No. 12408 

IN THE 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 and Appellants. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record : 

For Appellants : 

Skelton and Knight, Missoula, Montana 

R.obert Skelton argued, Missoula, Montana 

Edwin E. Multz argued, Missoula, Montana 

For Respondent : 

Boone, Karlberg and Haddon, Missoula, Montana 

Sam Haddon argued, Missoula , Montana 

Fred C. Root, Missoula, Montana 

Submitted: September 27, 1973 

Decided :bEB 

I 7,984 
Honorable 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 interest granted and conveyed, by a written instrument to the City " * * * 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 that portion of the following described premises lying southwest of the following described line * * *". Thereafter followed 

a legal description of 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 its width terminating with a manhole at the eastern most 

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 Improvement District 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 assignees of the purchaser of the land 
in question under a contract for deed entered into in 1967 and 

are in actual possession of the property. Appellants denied the 

Zity's right 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, - 

Mont . - , 505 P.2d 887; 30 St. Rep. 133; Patterson v. Halterman, 

Mont. , 505 P.2d 905, 30 St. Rep. 139; Hellickson v. Barrett 

Mobile Home Transport, Inc., - Mont . , 507 P.2d 523, 30 St. 

Rep. 289. The fact that there was a conflict in the testimony 

does not justify a reversal where there is sufficient evidence to 

support the trial court's findings of fact. 

Appellant's answer to the complaint placed 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 courts 
are to interpret written contracts to give effect to the intent 

of the parties, rather than attempting to alter or amend the 

contract for the parties. Emerson-Brantingham I. Co. v. Raugstad, 

65 Mont. 297, 211 P. 305. In Wyrick v. Hoefle, 136 Mont. 172, 

174, 346 P.2d 563, this Court,quoting from Hochsprung v. Stevenson, 

82 Mont. 222, 266 P. 406, said: 

"'The intention of the grantor in a deed is to 

be gathered from a consideration of the entire 

instrument, taking into consideration all of its 

provisions, and every part must be given effect 

if reasonably practicable and consistent with its 

evident purpose and operation, "not, indeed, as 

it is presented in particular sentences or paragraphs, but according to its effect when viewed 

as an entirety." '" 

The land description, although erroneous, could be determined pursuant to the provisions of section 93-2201-4(2) and (6), 

R.C.M. 1947. The trial court properly ordered a survey of the 

land in question so the intent of the parties to the easement 

could be effectuated. 

The judgment of the t 

Judge, si 

Justice John C. Harrison. 

/ / Chief Justice 

Justices v