Epletveit v. Solberg
| Decision Date | 04 June 1946 |
| Docket Number | 8631. |
| Citation | 169 P.2d 722,119 Mont. 45 |
| Parties | EPLETVEIT et al. v. SOLBERG. |
| Court | Montana Supreme Court |
Rehearing Denied June 24, 1946.
Appeal from District Court, Ninth Judicial District, Toole County R. M. Hattersley, Judge.
Suit by Gunder Epletveit and another against Martin S. Solberg to have determined and adjudged the right to possession of certain lands. From an adverse decree, the defendant appeals.
Reversed and remanded with directions.
Lloyd A. Murrills, of Cut Bank, for appellant.
D. W Doyle, of Conrad, for respondents.
Toole County, Montana, acquired tax title to an unoccupied unfenced quarter section of wild grazing land situate about 10 1/2 miles north of Shelby, described as the northwest quarter of section 3 in township 33 north of range 2 west of the Montana principal meridian.
In 1940 the county conveyed the land to Victor Lundin and Gunder Epletveit. Epletveit, a bachelor, resided and made his home with Lundin at the latter's ranch located 8 miles north and 2 miles west of Shelby.
Shortly after acquiring the land Lundin and Epletveit orally agreed with William Flesch that for a rental of $10 per year Flesch could graze his livestock on the land with the verbal understanding that 'he could have the grass on it as long as it was not sold' and that he could remove any fence built by him thereon. Flesch testified: Pursuant to such oral agreement Flesch used the land during the years 1940, 1941 and 1942 for grazing purposes paying therefor, each year, to Victor Lundin the $10 rental and Lundin paying the taxes on the property.
Flesch resides on a ranch located about 8 miles north of Shelby, his house and farm buildings being located about one and one-half miles south of the above-described quarter section, the west line of which borders on the Shelby-Sweetgrass highway. To keep his livestock from wandering on this highway Flesch built a fence on the west property line of the quarter section extending from his own fence on the south to the fence of Martin S. Solberg on the north with which it was connected. There was no fence on the remaining sides of the quarter. Except for this west line fence so built pursuant to the oral agreement giving him the right to remove same on the sale of the land, Flesch placed no improvements on the land which he used only for grazing purposes.
Martin S. Solberg resides on a ranch located about 12 miles north of Shelby, his house being about a mile and a quarter north of the north line of the described quarter section.
In September 1943, Gunder Epletveit offered to sell the quarter section to Martin S. Solberg for the price of $2 per acre. Solberg accepted the offer stating to Epletveit that he desired the contract made at once as he intended to use the land for farming purposes and wanted to get it plowed.
Four days later, September 18, 1943, Epletveit and Solberg, accompanied by Victor Lundin, met in the law office of G. C. Hoyt, an attorney at law, in Shelby, for the purpose of having reduced to writing their agreement for the sale and purchase of the land where, to evidence such agreement, attorney Hoyt prepared and Epletveit executed and delivered to Solberg the following written instrument, viz.:
Following the making of the contract Solberg deposited in the bank at Shelby the money to become due and payable under this agreement with Epletveit 'when the title to said land has been quieted.'
In the fall of 1943, subsequent to the making of the contract of sale and purchase, Flesch tendered to Victor Lundin the sum of $10 for the use of the pasture on the quarter section for another year but Lundin declined to accept the money informing Flesch that the land had been sold. Flesch testified:
Following the delivery to him of the writing executed by Epletveit on September 18, 1943, Solberg entered upon and commenced improving the property. In the fall of 1943 he set the corner posts and commenced digging post holes for a fence to enclose the land completing such fence in 1944.
There is evidence that Flesch's 'cows got in there once' and that Solberg told Flesch's hired man to tell his employer 'to keep his cows out of there or I would disconnect his fence.'
In the spring of 1944 Solberg laid out and commenced to break 70 acres of the land using a tractor and set of mold board plows. He started plowing after a rain and when the ground became dry he stopped until another rain when he would plow again. Thus he was delayed several times in his breaking operations because of dry weather. The plowing was tough--at times his tractor would pull five plows and at other times it could pull but three so that Solberg was only able to plow about five to ten acres in a day. By double discing and double springing the land he thoroughly worked and prepared it for the planting of the 1945 crop.
Lundin testified that from the vicinity of the Flesch residence a person should be able to see a man working upon the land involved in this action, and Flesch testified that by going about forty rods from his house, 'I could see all over that whole spread.'
On June 30, 1944, the day Solberg completed the breaking and plowing of the 70 acres, he received a letter bearing that date, addressed to him and signed by William Flesch, which stated:
'In re: N.W. 1/4 of Section 3 in Township 33 North of Range Two West.
'This is to notify you that I, William Flesch, the undersigned, have a written Farm and Grazing Lease on the above land, duly signed by Mr. Gunder Apletunt dated March 1, 1942, and said lease continues for a period of eight years from that date.
'You are further notified that this Lease is still in good standing and in full force and effect and that you are not to do any further work plowing or anything else on said land unless you have had an agreement with me accordingly.'
On June 29, 1944, being the day previous to the receipt of the above letter, an employee of Flesch notified Solberg who was then plowing on the land to discontinue his operations as Flesch had the land leased, informing Solberg that the next day he 'was going to get a letter from Bill Flesch.' This oral statement made to him by Flesch's cook over nine months after entering into the contract of sale and purchase with Epletveit was the first notice or knowledge had by Solberg that Flesch was claiming to have a lease on the quarter section.
On June 10, 1944, being long after the execution of the contract of sale and purchase and but 20 days before Solberg completed plowing the 70 acres, an unacknowledged lease agreement was filed and recorded in the office of the county clerk and recorder of Toole County reading as follows, viz.:
'This agreement, made this 1st day of March, 1942, by and between Gunder Epletuent, party of the first part, and Wm. Fleisch, party of the second part;
'That, for and in consideration of the sum of $10.00 per annum, payable annually, party of the first part agrees to lease and by these presents, does lease, to the party of the second part certain lands in the County of Toole and State of Montana, described as follows:
'The N.W. 1/4 of Section three (3) Township Thirty three (33) Range two (2) west
for a term of eight years from the date aforesaid and the party of the first part acknowledges receipt of the first year's rental, subsequent rentals to be paid on or before the date before set forth.
'That, it is understood by and between the parties that said land is to be used for grazing purposes solely and that, in case any of said land is used for agricultural purposes, rental is to be taken under consideration as to the value of crop raised thereon.
'That, in case of sale, said land is to be sold subject to said agreement.
'That, said party guarantees that he has full right and title to make this lease and warrants that he will defend any adverse claimant.
'That, in case party of the second part builds any fences or puts on any buildings on said land, that he has the right to remove same in case on sale subject to this lease.
'That, this is a continuing lease and subject to renewal after the lapse of eight years upon agreement of the parties hereto.
'Witnesses.
'H. R. Schlytter
Gunder Epletveit Party of the first part
'H. R. Schlytter
Wm. Flesch, Party of the second part
'163097
'Booked GB
'Indexed M. N.
'Compared GB EC'
At the time of entering into the contract of sale and purchase the quarter secti...
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...aid, subjects himself to the imposition of such terms as well-established equitable principles would require." Epletveit v. Solberg, 119 Mont. 45, 58, 169 P.2d 722, 729 (1946). In Epletveit, a co-owner, with the consent of the other owner conveyed land to a third party. Then an unrecorded, ......
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...from the operation of the statute and will enforce the contract if necessary or grant other appropriate relief. Epletveit v. Solberg (1946), 119 Mont. 45, 169 P.2d 722. Under these rules, where as here, both parties agree that there was an oral modification of their written agreements, evid......