Introduction

In Schubert v. Toepp, 2025 MT 239, the Supreme Court of Montana addressed a multi‑faceted neighbor dispute centered on two easements created during the subdivision of real property in Yellowstone County. The case arises out of a mediated settlement memorialized in a Memorandum of Understanding (MOU), subsequent disagreements over what that MOU contained (or did not contain), and conduct within a 30‑foot recorded access easement that allegedly damaged the servient estate.

The parties are Patti and Steve Schubert (owners of Tract 7B‑2, the dominant estate) and Jeremy and Tynagh Toepp (owners of Tract 7B‑1, the servient estate). Their quarrel spanned (1) whether the MOU permitted the Schuberts’ large electric gate—partly outside the easement bounds—to remain where installed; (2) the scope of permissible use and “maintenance” within the access easement; and (3) attorney fees incurred to enforce the MOU.

The District Court enforced the MOU, read it to imply the encroaching gate could remain, limited the access easement to strictly ingress/egress use with narrowly tailored maintenance, and awarded the Toepps attorney fees. On appeal and cross‑appeal, the Supreme Court affirmed in part and reversed in part, articulating three important holdings that will guide future settlement drafting, easement use, and fee‑shifting under Montana law.

Summary of the Opinion

• MOU interpretation and the “encroaching gate”: Reversing the District Court, the Court held that the four corners of the signed MOU contained no term allowing a “gate easement” or authorizing the gate’s present location. Proposed—but unsigned—settlement documents could not be incorporated, especially where the MOU required any judgment to be “approved by all counsel.” Because the gate encroached beyond the express easement area and onto the servient estate, it is an unlawful encroachment and must be removed.
• Scope of the access easement and “maintenance”: Affirming the District Court, the Court held the access easement is “specific in nature” for ingress and egress (and utilities as stated in the grant). The dominant owner’s maintenance rights are limited to actions necessary to preserve those ingress/egress rights; aesthetic or expansive work that causes unnecessary injury to the servient estate overburdens the easement. The injunction limiting use and maintenance to what is necessary was proper.
• Attorney fees under § 37‑61‑421, MCA: Affirming, the Court held the District Court did not abuse its discretion in awarding fees where the Schuberts unreasonably and vexatiously multiplied proceedings by insisting on a “gate easement” not memorialized in the MOU and withholding execution of settlement documents to extract new terms.
• Appellate practice note: The Court struck an exhibit attached to the Toepps’ reply brief that was not part of the record below; the decision did not rely on that exhibit. It otherwise denied a motion to strike reply‑brief pages addressing intertwined issues.

Analysis

Precedents Cited and Their Role

• Kluver v. PPL Montana, LLC, 2012 MT 321 and Murphy v. Home Depot, 2012 MT 23: Settlement agreements are contracts; contract interpretation is reviewed for correctness. The Court applied standard contract principles to the MOU.
• Watters v. City of Billings, 2019 MT 255; King Resources, Inc. v. Oliver, 2002 MT 301; and § 1‑4‑101, MCA: Courts must ascertain mutual intent from the writing if possible; they may not insert or delete terms. This backbone principle led the Court to reject reading a “gate easement” into an MOU that was silent on the subject.
• Mattson v. Montana Power Co., 2009 MT 286 and Steen v. Rustad (1957): Give effect to each contract provision and read the instrument “by its four corners.” The Court emphasized that an MOU detailed minute terms (e.g., fence height/materials, keypad placement), so the omission of a gate term was dispositive.
• Guthrie v. Hardy, 2001 MT 122: Standard of review for bench‑trial findings (clearly erroneous) and the easement holder’s maintenance rights, including the duty to make necessary repairs without unnecessary injury. These principles underpinned the affirmance of the injunction restricting maintenance to what is necessary for ingress/egress.
• Woods v. Shannon, 2015 MT 76; Clark v. Pennock, 2010 MT 192; Mason v. Garrison, 2000 MT 78; and Blazer v. Wall, 2008 MT 145: Express ingress/egress easements are “specific in nature” and strictly limited to their terms. The Court applied these cases to hold the dominant owner’s activities exceeded the easement’s scope.
• Laden v. Atkeson (1941); Anderson v. Stokes, 2007 MT 166; Koeppen v. Bolich, 2003 MT 313: The easement holder’s right and duty to maintain must be exercised in a way that avoids unnecessary injury to the servient estate; maintenance must be reasonably tailored to the easement’s purposes. The Court’s footnote reiterates this core rule and clarifies it was not departed from.
• Strahan v. Bush, 237 Mont. 265 (1989): Equity permits tailoring remedies (e.g., ordering a cattle guard instead of a problematic gate) to accomplish complete justice while respecting easement rights. The Court recognized the District Court’s equitable tailoring here as appropriate.
• § 37‑61‑421, MCA; Larchick v. Diocese of Great Falls‑Billings, 2009 MT 175; In re Estate of Bayers, 2001 MT 49; Tigart v. Thompson (1990); In re G.M., 2009 MT 59: Fee awards for unreasonably and vexatiously multiplying proceedings are reviewed for abuse of discretion, with deference to the trial court. Applied to affirm fees here.
• In re Marriage of Lewton, 2012 MT 114: Fees affirmed where a party frustrated prior stipulations—analogous to resisting execution of agreed MOU terms while pressing for new concessions.
• Sheffield Ins. Co. v. Lighthouse Props., Inc. (Sheffield II), 252 Mont. 321 (1992): Warning to act with circumspection in fee sanctions, lest zealous advocacy be chilled. Distinguished: in Sheffield II the party advanced a plausible new claim; here, the party sought to add terms never agreed upon in the MOU.

Legal Reasoning

1) The MOU and the encroaching gate: the four‑corners rule controls

The decisive analytical step was the Court’s insistence on the written MOU as the exclusive memorial of settlement terms. The MOU listed detailed, negotiated items—movement of a keypad, camera orientation, a 7‑foot corrugated steel fence, a $25,000 payment to facilitate the Toepps’ new well, a short‑term irrigation schedule, and a stipulation to a proposed judgment “approved by all counsel.” Nowhere did the MOU mention an easement or permission for the large electric gate’s present location.

The District Court inferred from the keypad and package‑box provisions that the parties must have contemplated the gate staying put. The Supreme Court rejected that inference as a prohibited insertion of omitted terms. Even had the gate been moved onto the Schuberts’ land or fully within the easement corridor, a keypad and package box would still serve ingress/egress; their inclusion proves nothing about a “gate easement.”

Crucially, the MOU’s closing clause—stipulation to entry of a judgment as “approved by all counsel”—foreclosed bootstrapping the Schuberts’ late‑presented, unsigned drafts into the parties’ agreement. Draft documents that were never jointly approved could not create rights omitted from the MOU. Nor did the Toepps’ cashing of the $25,000 check ratify extraneous terms; the Court found that payment to be consideration for the well‑use arrangement so that the Toepps could timely install their own well and perform under the MOU.

Because the gate physically extended beyond the express access easement and onto the servient owner’s land, it was an unlawful encroachment. The Court reversed the District Court’s contrary conclusion and remanded with instructions that the gate in its current location must be removed.

2) The access easement’s scope and “maintenance” limits

The underlying deed language created an express easement across the south 30 feet of the Toepps’ property “as a means of ingress and egress to and from Tract 7B‑2,” including for installing, maintaining, and repairing utilities. This is a “specific in nature” ingress/egress easement whose scope is strictly controlled by its text.

The record showed that vegetation did not obstruct the existing 10‑foot gravel drive, yet the Schuberts raked and sprayed along the easement corridor and within a “proposed” gate easement footprint, damaging the Toepps’ fence and trailer and interfering with efforts to grow vegetation. That conduct exceeded what was necessary to preserve ingress/egress and caused unnecessary injury to the servient estate. Accordingly, the Court affirmed an injunction limiting the Schuberts to:

• Using the easement strictly for ingress and egress (and utilities as stated), and
• Undertaking only those maintenance actions required to remedy actual obstructions to ingress/egress, not aesthetic or expansive clearing.

In a clarifying footnote, the Court stressed it was not departing from the long‑standing rule that a dominant owner may and must maintain an easement. The point is proportionality: maintenance must be “reasonably tailored” to preserving ingress/egress and performed in a manner that does not injure the servient estate’s rights.

3) Attorney fees for multiplying proceedings under § 37‑61‑421, MCA

The District Court awarded fees after finding the Schuberts frustrated finalizing the settlement by demanding a “gate easement” never agreed upon and refusing to execute documents without it, forcing motion practice, a hearing, and post‑hearing briefing. The Supreme Court affirmed, emphasizing deference to the trial court’s vantage point in policing vexatious litigation conduct.

The award was grounded in the statute; the District Court also observed that the parties contemplated MDTL mutual releases, which typically include fee provisions. On appeal, the Court distinguished Sheffield II because there, a party advanced a plausible new legal theory; here, the Schuberts tried to graft new, bargained‑for concessions onto a signed MOU that omitted them. That conduct unreasonably and vexatiously multiplied proceedings and warranted fees.

Practical and Doctrinal Impact

• Settlement drafting in Montana: This decision is a cautionary exemplar: if a term matters, put it in the signed MOU. Courts will enforce the “four corners” and refuse to imply material terms (like a gate easement) from related or ancillary provisions (e.g., keypad placement) or from unsigned drafts, especially where the MOU conditions any final judgment on being “approved by all counsel.”
• No implied structure easements: The presence of fixtures in settlement text (keypads, cameras, parcel boxes) does not imply permission for other structures or encroachments. Silence means no deal.
• Easement “maintenance” narrowed to necessity: Dominant owners risk injunctions when “maintenance” exceeds what is needed for passage or utility work and causes unnecessary injury to the servient estate. Aesthetic clearing or broad vegetation removal not impeding travel can overburden the easement.
• Encroachment remedies: Structural encroachments beyond the metes and bounds of an express easement are unlawful and subject to removal absent an express grant.
• Fee exposure for post‑settlement brinkmanship: Parties who resist execution of an agreed MOU to extract new terms, thereby multiplying proceedings, face fee shifting under § 37‑61‑421, MCA.
• Appellate practice: Materials not admitted below will be stricken; replies may address overlapping issues where the record and issues are intertwined.

Complex Concepts Simplified

• Dominant vs. servient estate: The dominant estate (here, Tract 7B‑2) benefits from the easement; the servient estate (Tract 7B‑1) bears the burden.
• Ingress/egress easement: A right to travel over a defined strip of another’s land. When “specific in nature,” its scope is limited to passage (and any expressly stated ancillary purposes, such as utility installation/repair).
• Overburdening an easement: Using the easement in ways that go beyond the grant’s scope or that cause unnecessary damage or unreasonable interference with the servient owner’s enjoyment.
• Maintenance rights and duties: The dominant owner may and must keep the easement reasonably usable, but only by doing what is necessary for the easement’s purpose and without unnecessary injury to the servient estate.
• Four‑corners rule: Courts interpret written agreements by their text; they do not add terms not written into the document. Context may be considered to understand language, but not to contradict or supplement unambiguous silence.
• “Approved by all counsel” condition: Language in an MOU requiring later documents to be approved by all counsel means drafts are not binding until jointly approved; one side’s unsigned proposals carry no contractual force.
• Multiplying proceedings (§ 37‑61‑421, MCA): Conduct that unreasonably and vexatiously increases litigation steps (e.g., insisting on extra‑contractual terms after a settlement, necessitating motions and hearings) can trigger fee shifting, subject to trial‑court discretion.
• Consideration and partial performance: A settlement payment can serve as consideration for specific obligations (e.g., a well‑use schedule) without ratifying additional, disputed terms not in the signed MOU.

Conclusion

Schubert v. Toepp cements three practical rules in Montana civil practice. First, settlement MOUs will be enforced strictly by their text. Courts will not imply critical property rights—like a gate easement—from surrounding provisions or unsigned drafts, especially when the MOU requires mutual approval of final papers. Second, dominant owners must treat “maintenance” of specific ingress/egress easements as a narrow, necessity‑bound prerogative; work that is not needed for passage and that injures the servient estate overburdens the easement and warrants equitable restraint. Third, litigants who, post‑MOU, press for new concessions by holding up execution risk fee liability for multiplying proceedings.

On the facts presented, these principles yielded a split disposition: the unlawful encroaching gate must be removed; the injunction confining use and maintenance of the access easement to ingress/egress purposes stands; and the fee award is affirmed. For Montana practitioners and property owners alike, the decision underscores the premium on precise settlement drafting, disciplined easement use, and respect for the boundary between necessary maintenance and servient‑estate injury.