No. 

### 12925 

### IN 'THE SUPREME COURT OF THE STATE OF MONTANA 1975

CITY OF BILLINGS, a municipal corporation, Plaintiff and Respondent,

0. E. LEE COMPANY and EIRE 

### LAND AND MERCANTILE COMPANY, Defendants and Appellants.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert Wilson, Judge presiding. Counsel of Record: For Appellants: Harwood, Galles and Gunderson, Billings, Montana Dale F. Galles argued, Billings, Montana For Respondent : Kurth, Davidson and Calton, Billings, Montana CalvinA. Calton argued, Billings, Montana

Submitted: September 

### 26, 1975

f11V -3 

### - - Filed:Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This is an appeal from a declaratoryjudgment by the district court, Yellowstone County, in favor of plaintiff City of Billings. The Citybrought this action seeking tohave its rights under an 1885 easement established. A hearing was had and the district court entered findings of fact, conclusions of law and judgment for the City. On June 22, 1885, Perry W. McAdow and Clara L. McAdow, his wife, conveyed to the BillingsWater Power Company, a Montana corporation, by warranty deed certain real property consisting of a lot, several stripsof land and an easement through other property. The deed provided:

If*

# *

# * the parties of the firstpart [McAdows] doth hereby further grant, bargain, sell, convey and confirmunto theparty of the second part [BillingsWater Power Company], its successors and assigns, with their agents and employees the right toenter upon and lay and construct, allsuch underground mains, pipes and acqueducts, as the party of the second part, its successors or assigns may desire

# * ik ik and for that purpose to excavate allnecessary ditches accross any portion of said section, wherein to lay

### SUCKsubterranean aqueducts, and also for the purpose of repairing, changing or removing, or forany purpose connected with the management and operation of the same. 11 The deed goes on toprovide responsibilities of the grantee BillingsWater Power Company: 

# "* 9: ;k but the party of the second part its successors or assigns shallnever be liable to pay any sum or damages whatever for the right of way for such subterranean aqueducts across any portion of such section farther than the liabilitytoreplace the earth and restore the improvements so displaced removed orbroken to the condition inwhich the same was found when so removed asnear as practicable, without unnecessary delay. I I Shortly after this easement conveyancewas granted, a 14-inch water linewas installed. The grant of easement then passed through two other companies and ina deed dated February 1, 1915, the City of Billings acquired titleto this easement. In 1944 the City of Billings purchased a 

### 36 foot right of way easement for $192.25, across the property granted in the 1885 McAdoweasement, the property then being owned by defendants' predecessor in interest. The purpose of the easement was to enable the City to clear, trench, lay, construct, maintain, repair and operate a pipe line for a water system for the City. The minutes of the October 24, 1944 citycouncil meeting atwhich the above easement and payment were ratified, makes no mention of the 1885 McAdow easement.In 1974 the City filed this declaratoryjudgment action seeking tohave 

### itsrights under the 1885 easement declared and thereby allow the City to enterupon defendants' land to lay, construct, excavate ditches for, install, maintain and repair a 36-inch water main along the line and underground, without obligation indamages todefendants other than the liabilitytoreplace the earth and restore the improvements so displaced or broken to the condition inwhich the same was found when so removed 

### as near
as practicable, without unnecessary delay. Following trial, the district court made these findings of fact and conclusions of law: "FINDINGS OF FACT I. The City of Billings is the successor in interest of BillingsWater Power Company

A 

## - and the owner of allrights under that certain indenture from McAdows toBillings

### Water Company dated June 

### 22, 1885, recorded November 17, 1885, inBook 'A', page 580, records of Yellowstone County, Montana. "11. Defendants' property was encompassed within the above-described McAdow indenture of which Defendants had constructive notice atthe time they purchased their property. "111. The terms of the said McAdow indenture grant BillingsWater Power Company as grantee, 

### its successors and assigns, clear right tobuild allsuch underground mains, pipes and aqueducts as they may desire, provided only that the grantee, its successors and assigns shallreplace the earth inditches and replace and restore any improvements on such land removed or broken or displaced or damaged in the course of excavating

any such ditch or placing any such aqueduct, and subject to other terms therein stated. 11 "CONCLUSIONS OF 

### LAW I. The City of Billings has the legal right as successor in interestunder the abovedescribed FIcAdow indenture deed dated 1885 to place a thirty-six inchwater main inthe property of the Defendants atthe location as described in plaintiff's Complaint. II

### Judgment was enteredby reason of the findings and conclusions on July 26, 1974. Defendants appeal from the final j

### udgment

# . The sole issuepresented forthis Court's review is 

### whether the 1885 easement under which the Cityclaimswas extinguished by abandonment (1) because of nonuser, and/or (2) because the City purchased a right of way and received a deed of easement over the same property in 1944? Defendants admit toconstructive notice of the 1885 McAdow rights and there is

### no quarrel that the rights inquestion
were acquired by a grant and notby use. Therefore, the language of the originaldocument controls. Section 67-606, R.C.M. 

### 1947. InWyrick v. Hoefle, 136Mont. 172, 174, 346 P.2d 563, this Court, quoting from Hochsprung v. Stevenson, 82 Mont. 222, 266 P. 

### 406, said:

111

### The intention of the grantor ina deed is 

### tobe gathered from a consideration of the entire instrument, taking into consideration allof its 

### provisions, and every part must be given effect if reasonably practicable and consistentwith its 

### evident purpose and operation, "not, indeed, as it 

### is

### presented inparticular sentences orparagraphs, but according toits 

### effectwhen viewed asan entirety." 

# ***"' Thus the Citywas utilizing only that part land reasonably necessary and consistent with the purposes for which the easement was granted by asking the districtcourt to declare the Cityhad the right under the 1885 easement tobuild the 36-inch line. The landowners offeredno evidence that such
was unreasonable, but rely solelyon the abandonment contention. The actsclaimed toconstitute the abandonment mustbe 

### of a character so decisiveand conclusive astoindicate a clear intent toabandon the easement. 25 Am.Jur.2d Easements and Licenses 5103, p. 507. Defendants admit thatnonuse does not of itself produce
an abandonment no matter how long continued. Restatement of Property, $504. As

### a generalrule an easement acquiredby grantor reservation cannot be lost by mere nonuser for any length of time, no matter how great. 25 Am.Jur.2d Easements and Licenses 5105, p. 509. Intent of governmental body toabandon must be shown by official act, and not mere implication. City of Stockton v. Miles and Sons, Inc., D.C.Cal., 165 F.Supp. 554. Asa general rule the question of abandonment 

### is one of fact, not of law. Tamalpais Land & Water Co. v. Northwestern Pac. R. Co., 73 Cal.App.2d 917, 167 P.2d 825. A careful review of the record here reveals no facts that would support abandonment by nonuse or together with nonuse demonstrate any intent by the City to abandon this easement. The second issueraised by defendants for abandonment by the purchase of right of way by the City in 1944has littlepersuasion as there was no case law cited to the Court to support this type of abandonment. The statuterelied on by defendants, section 67-611(3), R.C.M. 1947, provides that an easement may be extinguished: "BY the performance of any actupon either tenement, by the owner of the servitude, orwith his assent, which 

### is incompatable with 

### itsnature or exercise J; 

# * *.I' When the City purchased the easement in 1944, it didnot receive anythingmore than it already owned. The 1944 activity by the Citywas not an act incompatiblewith thenature or exercise of the 1885 easement. The judgment of the district cou

IJe Concur:

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