09/08/2026
DA 25-0436
Case Number: DA 25-0436
IN THE SUPREME COURT OF THE STATE OF MONTANA
2026 MT 175A
CHRISTINE BROCK, AS CO-TRUSTEE
OF THE DONALD D. BROCK AND
JANET M. BROCK, CO-TRUSTEES OF
THE DON AND JANET BROCK FAMILY
TRUST DATED MARCH 24, 1998,
Plaintiff, Appellee,
and Cross-Appellant,
v.
SHAN and DANA TOMPKINS,
Defendants, Appellants,
and Cross-Appellees.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DV 18-428
Honorable Howard F. Recht, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Jesse Kodadek, William T. Casey, Parsons Behle & Latimer, Missoula,
Montana
For Appellee:
Kyle J. Workman, Workman Law, PLLC, Hamilton, Montana
Submitted on Briefs: June 17, 2026
Decided: August 4, 2026
Amended: September 8, 2026
Filed:
Clerk
Justice Katherine M. Bidegaray delivered the Opinion of the Court.
¶1 Shan and Dana Tompkins (the Tompkins) appeal from the District Court’s
March 25, 2025 Findings of Fact, Conclusions of Law, and Order declaring that Christine
Brock (Brock) holds an implied easement across their property and from several
interlocutory orders. Brock cross-appeals the District Court’s June 19, 2025 procedural
denial of her request for costs and attorney fees under § 25-7-105, MCA. We conclude
that the District Court should have entered summary judgment for the Tompkins on
Brock’s original express-easement theory. Because the District Court did not abuse its
discretion by granting Brock leave to amend before entry of judgment, however, the Rule
56 error did not affect the Tompkins’ substantial rights in the proceedings on the amended
pleading and therefore does not require reversal of those proceedings. We affirm the order
granting leave to amend, the denial of the later dispositive motions, and the bifurcation
order. We reverse the implied-easement judgment and vacate the permanent injunction.
We also vacate the mootness dismissal of Brock’s prescriptive-easement claim, the
Tompkins’ trespass counterclaim, and the extinguishment issues, and we remand any
preserved alternative easement theory that the District Court did not adjudicate on the
merits. We reverse the ruling that Brock’s request under §§ 25-7-105 and 25-10-501,
MCA, was untimely and remand for further proceedings and a new cost-and-fee
determination after final judgment.
¶2 We address the following issues:
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1. Whether the District Court erred by denying summary judgment to the Tompkins
on Brock’s original express-easement theory, whether that error requires
reversal of the proceedings on the amended pleading, and whether the court
abused its discretion by granting Brock leave to amend.
2. Whether the District Court erred by denying the Tompkins’ motion for judgment
on the pleadings and their later motion for partial summary judgment on Brock’s
amended claims.
3. Whether the District Court abused its discretion by bifurcating the case and
assigning Brock’s express-, implied-, and public-easement theories to the court
while preserving the prescriptive-easement claim and trespass counterclaim for
a jury.
4. Whether the District Court erred by concluding that Brock proved an implied
easement by preexisting use benefiting both of her parcels.
5. Whether reversal of the implied-easement judgment requires vacatur of the
permanent injunction and remand of the matters the District Court treated as
moot.
6. Whether the District Court erred by treating its March 25, 2025 order as the
decision triggering the five-day period under § 25-10-501, MCA, and by denying
Brock’s request under § 25-7-105, MCA, as untimely.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 This case involves the roadway known as Forgotten Lane, which extends between
Sawmill Lane, a Ravalli County road, and Conner Cutoff, a state highway near the West
Fork of the Bitterroot River. The Tompkins own Parcel 1 of Certificate of Survey (COS)
No. 4026, which depicts the disputed Forgotten Lane corridor along its southern boundary.
Brock, as co-trustee of the Don and Janet Brock Family Trust, owns two parcels south of
Parcel 1: a 2.5-acre residence parcel and Parcel B of COS No. 4945-R, which lies on
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Hoofbeats Lane. Figure 1 below depicts the approximate relative locations of the three
parcels and surrounding roads for orientation.1
¶4 All three parcels trace to a single source of title. In 1943, Walter and Vivian Shook
acquired roughly 111 acres in Section 18, Township 2 North, Range 20 West, comprising
the North half of the Northeast quarter together with an adjoining strip. The 1943 tract
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Figure 1 depicts approximate locations of Parcel 1 of COS No. 4026, the 2.5-acre parcel, Parcel B of COS No. 4945-R, Forgotten Lane, Sawmill Lane, Conner Cutoff, and Hoofbeats Lane. It is Court-prepared from Montana Cadastral and is not to scale. Parcel outlines and roadway locations are approximate and are shown for orientation only. The figure does not determine title to the Forgotten Lane corridor, exact parcel boundaries, whether either Brock parcel directly adjoins Sawmill Lane, or the existence, character, or scope of any easement.
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included land from which the present Tompkins parcel and both Brock parcels later
derived.
¶5 In 1949, Vivian Shook conveyed a 14.3-acre tract out of that holding to Dee Shook.
The deed described the tract as running along “the westerly side of the county road” and
“the northwesterly side of the road.” The parties agree that the deed’s road references
describe the roadway now known as Forgotten Lane. This 14.3-acre tract later became part
of the Tompkins parcel.
¶6 In 1950, Walter and Vivian Shook conveyed a larger tract to Milo and Juanita
Wilson, expressly excepting the 14.3-acre tract conveyed in 1949 to Dee Shook and a
separately-described 2.5-acre tract along “the southerly side of the said county road.” The
District Court later identified this 1950 conveyance as the operative severance of title for
purposes of Brock’s implied-easement claim.
¶7 In 1952, Walter and Vivian Shook conveyed the 2.5-acre tract to Dee Shook, placing
the two deeded tracts—the 2.5-acre tract and the previously conveyed 14.3-acre tract—in
Dee Shook’s ownership.
¶8 In 1961, Dee Shook and, separately, Walter and Vivian Shook granted
rights-of-way to the State for construction of Conner Cutoff and the extension of Sawmill
Lane, altering how the surrounding parcels would thereafter be accessed.
¶9 In 1973, the lands the Shooks had conveyed to the Wilsons, including what would
become Brock’s Hoofbeats Lane parcel, were conveyed on contract to Robert and
Elizabeth Saxe. The Saxes recorded COS No. 595 in 1974, depicting the conveyed land
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as a single, roughly 1,600-acre parcel spanning parts of seven sections and bordering both
Conner Cutoff and Sawmill Lane.
¶10 In 1976, Don and Janet Brock acquired an interest in the 2.5-acre parcel from Dee
and Alice Shook. In 1978, the Saxes subdivided their holdings into “pasture lots” under
COS No. 1619 and conveyed a 10.18-acre lot, known as Tract A, to the Brocks. That tract
later became, after further division, Brock’s Hoofbeats Lane parcel.
¶11 In 1987, Dee Shook recorded COS No. 4026, depicting the disputed corridor within
Parcel 1, now the parcel that belongs to the Tompkins, and labeling it a “60-foot-wide Road
and Utility Easement.” Neither Brock’s 2.5-acre parcel nor her Hoofbeats Lane parcel is
surveyed or legally described on COS No. 4026.
¶12 Brock’s Hoofbeats Lane parcel took its current configuration in June 1993, when
Brock recorded COS No. 4945-R after further dividing the 1978 tract. The Tompkins
purchased Parcel 1 of COS No. 4026 from the Schlapmans in 2004.
¶13 The parties dispute the character of historical use of Forgotten Lane. The
Tompkins’ evidence at trial was that, while the Schlapmans owned the parcel, they placed
a log across the west end of Forgotten Lane, between Brock’s driveway and Sawmill Lane,
to deter speeding; that the log blocked vehicular access at that end for many years; that the
east end carried “dead end” and “no trespassing” signage; and that Brock’s own testimony
acknowledged her use of that stretch was with the Schlapmans’ permission, and later the
Tompkins’ permission. Brock’s position is that Forgotten Lane was historically the only
road connecting the East Fork Road (U.S. Highway 93) to the West Fork Road, including
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the only bridge across the West Fork of the Bitterroot River, until Conner Cutoff and a new
bridge were built in the early 1960s, and that it was used by the general public.
¶14 The parties also dispute both the date and character of the events that led to this
litigation. The Tompkins presented evidence that, in 2016, Brock obtained permission
from Shan Tompkins to spread gravel on Forgotten Lane, placed gravel on the road to the
log at the road’s west end, removed a section of fence near the western end and began
driving around the log. The Tompkins testified that, during the summer of 2016, they
replaced the log with a post-and-rail fence and gate. Brock maintains that the actionable
obstruction occurred in 2017, when the Tompkins placed two fences across Forgotten
Lane.
¶15 Brock filed her Complaint in Ravalli County District Court on October 10, 2018,
alleging a single theory that she held an express easement over Forgotten Lane based on
COS No. 4026, and seeking declaratory and injunctive relief. The Tompkins answered,
denied the existence of an express easement, and on the same day moved for summary
judgment. Brock cross-moved for summary judgment on the same express-easement
theory.
¶16 In June 2021, the District Court denied both motions. The court found that Brock
had “provided little evidence of an express grant,” but declined to enter judgment for the
Tompkins, instead concluding that Brock’s pleading should be read to encompass a broader
claim to access rights predating COS No. 4026, and inviting her to amend. Later in 2021,
the District Court granted Brock leave to amend her complaint over the Tompkins’
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objection. Brock’s amended complaint retained the express easement theory and added
implied-, prescriptive-, and public-easement theories as alternative grounds for declaratory
and injunctive relief. The Tompkins answered, counterclaimed for trespass, demanded a
jury trial, and asserted reverse prescription as an affirmative defense.
¶17 In February 2022, Ravalli County, acting on a request from Brock’s counsel,
determined that Forgotten Lane was a county road. County employees then removed the
Tompkins’ fence and gate and graded the roadway. The Tompkins sued Ravalli County in
federal court, seeking a declaratory judgment that Forgotten Lane was never a validly
created county road and asserting takings claims. Brock consented to a stay of the state
court action pending that outcome. On November 17, 2022, the federal court denied the
County’s motion to dismiss, concluding the County had not established as a matter of law
that Forgotten Lane was ever an official county road. In settling the federal action, the
County agreed, as between itself and the Tompkins, that Forgotten Lane had not been
established as a county road and that neither the County nor the public held a right of access
where the road crossed or touched the Tompkins parcel.
¶18 On March 5, 2024, the District Court held the Tompkins’ motion for judgment on
the pleadings in abeyance, electing to treat it as a converted motion for summary judgment
to be briefed after the close of discovery.
¶19 In April 2024, the Tompkins moved for partial summary judgment on Brock’s
express easement, public easement, prescriptive easement, and implied easement theories.
Brock cross-moved for summary judgment.
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¶20 On May 8, 2024, the District Court denied both parties’ cross-motions in a single
order, finding disputed material facts concerning, among other things, the date of severance
from common ownership, the historic use of Forgotten Lane, whether permission was
required to use it, and the circumstances surrounding the log that blocked its west end.
¶21 The District Court later bifurcated the case over the Tompkins’ objection. It
assigned Brock’s express-, implied-, and public-easement theories to the bench and
reserved Brock’s prescriptive-easement claim and the Tompkins’ trespass counterclaim for
a jury only if necessary. The District Court stayed the jury trial pending the bench trial,
which ultimately addressed the express- and implied-easement theories on December 5,
2024.
¶22 On March 25, 2025, the District Court entered its Findings of Fact, Conclusions of
Law, and Order. The court found that Brock had not proved an express easement but found
by clear and convincing evidence that Brock held an implied easement across the Tompkins
parcel for the entirety of Forgotten Lane, arising in 1950 when Walter and Vivian Shook
severed title by conveying to the Wilsons. The District Court adopted the scope depicted
on COS No. 4026, entered a permanent injunction, and directed the parties to brief attorney
fees, costs, and any remaining procedural issues by April 25, 2025. The March 25 order
stated that the public-road or public-easement issue had not been tried and remained at
issue. Brock’s amended complaint, however, pleaded the express, public, implied, and
prescriptive theories as alternative grounds for the same declaration of access and related
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injunction. The March 25 order granted Brock the complete relief she sought on the
implied-easement ground.
¶23 In the post-trial briefing, Brock treated her remaining alternative easement theories
as moot while the implied-easement judgment remained in effect and maintained that they
would return if that judgment were reversed. The Tompkins declined to pursue their
trespass counterclaim and extinguishment issues while reserving their position following
appeal.
¶24 On June 19, 2025, the District Court dismissed the prescriptive easement claim, the
trespass counterclaim, and extinguishment issues as moot. It denied Brock’s request for
attorney fees under the Uniform Declaratory Judgments Act on equitable grounds. It
separately denied her request under § 25-7-105, MCA, because she had not timely filed a
memorandum of costs under § 25-10-501, MCA, within five days after the March 25
Findings of Fact, and Conclusions of Law, and Order. Brock filed a bill of costs on June 24,
2025, and, on July 1, 2025, moved to alter or amend the judgment. On September 4, 2025,
more than sixty days after the motion was filed, the District Court granted it and awarded
Brock her fees. Because the court had not ruled within sixty days, the motion was deemed
denied by operation of law, and the belated order granting it was vacated. The Tompkins
timely appealed, and Brock timely cross-appealed.
¶25 Although the March 25 order stated that the public-road or public-easement
issue had not been tried, Brock pleaded the express-, implied-, public-, and
prescriptive-easement theories as alternative grounds for the same declaration of access
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and related injunction. The March 25 order granted that relief on the implied-easement
ground. The June 19 order then disposed of the separately bifurcated prescriptive-easement
claim, the trespass counterclaim, the extinguishment issues, and the fee requests. In
context, the June 19 order ended the proceedings below and constituted a final judgment.
Because we reverse the ground on which the District Court granted complete relief, any
preserved alternative theory that the court did not adjudicate on the merits returns on
remand.
STANDARD OF REVIEW
¶26 We review a district court’s grant or denial of summary judgment de novo, applying
the same M. R. Civ. P. 56 standard applied by the district court. Estate of Mandich v.
French, 2022 MT 88, ¶ 15, 408 Mont. 296, 509 P.3d 6. We review a district court’s grant
or denial of leave to amend a pleading for abuse of discretion. Estate of Mandich, ¶ 15;
Rolan v. New W. Health Servs., 2017 MT 270, ¶ 16, 389 Mont. 228, 405 P.3d 65. A district
court’s ruling on a motion for judgment on the pleadings under M. R. Civ. P. 12(c) presents
a question of law that we review for correctness. Conway v. Benefis Health Sys., 2013 MT
73, ¶ 16, 369 Mont. 309, 297 P.3d 1200.
¶27 Following a bench trial, we review a district court’s findings of fact for clear error
and its conclusions of law, including whether the facts found satisfy the elements of
easement law, de novo. Musselshell Ditch Co. v. JD Bar D, LLC, 2025 MT 63, ¶ 8,
421 Mont. 232, 566 P.3d 511. A finding is clearly erroneous if it is not supported by
substantial evidence, if the district court misapprehended the effect of the evidence, or if
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our review of the record leaves us with a definite conviction that a mistake has been made.
Musselshell Ditch, ¶ 8.
¶28 A claimant asserting an implied easement by preexisting use bears the burden of
proving each element by clear and convincing evidence. Apecella v. Overman, 2025 MT
219, ¶ 31, 424 Mont. 202, 577 P.3d 133.
¶29 We review a district court’s decision to bifurcate under M. R. Civ. P. 42(b) for abuse
of discretion. Malta Public School District A & 14 v. Mont. Seventeenth Jud. Dist. Ct.,
283 Mont. 46, 50, 938 P.2d 1335, 1338 (1997). Whether a jury-trial right attaches to a
claim or a common factual issue presents a question of law that we review for correctness.
Supola v. Mont. Dep’t of Justice, 278 Mont. 421, 423, 925 P.2d 480, 481 (1996). An action
to quiet title to an easement traditionally sounds in equity, but a court may not use
bifurcation to impair the jury right attached to a legal claim or to a factual issue common
to legal and equitable claims. Getter v. Beckman, 236 Mont. 377, 381, 769 P.2d 714, 716
(1989); Gray v. City of Billings, 213 Mont. 6, 13, 689 P.2d 268, 272 (1984).
¶30 Whether legal authority exists to award attorney fees and whether the District Court
correctly interpreted §§ 25-7-105 and 25-10-501, MCA, present questions of law that we
review for correctness. If legal authority exists, we review the decision whether to award
fees and the amount awarded for abuse of discretion. Wohl v. City of Missoula, 2013 MT
46, ¶ 29, 369 Mont. 108, 300 P.3d 1119; Boehm v. Cokedale, LLC, 2011 MT 224, ¶ 12,
362 Mont. 65, 261 P.3d 994.
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DISCUSSION
¶31 1. Whether the District Court erred by denying summary judgment to the Tompkins
on Brock’s original express-easement theory, whether that error requires
reversal of the proceedings on the amended pleading, and whether the court
abused its discretion by granting Brock leave to amend.
¶32 Summary judgment is proper when no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c). In reviewing
summary judgment motions, we view the evidence in the light most favorable to the party
opposing summary judgment and draw all reasonable inferences in favor of the party
opposing summary judgment. Warrington v. Great Falls Clinic, LLP, 2019 MT 111, ¶ 8,
395 Mont. 432, 443 P.3d 369. Once the moving party meets its initial evidentiary burden
demonstrating facts to support its entitlement to judgment as a matter of law, the burden
then shifts to the nonmoving party to present substantial evidence, as opposed to mere
denial, speculation, or conclusory statements, raising a genuine issue of material fact.
Ternes v. State Farm Fire & Cas. Co., 2011 MT 156, ¶ 27, 361 Mont. 129, 257 P.3d 352.
¶33 In her original complaint, Brock pleaded only an express-easement theory. On
appeal, the Tompkins argue that the District Court wrongfully denied their initial motion
for summary judgment because the facts on which the court relied were immaterial to
Brock’s sole claim in her original complaint that COS No. 4026 created an express
easement. The historical allegations concerning Forgotten Lane included in Brock’s
original complaint did not transform unpleaded implied, public, or prescriptive theories
into pending claims. The District Court therefore should have resolved the pleaded
express-easement theory under M. R. Civ. P. 56.
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¶34 To prevail on the express-easement theory pleaded in her original complaint, Brock
had to identify a written instrument that manifested an intent to create the easement and
described the dominant and servient estates with reasonable certainty. Blazer v. Wall,
2008 MT 145, ¶¶ 41, 51, 56, 343 Mont. 173, 183 P.3d 84; Towsley v. Stanzak, 2022 MT
217, ¶ 12, 410 Mont. 403, 519 P.3d 817. A survey may describe an easement incorporated
into a conveyance, but the transaction documents, read together, must identify both affected
estates. Blazer, ¶¶ 41, 51, 56. A conveyance made “subject to” an easement does not,
without more, create or grant that easement. Blazer, ¶ 64.
¶35 Neither COS No. 4026 nor any instrument of conveyance identifies either Brock
parcel as the dominant estate or grants Brock a right to use the corridor. The references to
a “county road” in historical deeds may bear on Brock’s alternative access theories, but
they do not grant a private easement appurtenant to either parcel. Brock’s original
express-easement theory therefore failed as a matter of law, and the District Court should
have entered summary judgment for the Tompkins on that theory.
¶36 Rule 15(a)(2) directs that “[t]he court should freely give leave when justice so
requires.” M. R. Civ. P. 15(a)(2). Although the rule favors amendment, a court may deny
leave for “an apparent reason such as undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by allowance of the amendment, futility of the
amendment, etc.” Seamster v. Musselshell Cnty. Sheriff’s Office, 2014 MT 84, ¶ 14,
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374 Mont. 358, 321 P.3d 829 (quoting Bitterroot International Systems, Ltd. v. Western
Star Trucks, Inc., 2007 MT 48, ¶ 50, 336 Mont. 145, 153 P.3d 627).
¶37 In determining whether an amendment would cause undue prejudice, a court
balances the prejudice to the opposing party against the sufficiency of the moving party’s
justification for delay. Rolan v. New W. Health Servs., 2017 MT 270, ¶ 16, 389 Mont. 228,
405 P.3d 65; Saddlebrook Invs., LLC v. Krohne Fund, L.P., 2024 MT 68, ¶¶ 24–31, 416
Mont. 150, 546 P.3d 195. We have cautioned that “litigants should be allowed to change
legal theories after a motion for summary judgment has been filed only in extraordinary
cases.” Peuse v. Malkuch, 275 Mont. 221, 228, 911 P.2d 1153, 1157 (1996); accord
Bardsley v. Pluger, 2015 MT 301, ¶ 20, 381 Mont. 284, 358 P.3d 907; Thornton v. Flathead
Cnty., 2009 MT 367, ¶ 40, 353 Mont. 252, 220 P.3d 395. Brock did not satisfactorily
explain why she omitted the alternative easement theories from her original complaint.
Those theories rested on historical facts available when she filed suit, and the District
Court’s invitation to clarify her pleading explained why she moved when she did, not why
she omitted those theories initially. Most of the nearly three-year interval, however,
elapsed while the parties’ joint stay remained in effect and their cross-motions awaited
decision. The joint motion stated that the case “may be ruled on briefs,” but expressly
contemplated a new scheduling order if the District Court declined to enter summary
judgment. When Brock moved to amend, meaningful discovery had not occurred, no
depositions had been taken, no trial date had been set, and the Tompkins had not
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substantially prepared for trial. The amendment concerned the same roadway, parcels,
alleged obstruction, and requested access.
¶38 Saddlebrook confirms that a weak justification does not end the inquiry; the court
also considers the prejudice that amendment would cause. Saddlebrook, ¶¶ 25–31.
Although Saddlebrook noted that, unlike in Peuse, the opposing party there had not filed a
summary-judgment motion, the Tompkins filed their motion with their answer, before
discovery, and then jointly stayed the ordinary litigation schedule while the cross-motions
remained pending for more than two years. These circumstances make this one of the
extraordinary cases in which amendment after a summary-judgment motion may be
permitted. Although the amendment required the Tompkins to defend additional theories,
it did not render their dispositive work on the express-easement theory useless; that theory
remained in the case, and the Tompkins ultimately obtained the ruling they had sought on
it. Apart from that dispositive work, the Tompkins had not expended substantial effort or
expense on discovery or trial preparation that the amendment would waste. Under these
circumstances, the District Court could reasonably conclude that Brock’s weak
justification did not outweigh the absence of undue prejudice. The District Court
incorrectly reasoned that the concerns identified in Peuse did not apply because the initial
motion had been denied based on genuine issues of material fact. Our conclusion that the
Tompkins were entitled to summary judgment on the original theory makes that premise
erroneous. The District Court did not, however, rest its decision solely on that premise. It
separately found that the case had remained stayed, meaningful discovery had not occurred,
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no depositions had been taken, no trial date had been set, and the Tompkins could point to
no actual prejudice. Those findings support its ultimate determination that amendment
would not unduly prejudice the Tompkins. Rule 56 permits a party to move for summary
judgment at any time, but the filing of such a motion does not eliminate the court’s separate
authority under Rule 15(a)(2) to permit amendment before judgment. Estate of Mandich
does not require a different result. There, the district court had entered summary judgment
and granted injunctive relief before the motion to amend. Estate of Mandich, ¶¶ 10–11,
33–35. Here, no judgment had been entered when Brock moved under Rule 15(a)(2). The
rules governing post-judgment amendment therefore did not apply. Once the District Court
permissibly granted leave, the amended complaint governed the later proceedings. The
Tompkins received notice, discovery, an opportunity to assert defenses and a counterclaim,
dispositive-motion practice, and a trial on the amended pleading. The final judgment also
rejected the express-easement theory. The District Court therefore did not abuse its
discretion by granting leave to amend, and the initial Rule 56 error did not affect the
Tompkins’ substantial rights or require reversal of the proceedings conducted on the
amended pleading. M. R. Civ. P. 61.
¶39 The Tompkins separately invoke the party-presentation principle reflected in
Greenlaw v. United States, 554 U.S. 237, 243–44, 128 S. Ct. 2559, 2563–64 (2008), and
United States v. Sineneng-Smith, 590 U.S. 371, 375–76, 140 S. Ct. 1575, 1578–79 (2020).
The better course would have been to decide the express-easement theory as pleaded and
leave Brock to determine whether to seek amendment. The District Court did not, however,
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award relief on an unpresented theory. As explained above, the later proceedings rested
on a formally amended pleading subjected to the adversarial process. That adversarial
process distinguishes this case from one in which a court selects and decides an
unpresented dispositive theory. We therefore need not decide whether Montana law
independently recognizes the broader party-presentation rule the Tompkins propose.
¶40 2. Whether the District Court erred by denying the Tompkins’ motion for judgment
on the pleadings and their later motion for partial summary judgment on Brock’s
amended claims.
¶41 M. R. Civ. P. 12(c) permits a party to move for judgment on the pleadings “[a]fter
the pleadings are closed—but early enough not to delay trial.” In deciding the motion, the
court accepts the nonmovant’s well-pleaded factual allegations as true and construes them
favorably to the nonmovant. Firelight Meadows, LLC v. 3 Rivers Telephone Coop., Inc.,
2008 MT 202, ¶ 11, 344 Mont. 117, 186 P.3d 869. If the court considers and does not
exclude matters outside the pleadings, M. R. Civ. P. 12(d) converts the motion to one
for summary judgment. Kalispell Aircraft Co., LLC v. Patterson, 2019 MT 142, ¶ 15,
396 Mont. 182, 443 P.3d 1100.
¶42 Brock, in the amended complaint, expressly sought declaratory relief under
implied-, public-, and prescriptive-easement theories and alleged the historical facts on
which those theories rested. It therefore gave the Tompkins fair notice and survived review
under M. R. Civ. P. 12(c). Because the Tompkins relied on matters outside the pleadings
and the District Court did not exclude them, M. R. Civ. P. 12(d) converted the motion to
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one for summary judgment. The court notified the parties of the conversion, allowed them
to complete discovery, and permitted supplemental briefing.
¶43 The developed record contained genuine disputes concerning the ownership and
location of the road corridor; the operative severance; the nature, duration, and
permissiveness of historical use; and the circumstances surrounding the log, fenceposts,
and later fencing. Those disputes precluded the broad judgment the Tompkins sought on
every unresolved amended theory. Brock’s later failure to carry the clear-and-convincing
burden at trial does not establish that the pretrial record compelled judgment for the
Tompkins on all theories. The express-easement theory remained legally deficient, but the
final judgment rejected that theory. We affirm the denial of broader pretrial judgment on
the unresolved amended theories.
¶44 3. Whether the District Court abused its discretion by bifurcating the case and
assigning Brock’s express-, implied-, and public-easement theories to the court
while preserving the prescriptive-easement claim and trespass counterclaim for
a jury.
¶45 M. R. Civ. P. 42(b) permits a district court to order separate trials for convenience,
to avoid prejudice, or to expedite and economize, but requires the court to preserve every
constitutional and statutory jury-trial right. Brock’s bench-tried theories sought
declarations establishing an easement and related injunctive relief. An action to quiet title
to an easement traditionally sounds in equity. Getter, 236 Mont. at 381, 769 P.2d at 716.
The District Court reserved Brock’s prescriptive-easement claim and the Tompkins’
trespass counterclaim for a jury and concluded that separate consideration of the
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title-intensive theories would streamline the case, avoid confusion, and conserve judicial
resources.
¶46 The Tompkins rely on Gray, which prohibits a court from using equitable claims to
displace a jury’s determination of a legal claim or a factual issue common to legal and
equitable claims. Gray, 213 Mont. at 13, 689 P.2d at 272. The bifurcation order did not
submit the prescriptive-easement claim or trespass counterclaim to the court; it reserved
both for a jury. Because we reverse the implied-easement judgment, the merits
determinations necessary to that judgment cannot receive preclusive effect on a revived
legal claim. The Tompkins therefore have shown no remaining impairment of their
jury-trial right that requires reversal of the sequencing order. We affirm the bifurcation
order, but the District Court must reconsider sequencing in the restored procedural posture
and preserve every applicable jury right.
¶47 4. Whether the District Court erred by concluding that Brock proved an implied
easement by preexisting use benefiting both of her parcels.
¶48 An implied easement by preexisting use arises when, at the severance of parcels
previously held in common ownership, an apparent and continuous use exists on the
servient estate, the use is reasonably necessary for the beneficial use and enjoyment of the
dominant estate, and the parties intend the use to continue after severance. Apecella, ¶ 31.
The claimant must prove each element by clear and convincing evidence. Apecella, ¶ 31.
The scope of an implied easement depends on the severing owner’s apparent intent and
extends only to reasonable uses existing at severance and future uses the parties reasonably
could have anticipated. Apecella, ¶ 31 (citing Thomas Mann Post No. 81 v. Knudsen
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Family L.P., 2022 MT 150, ¶ 25, 409 Mont. 318, 514 P.3d 409). An easement by necessity
is distinct and requires unity of ownership and strict necessity when the unified tract is
severed. Wolf v. Owens, 2007 MT 302, ¶ 16, 340 Mont. 74, 172 P.3d 124.
¶49 Brock defends the judgment under the preexisting-use framework. The dispositive
issue is not the governing legal standard but the District Court’s application of that standard
to two parcels with different title chains, different potential severances, and different access
histories. The court relied on a single severance to imply one easement benefiting both
parcels without separately analyzing whether the required elements existed for each parcel.
¶50 We need not decide which chain held title to every portion of the disputed corridor.
The District Court’s single 1950 theory fails under either title premise the parties presented.
If the present Forgotten Lane corridor lay within the 14.3-acre tract conveyed to Dee Shook
in 1949, Walter and Vivian Shook did not own the alleged servient estate when they
conveyed property to the Wilsons in 1950. If, as Brock argues, the corridor remained a
separate strip that passed to the Wilsons in 1950, the District Court did not trace that strip
into present Parcel 1 or explain how the 1950 conveyance separated it from each alleged
dominant estate. Under the latter theory, the strip and the land that later became Parcel B
passed together to the Wilsons and could not then give rise to an easement between lands
remaining in common ownership. COS No. 4026, recorded in 1987, cannot itself establish
title to the strip or the severing parties’ intent in 1950. On either premise, the District
Court’s undifferentiated finding does not identify an operative severance between the land
now alleged to be servient and each alleged dominant parcel.
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¶51 The 2.5-acre parcel requires separate analysis. If the disputed strip passed to the
Wilsons in 1950 while Walter and Vivian retained the 2.5-acre parcel, Brock had to prove
an apparent and continuous private use serving that parcel, reasonable necessity, and an
intent that the use continue as a private property right. The District Court’s findings
describe historical public travel along the old road, but they do not establish a
parcel-specific preexisting private use benefiting the 2.5-acre parcel, an intent to burden
the identified servient parcel with a private appurtenant right, or the scope of such a right.
Evidence that the parties may have regarded the road as public may support an expectation
of continued access, but it does not, without more, establish the particular private
appurtenant easement that the judgment declared.
¶52 If Dee Shook later held both the 2.5-acre parcel and the alleged servient estate, the
1976 conveyance to the Brocks would constitute the relevant severance. By that time, the
modern Sawmill Lane configuration existed in the immediate area, although the parties
dispute the practical availability of direct access from the parcel. The evidence bears on
reasonable necessity but does not alone resolve the preexisting-use doctrine claim. The
decisive deficiency is the absence of clear-and-convincing, severance-specific findings that
the claimed route served the 2.5-acre parcel as an apparent and continuous private access
immediately before the 1976 conveyance, that the route remained reasonably necessary,
and that the severing parties intended the use to continue as an appurtenant property right.
COS No. 4026, recorded eleven years later, cannot alone establish the severing parties’
intent in 1976. Thomas Mann Post No. 81 is distinguishable because, there, the use existing
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immediately before severance and the circumstances of the division supported an inference
that the parties intended the same access to continue.
¶53 Parcel B followed a different title chain and therefore requires a separate operative
severance. Remote common ownership in 1943 does not, by itself, establish an implied
easement. If the disputed strip and the land that later became Parcel B passed together
through the Wilson-Saxe chain, the 1950 conveyance did not separate a dominant estate
from the land now alleged to be servient. A possible later severance occurred when the
Saxes conveyed the 10.18-acre tract to the Brocks in 1978. The District Court did not find
that the Saxes then owned and retained the disputed corridor, that an apparent and
continuous route across that land served the conveyed tract, or that the parties intended the
use to continue as an appurtenant property right. The judgment therefore identifies no
operative severance at which all elements of an implied easement arose for Parcel B. JRN
Holdings, LLC v. Dearborn Meadows Land Owners Ass’n, Inc., 2021 MT 204, ¶¶ 27–31,
405 Mont. 200, 493 P.3d 340, does not support a different result. The road there predated
and served lots sold from a unified development; the findings here connect no comparable
preexisting private use to a severance involving Parcel B and the disputed corridor.
¶54 The judgment’s scope provides an independent basis for reversal. The District
Court adopted the sixty-foot width, utility rights, and full-road length depicted on COS
No. 4026 without finding that the traveled way was sixty-feet wide, that utility use existed,
or that use of the entire corridor existed at the operative severance or was reasonably
contemplated by the severing parties at an operative severance. An implied easement’s
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scope derives from the use and intent at severance, not automatically from a later survey.
Apecella, ¶ 31; Thomas Mann Post No. 81, ¶ 25.
¶55 The District Court's findings do not establish, by clear and convincing evidence, the
elements or scope of an implied easement by preexisting use benefiting either parcel. We
therefore reverse the implied-easement judgment. Because Brock received a full trial on
that theory, the implied-easement-by-preexisting-use claim does not return on remand. We
do not reach the Tompkins' merger argument.
¶56 5. Whether reversal of the implied-easement judgment requires vacatur of the
permanent injunction and remand of the matters the District Court treated as
moot.
¶57 Reversal of the implied-easement judgment removes the premise for the permanent
injunction and the District Court’s mootness rulings. The June 19 order dismissed Brock’s
prescriptive-easement claim, the Tompkins’ trespass counterclaim, and the outstanding
extinguishment issues as moot. We therefore vacate the permanent injunction and the
mootness dismissals.
¶58 The District Court did not adjudicate Brock’s public-easement alternative theory on
the merits. Because the implied-easement judgment no longer supplies the complete relief
that made further adjudication unnecessary, any preserved public-easement theory also
returns on remand.
¶59 The District Court shall identify the live claims and defenses, determine the effect
of the prior bifurcation order in the restored procedural posture, and preserve every
applicable constitutional and statutory jury-trial right. Because we reverse the
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implied-easement judgment, the District Court shall not give preclusive effect to any
factual determination necessary to that judgment when the same factual issue must be
resolved in connection with a revived legal claim. We express no view on the merits of
the revived theories, defenses, or counterclaim.
¶60 6. Whether the District Court erred by treating its March 25, 2025 order as the
decision triggering the five-day period under § 25-10-501, MCA, and by denying
Brock’s request under § 25-7-105, MCA, as untimely.
¶61 Section 25-10-501, MCA, requires a party claiming costs to file and serve a
memorandum within five days after receiving notice of the court’s decision. In a
bench-tried case, findings and conclusions that leave matters unresolved and expressly call
for additional proceedings do not trigger the five-day period. Ballenger v. Tillman,
133 Mont. 369, 382, 324 P.2d 1045, 1052 (1958) (findings and conclusions that gave the
parties additional time to file exceptions did not commence the period, because they stayed
entry of final decision); Karell v. Am. Cancer Soc’y, 239 Mont. 168, 177–78, 779 P.2d 506,
511–12 (1989). Pastimes, LLC v. Clavin, 2012 MT 29, ¶ 38, 364 Mont. 109, 274 P.3d 714,
addresses the consequence of an untimely memorandum; it does not determine whether an
interlocutory decision begins the statutory period.
¶62 The March 25 order expressly directed the parties to brief attorney fees, costs, and
other remaining procedural matters by a future date. It also left the separately bifurcated
claims and counterclaim unresolved. The order therefore did not finally resolve the case.
The June 19 order disposed of those remaining matters, and Brock filed her memorandum
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within five days. Assuming § 25-10-501, MCA, applies to her statutory request, the
memorandum was timely. We reverse only the procedural ruling to the contrary.
¶63 Section 25-7-105, MCA, permits a party to serve a written offer to settle a qualifying
claim. If the offeree rejects the offer and the final judgment is less favorable to the offeree
than the offer, the statute requires the offeree to pay the offeror’s postoffer costs, including
reasonable attorney fees. Section 25-7-105(1)(a), (1)(c), (3), MCA. The District Court did
not determine whether Brock’s November 2023 proposal satisfied the statute, including
whether it constituted a qualifying written offer, whether its material terms were
sufficiently definite, and whether the judgment ultimately entered is less favorable to the
offeree. Our reversal also eliminates the judgment previously used for that comparison.
After resolving the remanded claims and entering a new final judgment, the District Court
shall determine the parties’ recoverable costs and all issues bearing on Brock’s request
under § 25-7-105, MCA. We express no view on statutory entitlement or amount.
¶64 The District Court separately denied fees under the Uniform Declaratory Judgments
Act after concluding that equitable considerations did not make an award necessary and
proper. Brock does not develop a basis for disturbing that independent determination. We
leave it undisturbed.
CONCLUSION
¶65 We conclude that the District Court should have entered summary judgment for the
Tompkins on Brock’s original express-easement theory. Because the District Court did
not abuse its discretion by granting leave to amend before entry of judgment, however, the
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Rule 56 error did not affect the Tompkins’ substantial rights in the proceedings on the
amended pleading and therefore does not require reversal of those proceedings. We affirm
the order granting Brock leave to amend, the denial of the motion for judgment on the
pleadings after conversion under M. R. Civ. P. 12(d), the later motion for partial summary
judgment on the unresolved amended theories, and the bifurcation order. The final
rejection of Brock’s express-easement theory remains undisturbed. We reverse the
implied-easement judgment and vacate the permanent injunction. We vacate the mootness
dismissal of Brock’s prescriptive-easement claim, the Tompkins’ trespass counterclaim,
and the extinguishment issues, and we remand any preserved alternative easement theory
that the District Court did not adjudicate on the merits. On remand, the District Court shall
identify the live claims and defenses and preserve every applicable constitutional and
statutory jury-trial right. We also reverse the procedural ruling that Brock’s memorandum
was untimely and remand for the District Court to determine costs and attorney fees, if any,
after entry of final judgment.
¶66 Affirmed in part, reversed in part, and remanded.
/S/ KATHERINE M. BIDEGARAY
We Concur:
/S/ CORY J. SWANSON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE
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