Hudson v. Irwin, 2018 MT 8 (Jan. 8, 2018) (McGrath, C.J.) (5-0, aff’d)
Issue: (1) Whether the district court erred in concluding Hudsons were not entitled to access an easement on the Irwin property; (2) whether the owner of real property who is establishing a general plan development can create an easement upon the owner’s own parcel; and (3) whether the prevailing party award of attorney fees should be vacated.
Short Answer: (1) No; (2) yes; and (3) no.
Affirmed and remanded for determination of fees on appeal
Facts: Hudsons and Irwin own real property adjacent to one another. Before being subdivided by a previous owner, the properties were one parcel. A privately owned public airport is on the Irwin property. The airport was founded by Roy Shook for U.S. Forest Service purposes and operated from a building known as the West Fork Lodge.
The properties have been conveyed and reconveyed several times since 1980. in 1981, an easement was executed and recorded, dsecribing an airport known as the Wilcox-Shook Mountain Resort Airport that exists across portions of Parcels 4, 5, and 7 of COS 1075. The easement stated that, as owners of real property including Parcels 4, 5, and 7 COS 1075, Richard and Bette Lou Gamegan and Wayne A. and Betty M. Wilcox granted “to the other Grantors, and to the owner of each parcel, Parcels 1 through 13, inclusive, Certificate of Survey No. 1075, records of Ravalli County, Montana: a non-exclusive easement for use of the easement premises and the air over same as an airport for the ingress, egress, and tie-down of one (1) airplane only for each of the above-described parcels. This grant is appurtenant to each of said parcels.”
Additional conveyances and boundary adjustments occurred between 1990-2005, when Hudsons and Irwin became adjacent propert owners.
In 2012, Hudsons filed a complaint to quiet title, and for declaratory and injunctive relief, alleging they were entitled to access and use the airstrip under the 1981 easement.
Procedural Posture & Holding: On cross-motions for partial summary judgment, the district court granted judgment for Irwin, holding that Hudson’s property is not benefitted under the 1981 easement, and denying Hudsons’ motion for additional discovery under 56(f). It awarded Irwin $53,385 in attorney fees. Hudsons appeal, and the Supreme Court affirms.
Reasoning: (1) Pursuant to the easement language, each parcel was granted an easement to access the airstrip for one airplane only. After Magee recorded COS 490742-R and adjusted a boundary line in 2002, the single airplane easement was located on Parcel B. Consequently, Hudsons, as owners of Parcel A, do not have an airplane easement.
(2) Although a landowner cannot hold an easement on his or her own land because a “servitude is terminated when all the benefits and burdens come into a single ownership,” a landowner who is establishing a general plan development can create an easement upon the landowner’s own parcel. ¶ 19 (citing Rest. (Third) of Property: Servitudes § 7.5, cmt. c).
(3) As the prevailing party, Irwin is entitled to attorney fees under the easement. The district court’s award is affirmed, and Irwin is entitled to fees on appeal as well.