*1 stоck, agreements mortgages water as be- and the constituted company settler and this court tween the construction and the has so held. Ries, supra
In Valier-Montana Land & Water Co. v. [109 (2d) apparent Mont. “It 588], 97 Pac. this court said: complaint from the and men contracts annexed to the amended findings, present tioned in the that the transactions constituted purchases rights, and sales of the stock and water that the water right immediately inseparably appurtenant became lands mentioned, agreements mortgages constituted parties.” between the
Certainly the conclusion that there was no sale of the water stock “paid finds no basis in fact law. The water stock was for” meaning within the of the contract foreclosures or deeds taken lieu of foreclosure. Company
In Co., supra, North Side Canal v. Idaho Farms expressly by saying: “Bespondent court so held cаlls attention 41-1726, A., to the fact that section I. C. does not limit the lien foreclosure, gives payment. Payment, but one until time however, is, 41-1735, default under 41-1728 case of sections A., inclusive, accomplished completely I. C. foreclosure or practi- deed lieu thereof.” The statutes there considered are cally 81-2118, B. M. 1947. same as section C. B. the Hon. C. Elwell was
I decree entered think the should be affirmed. and that it March 1950.
Behearing denied Supreme Court of the United States denied in the Certiorari 5, 1950. October Appellant. MIX, MISSOULA, Respondent, OF
CITY v. No. 8921. January 10, 8, 1949. Decided November Submitted January 19, 1950. Amended (2d) 214 Pac. *3 Angstman, both of C. and Mr. Albert Ralph Mr. J. Anderson appellant. Warden, Kalispell, for Merritt N. Mr. Helena, and orally. argued Warden and Mr. Anderson Mr. Mr. Missoula, respondent. Schilling, for W.
Mr. Fred orally. argued the cause Schilling BOTTOMLY:
MR. JUSTICE corporation, against municipal city Missoula, a of Action extent of defendant’s judgment as to the Mix, for David F. plaintiff, wherein lands of the upon certain and over easement judgment an adverse defend- cross-complained. From defendant judg- part of said a certain apeals from Plaintiff appeals. ant ment. F. David defendant as follows: The facts are undisputed
The of, thereto, was owner 1947, prior Mix, July 7, on possession of, possession entitled to of the exclusive lots 27, inclusive, to of block of McCormick’s addition to Missoula, of county, Montana, according Missoula to the official plat or map said of addition on file and record in of of the office county clerk and county, recorder of Missoula Montana. only documentary. material was evidence introduced
By July 7, 1937, deed dated and filed for 9th record day July 1937, of and recorded in Deed Volume Records county, Montana, Missoula F. state Mix and Ada F. David Mix, wife, conveyed his R. to one L. McKenzie 21 аnd Missoula, of block McCormick’s to addition which deed con- following tained “Reserving, however, reservation: parties part, heirs, first their assigns, successors and right and portion easement use all property of that of said above described lies (100) which south of north hundred feet of each purpose of said lots for and from lots Block 56 inclusive said in said addi- tion.”
By an deed, -28, instrument quitclaim February entitled dated wife, 1938, LeRoy McKenzie, McKenzie and Eleanor T. his con- veyed to lying, of Missoula “all real sit- being uated and line, that certain parallel line is Street, feet south of the south line of West Front Missoula, Montana, and the south bank of the Missoula River and between the east line of southerly lot as extended lot southerly west as extended all in Block No. W. J. City according McCormick’s Addition to the of Missoula ’’ to the official thereof. hearing stipulated
At the it agreed wаs L. Mc- R. LeRoy Kenzie and person. McKenzie is one and the same It stipulated alleys was further that there are not across or within the area of of the land involved.
Plaintiff introduced in evidence the deed from Mix to Mc- city Kenzie and the deed from McKenzie to the of Missoula and a plat of the area. certified
By city Whalen, engineer, plaintiff witness identified the map plat, controversy, or in and that there no are alleys designated otherwise; average alleys driveways width of in the of Missoula and is leading private property feet, into should be about ten to twelve objection all of which was over of defendant. appeals basing
Plaintiff error on the court’s amended find- ings part judgment grants and conclusions and that of the which particular language easement to others than Mix. The judgment and complained by plaintiff decree pаrt is that grants which right to, “Mix, tenants, family, easement his servants, agents, employees, licensees, and invitees and all other persons desiring ingress to and from lots 23 to inclusive, permission express implied.” with defendant’s appeals
Defendant from judgment wherein the de- court nied defendant’s claim to an easement over all the em- lands in braced 22, lying south “of that certain line parallel to and 130 feet south of the south line of Street, West Front edge to the water’s River, of Missoula all in Block of W. J. McCormick’s addition to the Missoula, county, Missoula Montana.” controversy
There is no regard facts, to the the deeds or the land involved. question for determination is rights the extent of the
interests retained and by reserved the land the defendant the deed he his wife McKenzie, executed to July 7, dated may and as to right, who this use interest and easement.
It should be noted dealing that we arе here with a reservation grantor out of his property, reserving own grantors right, interest, an an estate, easement real grant and not a or a way deed to a easement. Therefore the doctrine and applicable law an necessity easement does apply. not A reservation in a right, deed is some interest or esta te grantor granted
retained in premises. It creates privilege for grantor the benefit of the in the land granted described as it operation withholds from grant. Jur., “Deeds,” 187, p. Cal. sec.
370
“An appurtenance (Smith Denniff, easement is an v. to land 20, 398, 737, Rep. Mont. 60 50 L. R. A. 81 Am. St. Pac.
[24 408]) interest, and constitutes an in real under all the (Northern Ry. 146, Carland, authorities. Pac. Co. 5 Mont. 3 v. 134).” 510, Mannix 60 County, 513, Pac. Powell Mont. 199 v. 914, Pac. 915. way, public
“The ‘character whether it is is private, or right it, determined use and not the extent of the to Ry. right Butte, extent to which that is exercised’.” A. & P. Co. Ry. 232, v. 41 31 L. Co., 504, Montana U. 16 Mont. Pac. R. A. 298, Rep. 508; Davis-Daly Co., Kipp Copper Am. St. v. 509, A., S., 66, N. 237, 241, Mont. Pac. L. R. Ann. Cas. 1372. property right protected by
An easement is a constitutional guaranties against taking private property with- just compensation. private right way A an out is easement and is land. to owner of an ease- The United States is liable appurtenant condemning ment in a suit the fee of the servient 974; Gossler, C., Supp. 971, estate. U. v. 60 F. U. S. v. S. D. L Welch, 333, 527, 787, A., 54 L. Ed. 28 R. U. S. S. Ct. S., 385, N. 19 Ann. 680. III Cas. See Sections Article of our State Constitution. conception conveyancing, however,
“The modern seeks to grantor from a ascertain the intent of the consideration instrument, regard position the sev the entire without clauses, and, give in eral order to effect to intent when ascertained, exception reservation, an will be construed as Syndicate Big Co., 98 v. West Oil vice versa.” Marias River (2d) Mont. 38 Pac. in Supreme interpreting Court of North Carolina a reser- grantors, their heirs and
vation a deed which reserved to the may assigns, right hunt of the described lands as uncultivated, protect remain uncleared and against trespass, that if game on such land stated enjoyed by holding estate, regarded certain it is reason of other estate, grantors light an easement to such that the have uncultivated lands uncleared upon the right to enter power and had the guests, invited and with person, question, Sanderlin, 183 v. See, Council game thereon. protect L. R. 365, 32 A. 253, 111 S. E. N. C. being the owner grantor, questioned that
It cannot be
go and come as he
right to
had a
giving his deed
fee, before
purpose,
for such
the land
using any part or all of
will,
any-
express
implied to
authorize,
grant permission,
invite,
fit,
exclude therefrom
saw
or to
the land as he
to transverse
one
*6
right
grantors
the
unlawfully.
entering
Such
anyone
thereon
reservation, re-
by
conveyed, but
the
parted with, never
never
168,
The all right, veyance, their interest have limited and restricted conveyed definitely described smaller easement in land a they evidently and intended to portion land, but desired in use of the servient be untrammeled and unrestricted hardly more language grantor could be estate. The used unambiguous, “reserving, however, to the explicit, clеar heirs, assigns, part, first their successors parties of portion to use of that of said right and easement all (100) hundred lies south of the north above described to and purpose for the of each said lots ’ ’ 56 in 27, inclusive, said Block said addition. from lots Obviously words used were to dis- supplied.) (Emphasis of easement of undefined from one tinguish the reservation the area reserved. and to make certain width or area language The used this reservation when read in connection with the whole instrument manifests the intention of the grantors in intelligent distinct and terms. language Such needs interpretation. no
By statutory language rule the a grant reservation in a interpreted
to be grantor, favor of the which is a differ ent rule from that which existed at many common law and under other state statutes. grant “A is to be interpreted in grantee, except favor of the * * * any grant reservation intеrpreted is to be in favor grantor.” See. 1935; R M. County C. Mineral v.
Hyde, 111
535, 111
(2d) 284;
Ackerman,
Mont.
Pac.
v.
Sears
583, 586,
Cal.
Where the grant a reservation in a is cle certainand unambiguous, given it must be effect as written. may destroy right by court not rewriting defeat or conveyance.
The owner may of a reserved easement use it to the full use of retained. The owner of the servient tenement may make use of chooses, the land lawful manner that he which use is not inconsistent with and does not interfere with the use and reserved to the dominant tenement or estate. Whatever is grant by excluded exception from the or reserva- *7 grantor tion right remains his former or and title passes grantee. never
It is a specious argument say rather plaintiff city that the
may not this land do, use as it desires to because of the imposed by burden the reservation and therefore the burden lightened. must may be property rights One not invade the justify another and attempt explain or legal to excuse or such wrong because of the need. The answer plain thereto is that the imposed tiff knew of the limitations on this at the time purchased, it so it is assumed the paid received what it for. If conveyance it desires the full unrestricted another fee is called for. grantors right
The reserved the and easement on the servient parties estate to being first Mix part, David F. Mix, wife, Ada L. his heirs, assigns, their successors and for the purpose egress inclusive, to and from lots 23 right they already by said block 56. reserving This had and right such say it continued as before. No one would that before the defendant conveyance, Mix, executed said defendant his wife, family, tenants, servants, agents, employees, invitees and licensees, and persons desiring ingr.ess all other and from lots 23 to with permission, express defendant’s or implied, might not and use property, having traverse this re- right use, tained this for such right such continues.
The rule is stated, private way well may “While a not be used
by public generally by any having or one no better right general public, than the way owner of such a is not by limited himself, may to its by use but it family, by be used his tenants occupying authority, by the land with his his servants, agents, employees or in conducting business, by persons his trans acting him, by guests business with for purposes,' except social right cases where way by is express agreement created by the user is restricted agreement. the terms of the Where way appurtenant estate, may to an it be used who those lawfully own or occupy any part thereof, persons all lawfully going to or from premises, they whether are men grant tioned in the persons not. No belonging to the classes trespassers. mentioned However, are until way the owner of the extends an invitation either implication, actual or no third person can claim way, the benefit way the owner of the being entitled to strangers exclude from its use if their use impedes the free exercise of passage.” S., his 28 C. J. Easements, 90, page 769, sec. See, cases cited. Siedler v. Waln, 266 Pa. 109 A. 8 A. L. R. ‘‘ that, It has been stated private alley reference to a dis- tinguishes public alley, it from a the care and maintenance of charged public, which is on but does not define or limit the persons character of use which those entitled to a way alley private over the shall make of it. Nor is the owner of *8 persona. way by propria himself in limited to use its
way having belongs property. persons him as his All occasion by may, passing business with him permission, with his transact way. may it, use his servants and em- to and fro over the He ’’ Mathis, 63 N. J. ployees, conducting in his business. Shreve v. Eq. 170, 234, 52 A. grant аppears terms a that it was
When it from the clear right, in the nature of a grantor to reserve intent of the easement, property granted, in for the benefit servitude or grantor, no matter what form such of other land owned covenant, may condition, or purpose expressed, be whether it be pol reservation, right, against public if exception, not icy, grantor, appurtenant will be held to the land to be right and binding conveyed grantee, and the on that to all imposed pass burden thus will with the lands created Thompson Property, Real Par. subsequent grantees. See Eq. 386, 190, 19 A. 3505, p. 740; Sayer, N. J. Coudert v. “Easements,” 29, 942; v. cited; Jur., p. sec. Knotts cases Am. 280; Co., 126 A. Greenwalt v. Mc Park 146 Md. Summit (2d) 522, 525. Cardell, 178 12 A. Md. regard express
“In restrictions absence regarded having can grant, persons it sees that all who be implied, enter on the dominant tene permission, express or ment, may way purpose access to such tenement use a for the family Consequently members of the therefrom. guests, employees, his owner, his servants and dominant business, with whom he does persons and other tradesmen using; guilty trespass persons are not may Such do so. would, seems, have a it easement way, the owner of the. with use of the an there was in case interference of action ’’ Tiffany, Prop Real these classes. of one of way a member 326; Richardson. Commonwealth v. Ed., p. erty, sec. 3d 648; Waln, A. L. R. Siedler v. (2d) 678, E. 48 N. Mass. N. 321, E. Ass’n, 239 N. Y. Drabinsky Gate v. Sea supra; .by appeal defendant’s raised the issues Therefore as *9 raised and to the issues judgment reversed as is judgment is affirmed. plaintiff’s appeal right extending the easement to those enu- was in The court in judgment, and but erred re- in the amended decree merated agree it area. We of course stricting the easement as did as to not, reservation dоes of defendant’s the south boundary of the Missoula any theory, extend to the south under judg- instructions enter is remanded with to River. The cause conformity Mix in with this David F. ment for defendant opinion. FREEBOURN, JUSTICES ANGSTMAN and
ASSOCIATE METCALF, concur.
MR. JUSTICE ADAIR: CHIEF
I dissent. wholly in insufficient to
First. The evidence this record is any plaintiff property defendant to show title either claimed either in suit. this only plain-
The evidence in record that introduced city. (1) warranty tiff It of: deed from defendant consists The McKenzie; (2) city; quit claim deed from McKenzie to the (3) (4) pages map; unauthenticated contour and five of tes- an timony elicited from two witnesses. whatever,
The defendant introduced but rested no evidence interpretation his case on the to be accorded “reservation” warranty contained in deed from defendant to Mc- clause placed by plaintiff. so Kenzie evidence Second. Should sufficient additional evidence be adduced to city strip land, establish title in the claimed possibly eighth length, wide and an of mile or more then right defendant’s claimed reservation of the and easement to purpose and to and from defend- use for the addition, 56 W. J. McCormick’s if not ant’s indefiniteness, but accord would to defendant invalid for way right use a right reasonable width to select such as would be under the circumstances for access reasonable to and from property. defendant’s The reservation should not interpreted effectively be so as to defeat the of the owner enjoyment the fee to the use and of his nor should it grantor any be construed to reserve in the to at all parts top times use and all of said of land from roadway. for bottom city’s complaint it avers that is the owner and entitled to possession, enjoyment piece parcel use and of that certain lying being corpоrate
of land within the limits of the particularly of Missorda and more described as: “All the real property lying, being line, situated South of that certain parallel and 130 line is feet South of the South line of City Missoula, Montana, West Front Street in the and the *10 South hank the Missoula River and between the Bast line of of Lot 20 22 southerly, as and the West line of extended Lot as southerly, all in Block 56 W. extended of J. McCormick’s Addi- City Missoula, according map plat tion to the of to the official or County thereof file and of record of the office of the Clerk County, (Emphasis sup- and Recorder of Missoula Montana.” plied.) 20, 21 22
Lots and in Block 56 W. J. of McCormick’s addition are each 30 feet in combined width width so the of the three boundary boundary the 20 from east line of lot to the west boundary line lot 22 measures 90 feet. north The line of each boundary lot is south line Front the street. The south boundary upon “according line of each lot is indicated and map plat” to the official or of W. J. McCormick’s “on addition County file and record the office of Clerk and Recorder ’’ County. of Missoula There is no evidence the record before this court that lots ‘‘ according 22 in 56 21 and of said addition to the offi- map plat and of cial or thereof on file record” extend as far as “130 feet of the South of West Front Street” or that South line “according map plat the official or of said lots thereof” length any part portion as 130 feet in or that is as much
377 its strip by land and described in com- claimed so 22 plaint and is situate within the boundaries of said lots “according to-the said block of "W.J. McCormick’s addition ’’ map official thereof. city’s complaint title a quiet The describes and seeks to strip unmeasured and unknown of land feet width and of length strip parallel and 130 feet lies south of a line south extends “the South of the south line of Front street and bank of the Missoula River.” city (the being strip by
The claimed corners land so represented by J) I ad- the letters G. H. and some of the jacent area is here sketched. A represents
Point a drive-in restaurant in lots 23 located by and 24 B represents gas owned defendant Mix. Point oil service station located on the north feet of lots by strip owned McKenzie. corners of of land by by represented letters, G, H, I, claimed are J. boundary The north represented by line claimed G-H, boundary being letters the south line bank the south by I-J, boundary by the Missoula River the letters the east line boundary by the letters H-J and the west line G-I. the letters parcel The corners represented owned McKenzie are C, D, G, H, representing the letters letters C-D boundary north 56 in line of lots in block ~W.J. representing McCormick’s addition and the letters G-H the south portion line of the of said lots now claimed Mc- Kenzie. E-F represent parallel
The letters to and *11 (C-D) 20, 21 boundary 22, being of the north of lots K, N L, M, also the south line Front The letters Street. represent Parkway Bridge northeasterly in a which extends southwesterly Missoula River. direction across the boundary city alleged strip involved to be (I-J) boundary river. the south bank of the Missoula The north alleged (G-H) parallel a line to and located be 130 feet south of the south line of Front Street.
379 apart constitute the H-J) 90 feet (G-I and parallel Two lines boundary lateral locate such strip. To lateral boundaries of the surveyed measured lines certain lines resort must be had to plat of W. J. map or marked, the official and shown on described particularly city Missoula and McCormick’s addition to out, marked and situate to addition, 56 in all laid block said north Missoula river. boundary (H-J) of the line and determine the east
To locate 56 in 20 in block involved, boundary line of lot strip the east to have been W. such line is shown J. McCormick’s addition as as it is marked on the surveyed, out, laid measured and southerly line until such plat official addition is extended south bank thereof. crosses the Missoula river and reaches the boundary strip line of the To locate and determine the west boundary 22 in of lot question land the west line been is shown to have in W. J. McCormick’s addition as such line surveyed, it is marked on the offi- measured and laid out and as southerly addition, until such cial of said is extended reaches the south said crosses the Missoula River and bank river.
Thus bounded: On the north strip is the land here involved (G-H) south of the south line parallel a line to and street; bank of the Missoula of Front on the south the south G-I) by straight (I-J) (H-J and river and on the and west east boundary lines, southerly as from the line of lot east extended lines lоt until such and from the west line of bank of the river. as reach the south extended cross-complaint defendant prayer In his answer adjudging Mix defendant’s title to said ease- seeks decree egress aforesaid, quieted “be purpose ment for the ’’ plaintiff. against pretentions the claims land city’s to the said claim of title plaintiff July conveyances (1) 10, 1937, (2) March dated upon three rests February 1938, respectively. 28, (3) Marlowe, N. trustee Thomas March (1) On conveyed McCormick, deceased, deed H. of Kate estate eight city lots, David F. Mix beipg inclusive, vacant in block-56 in W. J. addition McCormick’s oil Mis- soula, Montana, according plat, together to the official with the tenements, appurtenances hereditaments and to the same.
Mix, grantee, acquired title to lots inclusive in *13 block 56 in W. J. McCormick’s addition as said numbered lots indicated, marked, are measured, described and shown on the plat official аddition, plat of said which defines and fixes the limits, boundaries, location and measurements of the lots each being 30 wide, each fronting on Front and street each ex- tending southerly respective therefrom for the distances shown on the plat. testimony official documentary There is no or evi- that dence the south line of of said lots located is or shown plat on the official to be as distant as feet south of the south line of Front street.
(2) July 7, 1937, On Mix wife, David F. and parties, first warranty deed, conveyed McKenzie, to L. R. party, second three aforesaid vacant lots so situate in the of Missoula and described in said deed as: Twenty (20),
“Lots Twenty-one (21) Twenty-two (22), and Fifty-six of Block (56), of City McCormick’s Addition to the Missoula, according of map plat to the or said addition official County on file and of record in the office of the Clerk and Re- corder County, of Missoula Montanа.
“Reserving, However, parties part, to the first their heirs, assigns, right successors and and easement to use all of portion that of said above described which lies south (100) of the north hundred feet of each pur- of said lots for the pose and to and 27, inclusive, from Lots 56 in said Block said Addition. singular all
“Together with the hereinbefore described premises, together tenements, with all ap- hereditaments and anywise purtenances belonging thereto or in appertaining, and reversions, the reversion and remainder and remainders, rents, thereof, profits estate, issues and right, title, also the inter- est, homestead, possession,' of .dower and claim and demand, whatsoever, in equity, well law as of the said every parties of, said part, premises first in or to the part parcel thereof, belong- appurtenances with the thereto ing. hold, To have and and singular all the аbove mentioned premises described party part, unto the said of the second assigns and to (Emphasis supplied.) his heirs and forever.” At the trial Mix the defendant was called to the witness stand plaintiff. On concerning his direct examination his intentions b3'- executing McKenzie, Mix, the above deed the defendant without objection, were, testified: “Our was intentions plan made, we have However, we would sell 90x100.” fact remains McKenzie, grantee, bought 21 and 22 in “according McCormick’s addition offi- cial map plat of said addition on file of record” and he took “according under and map to the official of said addition” so record, subject on file and only to the reservation grant.
There nothing in the deed from Mix to McKenzie to indicate *14 that parcel the conveyed, being 20, 21 22 in lots and said addition extends as as 130 much feet south from the north boundary lots, being line of said streеt, the south line of Front or to boundary indicate that the south line of said lots is “the ” south bank of River, the Missoula or to indicate the lateral boundary southerly” lines of said lots were to be “extended from their south plat termini as shown on the official without beyond and the south boundaiw of block and without and be- yond the south of W. J. McCormick’s addition to bank “the south Missoula River.”
(3) Notwithstanding,
February 28,
L.
1938,
R. McKenzie
“remise,
and
quit
and wife assumed to
release
forever
claim
city Missoula,
assigns,
following
unto”
and its
the
de-
the
city,
ly-
said
“All
property
scribed
to-wit:
the real
being
line,
ing,
and
south of that certain
situated
which line is
and 130 feet south of the south
Front
parallel
to
line of West
Missoula, Montana,
Street,
and
south bank
the
the
Missoula
southerly
extended
River
between tbe east line
lot
as
and
southerly
No.
all in block
and tbe
west line
lot
extended
as
City
accord-
56 W.
Addition to
of Missoula
J. McCormick’s
the
tenemеnts,
together
all the
ing
with
to
thereof
the official
belonging, and
appurtenances
and
thereunto
the
hereditaments
remainders,
rents,
reversions,
remainder and
reversion
estate,
title
thereof;
right,
profits
issue and
and also all the
and demand whatso-
property, possession
interest in said
claim
of,
parties,
as
said
in or to the said
equity,
ever well
law
sup-
every part
parcel
(Emphasis
premises and
thereof.”
plied.)
“* * *
exception
part
the
excludes some
Reservation.
an
conveyance
part
thing
to that
remains
from the
title
grantor by
original title,
his
while
reservation
virtue of
subject,
grant
orig
creates
and is
a new
out of
Deeds,
conveyance.”
Jur.,
298, p. 608,
16 Am.
inated
sec.
Co.,
Slyke
Reservoir & Power
note
also Van
v. Arrowhead
See
675,
155 Cal.
If to use for clause easement purpose in the deed Mix to Mc- from any portion “exception” Kenzie of lots be construed an then (100) 21 and 22 feet” “which lies south of north hundred conveyed grantee, Mc- of said was not or transferred to the portion Kenzie and the title all such continued and remained Mix, grantor, acquired in which ease McKenzie no title portion and, southerly having whatever of said lots nothing convey, quit claim executed on deed he city. 1938, passed title February 28, no See Powell v. 692; Big Co., Horn Lou Line 263 Pac. Ditch Mont. S., Deeds, page J. page C. sec. and sec. hand, “reserving” if the clause in the deed On other portion easement over the of said lots McKenzie created mere thereof, 100 feet then lying of the north title to such *15 subject passed to easement portion to McKenzie such reserved convey city subject such title to the reserva- he to could tion.
383 597, Magnesite Co., 271, Coon 182 189 Pac. v. Sonoma Cal. strip road, holds that a of a of land a the de reservation for scription exception of which is to be a valid too indefinite fee, will a easement, be construed as which need reservation anof not be with if the certainty, description described and that indefinite, gives the reservation is it of nevertheless the owner right designate the servient a if way, estate to reasonable he fails so may. to do the owner of Ballard the dominant estate Titus, v. 673, 118, right way, 157 Cal. 110 Pac. holds that such by grantor, must, so reserved selected under when be reasonable all the purposes. circumstances for case with This is cited approval Swett, App. 68, in Parker 40 180 v. Cal. Pac. 352. See, also, Jur., 322-327; 9 Cal. 186-190, pp. Jur., secs. 16 Am. Deeds, 298, p. sec. 9; and cases *16 of the claim of shall land that
‘color’ describe the so the extent rule may Clearly an under the occupant be determined.” parties which the adopted in that instruments under case the proof the adduced this fail to colоr of title and suit claim show party to wholly title in either insufficient to show the trial the of land here involved. plain introduced only that
The evidence this case is testimony city. plaintiff’s tiff The evidence consists of city engineer, Whalen, and of the defendant then Patrick J. (1) War documentary exhibits, Mix to-wit: David F. and three Mix McKenzie ranty July ?, 1937, and wife to deed of from February (plaintiff’s 1); (2) quit claim deed of exhibit 2); city (plaintiff’s exhibit from McKenzie and wife to original tracing of a alleged (3) purported a of an copy portion a indicating elevations of map contour the various been purporting to have 56 in addition and the McCormick 1947, by under the survey September 4-6, drawn from a made city engineer Riggs, E. a former supervision of one Charles nor does it 3). not certified (plaintiff’s exhibit This exhibit is original plat of the copy of the purport to be a true or correct copy of that аddition, nor or correct W. J. McCormick a true original involved, as shown portion of said addition here September scale made and drawn to plat of said addition county clerk January 3, 1883, in the office of the and on filed Evidence, S., sec. county. C. J. of Missoula See: recorder (2d) 208 Pac. Campbell, Utah, page 592 v. and State survey make Whalen did not page at witness The supplied the data from apparently 4-6, 1947, which September testify that Nor did he tracing made. was purported which original plat or a correct with the checked tracing had been or manner conforms wise thereof, or that it copy reference to which deeds various plat referred 3) tracing (exhibit was purported conveyed. The were lots copy a “is Whalen, testified that exhibit who by the witness * * * I time after I short tracing original anof found No, ? fice, is it A. tracing your from Q. This is a offiсe. took ’’ testimony tracing. The entire original print from an is the this record pages of the three comprises but Whalen of the witness objections of counsel answers, interrogatories, including the rulings. the court’s pages of the Mix but two covers testimony witness until about were vacant That his lots and is to the effect:
record Front street on building near constructed a 1947 when he was station gasoline service 24; about 23 and 22, located northwest 20, 21 and on McKenzie’s lots built northeast corner 258.3 from the Parkway it is bridge; that *17 bridge and of the northwest corner lot of McKenzie’s to McKenzie, his intentions were conveyance making to that in Mix examination of During direct merely 90x100.” to “sell 100 feet “Mr. McKenzie owns court: his counsel stated to the applied conveyed 90x100, Mix the reservation way, this when ’’ bridge. point everything from this to the to and reserva- testimony, representations light In the and determine highly important ascertain tions, to it became conveyance in the exactly and area was included property what Kate Mix of the estate of 10, 1937, from the trustee of March to in Block McCormick, deceased, 27 inclusive said H. of lots to exactly and area what 56 in addition and McCormick’s conveyance July 7, 1937, from passed in the to McKenzie Fifty- convey 20, 21 and “of Block Mix, purporting City Missoula, ac- (56) Addition to six of McCormick’s file and map plat of said addition on cording the official or County Clerk.” in the office of the record addition show as to the plat of the What does the-official 56 of boundary length or of lots south conveyed Mix to McKenzie “ac- addition which McCormick’s cording map plat said addition”? to the or official length meas- feet or less
If Lots are but boundary thereof, then south lines ured from the north to the “the Mix’ reservation of wаs no land to which there apply. If are but 130 or did said lots easement to use” could from south boun- length depth measured or less in clary line of West boundary Front Street to the south line of the lots “according to plat,” the official then acquired no land quit virtue of claim deed which McKenzie executed it February 28, Where does plat place the official the south boundary line of the lots involved?
Certainly there is no evidence the record before us that plat such official any shows line of of such city lots to be located on “the south bank of the Missoula River” is claimed complaint. in its
But neither plat the official W. J. McCormick’s addition any properly nor copy authenticated thereof was offered or re- ceived evidence.
During the represented trial counsel to the court that original plat of McCormick’s years addition “was ago, thirty lost ’’ forty years ago but that copy there is a certified plat book may “downstairs” which the court consult if it “wants to ’’ refer plat. appears the official It request also that at the counsel judge the trial premises viewed the but such information as he proceeding county thus obtained and from clerk’s of- inspecting copy fice and there the certified is not be- fore appeal. this court on the Had anticipated counsel this appeal would come case here on he doubtless would‘have stated for the record that if member of this court wants to refer to *18 addition, official of block 56 W. J. McCormick’s he may consult the City records and files of this court in of Missoula Bakke, still, v. plat incorporated better refer to the in the dissenting opinion City writer’s therein shown in of Missoula v. Bakke, 534, 121 (2d) 769, page Mont. 198 Pac. at 779. may judicial ju
The court take notice of official acts of the department. dicial See 3 10532, subdivision of section R. M.C. 1935; Chapter 60, 1937; Laws of Golden v. Northern R. Pac. Co., 435, 447, A., 549, S., 39 Mont. 104 34 L. R. N. 1154, Pac. 18 886; City Angeles Abbott, Ann. 184, Cas. of Los v. 217 17 Cal. (2d) 993; America, (2d) Bank 11 App. Pac. Nordin v. Cal. 98, (2d) 1018; Roberts, 52 App. Pac. Roberts v. 81 499 253 Cal.
387 1112; 72, Pac. Britton, (2d) (2d) Hammell 19 Cal. 119 Pac. v. 333; Bank, 34, (2d) 49 Ariz. Stewart v. Phoenix Nat. Pac. 101; Hislop Rodgers, (2d) Hughes v. 101, 527; Ariz. Pac. v. Co., 130, (2d) 640; Union Oil 60 Ariz. 132 Pac. Vandre v. Trachte, 233, 48; S., Evidence, (2d) Wis. N. W. 31 C. J. 50, page 625, 49, Compare: City Billings *19 varying
ly powerful stream of moods and stretch to and across Gate, changing widths, long and termed the Hell to ever seized, arbitrarily upon Missoula River” so “south bank of the boundary question. as and for the south defendant would take the plaintiff Hére both the and the boundary and line of lots definite and fixed south upon in and the official as such lots and block are shown arbitrarily such plat W. and shove J. McCormick’s addition bejmnd boundary limits of block completely out of and line Mc- beyond and 56 and out of and the limits boundaries itself, pushing first to the water’s Cormick addition such line river, thread of the edge north bank of the thence to the on the south bank of the and across the channel to the stream thence parties to this accomplished, This remarkable feat river. graft enough legal legerdemain, law suit would then means of boundary definitely lateral surveyed fixed rubber to plat upon the official lines of the lots as described shown “growing pains” with such lateral so afflicted permit lines they southerly” until too would and “extended be stretched rest edge, cross the channel then reach out to the water’s “the south bank water soaked termini on their exhausted Missoula River.” highhanded principle of law sanctions such
What or rule enlarging his domain? increasing methods of one’s estate state, law this is to What, passing title and the under deeds boundary strip of land here in line of the the south determine dispute ? boundary survey line line, to-wit, the a definite south Shall addition, as 56 W. J. McCormick’s in block
of lots which is plat thereof and upon the official marked shown block 56 as well as of the boundary of said also the south accepted as the addition be entire McCormick said lots? conveyance various deeds of in the
By references made notes, plat all its such with the addition the official part much a descriptions became as measurements, lines though descriptive the deed as features were written out at *20 length upon City Billings v. Pierce the face of the deed itself. Foote, Co., 255, (2d) 636; Packing Ming 117 Mont. 161 Pac. v. 201, 515; 9 page 222, Vaught McClymond, Mont. at 23 v. Pac. 542, (2d) 612; Copper Mont. 155 Pac. v. Pittsmont Co.
Vanina, 44, 46; Phelps Mont. Pac. Pacific Gas & Elec v. Jur., Co., App. (2d) 243, (2d) 209; tric 16 Am. Cal. Pac. Deeds, 273, p. 593, 8; Thompson Property, sec. notes 7 and on Real 69, Ed., 3371, 577, 61, 3373, v. p. sec. note and sec. note Re p. 579. namely
2. mоnument, Shall the north hank of the Missoula boundary accepted strip Biver be south ? as the 3. namely Shall monument, edge second the north the Missoula Biver at low-water mark accepted boundary be as the ? See B. 6771, section C. 1935. M. namely Shall monument, a third middle or thread of the
the Missoula Biver be boundary? City taken as the See of Mis- soula Bakke, v. (2d) Mont. 198 Pac.
5. Shall a monument, namely, “the south hank fourth Missoula Biver” upon be boundary determined as of land ?
The trial quiet plaintiff’s court's decree assumes to title part fee “to all of lots No. No. 21 No. block No. 56, W. J. McCormick’s lying south Addition” of and between “that certain parallel line which to and feet south of the * * * south line of West Front Street south hank said * * *” Missoula accepting Biver thus such south hank boundary lawful south originally created, said laid wholly out and located within entirely said addition and north of the river. statute, decision,
What text, prinсiple rule of law is there ferrying authorize the of W. J. McCormick’s addition from the north Gate, side of the Hell Fork Clark’s of the Columbia or Missoula Biver surveyed, where it was measured, laid out and year located in across such turbulent stream and de- it, positing boundary, or at least its south on “the south bank of said Missoula River?”
Should boun- the law allow owners of lots within the wholly an daries of addition located to the north of the river to boundary southerly move the south line of their lots across the thereof, happens to the south bank what the north boun- river dary wholly lines of lands of others the south of located river? Does law lands allow the owners of located on the corresponding transport- privilege south side of the river the ing boundary northerly the north their lands across the when, during happens river to the north bank thereof? What moving process the lands the north of the the owners оf river meet in mid-channel the owners of the lands to south of ferrying stop the river. Who then lines and exactly they stop ? where do *21 developed
Such new land as has been on north side of by by dump river accretion or a man-made since Mix’s deed to July 7, 1937, only McKenzie of involved in this ease. It is not 22 they July 7, 1937, particularly lots 20 to existed portion thereof,' any, that if south the north 100 lies Any feet that is addition here involved. increase or to the portion by 22 city dumping 20 lots to accretion or after Mix acquired upon conveyance lots Mc- title to such to adopted by majority rested in Mix under Kenzie the rule City Bakke, in supra. the court of Missoula v. warranty “reserving” in deed Mix
The clause from simply McKenzie is wherein the “reservation” entire fee simple passed title to all the land described the deed to Mc- subject Kenzie but Mix’s easement for a reasonable way by Mix width as reserved for reasonable so lots, provided however that it first be to his established conveyed 20 22 competent evidence so to McKenzie length depth. In its were more than decree the way at a trial fixed the width of feet which court width but apparently it deemed a reasonable therefor which ease- attach unless it first be shown would not exist or com- ment petent extend at least feet south- evidence that lots erly from Front Street. Mc- acquired nothing by quit its claim deed from
Kenzie using McKenzie is now unless three lots which enjoying boundary extend more than feet south of the south party line of entitled Front street. Thus neither to this suit is establishing to a location decree the absence of evidence boundary the south 58 of of lots addition of Missoula W. J. McCormick’s dis- from the south line of West Front tance such line Street.
McALPIN, Respondent, v. SMITH Appellants. al., et No. 8928. January
Submitted December 1949. Decided (2d) 213 Pac. *22 Mr. Smith, Missoula, Russell E. Smith, Mеssrs. Boone and Rimel, Missoula, appellants. for Mr. argued orally. Smith Lloyd Wallace,
Mr. Hamman, I. and Mr. F. N. Poison, both of respondent. Mr. argued orally. for Hamman cited notes to also sec. 304, p. 611; S., Deeds, C. J. pages secs. 446 and 450. The reservation in the Mix deed from to McKenzie is indefi- nite and uncertain in it what, any, that fails if portion to disclose only lots lies south of the north feet thereof. If parcel feet of there, be located as the deed from to McKenzie city' would seem indicate, appear then it Mix would that in reserving all the land south of north 100 feet had in mind the use of way but a 30-foot as a for egress to his lots On if hand, the other tract southerly north said lots extended therefrom feet, a considerable as 100 or 200 more, distance such it would show an way, for unreasonable width and under the above, authorities cited the court limit could it to a reasonable right way pеrsons width for such go enable vehicles to to and from lots In Co-Op Pritchard Petroleum Co. v. Supply Farmers Oil & Co., 55, 62, (2d) 121 Mont. Pac. this court held that necessary description land is an instrument relied title; description as color of of the land is the sine ‘‘ and that: qua purpose non of title of color the rule of of title’ that the instrument or document ‘color relied on as
Notes
sec. notes 51. Packing v. Co., 255, pages 262, 263, Pierce 117 Mont. 161 Pac. at (2d) 636, page County Colo., 638; City Denver, at & Cover v. (2d) 211 Pac. 20, The deed from Mix to McKenzie not describe lots does and 22 extending river, gives as to either bank of fact it —in description no convey, definite land that Mix intended to alleged so to be situate south of the north 100 feet of said lots. is, nothing That there is from Mix the deed which Mc- acquired Kenzie quit such title as he had warrant him in his city claim deed extending to the the lots describe as south bank of Missoula River. At plaintiff’s thе close of rested, case and after the had plaintiff’s defendant moved for dismissal of case on various grounds including proof failure of to entitle the re- lief herein. The denial of such motion the trial court is as- signed my opinion error defendant. In the case should be dismissed plaintiff as to both defendant for there is not party sufficient evidence the record before us to entitle either ato decree. ‘' relief, In order complainant to be entitled to claim must present satisfactory proof title; clear or showing if the in this respect judicial doubt, leaves the conscience in relief will be de Jur., nied.” 44 Quieting Title, p. plaintiff Am. sec. 69. The strength upon must succeed his own title and not on the adversary. Tubb, Borgeson weakness of his v. 54 Mont. 326; Whitney, (2d) Pac. Smith v. Mont. 74 Pac. 450; Bishop, (2d) Aronow 107 Mont. 86 Pac. v. pointed As out lateral heretofore lines of the length apparently of land involved of unknown but are they sufficiently permit being are elastic to extended sototUer-