Archive | Easement in gross

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Scotts v. Metcalf Charitable Trust

Scotts v. Metcalf Charitable Trust, 2015 MT 265 (Sept. 8, 2015) (Wheat, J.), (5-0, aff’d)

Issue: (1) Whether the Trust could enforce the Metcalf Restrictions against the Scotts; (2) Whether the Metcalf Restrictions were enforceable as anything other than a conservation easement; (3) whether the Metcalf Restrictions are void under the rule against perpetuities; (4) whether the district curt correctly held that the Metcalf Restrictions were not void for vagueness.

Short Answer: (1) Yes; (2) yes; (3) no; and (4) the Court declines to address this as a nonjusticiable controversy.


Facts: In January 1996, Donna Metcalf transferred a 40-acre parcel of land to Richard Thieltges by warranty deed. The deed included certain “covenants, restrictions, conditions and charges,” referred to as the Metcalf Restrictions.…

Bos Terra, LP v. Beers

Bos Terra, LP v. Beers, 2015 MT 201 (July 14, 2015) (McKinnon, J.) (5-0, aff’d)

Issue: (1) Whether the district court properly found that the June 20, 1977 easement was an easement in gross; (2) whether the district court properly held that Bos Terra is a third party assignee rather than a successor to the easement; and (3) whether the district court erred in finding Bos Terra’s use of the ditch easement permissive rather than prescriptive.

Short Answer: (1) Yes; (2) yes; and (3) no.


Facts: In 1977, Barrett granted to Stevensons and Kolars a right of way easement for transporting water. Stevensons and Kolars installed a pipeline from the Judith River to the top of a hill, at which point a 100-foot-long ditch was dug to connect the pipeline to the Enterprise Ditch, which had been abandoned.…