The Basics of Private Road Easement Laws in Montana

Easements 101: How they Work in Montana

Although many people are familiar with the phrase "easements reserved," few know what this means or what it means in a Montana land dispute context. So, here is a "land court" style primer on easements.
What is an Easement in Montana?
An easement allows a person to use another’s land in a way that benefits the person using the land without excluding the owner of the land itself from using the same land. (The Montana Supreme Court calls easements "an interest in real property" Findley v. Copeland, 2014 MT 129.) Easements cover many issues. There are utility easements and emergency access easements, to name just two. This blog post covers private road easement issues, namely, whether one property owner can legally require another to give access to a private road. There are also disputes over easements for utilities like power. This general blog post applies to all type of easement legal disputes.
How Are Easements Created in Montana?
Montana law allows for easements to be created by "express grant in writing" or "prescriptive easement" or implied easements. See, Mont. Code Ann. § 70-17-201, 202, 203 . For example, common prescriptive easements arise when a person uses an area, like a path across the neighbor’s yard, for years without interference and in a way that is not secret. This does allow for a landowner to kill the weeds on the path if that is what the landowner wants.
Easements Also Apply to Private Roads
Private roads might or might not be on the county road system. It is worth noting that private roads are still subject to County regulations. The specific definition of a private road varies. Here is one from Ravalli County: "Private road means any road on which the public does not have a right of passage or a right to pass or repass, and a right to use the entire width of the road, within rights-of-way under private ownership, easements or limited dedication, dedicated and recorded according to the county regulations, or dedicated by instrument, law or public use." Ravalli County Ordinance §2-400. Without going into the various other definitions, for this blog post let’s assume a private road is not subject to the same level of public use as a County road but is not a completely fenced off the private road cutting off all access.

Common Types of Easements in Montana

In Montana, there are several types of easements that a property owner may use to access a private road. An easement may be created in one of the following ways: an express grant; an implied grant; or their use for the statutory period of time as dictated for a prescriptive easement. An express easement is a legally enforceable agreement that is created after the grantor and grantee agree on the terms and sign the proper documents. An implied easement is created when certain facts show that the parties would have expressly granted the easement had the parties intended to do so. A prescriptive easement is one that is implied from the use of an easement over a parcel of land for the statutory period of time (20 years under Montana law). The use of the easement must be open, continued and without challenge or dispute from the owner of the land. Most often in Montana the express, implied and prescriptive easements are commonly used to provide a neighboring landowner with the means to access his or her property. Additionally, Montana has enacted a law that allows for the creation of an implied easement by reservation, and one that allows for the termination of a prescriptive easement. Those areas of law are addressed in their own categories.

Laws that Govern Easements in Montana

The legal framework for easements and private roads in Montana consists of a combination of state statutes, common law principles, and judicial interpretations that guide how easements are established, enforced, and terminated. A key that all easements have in common is that they are servitudes – in some way they benefit one piece of land over another with regard to a specific use of the land. There are generally three forms of private road easements or rights-of-way in Montana:
An appurtenant easement benefits a dominant parcel (the parcel benefiting from the easement) and runs with the land. In order to create an appurtenant easement in Montana, the right must be specified within a deed conveying the dominant parcel. An easement that benefits a dominant parcel located in a platted subdivision connecting with a roadway on an adjoining parcel is a prescriptive easement which is valid until proven otherwise by a court. "Prescriptive easement" is not a statutorily defined term but it is commonly understood as a legal right obtained through long term use.
A prescriptive easement (sometimes referred to as a prescriptive right, prescriptive way, prescriptive use, or prescriptive easement) is an easement over the property of another, which arises by statute. In Montana, the length of time required to create a prescriptive easement is generally over a period of five years. Ten (10) years, however, may be required if the easement is based upon a claim of right that is inconsistent with the true owner’s rights.
Access across another’s property serves as the linchpin of landlocked property. The right to travel across another’s property is created in one of two ways: either by grant or by necessity. A grant creates the right to access across another’s property in a deed or conveyance. A grant is the most common way to create an easement for a private road, though it is not the only way. The civil law doctrine of necessity will deem a way of access to exist if four criteria are met: 1) there is more than one tract of land; 2) one parcel will be effectively landlocked without the access; 3) the access was a necessity at the time of the conveyance; and 4) efforts to reach an agreement with the other owner failed.
A grant constitutes a permanent right in favor of the grantee and runs with the tract of land. Such property rights and interests must be specifically stated within the deed in order to be granted and the language should be specific enough to provide the grantee with adequate notice of the character and extent of the interest that they are receiving. An easement for the benefit of the dominant parcel can be recorded with the clerk and recorder to put the world on notice of its existence.
Though an easement can be abandoned, non-use alone will not accomplish this "because the owner of an easement may voluntarily refrain from using his or her rights under the easement so long as such non-use is predicated upon an intent not to abandon." Abandonment requires proof that the owner intended to abandon the easement, or that the non-use of the easement was so extreme or outrageous as to show that it was the owner’s intent to abandon the easement.
At any time, an easement may be terminated in one of three ways: 1) express terms, 2) expiration, and 3) abandonment. If an easement is not in writing, the owner may seek a determination from the district court that the easement has been extinguished.

Creating a Private Road Easement in Montana

The creation of private road easements in Montana can be accomplished through various means, including express grant, implied reservation, or prescription. Regardless of the method, the rules and procedures for the creation of private road easements must be strictly followed to avoid adverse possession after ten years. This section briefly identifies, without delving into detail, the procedural steps for creation of road easements by express grant, implied reservation, and prescription in Montana. Each road easement type is discussed below.
Given that Montana law requires private road easements to be expressly granted, the elements of an express road easement are:

• (1) the right must be created from a written instrument (there must be a deed or other writing which grants the easement to wetland property owned or controlled at the time of the writing);
• (2) the easement must have reasonable limits (not more than is necessary to do that which the owner would himself do with the land, viewed in light of its purpose);
• (3) it must be subject to easement rules and use restrictions common to private road easements; and
• (4) the servient estate must have reasonable limits (not more than is necessary to do that which the owner would himself do with the land, viewed in light of its purpose).

For the purposes of private road easements, all road easements create a limited right of use across the servient estate which is subject to the terms and conditions of the grant. The rights can only be assigned to another to the extent that they are necessary to accomplish the purpose for which the easement was created. The right is to be strictly limited to that which is necessary to accomplish agreed upon purposes of the easement such as for vehicular or pedestrian traffic, or for placement of utilities. An easement can only be changed to the extent that the parties agree to the change.
Given that private road easements are created by express grant, the creation of a private road easement is governed by the same rules that apply to the creation of any other easement, which are the plain meaning rules and rules of construction regarding such grants. In addition to the above four rules regarding the creation of private road easements, an express grant must also require that a private road easement must:
A private road easement must also contain wording for a right of ingress, egress, and regress across the servient tenement. It is sufficient if the grant gives the "right of way over the land of the grantor."
When established through an implied reservation, the easement retains by the grantor, or someone else, the right to enter onto the servient estate and continue the established use, such as crossing the property at issue. As long as the course of previous usage does not necessarily preclude the use of the land for a purpose inconsistent with the easement, the servient estate is subject to the easement. The easement continues until the use is abandoned.
An implied reservation is the implicit reservation of use of part of the servient estate by the grantor which was established as a result of previous use. An implied reservation of a private road easement includes the scope of the implied easement. An implied reservation of a private road easement is recognized in the following ways:
an implied reservation of a private road easement requires that the established progress of use traverse lands of others encumbered with other easements. In this circumstance, the grantor nevertheless retains the prior right to cross the various adjoining properties and proceed on the established course; and
provided no express intent to the contrary, the grantor has the right to expand the easement to a point unlimited in distance. Such implied reservation of a private road easement was recognized primarily to promote general convenience and so can be changed by general consent of the dominant and servient estate owners. The change in use of the easement does not need to consist of additional burdens on the servient estate; rather, the change can require more freedoms for the servient estate owner.
Private road easements in Montana can be established by prescription when a non-owner establishes use of another’s way as a matter of right with the knowledge of the owner. A private road easement created by prescription gives rise to the following elements:
non-owner establishes ongoing use of another’s land;
the use is adverse to claim of owner; and
the use has existed for a period of ten years.
Montana law only requires actual use. When creating private road easements by prescription, architects and real estate developers must keep in mind that the ten year period of adverse use dates back from the date of filing a claim in court. If the ten year period has not lapsed from the time the claim is filed, the prescriptive period has not been established. In determining whether the ten year period has lapsed, the following may be considered:
whether witnesses and records from the time period are available for the courts to review;
the character and location of the land;
the nature and extent of the user’s interest in the property;
the type of neighborhood in which the land is located;
the extent of the user’s occupancy of the land; and
any other relevant case law or public policy considerations that might affect the particular situation.

Rights and Obligations of Easement Holders

Generally speaking, a party conveying an easement on his property to another will have the right to restrict the uses of the easement by the holder after the easement is granted, but must exercise this right so as not to impede the purpose for which the easement was granted. That is, an easement owner has a right to regulate the use of the easement as long as the easement holder is not burdened by the regulation unnecessarily. An easement is usually granted in order to connect two pieces of property, and a restriction on the use of the easement that prevents its use as intended by the grantor of the easement can be set aside by the courts .
The holder of a private road easement must use the easement in a reasonable and lawful manner. The holder has an affirmative duty to avoid damaging the servient estate, and may be liable to the servient landowner for disruption of its use of the roadway. The holder cannot place outbuildings on the easement, as doing so would create an encumbrance on the servient estate. The holder also cannot use the easement for a purpose other than that for which the easement was granted, such as allowing the public at large to use the easement. The easement may be extinguished or terminated by the agreement of the parties to the easement, or by abandonment by the easement holder.

Disputes and Resolutions of Easement Issues

Like any property rights, private road easements can be the source of confusion and disputes not just between the parties who own the easement but also with neighboring property owners. The most common disputes arise over the construction, use, repair, and maintenance of the road. Are neighbors required to participate in road upkeep? Should neighbors be permitted to use the road for maintenance activities that in fact enhance its value as in the case above? These are just a few of the concerns that have led to litigation over private road easement rights.
While a property owner who believes another is unreasonably using a private road may seek an injunction (i.e., order from the court requiring a person to do or refrain from doing a particular act) preventing the use, it is better practice for the easement holder to obtain the consent of the other party before commencing uses that the non-user may dispute. That could involve any form of private discussion between the parties, or simply notice to the other parties. Consent from the other parties may also become more important when the use in question is an access road that permits cars or trucks to traverse real property.
Legal remedies under Montana law for private road easement disputes include a temporary or permanent injunction, as well as a lawsuit for damages. Montana arbitration law likewise permits the parties to an easement agreement to submit their disputes to a third-party neutral arbitrator to settle any dispute outside of the court.

How to Terminate an Easement: Rules, Procedures and Pitfalls

The question of whether a particular private road easement has been terminated is not always easily determined by simply looking at the deed that created the easement. The party claiming to have a right-of-way or easement must prove that the easement has not been terminated. The Montana Supreme Court recently summarized the conditions under which an easement may be terminated and the legal procedures for termination of an easement based on a decision in Moeller v. McCarthy, 2012 MT 298, — P.3d. — (Mont. Dec. 21, 2012), and affirmed an order terminating an easement where the party claiming the easement had failed to maintain and did not repair the road over a period of six years, thereby abandoning the easement. The Court held that a right-of-way is terminated when the operation of law terminates its usefulness or the owner of the dominant estate surrenders it or abandons it by affirmative conduct inconsistent with its further enjoyment. A right-of-way may also be terminated when the owner of the underlying estate obstructs the dominant owner’s use when use should be made. See e.g., Becker v. Norris, 4 P.3d 1211 (Mont. 1970).
If an easement or right-of-way is terminated, the dominant estate loses its right to the easement. Termination occurs by operation of law when the utility for which the easement was created no longer exists. A private road or easement, once created, can also be terminated by abandonment. A party abandoning its right to an easement or right-of-way must make a clear manifestation of its intention to abandon. The Montana Supreme Court has noted that intent to abandon may be found by looking at both words and actions. Abandonment of an easement can also come with the change of use of the property itself, such as a change in zoning designations.

Private Road & Easement Case Studies in Montana

There is no better way to learn about Montana law than to examine real cases. I take it as my life’s mission to share the good, bad, and the ugly so that others can benefit from the lessons and avoid the bad or the ugly. Below are a few case studies of private road easements in Montana.
This case involved a subdivision property owners’ association and a road that was a private road across section 8 of the subdivision. The subdivision was composed of five separate tracts. The road bisected the entire subdivision and ended in a cul-de-sac on land owned solely by the association. The community contributed money every year for maintenance of the road whose condition deteriorated over the years. Without getting into the witness-by-witness testimony or listing out the exhibits, or providing the judge with a proposal for decision, the case ended up drifting away from the points in issue. The judge actually ruled that a private road easement existed across the section and that the association had an obligation to maintain that road. The judge found that while there could be no latitudinal expansion of the easement, the association was entitled to a reasonable amount of longitudinal expansion in order to maintain the road and in order to increase access. The judge also found that the property owners’ association had a right of first refusal to purchase that section of land. While they did not have the power to condemn that land for purposes of building a road, they could purchase the land and simply maintain the road on it. Whether the association would actually exercise that right of first refusal, or whether the individual lot owners would collectively purchase that land for the purpose of having that road on their own land , was yet to be seen.
The lawsuit concerned a public road that went through the third plaintiff’s property. The public road had been condemned as a matter of law – that is a statutory condemnation, via having the road dedicated to county commissioners in 1913 – a full century earlier. Unfortunately, the third plaintiff had never seen the paperwork reflecting that dedication. However, there were contact points on the relevant public records cover pages that would allude to where the dedication was filed. The big question was whether the road was limited to the actual roadway (twenty-four feet) or if it included land on either side of the road. The court found the road was limited to the actual roadway itself, but that the plaintiffs were to be left to recover their costs to date as well as their costs to obtain an appropriate declaration that the public road only existed on the twenty-four foot roadway within and without their property.
A gentleman owned a single-family lot and then turned it into a trailer court. He sold off all the lots, except 1. He then sold off the common areas, which included the road. The road was then technically private, except for the original owner’s right of access. He could go pick up his mail. He could go on that road, but he had no rights to any of the common areas that he sold off. His former tenants then claimed that they had some sort of implied or easement rights to use all the common areas as well as the road. The court found differently. To the extent that an implied easement existed, it could not be expanded latitudinally or longitudinally. As for any easement rights to the common areas, there was no implied grant. The statute requires the grant of an easement be in writing, unless it could be transferred by an operation of law. The only operation of law that would have worked here was adverse possession and that was not established by the plaintiffs.