190 P. 988 | Mont. | 1920
delivered the opinion of the court.
Upon a former appeal the judgment in favor of the defendants was reversed and a new trial ordered (52 Mont. 256, 157 Pac. 173). A statement of the case with illustrating maps will be found in our former opinion and need not be repeated here. Upon the second trial the court found the issues in favor of plaintiff, and defendants appealed from the judgment and from an order denying a new trial.
There was not any new evidence presented, and only a portion of the evidence employed in the first trial was introduced upon the second trial. The same stipulation used upon the first trial was renewed for the purpose of the second trial, and this stipulation, the Weirick deed, and the defendants’ right of way map were introduced by plaintiff.
Under the familiar rule of construction known as the doctrine of the last antecedent, relative and qualifying words,
It is elementary that the object in construing a deed is to
If it is a fact that the ground occupied by the right of way is the identical strip shown upon the right of way map, then defendants should have disclaimed, for they have no interest whatever in the ground claimed by plaintiff; but, from the fact that they are before this court defending this action and insisting upon a construction of the deed'which will give to them the strip of ground illustrated by Figure 2 (52 Mont. 258, 157 Pac. 173), it is fairly deducible that they are making •some claim to the ground in controversy.
By the terms of the stipulation the burden was imposed
If any officer or agent of defendants knows where its right of way is located upon the 40-acre tract above, he refrained from furnishing the information to the court. The engineer, Healy, whose testimony constitutes all the evidence offered by defendants, declined to fix its location and professed to be unable to do so. Healy’s testimony merely establishes the fact that the center line of the right way was surveyed and staked out before the deed was prepared or executed; that the roadbed was constructed and the road has since been operated upon that line, but where that line is situated with reference to the ground claimed by plaintiff no one seems to know. There is
The judgment and order are affirmed.
Affirmed.