Platted Express Easements Cannot Be “Supplanted” by a Non‑Signatory Easement Agreement; Obstruction Remedies Must Be Precisely Tied to Proven Encroachments

Introduction

Vicevich v. Kultgen (2026 MT 168) arises from a long-running access dispute in the Keck Acres Minor Subdivision near Butte. Plaintiffs David Vicevich and Gillian Clark (owners of Lot 1A/3) and the Jansons (owners of Lot 2) sought a declaration that the “loop” portion of a platted 60-foot private road easement (“Kelsey Road/Kelsey Lane”) had been extinguished—primarily by abandonment and/or by a later “2021 Easement Agreement” signed by several neighbors but not by the Kultgens (owners of Lot 4).

The Kultgens counterclaimed that the easement benefited Lot 4, that Vicevich and Clark’s fence blocked the easement and access to Lot 4, and that the fence must be removed. The District Court granted summary judgment to the Kultgens, denied Vicevich’s partial summary judgment motion, and awarded substantial attorney fees under recorded restrictive covenants.

The Montana Supreme Court largely affirmed—holding the Lot 4 easement was express, platted, and not extinguished—but reversed in part because the final judgment’s removal directive swept beyond what the summary-judgment record specifically established, requiring remand for a more precise, fence-specific remedy.

Summary of the Opinion

  • Express easement established as a matter of law: The Lot 4 deed’s reference to Plat 222-B, which clearly depicts and labels a “60' Wide Unrestricted Private Road Easement for Ingress and Egress,” created an express easement benefiting Lot 4; Plat 727-B preserved it.
  • No extinguishment by the 2021 Easement Agreement: Because the Kultgens did not sign it, the agreement could not relocate, replace, or extinguish the Kultgens’ appurtenant easement rights.
  • No extinguishment by abandonment: Vicevich’s evidence—at most showing nonuse and removable/temporary conditions—was legally insufficient to permit a factfinder to find abandonment by clear and convincing evidence.
  • Fence obstruction proven, but remedy overbroad: Summary judgment properly found the specifically litigated fence (crossing the western leg of the loop below Lot 5’s driveway and running south along the Lot 1A/3 boundary with Lots 5 and 4) obstructed access; however, the final judgment’s generic command to remove “any obstructions” not older than five years exceeded the Rule 56 record and required reversal and remand for a precise amended judgment.
  • Attorney fees affirmed: The 1977 recorded restrictive covenants authorized fee shifting; HOA inactivity and nonenforcement did not defeat enforceability due to individual-enforcement language and an anti-waiver clause. The amount awarded was within the District Court’s discretion under Plath v. Schonrock.
  • Fees on appeal: The Kultgens were awarded reasonable appellate fees, to be set on remand.

Analysis

Precedents Cited

1) Creation and scope of express easements by deed/plat reference

The Court treated the deed-plus-plat framework as dispositive. It relied on Montana’s settled “easement-by-reference” doctrine:

  • Pearson v. Virginia City Ranches Ass'n: Central to the Court’s analysis. Like the bridle-path easement in Pearson, the Lot 4 deed’s reference to a recorded plat that “clearly depicts and labels” the easement was sufficient to establish an express easement, and extrinsic evidence could not be used to manufacture ambiguity where the instrument was clear.
  • Davis v. Hall, Blazer v. Wall, O'Keefe v. Mustang Ranches HOA, Halverson v. Turner: These cases support the proposition that an express easement may be created when a conveyance instrument refers to a recorded plat depicting the easement.
  • Sieben Ranch Co. v. Adams: Reiterated that an express easement is created by a writing.
  • Our Lady of the Rockies, Inc. v. Peterson: Used to explain the inducement rationale—sales by reference to a plat create an implied covenant that the appurtenances described are part of what is being conveyed.
  • Bridger v. Lake: Confirmed that the “breadth and scope” of an easement are determined by the “actual terms of the grant.”
  • Brandt v. R.R. Mt. Escapes, LLC: Cited for the principle that extrinsic evidence resolves ambiguity; it does not create it.

2) Attempted modification/extinguishment without consent of benefited owners

  • Pearson v. Virginia City Ranches Ass'n again carried the key rule: parties cannot terminate an easement without the “consent and/or release of all lot owners” for whom the easement is appurtenant. The Court treated the 2021 Easement Agreement as legally ineffective against the Kultgens for the same reason: it lacked the Kultgens’ consent.

3) Abandonment (and summary judgment under a heightened burden)

  • Apecella v. Overman, Renner v. Nemitz, Cook v. Hartman: Provided the two-element abandonment test—(1) nonuse and (2) “affirmative action” decisive and conclusive of intent to abandon—and confirmed the clear-and-convincing burden.
  • Shammel v. Vogl and City of Billings v. O. E. Lee Co.: Reinforced that mere nonuse—even long nonuse—does not extinguish an express easement.
  • Rieman v. Anderson: Distinguished as a case involving affirmative, function-destroying conduct (plugging a ditch, removing culverts, etc.) plus expressed intent not to resume use—facts far stronger than the removable/temporary conditions alleged here.
  • Planned Parenthood of Mont. v. State and Anderson v. Liberty Lobby, Inc.: Supported the idea that the applicable burden of proof (here, clear and convincing evidence of abandonment) shapes what counts as a “genuine” issue at summary judgment.

4) Summary judgment record boundaries and appellate review discipline

  • Quarter Circle JP Ranch, LLC v. Jerde, Kipfinger v. Great Falls Obstetrical & Gynecological Assocs., Klock v. Town of Cascade, Harland v. Anderson, Lorang v. Fortis, Seeley v. Davis: Cited for the Rule 56 framework—no weighing of evidence; conclusory assertions insufficient; and summary judgment proper where only one reasonable conclusion is possible.
  • Anderson v. Stokes (Stokes): Used to reject reliance on materials filed after the merits ruling.
  • Pearson v. Virginia City Ranches Ass'n: Also invoked for the principle that appellate courts will not fault a lower court for issues it did not have an opportunity to consider.

5) Obstruction of easements

  • Musselshell Ranch Co. v. Seidel-Joukova: Grounded the rule that the servient owner may use the burdened land only so long as it does not unreasonably interfere with the dominant owner’s rights or make use more inconvenient, costly, or hazardous.
  • O'Keefe v. Mustang Ranches HOA: Supported the principle that servient owners may not unreasonably interfere with other owners’ easement rights.

6) Attorney fee entitlement and reasonableness

  • Lewis and Clark Cnty. v. Wirth: For the rule that courts must award attorney fees if a contract provides for them.
  • McKay v. Wilderness Dev., LLC: Characterized restrictive-covenant rights as contractual rights.
  • Plath v. Schonrock: Provided the nonexclusive multi-factor test for reasonableness.
  • Ferdig Oil Co., Inc. v. ROC Gathering, LLP, Tafelski v. Johnson, Tacke v. Energy West, Inc., Shephard v. Widhalm: Confirmed evidentiary support requirements and the abuse-of-discretion standard.
  • Kruer v. Three Creeks Ranch of Wyoming, L.L.C.: Cited to reject the notion that block billing is categorically prohibited.
  • Kenyon-Noble Lumber Co. v. Dependant Founds., Inc., Transaction Network, Inc. v. Wellington Technologies, Inc., DiMarzio v. Crazy Mt. Construction, Inc.: Addressed prevailing-party concepts and appellate-fee availability under a contractual fee clause, while recognizing that fees devoted to unsuccessful severable issues may be excluded from a reasonable award.

Legal Reasoning

1) The “platted easement by reference” was clear enough for summary judgment

The Court treated the Lot 4 deed’s incorporation of Plat 222-B as creating an express easement as a matter of law. Vicevich’s attempt to inject ambiguity by pointing to how the road looked on the ground (paved in part, unimproved in the loop) did not undermine the recorded grant. The Court also rejected reliance on an untimely disclosed expert surveyor because the District Court had excluded it, and the merits record on appeal is confined to what was properly before the court when it granted summary judgment.

2) A non-signatory cannot be stripped of an appurtenant easement through a private “supplanting” agreement

The 2021 Easement Agreement purported to “supplant[] any existing recorded or platted easements” and to reroute access in a way that would eliminate the loop. The Court held this could not affect the Kultgens’ Lot 4 easement because the Kultgens did not sign it. Echoing Pearson v. Virginia City Ranches Ass'n, the Court framed the right as a property interest appurtenant to the benefited lot that cannot be terminated by outsiders—even a majority of neighbors—without the benefited owner’s consent/release.

3) Abandonment failed because the evidence could not meet the clear-and-convincing standard

The Court emphasized that abandonment requires both nonuse and decisive affirmative conduct manifesting a clear intent to relinquish the easement permanently, proved by clear and convincing evidence. The plaintiffs’ affidavits largely alleged they did not observe vehicular use and described Lot 4 as undeveloped and cluttered. Even if true, the Court held this showed—at most—nonuse, and the other alleged conditions (vegetation, temporary logs, stored posts) were not function-destroying acts comparable to Rieman v. Anderson. The Court therefore affirmed summary judgment because only one reasonable legal conclusion was available on the record: no factfinder could find abandonment by the necessary quantum of proof.

4) Obstruction was proven as to one fence, but the final order’s generic removal language was improper

The Court affirmed that the fence segment crossing the loop’s western leg below Lot 5’s driveway and continuing south along the Lot 1A/3 boundary with Lots 5 and 4 completely prevented access from the easement to Lot 4 and thus unreasonably interfered as a matter of law under Musselshell Ranch Co. v. Seidel-Joukova.

But the Court reversed the judgment’s broader directive requiring removal of “any obstructions” not older than five years because, at summary judgment, the Kultgens did not identify other specific obstructions with sufficient precision or prove their location/age/effect in the Rule 56 record. The remand requires an amended judgment that: (i) precisely identifies the fence actually adjudicated, and (ii) clarifies that no other structures or alleged obstructions were litigated or ordered removed.

5) Fees were authorized by covenant and reasonably awarded

The Covenants barred fences on easements and contained a prevailing-party fee clause plus an anti-waiver clause. The Court rejected arguments that HOA inactivity or selective enforcement negated fee authority, treating enforcement as an individual contractual right. On amount, the District Court held an evidentiary hearing, applied Plath v. Schonrock, reduced some entries, and made supported findings; the Supreme Court found no abuse of discretion.

Impact

  • Stronger protection against “private rerouting” of subdivision access: The decision reinforces that recorded, appurtenant easements shown on plats cannot be displaced by neighbor agreements that omit a benefited owner—an important constraint on informal, post hoc “access fixes.”
  • Abandonment claims face a practical summary-judgment filter: By emphasizing the clear-and-convincing burden at the Rule 56 stage, the Court signals that “I never saw them use it” and “it was unimproved” evidence will often be insufficient without concrete, decisive acts showing intent to relinquish.
  • Remedial precision in easement obstruction judgments: Trial courts must tie removal orders to specifically proven obstructions. Generic language (“any obstructions”) risks reversal where the record did not identify each obstruction with location, timing, and interference evidence.
  • Fee-shifting covenants remain potent even with dormant HOAs: Property owners can enforce covenants directly, and anti-waiver clauses can preserve enforcement leverage and fee recovery despite long periods of nonenforcement.

Complex Concepts Simplified

Express easement (by plat reference)
An easement created by written documents. If a deed conveys a lot “according to” a recorded plat and the plat depicts a road easement, the plat is treated as incorporated into the deed, creating an easement right.
Dominant vs. servient estate
The dominant estate benefits from the easement (here, Lot 4). The servient estate bears the burden (here, Lot 1A/3 where the loop runs).
Abandonment of an easement
Not just “not using it.” It requires (1) nonuse and (2) clear, affirmative conduct showing an intent to give it up permanently, proved by clear and convincing evidence.
Summary judgment under a heightened burden
If the law requires “clear and convincing” proof at trial, the nonmoving party must still present enough admissible evidence at summary judgment that a reasonable factfinder could meet that burden—not just raise speculation.
Restrictive covenants and fee shifting
Recorded covenants function like a contract attached to the land. If they include a prevailing-party fee clause, courts must award reasonable fees to the winner in enforcement litigation.
Why “precise remedies” matter
A removal order must identify what, exactly, must be removed. Courts cannot order broad cleanup of undefined “obstructions” without proof of each item’s location and interference in the record.

Conclusion

Vicevich v. Kultgen reinforces three practical rules in Montana property litigation: (1) platted, deed-incorporated access easements are durable property rights; (2) neighbors cannot “supplant” or reroute those rights through agreements that omit the benefited owner; and (3) while courts can order removal of proven obstructions, judgments must be narrowly and precisely drafted to match what the summary-judgment record actually establishes. The case also underscores the continuing strength of recorded covenant fee clauses, even where an HOA has long been inactive.