Background
The parties own neighboring property in or near the Keck Acres Minor Subdivision in Butte. The recorded subdivision plat depicts a 60-foot-wide private road easement for ingress and egress, known as Kelsey Lane, that includes an unimproved southern loop running through David Vicevich and Gillian Clark’s property beside Urban and Lucinda Kultgen’s Lot 4. Although only the northern route was paved, the Kultgens maintained that the platted loop provided access to Lot 4.
After Vicevich and Clark installed a fence that crossed the loop and blocked access to Lot 4, Vicevich and the other plaintiffs sought a declaration that the loop had been abandoned. They also relied on a 2021 agreement, signed by several neighboring owners but not the Kultgens, that described a narrower easement terminating near Lot 5. The District Court granted summary judgment to the Kultgens, ordered removal of easement obstructions, and awarded them $106,209 in attorney fees under recorded restrictive covenants.
The Court’s Holding
The Montana Supreme Court held that the Kultgens possess an express 60-foot-wide ingress-and-egress easement benefiting Lot 4. Their deed incorporated the recorded subdivision plat, which clearly depicted and labeled the easement, including the southern loop. A later plat aggregating other lots expressly preserved easements of record. The 2021 agreement could not extinguish or alter the Kultgens’ property right because they did not sign it, and the evidence did not establish abandonment.
The Court also upheld summary judgment that the specifically identified portion of Vicevich and Clark’s fence obstructed the easement by crossing its western leg and preventing access to Lot 4. It concluded, however, that the judgment’s broader direction to remove easement obstructions was insufficiently precise and could be read to reach fences or structures not adjudicated on summary judgment. The Court therefore reversed that portion and remanded for an amended judgment limited to the established obstruction.
The Court affirmed the $106,209 attorney-fee award. The recorded covenants prohibited fences or other obstructions on access easements and authorized reasonable fees to the prevailing party in enforcement litigation. The District Court properly treated the Kultgens as the prevailing party and did not abuse its discretion in calculating the award. The Kultgens also were entitled to reasonable attorney fees on appeal, with the amount to be determined on remand.
Key Takeaways
- A deed’s reference to a recorded plat can create an express easement when the plat clearly depicts and describes the right of access.
- Property owners cannot extinguish another owner’s easement through an agreement that the easement holder did not sign.
- An injunction or removal remedy must identify the adjudicated obstruction precisely and cannot sweep in structures beyond the summary-judgment record.
- A recorded covenant’s prevailing-party provision may support recovery of reasonable trial and appellate attorney fees in an easement-enforcement action.
Why It Matters
The decision reinforces that an undeveloped or infrequently used platted road does not lose its legal status merely because the route was never paved or neighboring owners preferred a different access arrangement. Extinguishing an express easement requires more than nonuse or an agreement among owners who do not include the easement holder.
The ruling also cautions courts and litigants to draft easement remedies narrowly. Even when an obstruction is established as a matter of law, the judgment must specify what must be removed rather than impose an open-ended command potentially affecting unlitigated fences or structures.