Archives for October 2016

EASEMENT clause correctly interpreted as a restriction on use of easement, not on right to develop property… Curtis affirmed (IOR I-3(c)).

Bevill LP and Gregory Sandberg own adjacent parcels in Whitefish. A boundary adjustment in 7/03 made Sandberg’s property inaccessible from Colorado Ave. In 9/03, Bevill’s predecessor executed a 50-foot private access & utility easement in favor of Sandberg’s predecessor. A written agreement imposed restrictions on Bevill’s property by which he and his successors:

(a) shall not construct any structures, buildings, or any other improvements, including but not limited to parking lots, parking areas, or driveways, on that portion of [Bevill’s] PROPERTY that is shown as cross-hatched on “Exhibit A” … [and] (b) “shall obtain primary vehicular access to the units to be constructed on [Bevill’s] PROPERTY directly from Colorado Avenue, and shall use the 50′ PRIVATE ACCESS & UTILITY EASEMENT (shown in Exhibit “A”) only for occasional and limited vehicular access to that portion of [Bevill’s] PROPERTY located east of such units.

Bevill’s predecessor later subdivided into 5 lots. 4 lots had direct access to Colorado Ave. The 5th lot (the Open Area) could be accessed only by the access road through the Easement. Bevill’s predecessor acquired additional property which was combined with the Open Area and accessible only by the access road. Bevill purchased the Open Area in 2010, and in 2013 applied to subdivide. The City required an access & utility easement that would open the access road on the 2003 Easement to the public. Bevill granted the access easement and the City approved its application. The access road through the 2003 Easement therefore became open to the public. In 11/14, Bevill sought a declaration as to validity of the restriction under (b) of the 2003 agreement. Judge Curtis granted summary judgment for Bevill. She noted that the parties did not dispute that the access road was open to the public and framed the issue as “to what extent the restrictions on Bevill’s use of the 50-foot access road can survive a clear designation of the roadway as open to the public, for use by anyone and everyone without restriction.” Because establishment of the public road granted the public — including Bevill — an “unrestricted right to travel upon the road,” she concluded that she could not enforce the restriction on Bevill’s use of the 2003 Easement under the agreement. She also rejected Sandberg’s argument that (b) prohibited Bevill from developing the property. Her order did not affect (a). Sandberg appeals.

Curtis correctly granted Bevill summary judgment. Sandberg does not dispute that the access road through the 2003 Easement is open to the public. Thus we must apply our rules of contract interpretation to determine the effect & enforceability of (b) of the agreement, which provides that Bevill “shall use the [easement] only for occasional and limited vehicular access to that portion of [Bevill’s] PROPERTY located east” of the 4 lots with direct access to Colorado Ave. Despite this language, Sandberg did not object to the public easement and does not challenge public use of it. Rather, he alleges that (b) restricts construction and development because it restricts where and how one may access the property after traveling on a public roadway, and thus the provision restricts the property and not the roadway. The words of (b) — which must be “understood in their ordinary and popular sense,” §28-3-501 — clearly pertain to use of the Easement to access Bevill’s property. Given its plain language, Sandberg’s assertion that it restricts “development and construction” on Bevill’s property adds language to the Agreement in conflict with our rules of contract interpretation. §1-4-101 (“In the construction of an instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.”). “It is not the proper role of the judiciary to insert modifying language into clearly written and unambiguous instruments where the parties to the instrument declined to do so.” Creveling (Mont. 2006). The language of (a) — which restricts construction of “any structures, buildings, or any other improvements, including but not limited to parking lots, parking areas, or driveways, on that portion of [Bevill’s] property that is shown as cross-hatched on `Exhibit A”’ — establishes clearly that the parties restricted development only as to the part of Bevill’s property marked on the map. We must “give effect to the mutual intention of the parties” who entered into the Agreement. §28-3-301. Moreover, (a) “help[s] to interpret” (b) because it demonstrates that the parties understood how to set forth development restrictions where they intended to do so. §28-3-202. Curtis correctly interpreted (a) as a restriction on use of the Easement, not as a restriction on Bevill’s right to develop the rest of his property not restricted under (a).

Baker, McGrath, Wheat, Shea, McKinnon.

Bevill LP v. Sandberg, DA 16-251, 10/4/16.

Sean Frampton & Johnna Preble (Morrison & Frampton), Whitefish, for Bevill; Brian Joos (Viscomi & Gersh), Whitefish, for Sandberg.