(dissenting).
I respectfully dissent, for the reason that the main opinion erroneously sanctions a transfer of an interest in real property by the use of objected-to hearsay, parol evidence, — all in violation of the Statute of Frauds requiring a written conveyance subscribed by a grantor.1
About the first 20% of the main opinion is devoted to facts claimed by defendant to be accurate and such as to bind the plaintiff to the findings, conclusions and judgment of the trial court. This recitation in the opinion is disarming because of its implications that such facts are accurate and hence defendant’s position is sound. The balance of the opinion is simply a purported recital of what it says the record shows the facts to be, plus an application of legal principles to such related facts as a sort of ratio decidendi for the main opinion’s ultimate conclusion affirming the trial court.
The difficulty is the fact that the main opinion is not quite accurate as to some of the facts, states the principles it espouses only to divorce itself from them either by ignoring or hurdling them, or by citation of authorities that are not applicable under the true facts of this case.
When the main opinion commences stating what the facts are rather than what defendant claims them to be, it errs in the very first paragraph of its recitation, when it says, “The flooding of the meadow area was a problem to both the Smiths [defendants] and Hickey.” There is no evidence whatever that it was any problem to Hickey, except by way of self-serving hearsay repeated by defendant Smith. The main opinion continues by saying “In 1961, Hickey orally consented to a change in the Carter Ditch with Smith.” The only possible way the main opinion could say this as a controlling fact, is by the employment of a self-serving statement by the defendant Smith that Hickey had so consented. It is disarming to a reader for this court to recite such consent as an established fact without supplementing it with the true fact that it was based on hearsay to which a timely objection was made, thus rendering it inadmissible in evidence. This bit of self-serving, objected-to, inadmissible evidence, really is the backbone of the defendant’s entire contention, and the entire basis for the main opinion’s conclusion that a transfer of a real property interest, without a subscribed written instrument, can be effected through hearsay and parol evidence of the most undependable, unprobative type. Without Hickey’s presence and ac*450tual testimony in this case, Smiths’ theory and this court’s decision are duds. Hickey was not a witness in this case. Hickey’s words are not in this record at all. His frame of mind, or consent to a conveyance of real property are here only in the mind and consent of a self-serving litigant, who, so far as this record is concerned, never sought nor saw the signature of the only person who could have created an interest in his own land favorable to a complete stranger to his title. Not even Hickey’s conditional buyer under a written real estate contract had the inclination or fortitude to attempt an effective creation of a right in Smith by placing his signature to a writing that might be suggestive of such an intent.
The main opinion continues to state without any qualifications whatever that “In June of 1961, Hickey informed Smith that he had sold the property to Larsen and that he had informed Larsen that he had previously consented to the relocation of the ditch.” This gratuity should be tempered by saying this assertion was made by the defendant, without any showing of any kind who was present, where the Hickey statement was made, and the circumstances surrounding it. It is submitted that for this court to accept as gospel any alleged statement of Hickey made in the presence only of Smith, the defendant, and the reporter thereof, without any chance to probe its authenticity, or any apparent regard for solid proof, is to depart completely from the nice things we have said about the sanctity and the necessity for stability of land titles, the protection of property rights against unwritten, unrecorded claims, the profound wisdom of our forebears in passing farsighted legislation requiring documentary protection against the interested volunteer, the gun toter, the application of the hearsay rule, etc., ad infinitum.
The main opinion continues with a recitation of what Larsen and Smith did and said about the ditches, what they agreed amongst themselves, and what Smith did in digging ditches, etc. Smith is no party to the title of Hickey’s property. Larsen had no right whatever to sell easements in the property, — so all that the main opinion says about Smith and Larsen is but window dressing and not binding either on the fee title or Hickey, both conspicuously absent and completely foreign to the strange decree of the trial court and the stranger compounding thereof by this court’s af-firmance.
Perhaps the most unusual part of the main opinion is its quotation of a provision of the deed given to the bank by Hickey in 1965, wherein the conveyance was made subject to any easements or rights of way for roads, ditches, canals, pole lines, transmission lines or like facilities granted by Hickey’s buyer or by Hickey’s grantee since May 26, 1961, as justification for the main opinion’s conclusion that Hickey was *451a party to the grant of an easement of any kind. A careful reading of that provision seems clearly to indicate that Hickey personally did not consent to any easement or the easement contended for in the opinion. It says just the opposite and eliminates any other interpretation of his actions by carefully saying the conveyance was subject,— not to any encumbrances resulting from any action of his,- — but only “as a result of the actions of Grantee [the Bank] or of the Buyers [Larsens] under that certain Sales Agreement dated May 26, 1961” — ■ the date Hickey conditionally sold to Larsen. This is not hearsay. This is a writing, and seems to deny expressly and specifically any grant of an easement as a result of anything done or said by Hickey.
The trial court made a rather novel finding. It said “Because of the excessive water * * * Larsens and Smiths decided it would be to the best interests of both that the ditch be relocated.” This, of course, has nothing to do with Hickey or this case. As a matter of fact, not only was there no admissible evidence that Hickey was any party to a conveyance, oral or written, but Hickey by the provision he inserted in his deed to the bank, actually disclaimed any such intention, as pointed out supra.
One wonders what this court’s position would be if, under identical circumstances, this case was concerned, not with the creation or grant of an easement for transportation of water, Larsen orally had agreed or attempted to convey half of Hickey’s land to Smith for half of Smith’s adjoining tract.
A case that quite appropriately reflects the observations of this dissent, and which states reasons that should be controlling in the instant case, is that of Cook v. Rigney, 113 Mont. 198, 126 P.2d 325 (1942), which see.
*
. Title 25-5-1, Utah Code Annotated 1953: “No * * * interest in real property * * * shall he created, [or] granted * * * otherwise than * * * by deed or conveyance in writing subscribed by the party creating [or] granting * * the same, * *