just body has before they now an interpretation of a trust that interpretation of what i would consider a basic contract law james w bush and ruby butcher created a trust a living trust that many husbands and wives do convenient not necessary not explicit but it's just simply more convenient access so bill and paul this isn't what we've agreed to it's equivalent your honour's i don't try to make light of this but going to it we'll be using metal against you later on bill and paul should not be required to take something they had agreed to now i'm sure counsel argue these mission about a big deal minor about  parties involved and in this particular case when they've agreed on let's say day one is beneficial to all five in the room as to a division around they get done on day two or three or four decide you know what we do know like the division we're going to fix that we'll put our trustee has back on and just benefit mike and now if that isn't now i would argue your honor that if the they have the power to do even if they have the power to also sel point is none of those things are political and then grant an easement after the fact i'm an issue that was never fully litigated below but at the same time your honour's have the power to deny that based on the  county goes on it's argued this trial all these different things in the motion to reconsider and then that point won't go home will not rent we agree dark deeds the other three might ruthann a gym so they took this and saw how what you want well obviously both sides put everything in the kitchen sink for themselves has any good jealous advocate for their own point i think both sides assuming the trial court would take a little bit from each one of what he' thought it happened in this particular case they eat sided with the apple e's on every single issue and it's not to say that it couldn't happen that way and i would argue that it goes a bit fundament and i think decision that's what i'm trying to say your honor i'm not saying that judge deal couldn't have possibly got it that way i'm saying that it was inappropriate and an incorrect decision get it that way and i think i think the other they expect to receive checks for the amount they don't get those checks they don't give them and they say well there was delay because the trustees i should say because we should have had i mentioned it had to do with the checking account the same way which unmanned divide that m a nation that the court didn't have a well reasoned thought out decision ultimately end up at that point i think it's it is a situation where i think i believe many many judges would ask for orders from both sides and i understand that i submit them all the time and i find it very quick often most often the talk court judges then does adopt those but a lot of times with their own insertions and this this complicated issues i do find it or facts to achieve the result that they did when say to ban a duty i guess that maybe is a strong i suppose it is but it is because the everything we put before that in the arguments we've heard before that of how we get there your honors and i know it's a tough job of drug court level i know this is a very complicated case so it's not that it's definitely not that i'm asking saying that we're pretty similar orders but that's not a problem when the court can't stop them i am saying on this were and in the court itself found it surprising that in its own order it a reference back to certain exhibits that were and so i am only saying that when you get from point a to point b and the point being the facts of the trial and everything else i know i didn't do the trial when the survey conducted for well there are several different surveys done so there was that there was a survey initially there was a survey done beforehand and they also of the trustees that had been brought survey in later on in the survey revealed the possible while the survey revealed actually separate issue is the one half acre easement that encumbers the edge of land allocated to haul culture for the benefit of land distributed to mike address this issue in detail i wish only to make a few quick points first the easement is worth less than seven hundred dollars the bet you of the event has never been in dispute the trust real estate was there you just under two and a half million dollars it is amazing that the only portion in dispute is a small easement valued at less than seven hundred dollars i have asked a question myself many times and i do not have an answer over in the commercial world i think the realities would have been different o butcher siblings originally agreed on a rigid land division team and january of twenty thirteen this was a division scheme that was signed by all the parties without explanation the plaintiffs we now tst this division scheme the co trustees are not trying to enforce this january agreement rather they try to accommodate the plaintiffs and six months later in june of two thousand and thirteen a second agreement was entered into unfortunately the june agreement had various defects and could not be implemented that is contemplated by the parties and attempting to enforce the june agreement because it just couldn't be done instead they used their thirty to thirty granted to them under the trust instrument to divide the trust real estate in a manner that most closely matched the stated preferences that their siblings except for this small easement they paid prestige transferred or and attempted to transfer to each simply the precise real estate requested by that simply plaintiff complain that the trust should have been terminated years ago and yet they refused to close on their allocated real estate this is particularly objectionable in the case of bill who would over the trust considerable food in order to receive his property and i know t s mike does not go against go across bill's property by not closing on his property and making his boot payment bill has prevented the co trustees from paying hall the cash portion of his real estate distribution because of the extensive delay in closing out their land remaining in the trust fund is object to paying rent on the property they have been farming for for years it has been totally within the power of the plaintiffs to avoid paying paying rent all they had to do was it is now questionable as to whether bill will ever close on his allocated real estate it is unfair to the other beneficiaries for him to continue to farm indefinitely without paying rent plaintiff failed to identify a single instance where the five siblings were not treated equally to the very nothing of substance in this lawsuit that has dealt with anything other than they did meant then the administration of the trust certainly there are no issues on appeal that are not directly related to the administration of the the plaintiffs complain about the manner of issuing checks for the life fact and equipment is a perfect example of how the co trustees were forced to incur legal fees ministration of the trust for a meaningless issue raised by the plaintiff issue is not with the amount of the checks that were tendered to them for the life stock and equipment if i get it may actually be sadly what had been agreed to their issue is that the checks they have were tendered to them went through the trust checking account the defendant paid for the livestock and equipment which was in fact a trust by making payment  trust those checks were deposited in a like amount of checks and a like amount were been issued to bill and paul how this is an issue to be litigated and brought up on a heel is the distribution of trust real estate the trust instrument itself and the june twenty sixth two thousand and thirteen contract so the question is how can we reconcile these two documents to uphold what the trustees did and what t or no reason the june two thousand and thirteen contract didn't specifically say that mike gets an easement but it does say the suit would be modified upon division of the twenty five acres between michael and paul the parties all testified that they knew that this property had to be surveyed after this contract was written and just as the armored i believe your question was did the survey reveal the need for the easement it did but the survey was done on this particular property after that contract was entered when it came out and if so was until the survey was done that it was realized by everybody that there was a small piece of tillable land on the track that power issue to deeds with this easement which also included reimbursement to paul for the season now first of all this was consistent with the intent of the trust as the trust explicitly indicates it intent was to evenly distribute the trust property and keep the farmland in the family with my kids a piece of the family farm it has farm land on it but he can't access it to farm it that doesn't carry out the intent of the trust so how do you fix that as well the trustees fall back on their discretionary power given to them in the trust to issue an easement across the trust property that was going to be going to paul and also have paul be reimbursed obviously for easement what you was and again as one of your r s brought up he's never complained about being underpaid for the easement i suspect that if he had if it was just a matter of money that probably would have been so so relatively easily  but the way they did mike gets to farm his land paul gets reimbursed pretty easily going across the property in trenton and ten of the trust carried out the boot was calculated to the penny to make everything come out even the action contract if we look at that contract there were certain terms that were left to be determined later specifically the division or the assessment and payment of bood and the division of the actual property itself again everybody testified that they knew that this property was going to have to be surveyed to find out where these boundary lines were everybody knew that there were on this twenty five acre tract that there was a field and that it was certainly possible that when the property line was put into that thing right down the middle the part of that field could have done exactly like it did landed on mike's half so that was something that had to be compliment contemplated by everyone and who would be the person or the party the  place in the current report or final report as the case may be filed with the court served on the parties see if anybody has an objection or whether it is approved by the court but again the parties all knew that the property need to be surveyed and appraised so the final terms of a contract were left to be determined but the law allows that the law allows parties to enter into a contract which either allows for a term to be determined later by agreement or that of the parties or even by one party and that's more or less what you had here you had the trustee being given the authority under this contract to determine what the boot would be in this case the boot took into consideration the fact that mike needed  on his property to ron paul's property to get to his own and when they did that the easement was issued the boot was paid that made everybody swear that complied with the intent of the contract not here's where i'm going to issue a little bit with what mr tate indicated about what the testimony was why i think one of us either read something that was not there or did read something that was there although paul testified he didn't want these months property but we need to remember is that the reason he gave in court was simply that he didn't think michael needed these he thought he could access it from his land that was right next door but as the court knows there was plenty of evidence to the contrary i mean this was not simply a matter of there being another field or a pasture right next door you could easily drive a tractor or a combine across but we saw the pictures we heard the testimony there were hills the ravines there was creeks it ha to be crossed in two places and from the looks of those bowlers that i saw in some of those pictures i question whether even of bulldozer could make a crossing sufficient to get a heavy piece of farm machinery across there but in any event the court heard plenty of testimony about was certainly free to believe that overhauls testimony that he thought that mike to get through there it's not the mere fact that you can get other legally on foot it's are you going to be able to use the property for its intended purpose and that was the problem i had that's why he needs that easement and paul never testified that he didn't intend for mike to have the ability across this field if you look at that january two thousand and thirteen agreement five months ago the contract to him expressively provided for modification of the boot upon the division which was done and again this is where i mainly take issue with what mr tate indicated wrong but i did not see anywhere where paul said it was never my intention for him to have an easement if i knew he was wanting it he's meant that he was going to give these men i never would have signed that contract i think that's an important point this is basically paul saying mike didn't need it he's not that he didn't intend for mike to be able to access his own property evidence show that mike did need an easement it was a reasonable interpretation of the contract and of the trust to issue him one it was the most logical and simple solution to the issue if you form to the intent of the trust in the contract and if your honour's were to think that we're to decide that yes that contract is no avoid we have to throw it back well but we're going to do is start another round of litigation renegotiation or perhaps for mike to say ok i'm not listen to any you guys anymore i'm just going to go ahead and order that a deed be issued to give each one of you an undivided one fifth interest and all this property and what you guys sorted out i don't think anybody wants that to happen either so i would ask your honour's to to find that the issuance of the deed with the  analysis of whether mike even if we're not entitled to an easement under the contract the trust would be entitled to one by implication now of mr cade i think in the case of one of my herbs wasn't easement by prescription i'm not implication by prior uses for you've got a situation where a piece of land was being used for a certain purpose for a long period of time then there's a split and that easement is intended to have been permanent and so after the split the person who needs to use easement gets to use it i think under the facts of this case that certainly is the case here because this land was used for so many years by the by mr bush or the kid's implication i don't think that would change the nature of the of the use of the easement because let's face it the purpose of the easement is for mike to be able to take his farm equipment down the edge of the field on mike's property to get to his little sliver down the corner   i tried to put as again the agreement from the june thirteenth agreement couldn't be energy into as contemplated implemented sorry as contemplated by the parties that's very troubling it couldn't be could is if that is true what we're saying and i think that is the only course of action you have a situation which we've only heard an argument moment ago the easement as determined after the fact on the mike's benefit slightly then if it does decrease the value of the ground i suppose that was correct and that's where booth does come in don't want to land a vision i've done a lot of different types of splits ten thirty one exchanges booth is cash think they would've been a more firm legal footing in terms of what they actually what had actually happened as compared to all five of them agree as beneficiaries to division and then changed and then it changed after the fact i understand that your ideas don't