No. 84-567
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
CHARLOTTE BOLLES KUBLMAN,
Plaintiff and Appellant,
TEKSU RIVERA and SILKITWA
RIVERA, husband and wife ,
Defendants and Respondents.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert M. Holter, Judge presiding.
COUNSEL OF PSCORD:
For Appellant:
L. Charles Evans, Libby, Montana
For Respondent:
Keller & German; Ann C. German, Libby, Montana
Submitted on Briefs: April 11, 1985
Decided: June 13, 1985
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is an appeal from a judgment of the Nineteenth
Judicial District, Lincoln County. Charlotte Bolles Kuhlman
brought a quiet title action against Teksu and Silkitwa
Rivera. The Riveras counterclaimed for a determination of
their water rights and a road easement. The District Court
concluded that the Riveras ha-d an easement for water from a
spring on Kuhlman's land and that they had a right of way
across Kuhlman's land as long as they reside on their
property. The Court award.ed the Riveras $ 5 0 0 damages for
interference with their rights. Kuhlman appealed. The
judgment of the District Court is affirmed.
Kuhlman raises eight issues:
1. Did Kuhlman grant the Riveras a revocable license to
take water from her spring?
2. Was the right of way a revocable license?
3. Did Kuhlman ma.ke a valid oral contract to sell water
from her spring to the Riveras?
4. Was Frank Bolles, Kuhlman's son, her authorized
agent?
5. Was the water well agreement fraudulently induced
and lacking mutual understanding?
6. Was the District Court's finding that Kuhlman was
present during the installation of the water line incorrect?
7. Was the District Court's finding that Kuhlman
disconnected the Riveras' water line causing damages in the
amount of $ 5 0 0 incorrect?
8. Was the District Court's finding that the Riveras'
expenditures to install the water line increased the value of
Kuhlman's property incorrect?
No issue has merit. As discussed bel.ow, this
controversy centers on whether the Riveras fraudulently
induced Kuhlman to make agreements concerning water and a
right of way. The District Court found that the parties made
valid agreements and did not find fraud. These findings are
supported by competent, substantial evidence and will not be
disturbed on appeal.
In 1982 the Riveras moved onto land in Lincoln County
near Kuhlman's property. No water was available on their
land so, when they first moved on the land, they hauled water
from Eureka. In June 1982 they became friendly with
Kuhlman's son, Frank Bolles, and began hauling water from the
spring on his mother's property. During the summer the
Riveras and Bolles orally agreed that the Riveras could
install a waterline from the Kuhlman spring to the Riveras'
property. The Riveras had originally planned to drill a
water well on their land but decided the waterline was a more
feasible and easier solution to their water problem.
At the time, the Riveras believed Frank Bolles and his
mother owned the land. Frank Bolles's name, which appeared
on the land records, is the same as his father's. The
Riveras paid Frank Bolles $10 per month for the water. They
did not talk to the mother about using the water before they
began work on the waterline but she was present as the work
was performed and appeared agreeable to it. Constructing the
waterline involved backhoeing 1,550 feet of waterline from
Kuhlman's property to Riveras' property and crossing 150 feet
of Forest Service land with the Forest Service's consent. It
also involved constructing a shelter with a pump at the
spring. At the trial the Riveras introduced evidence that
they spent $3,271 on water and road expenses.
Kuhlman gave the Riveras a right of way across her
property for the time they reside at their present location.
She executed a written document to that effect signed and
dated June 23, 1982.
Their surveyor told the Riveras that they needed a
written agreement about the water. The Riveras and Kuhlman
and Bolles signed an agreement which Riveras sent to the
State Department of Health and Environmental Sciences and
then recorded. At the trial it was this document the Riveras
introduced to substantiate their claim that Kuhlman gave them
an easement.
The parties now disagree about the terms of the
agreement granting Riveras the use of the water. Kuhlman
asserts that in late June 1982 she agreed to the Riveras
using the water if they signed. a written agreement and paid
her $1,500. The Riveras assert that they were given the
easement and there was no demand for a written agreement or
$1,500 until November 1983 and, when they refused to sign and
pay $1,500, this suit was commenced. In the spring of 1984
Kuhlman shut off the power to the pump and blocked the
roadway.
To substantiate their assertion, the Riveras introduced
the document entitled, "Water Well Agreement" signed by all
the parties, notarized on June 18, 1983, and recorded in the
Lincoln County records at the request of Teksu Rivera on
December 6, 1983. This document also bears a notation
"Received July 11, 1983 by the Montana Department of Health
and Environmental Sciences." The first page described the
Riveras' property, entitled them to domestic water service
from Kuhlman's spring, entitled each party to a half interest
in the spring and to share the costs equally, reserved for
Bolles the right to add one other domestic water user, and
granted easements for the construction and maintenance of the
system. Kuhlman contends that this was not the first page of
the document she signed and that the Riveras fraudulently
substituted this page.
Issue - -
No. 1. Did Kuhlman grant Riveras a revocable
license to take her spring water?
Kuhlman's legal argument on this issue is so unclear
that it is paraphrased here with reluctance. On appeal,
Kuhlman claims she gave the Riveras a license to use the
water which she later revoked and the District Court erred in
not so finding and concluding. In the District Court she
sought to quiet title to her property by removing a recorded
"Water Well Agreement" that she contended clouded her title.
In her complaint she alleged fraud and she stated:
"14. Plaintiff has at no time transferred to
Defendants the right to use all of or any portion
of the water from the spring . . ."
A license is the permission or authority to do a
particular act or series of acts upon the land of another
without possessing an interest therein. Morrison v. Higbee
(1983), 40 Mont. 1041, 1044, 1045, 668 P.2d 1025, 1028,
citing Rentfro et al. v. Dettwiler (1933), 95 Mont. 391, 26
P. 2d 992. The use of a license is revocable at the will of
the servient tenant.
Kuhlman sued claiming fraud and lost. Her complaint
says nothing about a license and, in fact, paragraph 14 makes
it clear no license was granted. Kuhlman could not have
granted the Riveras permission to use the water and "at no
time transferred to Defendants the right to use all of or any
portion of the water." The District Court did not err by not
finding a revocable license.
Issue No. 2. Was the the right of way across Kuhlman's
land a revocable license?
Kuhlman's position on this issue is also unclear. The
District Court concluded that the Riveras have an easement
across a roadway for as long as they reside on the property
and, because of fire, gave them three years to rebuild d-uring
which time they would be considered to reside on the
property. This conclusion is based on a handwritten document
by Ruhlman which states:
"I Charlotte Eolles Kuhlman give right of way
across my property located at NE% NE& section 22,
Township 36 N, Range 28 W across Pinkham Road from
my existing house to Teksu and Sil-Kit WA Rivera.
For which time they reside on their present
location.
June 23, 1982
(signed) Charlotte Bolles Kuhlman"
On appeal, Kuhlman argues that because there was no
contract there can be no easement. In her brief she cites
Louis v. Patton (1911), 42 Mont. 528, 113 P. 745, for the
rule that "without a contract there could be no easement."
The argument that an easement requires a contract is not
supported by Montana case law, including Louis v. Patton, or
our statutes.
An easement is a non-possessory interest in land, "a
right which one person has to use the land of another for a
specific purpose or a servitude imposed as a burden upon
land." Laden et al. v. Atkeson (1941), 112 Mont. 302, 116
P.2d 881, 883. It is distinguished from a license because a
license is not an interest; a license is merely a privilege
to do some act on the land without possessing an interest in
the land. Kuhlman's written grant was of an easement and not
a license because Kuhlman did not reserve to herself the
right to terminate the grant while Riveras resided on the
property.
Issue No. 3. Did Kuhlman make a valid oral contract to
sell water from her spring to the Riveras?
We agree with Kuhlman's contention that she did not
enter into a valid contract for the sale of water rights to
the Riveras' but that does not effect the outcome of this
case. The District Court did not find there was a contract,
the court never used the term "contract" and did not rely on
a contract to find an easement. In fact, that is exactly
what the respondents successfully argued below.
There is substantial credible evidence that Kuhlman
gave, not sold, Riveras the right to use the water. The
court's judgment decrees that the Riveras hold an easement to
use the water. An easement can be created by grant,
reservation, exception or covenant, by implication or by
prescription. Prentice v. McKay (1909), 38 Mont. 114, 98 P.
1081. This case is a question of an easement by grant
created with a writing. To be a valid conveyance, it must
satisfy the formal requirements of a grant. The written
water well agreement identified the grantor, Kuhlrnan, and the
grantee, Riveras, adequately described what was conveyed, had
language of conveyance and was signed. These satisfy the
requirements of S 70-20-103, MCA. As discussed below, we
agree with the District Court that this conveyed an easement
to the Riveras and wa.s not fraudulently induced. While
Kuhlman could have entered into a contract to sell the
easement, the record establishes she gave it away.
Issue No. 4. Was Frank Bolles an agent of Charlotte
Kuhlman?
Kuhlman contends that her son was not her a.ctua1 or
ostensible agent, but this issue is irrelevant to this
appeal. For Riveras to prevail it was not necessary to
establish that an agency relationship existed between Kuhlman
and Bolles because Kuhlman herself granted the right of way
and the right to use the spring water when she signed the
writ.ten documents. Although there is some controversy about
when she became aware of the arrangement the record is clear
that she eventually participated in the agreement.
Whether Bolles was Kuhlman's agent does not affect the
judgment of this case. The function of this Court upon
appeal is to review the judgment. Rule 2, M.R.App.Civ.P.
This issue does not relate to the merit of this case and does
not affect the judgment; therefore this Court does not reach
the issue.
Issue No. 5. Was the water well agreement fraudulently
induced?
Kuhlman contends that the water well agreement is not
the same document she signed before a notary on June 11,
1983. She contends that the Riveras substituted the first
page of the two-page document. The Riveras contend the
agreement is the document signed without any alterations.
Both parties introduced evidence to support their
contentions. The judge did not find fraud and concluded the
water well agreement created an easement.
In a non-jury trial witness credibility and the weight
of the testimony are matters for the District Court.
Findings of fact will not be set aside unless clearly
erroneous. Rule 52(a), M.R.Civ.P. If findings are supported
by competent, substantial, although confl.icting evidence,
they will not be disturbed on appeal. Holl-oway v. University
of Montana (1978), 178 Mont. 190, 582 P. 2d 1265. Here,
Kuhlman and her son testified that the pages they signed did
not resemble the document filed. However, they each
described a different document. The Riveras testified the
document before the court was the document signed. Their
surveyor testified that the document filed was the form he
had supplied. The District Court found no fraud and this is
supported by evidence and is not clearly erroneous.
Issue No. 6. Did the District Court err in finding that
Kuhlman was present when the Riveras' constructed the
waterline?
There is conflicting testimony on this issue. Although
this finding is not relevant to the outcome of the case it is
supported by evidence and not clearly erroneous.
Issue No. 7. Did the District Court err in finding that
Kuhlman disconnected the waterline, forcing the Riveras to
move from their property and causing $500 damages?
The District Court erred in two of these findings. The
Riveras moved from their property because of fire and
Kuhlman did not disconnect the water line. She switched off
the power. However, switching off the power caused the
damage the District Court ordered Kuhlman to reimburse. The
Riveras planted seed.s and plants on their land which died
because they were not watered. The loss occurred because
Kuhlman switched off the power to the pump.
Issue No. 8. Did the District Court err in finding the
Riveras' expenditures in installing the waterline increased
the value of Kuhlman's property?
This finding, while not crucial to the judgment, is
supported by substantial credible evidence. The Riveras
testified, and. Kuhlman agreed, that they built a pump house,
laid a concrete pad and installed a pump. These improvements
increa-sedthe value of the land.
The judgment of the District Court is affirmed.
We Concur:
/
J
Justices