No. 84-388 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTAf;lA, 

Plaintiff and Respondent, 

-vsMELVIN BERKLUND , 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Stillwater, 

The Honorable Nat Allen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moses Law Firm; Michael G. Moses, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

C. Ed Laws, County Attorney, Columbus, Montana 

Submitted on Briefs: May 9, 1985 

Decided: August 5, 1985 

Filed: . I985 

Clerk 
Mr. Chief Justice J. A. Turnage d-elivered the Opinion of the 

Court. 

The appellant, Melvin Berklund, was charged with the 

offense of arson, 5 45-6-103, I4CA. Jury trial in District 

Court resulted in a verdict of guilty. This appeal followed. 

We affirm. 

In 1964 the appellant and his family built a cabin in 

Beehive, Montana, on the Stillwater River near Absarokee, 

Montana. In 1977, as part of a marriage dissolution property 

settlement, the cabin became solely owned by the appellant. 

In 1982 the appellant deeded the cabin to one of his sons. 

When the son was deeded the property in late 1982, 

there were taxes owed on it and it was in need of repair. 

The son borrowed money from his mother to pay the taxes. His 

two brothers and his sister and their spouses helped pay for 

repairing the cabin. In early 1983 the son conveyed the 

property to himself, his spouse, his siblings and their 

spouses. 

Evidence shows that the appellant became upset and 

angry about this transaction. He made threats of burning the 

cabin. In Billings, Montana, in the early afternoon of March 

28, 1983, the appellant threatened his son about "torching" 

the cabin. Soon after that the appellant called another son 

and threatened to burn the cabin. That afternoon a fire that 

had been intentionally set damaged the cabin. 

The appellant submitted evidence in the form of witness 

testimony that he was in Billings at 3:00 the afternoon of 

the fire. He was seen in, and admits that he was in, 

Absarokee at about 4:30 the afternoon of the fire. Tires on 

the vehicle operated by the appellant on the day of the fire 

matched the tire tracks at the scene of the fire. 
Four issues are presented for review: 

1. Whether there was sufficient evidence supporting 

the jury verdict. 

2. Whether the State proved the necessary elements of 

the crime of arson. 

3. Whether the District Court erred in refusing to 

grant the appellant's motion to dismiss. 

4. Whether the District Court erred in instructing the 

jury on "property of another." 

The first issue is whether there was sufficient evidence to support the jury verdict. The test applied by this 

Court where sufficiency of the evidence is an issue on appeal 

in a criminal case, whether the trial was by jury or not, is 

the substantial evidence test. This test is met if a reasonable mind would accept the evidence as supporting the conclusion reached. In applying this test the evidence is viewed 

in a light most favorable to the prevailing party. The 

weight of the evidence and the credibility of the witnesses 

is exclusively the province of the trier of fact. If the 

evidence conflicts, it is within the province of the trier of 

fact to determine which shall prevail. See, State v. Green 

(Mont. 1984), 685 P.2d 370, 371-372, 41 St.Rep. 1562, 1564; 

State v. Johnson (1982), 197 Mont. 122, 127, 641 P.2d 462, 

465; State v. Martinez (1980), 188 Mont. 271, 281-282, 613 

P.2d 974, 980. If the standard of legal sufficiency--that 

is, the substantial evidence test--is not met, this Court 

will set the verdict or judgment aside. State v. Merseal 

(1975), 167 Mont. 410, 415, 538 P.2d 1366, 1368. In addition, the judgment will be disturbed when the evidence is so 

inherently incredible that no reasonable mind ought to accept 

it as true. State v. Radi (1978), 176 Mont. 451, 461, 578 
P.2d 1169, 1176; State v. Crockett (1966), 148 Mont. 402, 

407, 421 P.2d 722, 724-725. 

We hold that there is sufficient evidence to support 

the jury verdict. The appellant was angered by the conveyance. In heated discussions he threatened to burn the cabin. 

A threat of "torching" the cabin was made in Billings on the 

afternoon of the fire. Another threat of "burning the damn 

thing down" was made by phone that same afternoon. The son 

to whom this last threat was made determined that the appellant was serious enough about it to warrant a call from 

Billings to the Absarokee sheriff. The sheriff notified a 

deputy of the situation and gave information about the appellant and his vehicle. At about 4:30 that afternoon, a fire 

was noticed by a resident of the cabin area. At about this 

same time the deputy had left Absarokee traveling towards the 

cabin and soon noticed a vehicle and driver matching the 

proper description coming from the direction of the cabin. 

The deputy turned around and followed, reaching a speed of 85 

miles per hour, but lost sight of the vehicle as the deputy 

approached Absarokee. The deputy proceeded through town 

following clouds of dust at corners and soon was behind the 

appellant's vehicle traveling toward Columbus, Montana. The 

appellant was stopped and taken to Absarokee. He received 

warning that he was a suspect. An arson investigation later 

determined that the fire had been intentionally set at about 

3:30 to 3:45 that afternoon. Tire tracks at the scene 

matched the tires on the vehicle that the appellant was 

driving. 

The second issue is whether the State proved the necessary elements of the crime of arson. The particular element 

at issue here is the element "property of another." 
As far as is relevant to this case, a person commits 

the offense of arson when, by means of fire, he knowingly 

damages an occupied structure which is property of another 

without consent. Section 45-6-103, MCA. The appellant 

argues that the cabin damaged by the fire was not "property 

of another." We disagree. The property was "property of 

another" within the meaning of the arson statute. 

"Property of another," in Montana criminal law, is that 

property in which a person other than the offender has an 

interest which the offender has no authority to defeat or 

impair even though the offender may have an interest in the 

property. Section 45-2-101 (55) , MCA. The basis upon which 

the State proved this element was evidence in the form of a 

deed. 

The deed was made in December of 1982. It represented 

a transfer from the appellant to one of his sons. The deed 

was titled "Quitclaim Deed." It contained a provision with 

two " conditions": 

"In the event of the death of party of 

second part [son], above described 

property shall revert to party of first 

part [appellant, father]. Property 

cannot be sold by second party during 

lifetime of first party." 

The only matter concerning the deed that is important 

to this case is whether the son had an interest that the 

appellant had no authority to defeat or impair so that the 

property could properly have been "property of another" 

within the criminal law meaning. Therefore, it is unnecessary for this Court to fully and finally decide the legal 

nature of the interests created by the deed beyond that 

necessary to resolve the issue on appeal. 
The interest created by the deed and held by the son at 

the time the deed became effective is not an issue. It 

unquestionably was an interest that the appellant had no 

authority to defeat or impair. The central question is the 

effect that the son's subsequent conveyance had on the interests that the son and appellant had. To determine this we 

look to the "conditions" contained in the deed. 

The first condition is, "[iln the event of the death of 

party of second part [son], above described property shall 

revert to party of first part [appellant, father]." The 

appellant openly argues that it was his intent that if he 

predeceased the son, the son would get the entire interest. 

The effect that this condition has on the interests created 

by the deed is not important to the issue on appeal as both 

parties to the deed are alive and the condition is not in 

effect. 

The second condition contained i.n the deed is, 

" [p] roperty cannot be sold by second party [son] during 

lifetime of first party [appellant, fatherl . " The appellant 

argues that when the son conveyed the property to himself, 

his siblings, and the spouses of each he violated this condition and the property was no longer "property of another." 

We disagree. 

The condition is ambiguous. On its face it restricts 

alienation. It contains no defeasible estate language such 

as, "so long as," "during," or "until" that would clearly 

categorize it as establishing a determinable estate and it 

contains no defeasible estate language such as, "but if," 

"provided that," or "upon condition that," which would clearly categorize it as establishing an estate subject to condition subsequent. See, 26 C.J.S. Deeds 5 110 (1956). 
We limit our analysis to the issue on appeal. We make 

no determination as to whether the condition is one restraining alienation, repugnant to the interest created, and void 

under S 70-1-405, MCA, and we do not determine whether the 

"condition" is merely a covenant between grantor and grantee. 

Either would support a determination that the property was 

"property of another." 

The remaining possibility is that the condition creates 

a defeasible estate. Because the condition is ambiguous as 

to whether it establishes an estate determinable or an estate 

subject to condition subsequent, rules of construction must 

be applied. A grant shall be interpreted in favor of the 

grantee. Section 70-1-516, MCA. The law does not favor a 

forfeiture in law or equity. Shuey v. Hamilton (1963) , 142 

Mont. 83, 90-91, 381 P.2d 482, 486. An estate determinable 

requires forfeiture automatically; therefore, rules of construction require that, of the two possible defeasible estates, the estate would be determined to be an estate subject 

to a condition subsequent. This estate requires a,n election 

on the part of the grantor to re-enter. Re-entry requires 

notice. Section 70-16-401, MCA. No notice was given here 

and no proper election was made. 

We hold that of the several possible constructions of 

the condition in the deed, the most favorable construction 

possible as to the appellant would not give the appellant 

authority to defeat or impair the son's interest. The property was properly "property of another" within the arson 

statute meaning. 

The third issue presented for review is whether the 

District Court erred in denying the appellant's motion to 

dismiss. The grounds upon which the motion was based are 
identical to the first two issues presented on appeal. 

Because of our disposition of those issues, it is clear that 

the District Court did not err in denying the motion. 

The fourth issue presented is whether the District 

Court properly instructed the jury on "property of another." 

Because of our disposition of the question of "property of 

another" in the second issue discussed on this appeal, there 

is 1.ittle to be decided on this issue. This was a question 

of law for the District Court, and it was not a question of 

fact for the jury. The District Court did not err. 

We affirm. 

We concur: