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 

Calvin A. 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 declaratory judgment by the 

district court, Yellowstone County, in favor of plaintiff City 

of Billings. The City brought this action seeking to have 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 Billings Water Power Company, a Montana 

corporation, by warranty deed certain real property consisting 

of a lot, several strips of land and an easement through other 

property. The deed provided: 

If* * * the parties of the first part [McAdows] doth 

hereby further grant, bargain, sell, convey and confirm unto the party of the second part [Billings Water 

Power Company], its successors and assigns, with 

their agents and employees the right to enter upon and 

lay and construct, all such 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 all necessary ditches accross any 

portion of said section, wherein to lay SUCK subterranean 

aqueducts, and also for the purpose of repairing, 

changing or removing, or for any purpose connected with 

the management and operation of the same. 

11 

The deed goes on to provide responsibilities of the 

grantee Billings Water Power Company: 

"* 9: ;k but the party of the second part its successors 

or assigns shall never 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 liability to replace the earth and restore the 

improvements so displaced removed or broken to the 

condition in which the same was found when so removed 

as near as practicable, without unnecessary delay. I I 

Shortly after this easement conveyance was granted, a 

14-inch water line was installed. The grant of easement then 

passed through two other companies and in a deed dated February 

1, 1915, the City of Billings acquired title to 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 McAdow 
easement, 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 city council meeting at which the above easement 

and payment were ratified, makes no mention of the 1885 McAdow 

easement. 

In 1974 the City filed this declaratory judgment action 

seeking to have its rights under the 1885 easement declared and 

thereby allow the City to enter upon defendants' land to lay, 

construct, excavate ditches for, install, maintain and repair a 

36-inch water main along the line and underground, without obligation in damages to defendants other than the liability to replace 

the earth and restore the improvements so displaced or broken to 

the condition in which 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 Billings Water Power Company A - 

and the owner of all rights under that certain 

indenture from McAdows to Billings Water Company dated 

June 22, 1885, recorded November 17, 1885, in Book 

'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 at the time they purchased their 

property. 

"111. The terms of the said McAdow indenture 

grant Billings Water Power Company as grantee, its 

successors and assigns, clear right to build all such 

underground mains, pipes and aqueducts as they may desire, 

provided only that the grantee, its successors and 

assigns shall replace the earth in ditches 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 interest under the abovedescribed FIcAdow indenture deed dated 1885 to place a 

thirty-six inch water main in the property of the Defendants at the location as described in plaintiff's 

Complaint. I I 
Judgment was entered by reason of the findings and 

conclusions on July 26, 1974. Defendants appeal from the final 

j udgment . 

The sole issue presented for this Court's review is 

whether the 1885 easement under which the City claims was 

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 to constructive notice of the 1885 

McAdow rights and there is no quarrel that the rights in question 

were acquired by a grant and not by use. Therefore, the language 

of the original document controls. Section 67-606, R.C.M. 1947. 

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: 

11 1 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." * * *"' 

Thus the City was utilizing only that part 

land reasonably necessary and consistent with the purposes for 

which the easement was granted by asking the district court to 

declare the City had the right under the 1885 easement to build 

the 36-inch line. The landowners offered no evidence that such 

was unreasonable, but rely solely on the abandonment contention. 

The acts claimed to constitute the abandonment must be of a 

character so decisive and conclusive as to indicate a clear intent 

to abandon the easement. 25 Am.Jur.2d Easements and Licenses 

5103, p. 507. 

Defendants admit that nonuse does not of itself produce 

an abandonment no matter how long continued. Restatement of 

Property, $504. As a general rule an easement acquired by grant 
or 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 to abandon 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. 

As a 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 issue raised by defendants for abandonment by 

the purchase of right of way by the City in 1944 has little persuasion as there was no case law cited to the Court to support this 

type of abandonment. The statute relied on by defendants, section 

67-611(3), R.C.M. 1947, provides that an easement may be extinguished: 

"BY the performance of any act upon either tenement, 

by the owner of the servitude, or with his assent, 

which is incompatable with its nature or exercise J; * *.I' 

When the City purchased the easement in 1944, it did not 

receive anything more than it already owned. The 1944 activity 

by the City was not an act incompatible with the nature or exercise 

of the 1885 easement. 

The judgment of the district cou 

IJe Concur: 

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