concurring specialty-
I agree wholeheartedly with the results achieved, which affirmed the judgment of the district court, not for the reason stated by the majority but because the district court’s findings of fact were not clearly erroneous. It was not demonstrated that the district court’s findings of fact were without substantial evidentiary support nor that those findings were induced by an erroneous view of the law. Rule 52(a), N.D.R.Civ.P.; Fine v. Fine, 248 N.W.2d 838 (N.D.1976); Stee v. “L” Monte Industries, Inc., 247 N.W.2d 641 (N.D.1976). See also, Pettibone Minnesota Corp. v. Castle, 247 N.W.2d 52 (Minn.1976).
The district court tried this case without a jury and, as required by Rule 52(a), N.D.R.Civ.P., it found the facts specially and stated separately its conclusions of law thereon. From the findings of fact, I am able to obtain a clear understanding of the basis for the trial court’s conclusions. See Ellendale Farmers Union Cooperative Ass’n v. Davis, 219 N.W.2d 829, 836 (N.D.1974). With or without giving due regard to the opportunity of the district judge to judge of the credibility of the witnesses, I could reach no other conclusion than that those findings are not clearly erroneous.
“If we were to judge from the cold print, we might decide many cases differently than trial judges do, and this case might be one of them. But, if we decided differently, we would have no assurance that ours was the better decision.” State v. Olmstead, 246 N.W.2d 888, 890 (N.D.1976).
I cannot accept some things this Court has said about scope of review and related matters in this case, or over the years, nor can I accept a doctrine that appears to say that Rule 52(a) does not mean what it says. There was no appeal to this Court from the probate court judgment and, therefore, none of the probate court’s findings of fact or conclusions of law could have been under attack here. Nonetheless, by a tenuous and tortuous route, the majority opinion simultaneously, in effect, reviews findings of both the probate court and the district court and pronounces that they are supported by the preponderance of the evi*664dence.1 This farfetched strategy was compelled by a hidebound commitment to precedent.
This bothersome precedent is two recent cases which were decided by a unanimous court (including this writer): Dolajak v. State Auto. & Cas. Underwriters, 252 N.W.2d 180 (N.D.1977), and Bach Millwork Co. v. Meisner & Co., 228 N.W.2d 904 (N.D.1975). Without arbitrarily concluding that Dolajak and Bach Millwork were wrong, I agree with legal writers who have said that it is dangerous to formulate important precedents without an adequate, wholehearted and controversial presentation of the issue. If the remarks in Dolajak and Bach Millwork are more than collateral dicta when they, in effect, amend Rule 52(a), then I have to acknowledge the error in my ways and seek a correction for the future. In neither of those cases do I recall any significant argument directed to this issue. We nevertheless proceeded to expound on the proper review of findings of fact based upon documentary evidence, in Dolajak, though it is concluded that the question at issue was more one of law than of fact (252 N.W.2d at 182), and, in Bach Millwork, though the findings of fact reviewed appear clearly to be conclusions of law (and therefore properly reviewable outside of the strict confines of the “clearly erroneous” rule of Rule 52(a), N.D.R.Civ.P.).
Though Rule 52(a), in its present form, is a relative newcomer in North Dakota, the subject of the proper review of a trial court’s decision is not.
“ . . . findings of fact of a trial court, like the verdict of a jury, will not be disturbed by an appellate court when they have substantial support in the evidence, . . . and, where the finding is based upon parol evidence, it will not be disturbed, unless clearly and unquestionably opposed to the preponderance of the testimony. Randall v. Burk Tp., (S.D.) 57 N.W. 4. Of the probative force and value of depositions and documentary evidence, this court may be in as good situation to determine as the trial court; . . . ” [Emphasis added.] Jasper v. Hazen, 4 N.D. 1, 58 N.W. 454, 455 (1894). See also, Jasper v. Hazen, 1 N.D. 75, 44 N.W. 1018 (1890), and Jasper v. Hazen, 2 N.D. 401, 51 N.W. 583 (1892).
This, then, was the law when Chapter 82, S.L.1893, provided, in part, that upon appeals from district courts of causes tried without a jury the Supreme Court “shall try the cause anew upon such judgment roll.” Trial de novo continued until § 28-27-32, NDCC, was repealed by Chapter 311, S.L.1971. See Trinity Builders, Inc. v. Schaff, 199 N.W.2d 914, 917 (N.D.1972).
Shortly after Rule 52(a) was amended into its present form, this Court said, in In re A. N., 201 N.W.2d 118, 121 (N.D.1972):
“It is obvious that the adoption of Rule 52(a) in August of 1971 as an amendment to the existing Rules was designed to set a new standard for reviewing questions of fact — a standard that gives the trial judge more finality of decision. The 1971 session of the Legislature (Senate Bill 2252) abolished the so-called ‘de novo’ statute. Accordingly, Rule 52(a) was amended to conform to the Federal Rule 52(a) and includes the scope of review given to findings of fact by the trial court. [Footnote omitted.] The Federal Rule applies to any civil action tried without a jury save for the exceptions and limitations stated in Federal Rule 81, Wright & Miller, Federal Practice and Procedure: Civil § 2572.”
Further comments need to be made about the two recent decisions by this Court, in which I joined with the majority, and which now this Court says resolved the issues by adopting the position expounded by Moore’s Federal Practice [Dolajak, supra, and Bach Millwork, supra]. In Dolajak we said that “we further believe that the question here is more a question of law than a question of *665finding of fact.” And, in Bach Millwork, we said that there was no evidence in the record to support certain findings of fact. In neither of these cases were we compelled, in order to reach a just decision, to adopt any position to extricate ourselves from a necessity to apply Rule 52(a). Courts have distinguished their own and other courts’ rulings for lesser reasons.
Especially when we have no authority to make a de novo review, the function of this appellate court and that of the trial court must be distinguished. Even in those situations where we cannot give due regard to the opportunity of the trial court to judge of the credibility of witnesses (because it saw no witnesses), we are still obligated to give its findings due regard because they are presumptively correct, and we should not set them aside unless we are convinced that they are clearly erroneous. We should not grant trial de novo reviews by calling them something else.
As a part of his article on The Doubtful Omniscience of Appellate Courts, 41 Minn. L.Rev. 751 (1957),2 Charles Alan Wright, Professor of Law, University of Texas, wrote about the two views of Rule 52(a) as follows:
“Such rule has been thought to leave a question, of considerable interest for our purposes, as to the scope of review of the trial court’s findings in cases where the evidence was documentary, and where, therefore, the trial court had no special opportunity ‘to judge of the credibility of the witnesses.’ Some courts have said that in such a situation the appellate court, being in as good a position to judge the evidence as was the trial court, can more readily find the trial court’s findings to be clearly erroneous. [Footnote omitted.] Though such a gloss on Rule 52(a) may be regarded as unnecessary [Footnote omitted.], it has at least the merit of being a sound gloss. But then other courts, reasoning from the gloss on Rule 52 rather than from the rule itself, went on to say that the appellate court is not bound at all, and that review is de novo with no presumption in favor of the trial court’s findings, where the evidence below was not oral. [Footnote omitted.]” 41 Minn.L.Rev. at 764.
“Professor Moore, who favors broad review in the situation we are discussing, concedes that the intent of Judge Charles E. Clark, the draftsman of Rule 52, was to have the ‘clearly erroneous’ test apply regardless of the nature of the evidence . .” 41 Minn.L.Rev. at 768.
“In two respects the form of the rule as finally adopted seems to prohibit any distinction between findings based on oral evidence and findings based on documents. First, the rule as finally adopted states positively the test to be applied, rather than adopting by reference prior standards of review in equity. . Second, Rule 52 says that findings shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” 41 Minn.L.Rev. at 769.
Rule 52(a) does not state: “Findings of fact shall not be set aside unless clearly erroneous if the trial court has had an opportunity to judge of the credibility of the witnesses.” Even if we concede that the appellate court is in just as good a position as the trial court to “weigh” documentary evidence, it does not follow that an appellate court should arbitrarily substitute its view for that of the trial court. See Pendergrass v. New York Life Ins. Co., 181 F.2d 136, 138 (8th Cir. 1950), which held:
“The entire responsibility for deciding doubtful fact questions in a nonjury case should be, and we think it is, that of the district court. The existence of any doubt as to whether the trial court or this Court is the ultimate trier of fact issues in nonjury cases is, we think, detrimental to the orderly administration of justice, impairs the confidence of litigants and the public in the decisions of the district courts, and multiplies the number of appeals in such cases.”
*666We have already seen the effect of Dolajak on lawyers’ arguments, it having been now argued in another case that, even with oral testimony which is not significant, Rule 52(a) should not apply.
The following observation is made at 2B Barron and Holtzoff, Federal Practice and Procedure, § 1132, at 516 (Wright Ed. 1961):
“Despite the clear language of the rule, two Notes by the Advisory Committee, and pointed expressions from the Supreme Court, the authorities are indescribably confused.”
That confusion should not justify throwing the baby out with the bath water.
In the cases of Eichenberger v. Wilhelm, 244 N.W.2d 691 (N.D.1976); Ellendale Farmers Union Cooperative Ass’n v. Davis, 219 N.W.2d 829 (N.D.1974); and Warner v. Johnson, 213 N.W.2d 895, 897 (N.D.1973), we “adopted” the Wright & Miller explanation of the purposes behind Rule 52(a).
In Warner we said:
“One purpose of requiring findings of fact is to aid the appellate court by affording it a clear understanding of the ground or basis of the decision of the trial court. Another purpose is to make definite just what is decided by the case in order to apply the doctrines of estoppel and res judicata in future cases. Finally, and possibly most important, the requirements that findings of fact be made is intended to evoke care on the part of the trial judge in ascertaining the facts.” [Emphasis added].
It appears to me that there would be no purpose in requiring care in the preparation of findings of fact (where the trial court is considering only documentary evidence) if we, in fact, are going to ignore those findings and made a de novo review, reaching our own inferences and conclusions. The majority opinion returns us to a reviewing posture similar to that which prevailed before the abolishment of trial de novo and the adoption of Rule 52(a) in its present form.
I acknowledge that Rule 52(a) is not universally popular amongst lawyers and judges. In 1940, Judge Nordbye presented a paper to the Eighth Circuit Conference in Kansas City on the subject of findings of fact, and from a Michigan commission to study procedure he made the following quote:
“The preparation of findings is burdensome. Special findings of fact, when employed, become the foundation for the judgment, and the evidence cannot be looked to as in equity cases. It results from this that after a case has been properly established by proof that will always be jeopardized and may frequently be ruined in the process of transcribing it into the form of findings.” Nordbye, Improvements in Statement of Findings of Fact and Conclusions of Law, 1 F.R.D. 25, at 26. (Mo)
That criticism related to the need to prepare findings, and expressed the views of some Michigan lawyers. We have had a similar pessimistic, defeatist reaction from some North Dakota lawyers in our own courtroom when discussing the application of Rule 52(a) to the appellate process.
I attribute the fear of Rule 52(a) to lack of understanding. Distinguishing between a finding of fact and a conclusion of law has always been a most difficult thing.3 I *667do not pretend to have an answer to all of the problems that I see; I merely resist another opinion which appears to me to add to the problem.
I could understand (because of Article VII of the United States Constitution) an attempt to distinguish between the reexamination we make of jury fact-finding and trial judge fact-finding, but we have presumably abolished that distinction. James River Nat. Bank v. Weber, 19 N.D. 702, 124 N.W. 952 (1910). What I cannot understand is why we should follow a practice that gives less dignity to a trial judge’s findings than we give to findings of administrative agencies, solely because the lawyers stipulated that the district court could try the case upon the record made in the probate court.
. This Court recently considered a case in which the appeal from probate court to district court involved the taking of judicial notice of the probate court file (although there was also oral testimony), but we did not there go so far as to imply that we were concerned about any preponderance-of-the-evidence rule. See Conway v. Parker, 250 N.W.2d 266 (N.D.1977).
. See also, Clark and Stone, Review of Findings of Fact, 4 U. of Chi.L.Rev. 190 (1937), and Scope of Appellate Fact Review Widened, 2 Stan.L.Rev. 784 (1950).
. Still, it behooves this Court to exercise the greatest of care to be both consistent and correct in such determinations. In addition to obtaining the proper result for the parties before us, we would provide needed guidance for the bench and bar. An intelligent young lawyer recently noted to us, in a petition for rehearing, that certain of our comments left him feeling like Alice in Wonderland: Alice had been looking over his [the Mad Hatter] shoulder with some curiosity. “What a funny watch!” she remarked. “It tells the day of the month, and doesn’t tell what o’clock it is!” “Why should it?” muttered the Hatter. “Does your watch tell you what year it is?” “Of course not,” Alice responded very readily, “but that’s because it stays the same year for such a long time together.” “Which is just the case with mine,” said the Hatter. Alice felt dreadfully puzzled. The Hatter’s remark seemed to her to have no sort of meaning in it, and yet it was certainly English. “I don’t quite understand you,” she said, as politely as she could. “The Dormouse is asleep again,” said the Hat*667ter and he poured a little hot tea upon its nose. L. Carroll, Alice’s Adventures in Wonderland & Through the Looking Glass 76 (Lancer Books 1968).
It goes without saying that we should make an effort to be understood but in order to do that we may first need to overcome our own dreadful puzzlement.