City of Missoula v. Mix, 8921

• Decision Date: 19 January 1950
• Docket Number: No. 8921,8921
• Citation: 214 P.2d 212,123 Mont. 365
• Parties: CITY OF MISSOULA v. MIX.
• Court: Montana Supreme Court

Page 212

214 P.2d 212

123 Mont. 365

CITY OF MISSOULA v. MIX.

No. 8921.

Supreme Court of Montana.

Submitted Nov. 8, 1949.

Jan. 10, 1950.

As Amended Jan. 19, 1950.

Ralph J. Anderson, Helena, Albert C. Angstman, Helena, Merritt N. Warden, Kalispell [Mr. Anderson & Mr. Warden argued the case orally], for appellant.

Fred W. Schilling, Missoula [Mr. Schilling argued the case orally], for respondent.

BOTTOMLY, Justice.

Action by city of Missoula, a municipal corporation, against David F. Mix, for a judgment as to the extent of defendant's easement over and upon certain lands of the plaintiff, wherein defendant cross-complained. From an adverse judgment defendant appeals. Plaintiff appeals from a certain part of said judgment.

The undisputed facts are as follows: The defendant David F. Mix, on July 7, 1947, and prior thereto, was the owner of, in possession of and entitled to the exclusive possession of lots 20 to 27, inclusive, of block 56 of McCormick's addition to the city of Missoula, Missoula county, Montana, according to the official plat or map of said addition on file and of record in the office of the county clerk and recorder of Missoula county, Montana.

The only material evidence introduced was documentary.

By deed dated July 7, 1937, and filed for record on the 9th day of July 1937, and recorded in Volume 121 of Deed Records of Missoula county, state of Montana, David F. Mix and Ada F. Mix, his wife, conveyed to one L. R. McKenzie lots 20, 21 and 22, of block 56, McCormick's addition to Missoula, which deed contained the following reservation: 'Reserving, however, to the parties of the first part, their heirs, successors and assigns, the right and easement to use all of that portion of said property above described which lies south of the north hundred (100) feet of each of said lots for the purpose of ingress and egress to and from lots 23 to 27 inclusive of said Block 56 in said addition.'

By an instrument entitled quitclaim deed, dated February 28, 1938, LeRoy McKenzie and Eleanor T. McKenzie, his wife, conveyed to the city of Missoula 'all the real property lying, situated and being south of that certain line, which line is parallel to and 130 feet south of the south line of West Front Street, Missoula, Montana, and the south bank of the Missoula River and between the east line of lot 20 as extended southerly and west line of lot 22 as extended southerly all in Block No. 56, W. J. McCormick's Addition to the City of Missoula according to the official plat thereof.'

At the hearing it was stipulated and agreed that L. R. McKenzie and LeRoy McKenzie is one and the same person. It was further stipulated that there are not alleys across or within the area of any of the land involved.

Plaintiff introduced in evidence the deed from Mix to McKenzie and the deed from McKenzie to the city of Missolua and a certified plat of the area.

By witness Whalen, city engineer, plaintiff identified the map or plat, the property in controversy, and that there are no alleys designated on the plat or otherwise; that the average width of alleys in the city of Missoula is 20 feet and driveways leading into private property should be about ten to twelve feet, all of which was over objection of defendant.

Plaintiff appeals basing error on the cout's amended findings and conclusions and that part of the judgment which grants the easement to others than Mix. The particular language of the judgment and decree complained of by plaintiff is that part which grants the right of easement to, 'Mix, his family, tenants, servants, agents, employees, invitees and licensees, and all other persons desiring ingress and egress to and from lots 23 to 27, inclusive, with defendant's permission express or implied.'

Defendant appeals from the judgment wherein the court denied defendant's claim to an easement over all the lands embraced in lots 20, 21 and 22, lying south 'of that certain line which line is parallel to and 130 feet south of the south line of West Front Street, to the water's edge of Missoula River, all in Block 56 of W. J. McCormick's addition to the city of Missoula, Missoula County, Montana.'

There is no controversy in regard to the facts, the deeds or the land involved.

The question for determination is the extent of the rights and interests retained and reserved in the land by the defendant in the deed he and his wife executed to McKenzie, dated July 7, 1937, and as to who may use this right, interest and easement.

It should be noted that we are dealing here with a reservation by the grantor out of his own property, reserving to the grantors a right, an interest, an easement, in real estate, and not a grant of or a deed to a right of way easement. Therefore the doctrine and law applicable to an easement by necessity does not apply.

A reservation in a deed is some right, interest or estate retained by the grantor in the granted premises. It creates a right and privilege for the benefit of the grantor in the land described as granted and withholds it from the operation of the grant. 9 Cal.Jur., 'Deeds,' sec. 187, p. 323.

'An easement is an appurtenance to land (Smith v. Denniff, [24 Mont. 20, 60 P. 398, 50 L.R.A. 737, 81 Am.St.Rep. 408]) and constitutes an interest, in real property under all the authorities. (Northern Pac. Ry. Co. v. Carland, 5 Mont. 146, 3 P. 134).' Mannix v. Powell County, 60 Mont. 510, 513, 199 P. 914, 915.

'The 'character of a way, whether it is public or private, is determined by extent of the right to use it, and not by the extent to which that right is exercised." Butte, A. & P. Ry. Co. v. Montana U. Ry. Co., 16 Mont. 504, 41 P. 232, 31 L.R.A. 298, 50 Am.St.Rep. 508; Kipp v. Davis-Daly Copper Co., 41 Mont. 509, 110 P. 237, 241, 36 L.R.A.,N.S., 66, 21 Ann.Cas. 1372.

An easement is a property right protected by constitutional guaranties against the taking of private property without just compensation. A private right of way is an easement and is land. The United States is liable to the owner of an easement appurtenant in a suit condemning the fee of the servient estate. U. S. v. Gossler, D.C., 60 F.Supp. 971, 974; U. S. v. Welch, 217 U.S. 333, 30 S.Ct. 527, 54 L. Ed. 787, 28 L.R.A.,N.S., 385, 19 Ann.Cas. 680. See Sections 14 and 27, Article III of our State Constitution.

'The modern conception of conveyancing, however, seeks to ascertain the intent of the grantor from a consideration of the entire instrument, without regard to the position of the several clauses, and, in order to give effect to such intent when ascertained, an exception will be construed as a reservation, and vice versa.' Marias River Syndicate v. Big West Oil Co., 98 Mont. 254, 264, 38 P.2d 599, 601.

The Supreme Court of North Carolina in interpreting a reservation in a deed which reserved to the grantors, their heirs and assigns, the right to hunt on any of the described lands as may remain uncleared and uncultivated, and the right to protect the game on such land against trespass, stated that if the right is enjoyed by reason of holding certain other estate, it is regarded in the light of an easement to such estate, that the grantors have the right to enter upon the uncleared and uncultivated lands in question, in person, and with invited guests, and had the power to protect the game thereon. See, Council v. Sanderlin, 183 N.C. 253, 111 S.E. 365, 32 A.L.R. 1527.

It cannot be questioned that the grantor, being the owner of the fee, before giving his deed had a right to go and come as he will, using any part or all of the land for such purpose, and to invite, authorize, or grant permission, express or implied to anyone to transverse the land as he saw fit, or to exclude therefrom anyone entering thereon unlawfully. Such right the grantors never parted with, never conveyed, but by the reservation, retained. See Worcester v. Smith, 117 Me. 168, 103 A. 65.

'The extent of a servitude is determined by the terms of the grant * * *.' Sec. 6754, R.C.M.1935.

The grantor, as was his privilege, by reserving a right, interest, estate or easement in his land at the time and in his conveyance, may limit or extend the burden, as he desires on the servient estate so long as it is not unlawful, and upon acceptance the grantee and his successors in interest take subject to the restrictions imposed. See Richardson v. Clements, 89 Pa.St. 503, 33 Am.Rep. 784, 787.

The grantors herein, owning all the land, could by their conveyance, have limited and restricted their right, interest and easement in the land conveyed to a definitely described smaller portion of the land, but they evidently desired and intended to be untrammeled and unrestricted in the use of the servient estate. The language used by the grantor could hardly be more explicit, clear and unambiguous, 'reserving, however, to the parties of the first part, their heirs, successors and assigns, the right ad easement to use all of that portion of said property above described which lies south of the north hundred (100) feet of each of said lots for the purpose of ingress and egress to and from lots 23 to 27, inclusive, of said Block 56 in said addition.' (Emphasis supplied.) Obviously the words used were to distinguish the reservation from one of easement of undefined width or area and to make certain the area reserved.

The language used in this reservation when read in connection with the whole instrument manifests the intention of the grantors in distinct and intelligent terms. Such language needs no interpretation.

By statutory rule the language of a reservation in a grant is to be interpreted in favor of the grantor, which is a different rule from that which existed at common law and under many other state statutes.

'A grant is to be interpreted in favor of the grantee, except that a reservation in any grant * * * is to be interpreted in favor of the grantor.' Sec. 6852, R.C.M.1935; Mineral County v. Hyde, 111 Mont. 535, 111 P.2d 284; Sears v. Ackerman, 138...