Danielson v. Danielson

No. 13549

I N THE SUPREME COURT O F THE STATE O M N A A
F OTN

1977

H R A 0 . DANIELSON and
EMN
JUNE DANIELSON WARD,

P l a i n t i f f s and R e s p o n d e n t s ,

-vs-
DAN DANIELSON and W Y E NEU,
AN

D e f e n d a n t s and A p p e l l a n t s .

Appeal from: D i s t r i c t Court of t h e Seventh J u d i c i a l D i s t r i c t ,
Hon. L. C . G u l b r a n d s o n , J u d g e p r e s i d i n g .

C o u n s e l of Record:

For Appellant:

V. G. Koch a r g u e d , S i d n e y , Montana

For Respondents:

C r e s a p and P h i l l i p s , S i d n e y , Montana
R i c h a r d G . P h i l l i p s a r g u e d , S i d n e y , Montana

Submitted: J a n u a r y 24, 1977

Decided: 1 0 1977 - - A
- -
M r . J u s t i c e Frank I. Haswell delivered t h e Opinion of t h e Court.

The owners of a t r a c t of land i n Richland County secured

a permanent i n j u n c t i o n r e s t r a i n i n g t h e holder of a l i f e e s t a t e

t h e r e i n from s e l l i n g and removing g r a v e l from t h e premises. The

l i f e t e n a n t appeals.

P l a i n t i f f s Herman 0 . Danielson and June Danielson Ward,

owners of t h e land, a r e t h e a d u l t i s s u e of defendant Dan Danielson,

holder of a l i f e e s t a t e i n t h e land. The o t h e r defendant, Wayne

Neu, has been hauling and removing g r a v e l from t h e land f o r com-

mercial purposes under an agreement with defendant Dan Danielson.

The f a t h e r purchased t h e land with h i s own funds and

o f f e r e d h i s son and daughter t i t l e t o a p o r t i o n thereof on c e r t a i n

conditions. One of t h e conditions was t h a t he would have t h e r i g h t

t o use t h e land a s he saw f i t during h i s l i f e t i m e . The s e l l e r

conveyed t h e t r a c t d i r e c t l y t o t h e son and daughter. They i n t u r n

conveyed a l i f e e s t a t e i n t h e land back t o t h e i r f a t h e r , g r a n t i n g

him " t h e r i g h t t o u s e , a s he may deem f i t , and t o r e c e i v e t h e i n -

come and proceeds" from t h e land f o r h i s l i f e t i m e .

O March 29, 1976 t h e son and daughter commenced an
n

a c t i o n a g a i n s t t h e i r f a t h e r and Neu t o permanently e n j o i n them

from removing g r a v e l from t h e premises. A hearing was held i n

t h e d i s t r i c t c o u r t , Richland County, without a jury on May 19,

1976. O J u l y 7, 1976, t h e d i s t r i c t c o u r t entered i t s f i n d i n g s of
n

f a c t and conclusions of law i n favor of t h e son and daughter and

permanently enjoined t h e f a t h e r and Neu from s e l l i n g and removing

g r a v e l from t h e premises.

The d i s t r i c t c o u r t found t h a t a t t h e time of c r e a t i o n of

t h e l i f e e s t a t e and a t t h e time t h e f a t h e r went i n t o possession of

t h e land thereunder, t h e premises was used only a s grazing land and
there was no commercial gravel pit in operation thereon. The
district court also found the father had only a life estate in
the premises "giving him the right to use said premises for the

purposes for which it was reasonably being used at the time of
creation of the life estate and to receive the income and pro-

ceeds therefrom, but that such right does not include the right

to sell and remove gravel from the premises or operate a commer-

cial gravel pit thereon." After finding the son and daughter had

no adequate remedy at law, the district court perpetually enjoined

and restrained the father and Neu "from selling and removing gravel

from the above described premises." The father alone appeals.
Three issues are assigned for review on appeal:

(1) Did the district court err in not considering the

language of the life estate reservation "as he may deem fit" and

in refusing to permit the father to explain the term.

(2) Was the district court's finding that plaintiffs
have no adequate remedy at law error?
(3) Sufficiency of the evidence to support the district

court's finding that at the time the father acquired the life
estate and went into possession thereunder, the premises were

only used as grazing land and there was no commercial gravel pit

in operation thereon; and that the findings and conclusions are

not supported by the evidence and the law and do not support the
restraining order.
The first issue is determinative of this appeal. The
father was granted a life estate in the land under a written
instrument granting him the right to use the premises "as he may

deem fit" and to receive the income and profits during his life-

time .
 This language grants the life tenant the unqualified use

of the premises during his lifetime. The grant is unambiguous.

It means what it says. It requires no interpretation.

Under such circumstances, the controlling Montana statutes
read:

"Intention to be ascertained from language. The
language of a contract is to govern its interpretation,
- -
if the language is clear and explicit, and does not
involve an absurdity." Section 13-704, R.C.M. 1947.

"Interpretation of written contracts. When a contract
is reduced to writing, the intention of the parties is
to be ascertained from the writing alone, if possible;
subject, however, to the other provisions of this
chapter." Section 13-705, R.C.M. 1947.
It is clear from Montana cases that where the language

of a written contract is clear and unambiguous there is nothing
for the court to construe; the duty of the court is simply to

apply the*languageas written to the facts of the case, and

decide the case accordingly. Nelson v. Combined Insurance Co.,

155 Mont. 105, 467 P.2d 707; Matteucci's Super Save v. Hustad

Corp., 158 Mont. 311, 491 P.2d 705.

In such case, the court may not receive extrinsic evidence
in aid of interpretation. Hill Cattle Corporation v. Killorn,

79 Mont. 327, 256 P. 497. If such extrinsic evidence is none-

theless admitted without objection, the evidence must be dis-

regarded. First National Bank of Plains v. Soil Conservation

District, 130 Mont. 1, 293 P.2d 289.
While it is within the province of the court to interpret
contracts which are open to interpretation, the court cannot make
new contracts for the parties, or alter or amend the contract the

parties themselves have made. Emerson-Brantingham Implement Co.

v. Raugstad, 65 Mont. 297, 211 P. 305. The governing statute,
section 93-401-15, R.C.M. 1947, expresses this principle in this

language :

"Construction of statutes and instruments--general rule.
In the construction of a * * * instrument, the office
of the judge is simply to ascertain and declare what is
in terms or in substance contained therein, not to insert
what has been omitted * * *."
Here the district court imposed a restriction on the use

of the premises by the life tenant that the parties themselves

did not include in the written instrument creating the life estate.

The district court limited the use of the land to "the purposes
for which it was reasonably being used at the time of creation of

the life estate" and prohibited operation of a commercial gravel
pit on the premises. This was reversible error under a grant to

the life tenant to use the premises "as he may deem fit" and

granting him the income of the land for life.
Under the language of the grant of the life estate, we
need not consider the "open mining doctrine" as it would not

change the result.

The order and judgment of the district court is reversed.

The findings and conclusions are amended in conformity with this

opinion. The injunction is vacated and judgment entered for de-

fendants.

Justice.
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