No. 12408
I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
1973
CITY OF MISSOULA,
a Municipal C o r p o r a t i o n ,
P l a i n t i f f and Respondent,
JAMES S . ROSE and DORCAS A. ROSE,
Defendants and A p p e l l a n t s .
Appeal from: D i s t r i c t Court o f t h e F o u r t h J u d i c i a l D i s t r i c t ,
Honorable J a c k L. Green, Judge p r e s i d i n g .
Counsel o f Record :
For Appellants :
S k e l t o n and Knight, Missoula, Montana
R.obert S k e l t o n a r g u e d , Missoula, Montana
Edwin E. Multz a r g u e d , M i s s o u l a , Montana
F o r Respondent :
Boone, K a r l b e r g and Haddon, Missoula, Montana
Sam Haddon a r g u e d , Missoula , Montana
Fred C. Root, Missoula, Montana
Submitted: September 27, 1973
Decided :bEB
I 7,984
Honorable Alfred B. Coate, District Judge, sitting in place of
Mr. Justice John C. Harrison, delivered the Opinion of the Court.
This action involves the proper construction of an ease-
ment deed for land in Missoula County, Montana. In 1963 the
respondent, hereafter called the City, created a Special Improve-
ment District for the purpose of constructing a sanitary sewer
line to extend city sewer service to the real property that is the
subject of this litigation. On October 5, 1963, the appellant's
predecessor in interest granted and conveyed, by a written instru-
ment to the City " * * * a permanent easement and right-of-way,
for the purpose of constructing, maintaining and removing a sani-
tary sewer line as now surveyed and located, over, under and across
all that portion of the following described premises lying south-
west of the following described line * * *". Thereafter followed
a legal description of the land subject to the easement. That
legal description was erroneous. The City had the sewer line
constructed and the construction was completed in December 1963.
As constructed, the sewer line entered on the property from its
western boundary and extended across the property for about one-
third of its width terminating with a manhole at the eastern most
end of the sewer line. All of the land to the east of the property
was agricultural at that time. Subsequently, the agricultural
land was subdivided and sold for building sites. The present owners
of these building sites applied to the City for the creation of
a Special Improvement District to extend city sanitary sewer
services to their property. In 1972 the City created another
Special Improvement District and construction of the sewer line
was commenced with the intention of connecting the second sewer
line to the eastern terminus of the city sewer system, which was
on appellant's land.
Appellants are the assignees of the purchaser of the land
in question under a contract for deed entered into in 1967 and
are in actual possession of the property. Appellants denied the
Zity's right to come on the property for the purpose of extend-
ing the sewer from its terminus to the property's eastern boundary.
The City brought this action to obtain a declaratory
judgment of the written easement and to obtain injunctive relief.
Judgment was for the City and this appeal was taken.
Appellants have presented four issues on this appeal.
After careful consideration, it is our opinion that this appeal
presents two questions for our determination. First: Does the
evidence sustain the trial court's judgment? Second: What con-
struction should be given to a deed that contains an erroneous
legal description of the land subject to the grant?
We have consistently held that this Court cannot substi-
tute its weighing of the evidence for that of the trial court.
Where there is a conflict in the evidence, the findings of the
trial court are presumed to be correct if supported by the evidence
most favorable to the prevailing party. Raucci v. Davis, -
Mont .-, 505 P.2d 887; 30 St. Rep. 133; Patterson v. Halterman,
Mont. , 505 P.2d 905, 30 St. Rep. 139; Hellickson v. Barrett
Mobile Home Transport, Inc., - .
Mont , 507 P.2d 523, 30 St.
Rep. 289. The fact that there was a conflict in the testimony
does not justify a reversal where there is sufficient evidence to
support the trial court's findings of fact.
Appellant's answer to the complaint placed in issue the
question of the faulty legal description of the land subject to
the easement. Appellant argues that an improper land description
in the easement creates an easement by user only. The City
argues that the written easement is controlling if the faulty
description can be corrected by proper surveying techniques.
It has long been the rule in this jurisdiction that courts
a r e t o interpret written contracts t o give effect t o the intent
o f t h e p a r t i e s , r a t h e r t h a n a t t e m p t i n g t o a l t e r o r amend t h e
contract for the parties. Emerson-Brantingham I . Co. v . Raugstad,
65 Mont. 297, 2 1 1 P . 305. I n Wyrick v . H o e f l e , 136 Mont. 1 7 2 ,
174, 346 P.2d 563, t h i s C o u r t , q u o t i n g from Hochsprung v . S t e v e n s o n ,
82 Mont. 222, 266 P. 4 0 6 , s a i d :
" ' T h e i n t e n t i o n of t h e g r a n t o r i n a deed i s t o
be g a t h e r e d from a c o n s i d e r a t i o n of t h e e n t i r e
i n s t r u m e n t , t a k i n g i n t o c o n s i d e r a t i o n a l l of i t s
p r o v i s i o n s , and e v e r y p a r t must be g i v e n e f f e c t
i f r e a s o n a b l y p r a c t i c a b l e and c o n s i s t e n t w i t h i t s
e v i d e n t p u r p o s e and o p e r a t i o n , " n o t , i n d e e d , a s
it i s p r e s e n t e d i n p a r t i c u l a r s e n t e n c e s o r p a r a -
g r a p h s , b u t a c c o r d i n g t o i t s e f f e c t when viewed
a s an e n t i r e t y . " ' "
The l a n d d e s c r i p t i o n , a l t h o u g h e r r o n e o u s , c o u l d be d e t e r -
mined p u r s u a n t t o t h e p r o v i s i o n s of s e c t i o n 93-2201-4(2) and ( 6 ) ,
R.C.M. 1947. The t r i a l c o u r t p r o p e r l y o r d e r e d a s u r v e y of t h e
l a n d i n q u e s t i o n s o t h e i n t e n t of t h e p a r t i e s t o t h e easement
could be e f f e c t u a t e d .
The judgment of t h e t
Judge, s i
J u s t i c e John C. H a r r i s o n .
/ / Chief J u s t i c e
Justices v