No. 12408 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

CITY OF MISSOULA, a Municipal Corporation, Plaintiff and Respondent,

JAMES S

# .ROSE and DORCAS A. ROSE, Defendants andAppellants.
Appeal from: District Court of theFourth Judicial District, HonorableJackL. Green, Judge presiding. Counsel of Record: ForAppellants: Skelton and Knight, Missoula, Montana R.obert Skelton argued, Missoula, Montana Edwin E. Multz argued, Missoula, Montana ForRespondent

### : Boone, Karlberg and Haddon, Missoula, Montana Sam Haddon argued, Missoula

## ,Montana Fred C. Root, Missoula, Montana

Submitted: September 

### 27, 1973 Decided

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# 7,984Honorable Alfred B. Coate, District Judge, sitting in place of Mr. Justice John C. Harrison,delivered the Opinion of the Court. This action involves the proper construction of an easement deed for land in Missoula County,Montana. In 1963 the respondent,hereafter called the City, created a Special Improvement District for the purpose of constructing a sanitary sewer line to extend city sewer service to the real property that is the subject of this litigation. On October 5, 1963, the appellant's predecessor in interestgranted and conveyed, by a written instrument to the City 

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## * * a permanent easement and right-of-way, for the purpose of constructing,maintaining and removing a sanitary sewer line as now surveyed and located,over,under and across all thatportion of the following described premises lying southwest of the following described line

## * * *". Thereafter followed a legal descriptionof the land subject to the easement. That legal description was erroneous. The City had the sewer line constructed and the construction was completed in December 1963. As constructed,the sewer line entered on the property from its western boundary and extended across the property for about onethird of itswidth terminatingwith a manhole at the easternmost end of the sewer line. All of the land to the east of the property
was agricultural at that time. Subsequently,the agricultural land was subdivided and sold for building sites. The present owners of these building sites applied to the City for the creation of
a Special Improvement District to extend city sanitary sewer services to their property. In 1972 the City created another Special ImprovementDistrict and construction of the sewer line
was commenced with the intention of connecting the second sewer line to the eastern terminus of the city sewer system, which was on appellant's land. Appellants are the assigneesof the purchaser of the landin question under a contract for deed entered into in 1967 and
are in actual possession of the property. Appellants denied the Zity'sright to come on the property for the purpose of extending the sewer from its terminus to the property's eastern boundary. The City brought this action to obtain a declaratory judgment of the written easement and to obtain injunctive relief. Judgment was for the City and this appeal was taken. Appellants have presented four issues on this appeal. After careful consideration, it is our opinion that this appeal presents two questions for our determination. First: Does the evidence sustain the trial court's judgment? Second: What construction should be given to a deed that contains an erroneous legal description of the land subject to the grant? We have consistently held that this Court cannot substitute its weighing of the evidence for that of the trial court. Where there is a conflict in the evidence, the findings of the trial court are presumed to be correct if supported by the evidence most favorable to the prevailing party. Raucci v. Davis, 

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# . - , 505 P.2d 887; 30 St. Rep. 133; Pattersonv. Halterman, Mont. 

## , 505 P.2d 905, 30 St. Rep. 139;Hellickson v. Barrett Mobile Home Transport, Inc., 

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# . , 507 P.2d 523, 30 St. Rep. 289. The fact that there was a conflict in the testimony does not justify a reversalwhere there is sufficient evidence to support the trial court's findingsof fact. Appellant's answer to the complaintplaced in issue the question of the faulty legal description of the land subject to the easement. Appellant argues that an improper land description in the easement creates an easement by user only. The City argues that the written easement is controlling if the faulty description can be corrected by proper surveying techniques. It has long been the rule in this jurisdiction that courtsaretointerpret written contracts togive effect tothe intent of the parties, rather than attempting toalteror amend the contract for the parties. Emerson-Brantingham I. Co. v. Raugstad, 65 Mont. 297, 211P. 305. InWyrick v. Hoefle, 136Mont. 172, 174, 346 P.2d 563, thisCourt,quoting from Hochsprung v. Stevenson, 82 Mont. 222, 266 P. 406, said: "'The intention of the grantor ina deed isto be gathered from a consideration of the entire instrument, taking intoconsideration allof its provisions, and every partmust be given effect if reasonably practicable and consistent with its evident purpose and operation, "not, indeed, as it ispresented inparticular sentences or paragraphs, but according to its effectwhen viewed asan entirety."'" The land description, although erroneous, could be determined pursuant totheprovisions of section 93-2201-4(2) and (6), R.C.M. 1947. The trialcourt properly ordered a survey of the land inquestion so the intent of the parties tothe easement could be effectuated. The judgment of the t

Judge, si Justice John C. Harrison. 

# / / Chief Justice

Justices 

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