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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