create an express easement by grant or reservation). See also Yorlum , ¶¶ 15-17 ; Bache , 267 Mont. at 286, 883 P.2d at 821.

¶20 The Mustang Ranches plat clearly subdivided a contiguous parcel of commonly owned land into smaller lots and a connected network of clearly-labeled subdivision roadways. A parcel of land may be reciprocally servient and dominant to other parcels of land formerly under common ownership. See Restatement (Third) of Property (Servitudes) §§ 1.7, 2.1 cmt. c, 2.14 (2000) (general plan developments); see also Hudson v. Irwin , 2018 MT 8, ¶¶ 18-20, 390 Mont. 138, 408 P.3d 1283 (discussing general plan developments). Here, neither the Mustang Ranches plat, nor any other instrument of conveyance, COS, or map of record, depicts or describes any off-plat parcel either owned by the common grantor or previously burdening the subdivided land. Thus, as a matter of law, the common grantor could not have previously granted or reserved an easement over any of the Mustang Ranches lots to the benefit of other commonly owned land, whether on-plat or off. See §§ 70-17-105, -111(1)(a), MCA ; Broadwater Dev. , ¶ 36 ; Mularoni , ¶ 29. Under these circumstances, the severance of Mustang Ranches lots from common ownership by conveyance with qualifying deed language of "reservation" and by reference to the previously filed Mustang Ranches plat manifests clear and unequivocal intent of the common owner and grantor to create a common plan subdivision wherein every lot touched by the depicted network of connected subdivision roadways would be burdened by the roadways to the common benefit of all other subdivision lots. In turn, the deeds and referenced plat similarly manifest clear and unambiguous grantor intent to reciprocally benefit each so-burdened lot to the similar burden of other subdivision lots touched by the connected roadway network. The connected roadway network, with multiple roadway termini around the perimeter of the subdivision, clearly and unambiguously manifests the intended purpose and use of the depicted roads-to create and allow multiple points of ingress and egress to and from subdivisions lots and adjoining exterior lands over which rights of way or entry may independently have existed at the time or thereafter.

¶21 The Mustang Ranches plat clearly labels, depicts, and describes by dimension the Elk Valley Road as a "60' Road Easement" traversing over and through Lots 70 and 71 along their adjoining boundary from the interior of the subdivision to its eastern perimeter. The 1982 and 1985 deeds that severed Lots 70 and 71 from common ownership by reference to the previously filed Mustang Ranches plat, "[s]ubject to easements and ... reservations of record," thus clearly and unambiguously manifest the common grantor's intent to have the portion of Elk Valley Road traversing Lots 70 and 71 burden those lots to the common benefit of the other subdivision lots, with Lots 70 and 71 to reciprocally benefit from the balance of the connected subdivision roadway network to the burden of the other lots affected thereby. (Emphasis added.)

¶22 By analogy to Blazer , Plaintiffs assert that the severing conveyances and referenced Mustang Ranches plat at most manifest the common grantor's intent to create an easement over the disputed segment of the platted Elk Valley Road to the exclusive benefit of Lots 70 and 71. We disagree. Blazer involved a seven-tract division of land straddling a state highway (Whitefish Stage Road) between Whitefish and Kalispell in Flathead County. Blazer , ¶ 2. In 1979, the common owners (Davis and McCready) filed a COS subdividing a parcel of land bisected by the highway into seven smaller tracts-two adjoining tracts (Tract 1 and 4) on the west side of the highway and the other five on the east side of the highway. Blazer , ¶¶ 2-4. Each of the five eastside tracts bordered either the highway or an intersecting county road to the north. Blazer , ¶¶ 3-5. The two westside tracts adjoined along their respective southern and northern boundaries, with their eastern boundaries running along the west side of the highway. Blazer , ¶¶ 3-5.

¶23 The originating 1979 COS clearly depicted a strip of land, labeled "30' Easement Road," running east to west over Tract 1 inside its northern boundary between its western boundary and the highway. Blazer , ¶¶ 3-5. At the northwest corner of Tract 1, the depicted roadway turned and ran south inside the west boundaries of the adjoining Tracts 1 and 4 where it terminated at adjoining off-survey land to the south. Blazer , ¶¶ 3-5. The COS did not identify or depict the off-survey lands to the north and west of Tract 1 and to the south and west of Tract 4. After filing the COS, one of the common owners (Davis) "assumed ownership" of the two tracts (Tracts 1 and 4) on the west side of the highway and the other (McCready) "assumed ownership" of the other five tracts (Tracts 2, 3, and 5-7) on the east side of the highway. Blazer , ¶¶ 2-5. Davis thereafter used the depicted roadway over Tracts 1 and 4 as a farm road between the highway and other off-survey lands that "he owned to the south and west of Tract 4." Blazer , ¶ 5.

¶24 In 1987, by reference to the 1979 COS, Davis conveyed Tract 1 to the Lockmans, "SUBJECT TO [a] 30 foot road easement as shown on" the COS. Blazer , ¶ 6. Through a series of conveyances starting in 1999, the Sugar Shack Land Trust ultimately acquired Tract 1 to the benefit of the Waldhers. Blazer , ¶ 7.

¶25 In 1989, by reference to the 1979 COS, Davis sold Tract 4 to the Fosters who later subdivided it into an eastern tract and a western tract. Blazer , ¶ 8. The Fosters then sold the new western sub-tract of Tract 4 to Blazer. Blazer , ¶ 8. Later in 1989, Blazer acquired the lands to the south and west of Tract 4 from Davis, thus giving Blazer ownership of the western sub-tract of Tract 4 and the adjoining off-survey lands to the south and west. Blazer , ¶ 9.

¶26 In 2003, Blazer sued the Tract 1 owner and interested parties for declaratory and injunctive relief based on his asserted claim of right to use the easement depicted over Tract 1 in the 1979 COS. Blazer , ¶¶ 11-12. Blazer asserted that the easement benefitted both Tract 4 and his adjoining off-survey properties to the south and west. Blazer , ¶¶ 11-13. Reversing a subsequent judgment in favor of Blazer, we held that the 1979 COS and 1987 Davis-Lockman deed that severed Tract 1 from common ownership with the retained Tract 4 and Davis's adjoining off-survey lands were insufficient to clearly and unambiguously express his intent to reserve the depicted easement over Tract 1, whether for the benefit of Tract 4 or Davis' adjoining off-survey lands. Blazer , ¶¶ 46-77. As a preliminary matter, we held that the qualifying language "subject to" in the 1987 Davis-Lockman deed was insufficient alone to create an easement. Blazer ¶¶ 28-29. As to Davis's retained off-survey lands, we further held that the deed and referenced COS were insufficient together to reserve the depicted easement benefitting the off-survey lands because nothing in the COS clearly described or depicted those lands with reasonable certainty as an intended dominant estate over Tract 1. Blazer , ¶¶ 46-54. As to on-survey Tract 4, we held that 1987 deed and referenced 1979 COS were even insufficient to reserve the depicted easement over Tract 1 to the benefit of on-survey Tract 4 due to ambiguity on the face of the COS as to whether Davis intended to reserve the depicted easement for the benefit of the original Tract 4 (which already bordered the highway) or the other five tracts created by the COS on the other side of the highway. See Blazer , ¶¶ 56-77.

¶27 Blazer is only superficially analogous here. Granted, as in Blazer , the parties here are disputing whether the conveyances severing Lots 70 and 71 from common ownership by reference to a record plat depicting a roadway easement over those lots were sufficient to burden them to the benefit of the other subdivision lots, thereby allowing the owners of other subdivision lots to access adjoining but unidentified off-plat land. However, unlike in Blazer , the Defendants here are not asserting that the pertinent deeds and referenced Mustang Ranches plat created an easement over Lots 70 and 71 to the benefit of (i.e., running with title to) the adjoining off-plat land. Unlike in Blazer , the Defendants here are asserting that the pertinent deeds and referenced subdivision plat were sufficient to create an easement over Lots 70 and 71 to the benefit of (i.e., running with title to) the other subdivision lots-not unidentified off-plat land.

¶28 As to the on-plat lands at issue here, Blazer is similarly analogous only to the superficial extent that the on-plat issue in Blazer was whether the pertinent deed and referenced COS were sufficient to reserve a depicted easement over one on-survey tract (Tract 1) to the benefit of another on-survey tract (Tract 4). However, the qualifying deed language in Blazer ("subject to" the COS-depicted "easement") did not include the additional qualifying deed language of "reservation" present here. Blazer 's Tract 4 holding further uniquely turned on an ambiguity on the face of the COS as to which of the on-survey tracts the grantor intended the depicted easement to benefit-the retained adjoining tract over which the depicted easement also traversed on the west side of the highway or the five tracts then in common ownership on the other side of the highway. No similar circumstance and resulting ambiguity exists here-the Mustang Ranches subdivision is wholly contained within a contiguous larger parcel without similar bisection, includes a platted network of connected roadways, and none of the subdivision lots at issue have independent adjoining access to an identified, previously existing public roadway as in Blazer . Blazer is thus legally and factually distinguishable in all material regards.

¶29 The terms of the originating instruments of conveyance determine the permissible scope of use of express easements. Section 70-17-106, MCA ; Woods v. Shannon , 2015 MT 76, ¶ 12, 378 Mont. 365, 344 P.3d 413. If the originating conveyance grants or reserves an easement in only general terms, without restriction, the permissible scope of use includes any purpose reasonably related to the general purpose expressed. Woods , ¶ 12 ; Clark v. Pennock , 2010 MT 192, ¶ 25, 357 Mont. 338, 239 P.3d 922. If the general grant or reservation is vague or ambiguous, a court may resort to pertinent extrinsic evidence such as the nature and character of the dominant and servient estates, the prior and subsequent use of the properties, the character of the surrounding area, the nature and character of any common plan of development for the area, and the consideration, if any, paid for the easement. Woods , ¶ 12 ; Restatement (Third) of Property (Servitudes) § 4.1 cmt. d (2000). However, if the originating conveyance expressed the intended purpose or use of the easement in specific terms, such as for ingress/egress, access, or roadway purposes, the permissible scope of use must be determined from the specified terms without resort to extrinsic evidence. Woods , ¶ 14. See also Clark , ¶ 27. Except as otherwise limited by the terms of the instruments of conveyance, individuals entitled to use an express easement include the dominant estate owner, family, tenants, and other expressly or implicitly authorized invitees. Woods , ¶ 15 ; City of Missoula v. Mix , 123 Mont. 365, 374, 214 P.2d 212, 217 (1950).

¶30 Here, even if the disputed roadway segment benefits the other lot owners, Plaintiffs assert that the disputed use of the roadway nonetheless unreasonably increases the originally contemplated burden on the servient estates. However, the only disputed use shown on the Rule 56 record is occasional use of the disputed segment of Elk Valley Road by other subdivision lot owners to access or temporarily view the adjoining USFS land, temporary incidental parking within the platted roadway, and occasional removal of roadway obstructions. Upon creation of an easement by grant or reservation, a rebuttable presumption arises "that the parties 'anticipated such uses as might reasonably be required by a normal development of the dominant tenement.' " Tungsten Holdings, Inc. v. Kimberlin , 2000 MT 24, ¶ 33, 298 Mont. 176, 994 P.2d 1114, (quoting Restatement of Property § 484 cmt. b (1944)), overruled on other grounds by Shammel v. Canyon Res. Corp. , 2003 MT 372, ¶ 12, 319 Mont. 132, 82 P.3d 912. Plaintiffs have made no Rule 56 factual showing that the disputed use of Elk Valley Road exceeds the frequency or intensity of use reasonably attendant or contemplated with a connected roadway network commonly serving an 86-lot rural residential subdivision. Plaintiffs have thus failed to demonstrate that the disputed use has or will unreasonably increase the burden of Elk Valley Road on Lots 70 and 71. We hold that the 1982 and 1985 warranty deeds that severed Lots 70 and 71 from common ownership, together with the referenced Mustang Ranches plat, created a 60' roadway easement (Elk Valley Road) over those lots to the benefit of the other Mustang Ranches lots for ingress and egress to and from the subdivision and adjoining lands. We hold further that the District Court correctly denied Plaintiffs summary judgment that the disputed use of Elk Valley Road by other subdivision owners either unreasonably increases the intended burden on Lots 70 and 71 or otherwise unreasonably interferes with Plaintiffs' use of those lots.

¶31 2. Whether the District Court erroneously concluded that Plaintiffs had no right to obstruct Elk Valley Road and thus no right to compensatory damages in trespass and for removal of the obstruction?

¶32 Even if the length of Elk Valley Road benefits all other Mustang Ranches lots, Beardsley and O'Keefe assert that they still had the right to place a gate across the road to prevent unauthorized public access across their property. Except as otherwise provided by the terms of the originating instruments of conveyance, the owner of the servient estate may make any use of the servient estate that does not unreasonably interfere with reasonable permissible use of the easement by the dominant estate owner(s). Mix , 123 Mont. at 372, 214 P.2d at 216 ; Restatement (Third) of Property (Servitudes) § 4.9 (2000). Accord Musselshell Ranch Co. v. Seidel-Joukova , 2011 MT 217, ¶ 19, 362 Mont. 1, 261 P.3d 570. However, in balance of the respective rights of the dominant and servient estate owners, a servient estate owner may place and maintain a gate across a roadway easement only as necessary for the owner's reasonable use of the servient estate without unreasonable interference with the permissible use of the easement by the dominant estate owner(s). Gabriel v. Wood , 261 Mont. 170, 177-78, 862 P.2d 42, 46-47 (1993), overruled on other grounds by Shammel , ¶ 12. Accord Strahan v. Bush , 237 Mont. 265, 268-69, 773 P.2d 718, 721 (1989).

¶33 Except as provided by the terms of the originating instruments of conveyance, the reservation or grant of an easement to the benefit of the owner of the dominant estate, or those authorized thereunder, does not create any right in the general public to use the easement. Woods , ¶ 15 ; Mix , 123 Mont. at 373-74, 214 P.2d at 216-17. In Gabriel , we held that the owner of the servient estate had the right to place a gate across a common road upon proof that "[the] gate was reasonably necessary to prevent injury to the landowner's horses" and "to prevent vandalism and theft" in the wake of prior losses caused by trespassers. Kimberlin , ¶ 39 (discussing Gabriel , 261 Mont. at 177-78, 862 P.2d at 46-57. In contrast, in Kimberlin , we held that the owner of the servient estate had no right to place a gate across the disputed roadway in the absence of proof that the gate was "reasonably necessary" for the protection or enjoyment of the servient estate. Kimberlin , ¶ 40.

¶34 Here, while the owners of Lots 70 and 71 certainly have a right to exclude the general public from traversing over their property via Elk Valley Road, they have no right to unreasonably interfere with the rights of other Mustang Ranches lot owners, including those authorized thereunder, or the Association, as granted by the covenants, to use the roadway easement to the full extent authorized by the terms of the originating instruments of conveyance. In the wake of defeat of their asserted claim for exclusive ownership and use of the disputed segment of Elk Valley Road, Plaintiffs now resort to the assertion that they nevertheless have the right to place and maintain a gate across the road to prevent unauthorized access by the general public. However, as in Kimberlin and unlike in Gabriel , Plaintiffs have made no supported, non-speculative factual showing beyond cursory assertion that a gate is necessary for that purpose and would not unreasonably interfere with permissible use of the roadway by other subdivision owners. Under these circumstances, the District Court correctly concluded that Beardsley and O'Keefe had no right to place or maintain the subject gates across Elk Valley Road.

¶35 Plaintiffs have further provided no authority or analysis for the proposition that a dominant estate owner may not remove a wrongfully placed gate obstructing an easement way. In the absence of a right to place the gate across the road in the first instance on the record in this case, Plaintiffs have similarly failed to make a supported Rule 56 factual showing that, regardless of their easement rights, the Defendants nonetheless acted unreasonably to Plaintiffs' detriment in the removal of the subject gate(s) from the platted roadway. See Restatement (Third) of Property (Servitudes) § 4.10 cmt. e (2000) (right of dominant estate owner to reasonably maintain, repair, and improve servient estate within scope of easement). While we caution that property loss caused by similar self-help removal of a gate from a private easement way may conceivably be compensable upon proof that, regardless of easement right, a dominant estate owner or covenant-authorized association nonetheless acted unreasonably under the circumstances, Plaintiffs have simply failed to meet their Rule 56 factual burden in this case. We hold that the District Court correctly granted summary judgment to the Association, et al., on Plaintiffs' asserted damages claims.

CONCLUSION

¶36 We hold that the District Court correctly granted summary judgment that the pertinent deeds and referenced subdivision plat created a roadway easement (Elk Valley Road) over Lots 70 and 71 to the benefit of the other Mustang Ranches lots and that the disputed use of the roadway by or through subdivision lot owners did not unreasonably interfere with use of the servient estates. We further hold that the District Court correctly granted summary judgment to the Association, et al., on Plaintiffs' asserted damages claims.

¶37 Affirmed.

We concur:

MIKE McGRATH, C.J.

INGRID GUSTAFSON, J.

JAMES JEREMIAH SHEA, J.

Justice Jim Rice, dissenting.

¶38 The Court holds that Blazer is "legally and factually distinguishable in all material regards," Opinion, ¶ 28, and largely dispenses with Blazer , as did the District Court, in favor of deciding the case as a scope-of-easement question. Citing cases that did not involve easements by reference ( Woods , Clark , and Mix ), the Court proceeds to reason that, "[i]f the originating conveyance grants or reserves an easement in only general terms," then the scope of this generally granted easement "includes any purpose reasonably related to the general purpose expressed." Opinion, ¶ 29. The Court then concludes that access to the adjoining, off-plat lands is a purpose reasonably related to the easement indicated on the subdivision plat, crossing Plaintiffs' lots. Opinion, ¶ 30. I respectfully disagree with these analytical propositions and the conclusion reached.

¶39 There is no dispute that an easement by reference to the plat was created for purposes of accessing the lots of the subdivision. But the precise question here is whether an easement was properly created for a different purpose-accessing property beyond the subdivision. In my view, the issue here is not purely about the scope of a created easement, but is, foundationally, whether an easement for off-plat access was properly created in the first place. If it was, then questions about its scope-the particulars about utilization of the off-plat access, including what uses are "reasonably related"-would appropriately come into play. However, I do not believe that is now the question. Rather, there is a threshold issue here involving creation of the easement under proper application of the easement-by-reference doctrine, for which Blazer is the seminal authority. While Blazer did not involve identical facts, governing principles articulated there control the outcome here, because that case "clarif[ied] exactly what is required to create an easement under the easement-by-reference doctrine." Blazer , ¶ 76.

¶40 The "dispositive issue" in Blazer -"the adequacy of the description on [the] COS" of the asserted easement, Blazer , ¶ 45, is also the dispositive issue here. An easement created by reference in an instrument of conveyance to a plat or COS must be "adequately described-must arise expressly, not by implication." Blazer , ¶ 41. Blazer instructed further about an adequate description, explaining the intended easement "must be clearly and unmistakably communicated on the referenced plat or certificate of survey." Blazer , ¶ 43 (emphasis added). The reason for this requirement is that a buyer must be able to know the extent of the burden upon the property he is purchasing-indeed, we have held the buyer acquires a right that the easement will only be used in the manner indicated on the plat: "[W]here land is sold with reference to a map 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 ." Blazer , ¶ 32 (internal quotations and citations omitted) (emphasis added). We explained that, "in determining the existence of an easement by reservation in the documents of conveyance, it is necessary that the grantee of the property being burdened by the servitude have knowledge of its use or its necessity ." Blazer , ¶¶ 36, 56 (emphasis added). Critically, we have required as follows: "[I]t is essential that an intention to convey or create a particular interest in real property is clearly expressed in the documents of conveyance." Blazer , ¶ 69 (emphasis added). See also Charles W. Willey, Montana Real Estate Transactions 141-42 (2010) (among other requirements "the plat map or COS must also show the easement's use or necessity") (emphasis added). We held that such clear indication of the particular purpose is mandatory, and explained that we had previously upheld easements allegedly created by reference only if this purpose was clearly evident from the incorporated document. Blazer , ¶ 52. In contrast, "we have never recognized an easement created to benefit a dominant tenement that was not ascertainable from the referenced plat or certificate of survey." Blazer , ¶ 52 (emphasis added). In Tungsten , we rejected a claim that a parcel resembling a roadway on the incorporated plat, and for which there was "no other conceivable purpose," constituted a road easement, because such purpose was not identified upon the plat. Blazer , ¶ 37 (citing Tungsten ).

¶41 The "particular" purpose asserted in the present case is that the easement indicated on the plat not only provided access to the subdivision lots, but also burdened the lots with the provision of access to off-plat lands. The Court views the plat as obviously providing such access, stating broadly that "[t]he platted roadway network [ ] provides multiple points of ingress and egress to and from the subdivision and adjoining exterior lands at various points around the perimeter of the subdivision." Opinion, ¶ 5. However, in accordance with our precedent, I believe notification that the easement would burden individual lots with the provision of access to the off-plat lands must have been clearly expressed on the incorporated plat, giving knowledge of such designated use to the buyers of the property. Buyers had to be given knowledge of the "designated manner" in which the easement would be used. Blazer , ¶¶ 30, 56. Here, the incorporated plat failed to provide notice to Plaintiffs that individual lots would be burdened with providing access to off-plat lands.

¶42 As noted by Appellants, a strikingly similar case, involving claimed access to off-plat public lands by way of a platted easement for a subdivision road, was decided by the Eighteenth Judicial District Court, Gallatin County. Wirth v. Flaherty, et al. , No. DV-13-255B (Mont. Dist. Ct. Jan. 21, 2015). As here, lot owners claimed access to off-plat public lands by way of the subdivision road easement over Plaintiff Wirths' lot. The easement had been created by reference to a COS. The District Court noted the following facts and dispositive principles:

COS 518 does not adequately depict an access easement to the Gallatin National Forest. First, there is no access point or outlet to the National Forest depicted on COS 518. Further, the Gallatin National Forest is not labeled on COS 518.... Thus, there is nothing depicted on COS 518 that would give prospective purchasers of Lot 8 (the burdened lot) knowledge that the road easement depicted across Lot 8 was for the additional use or necessity of accessing the National Forest. The fact that the eastern border of the road easement is conterminous with the western border of the National Forest is inconsequential. An easement by reference, such as the road easement at issue here, must be "clearly and unmistakably communicated" on the COS. The right to access the National Forest from the road easement cannot be found to exist through inference or implication. Blazer , ¶ 43.

Wirth , pp. 12-13. The Wirth District Court, in reliance upon the easement-by-reference doctrine outlined in Blazer , denied the claimed access, properly reasoning that off-plat access was not indicated on the plat and that such access would burden the Plaintiffs' lot beyond that which was established by the referenced documents, and beyond which they were notified when they purchased the property.

¶43 Virtually the same facts, and the same deficiencies these facts present under the easement-by-reference doctrine, that existed in Wirth could also be stated about the platted easement at issue here. The same governing principles from Blazer should likewise control. I would reach that conclusion, and reverse.

Justices Beth Baker and Laurie McKinnon join in the dissenting Opinion of Justice Rice.

      The 1973 Act imposed more rigid standards and specifications for subdivisions and other divisions of land, as defined by the Act, including, inter alia , local government review and approval of subdivisions. See Title 76, chapter 3, MCA. Prior to 1973, §§ 11-601 through 11-614, R.C.M. 1947, more liberally allowed subdivisions of land by mere filing of unreviewed subdivision plats subject to certain platting and dedication requirements.

      The Lee Metcalf Wilderness includes four units in the Madison Range in southwest Montana managed by the United States Forest Service (3 units) and United States Bureau of Land Management (1 unit) within the Beaverhead-Deerlodge and Gallatin National Forests. See The University of Montana, Lee Metcalf Wilderness , https://perma.cc/4UVX-RMRN (last visited July 31, 2019); The University of Montana, Wilderness Acreage Breakdown for the Lee Metcalf Wilderness , https://perma.cc/R9TU-88GA (last visited July 31, 2019).

      In accordance with the covenants, the developer executed and recorded an "Assignment and Deed" in 1983 which conveyed to the Association "[a]ll powers, rights and authority to administer all matters regarding ... the overseeing and maintenance of all common areas and roadway easements ... as shown on" the previously filed Mustang Ranches plat. As subsequently adopted and thereafter amended pursuant its non-record bylaws, the Association's non-record "Rules & Regulations" provided that: (1) "[o]nly current (paid up) members, spouses, and resident children ... are allowed" to use subdivision roadways to access adjoining USFS lands; (2) "[g]uests may use the [subdivision] common areas only when accompanied by a current member" of the Association; (3) "[w]heeled vehicles must stay on existing roads"; (4) "[t]respassing on another member's property is not allowed"; (5) "[g]ates or fences on or across [Mustang Ranches] roads or the associated 60' easements are not permitted"; (6) "[a]ny unapproved gates [or] fences ... on or across [subdivision] roads or easements must be removed"; and (7) "[v]ehicles are not permitted on other property owner's land."

      The platted widths of the McDeed Creek, Shell Creek, and Cedar Mountain roadways respectively run within the boundaries of Lots 86, 55, and 45 as those roadways approach their respective eastern termini on the boundary between the subdivision and adjoining USFS land.

      In contrast, a negative easement is a nonpossessory interest in land that imposes a specific restriction on another's use of the other's own property. Blazer , ¶ 24. In modern American law, the historically distinct concept of a negative easement is subsumed into the concept of a restrictive covenant. See Restatement (Third) of Property (Servitudes) § 1.2(4), cmt. h (2000).

      See §§ 70-17-201, -203, MCA (real property covenants).

      Easements may also arise by government condemnation or public dedication. Davis v. Hall , 2012 MT 125, ¶ 19, 365 Mont. 216, 280 P.3d 261.

      Easements in gross burden a parcel of land to the personal benefit of an individual and thus do not perpetually run with title to the burdened parcel. Blazer , ¶ 24.

      Servitudes "designed to implement real estate development plans ... are created by many overlapping transactions. The conveyance of each parcel in the development simultaneously transfers the benefits of previously created servitudes on other parcels, creates new burdens on the developer's remaining land for the benefit of the conveyed parcel, and imposes new burdens on the transferred parcel for the benefit of the rest of the land in the development." Restatement (Third) of Property (Servitudes) § 4.1 cmt. d (2000). See also Restatement (Third) of Property (Servitudes) § 2.7 cmt. f (2000) ("[s]ervitudes for general-plan developments and common-interest communities ... are created when the first conveyance of a lot or unit is made pursuant to the development plan").

      The deed term "reservation" or "reserves" historically indicated a grantor's intent to retain the referenced interest for "regrant" to subsequent grantees of the common grantor's estate while use of the terms "exception," "excepting" or "except for" indicated intent to retain the referenced right for the grantor's own use. Wild River Adventures, Inc. v. Bd. of Trs. of Sch. Dist. No. 8 of Flathead Cty. , 248 Mont. 397, 401, 812 P.2d 344, 346 (1991) (citing 3 Powell on Real Property, § 407, pp. 34-39 to 34-42). Under the modern common law of conveyances, these restrictive deed language terms are generally synonymous-merely stating or indicating grantor intent to burden the conveyed property severed from common ownership with a retained interest or restriction to the benefit of the grantor's retained lands. Wild River , 248 Mont. at 401, 812 P.2d at 346. Accord Restatement (Third) of Property (Servitudes) § 2.2 cmt. d (2000).

      The lack of a precise description of the location of an intended easement is not fatal to an express easement if the general location of the intended easement is reasonably ascertainable from the instrument, referenced plat, COS, map, prior existence or use, or other extrinsic evidence. Yorlum , ¶¶ 22-27.

      Prior to the effective date of the 1973 Subdivision and Platting Act, "plat" referred either to a map of a surveyed parcel of land (indicated by lines, marked courses of lines, and parcel quantity) or a surveyed subdivision of land mapped to scale into specific lots, roadways, and other areas of particular dimension and quantity. City of Missoula v. Bakke , 121 Mont. 534, 542-43, 198 P.2d 769, 773-74 (1948) (Adair, J., dissenting). Compare § 76-3-103(1), (4), (6), (12), and (16), MCA (definitions of "Certificate of Survey," "Division of Land," "Final Plat," "Plat," and "Subdivision").

      Distinguishing Wild River , 248 Mont. at 400-02, 812 P.2d at 346-47 (deed language "subject to" insufficient alone to create new easement), the Blazer dissent contrarily asserted that, read together, the qualifying deed language "subject to" clarified or supplemented the COS to together manifest clear intent to reserve the depicted easement over Tract 1 to the highway to the benefit of the retained on-survey tract (Tract 4) adjoining the burdened estate. Blazer , ¶¶ 82-92 (Morris, J., dissenting). We have since so held on a different fact pattern lacking the ambiguity found in Blazer . See Walker , ¶ 13.

      The disputed use of Elk Valley Road by other subdivision lot owners is thus further presumptively consistent with the concurrently created "residential purposes only" restriction in the Mustang Ranches protective covenants. In the absence of any cited legal authority to the contrary and the further absence of any Rule 56 factual showing that the disputed use of the roadway easement by other subdivision owners is substantially different than the use of the easement by Beardsley and his permittees, we decline to further address Plaintiffs' cursory assertion that the disputed use violates the "residential purposes only" restriction of the Mustang Ranches covenants.

      This holding does not address or implicate whether and to what extent, if any, subdivision lot owners may or may not have the right to traverse or enter upon adjoining lands vis-à-vis the independent rights or restrictions of the owners of those off-plat lands.

      The "USFS Land" label in Figure 2 of the Opinion is an addition to the plat made by the Court for clarification. That label is not on the original plat.