No. 13549 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

HERMAN 0. DANIELSON and 

JUNE DANIELSON WARD, 

Plaintiffs and Respondents, 

-vsDAN DANIELSON and WAYNE NEU, 

Defendants and Appellants. 

Appeal from: District Court of the Seventh Judicial District, 

Hon. L. C. Gulbrandson, Judge presiding. 

Counsel of Record: 

For Appellant: 

V. G. Koch argued, Sidney, Montana 

For Respondents: 

Cresap and Phillips, Sidney, Montana 

Richard G. Phillips argued, Sidney, Montana 

Submitted: January 24, 1977 

Decided: 1 0 1977 ----A 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

The owners of a tract of land in Richland County secured 

a permanent injunction restraining the holder of a life estate 

therein from selling and removing gravel from the premises. The 

life tenant appeals. 

Plaintiffs Herman 0. Danielson and June Danielson Ward, 

owners of the land, are the adult issue of defendant Dan Danielson, 

holder of a life estate in the land. The other defendant, Wayne 

Neu, has been hauling and removing gravel from the land for commercial purposes under an agreement with defendant Dan Danielson. 

The father purchased the land with his own funds and 

offered his son and daughter title to a portion thereof on certain 

conditions. One of the conditions was that he would have the right 

to use the land as he saw fit during his lifetime. The seller 

conveyed the tract directly to the son and daughter. They in turn 

conveyed a life estate in the land back to their father, granting 

him "the right to use, as he may deem fit, and to receive the income and proceeds" from the land for his lifetime. 

On March 29, 1976 the son and daughter commenced an 

action against their father and Neu to permanently enjoin them 

from removing gravel from the premises. A hearing was held in 

the district court, Richland County, without a jury on May 19, 

1976. On July 7, 1976, the district court entered its findings of 

fact and conclusions of law in favor of the son and daughter and 

permanently enjoined the father and Neu from selling and removing 

gravel from the premises. 

The district court found that at the time of creation of 

the life estate and at the time the father went into possession of 

the land thereunder, the premises was used only as grazing land and 
there was no commercial gravel pit in operation thereon. The 

district court also found the father had only a life estate in 

the premises "giving him the right to use said premises for the 

purposes for which it was reasonably being used at the time of 

creation of the life estate and to receive the income and proceeds therefrom, but that such right does not include the right 

to sell and remove gravel from the premises or operate a commercial gravel pit thereon." After finding the son and daughter had 

no adequate remedy at law, the district court perpetually enjoined 

and restrained the father and Neu "from selling and removing gravel 

from the above described premises." The father alone appeals. 

Three issues are assigned for review on appeal: 

(1) Did the district court err in not considering the 

language of the life estate reservation "as he may deem fit" and 

in refusing to permit the father to explain the term. 

(2) Was the district court's finding that plaintiffs 

have no adequate remedy at law error? 

(3) Sufficiency of the evidence to support the district 

court's finding that at the time the father acquired the life 

estate and went into possession thereunder, the premises were 

only used as grazing land and there was no commercial gravel pit 

in operation thereon; and that the findings and conclusions are 

not supported by the evidence and the law and do not support the 

restraining order. 

The first issue is determinative of this appeal. The 

father was granted a life estate in the land under a written 

instrument granting him the right to use the premises "as he may 

deem fit" and to receive the income and profits during his lifetime . 
This language grants the life tenant the unqualified use 

of the premises during his lifetime. The grant is unambiguous. 

It means what it says. It requires no interpretation. 

Under such circumstances, the controlling Montana statutes 

read: 

"Intention to be ascertained from language. The 

language - - of a contract is to govern its interpretation, 

if the language is clear and explicit, and does not 

involve an absurdity." Section 13-704, R.C.M. 1947. 

"Interpretation of written contracts. When a contract 

is reduced to writing, the intention of the parties is 

to be ascertained from the writing alone, if possible; 

subject, however, to the other provisions of this 

chapter." Section 13-705, R.C.M. 1947. 

It is clear from Montana cases that where the language 

of a written contract is clear and unambiguous there is nothing 

for the court to construe; the duty of the court is simply to 

apply the*language as written to the facts of the case, and 

decide the case accordingly. Nelson v. Combined Insurance Co., 

155 Mont. 105, 467 P.2d 707; Matteucci's Super Save v. Hustad 

Corp., 158 Mont. 311, 491 P.2d 705. 

In such case, the court may not receive extrinsic evidence 

in aid of interpretation. Hill Cattle Corporation v. Killorn, 

79 Mont. 327, 256 P. 497. If such extrinsic evidence is nonetheless admitted without objection, the evidence must be disregarded. First National Bank of Plains v. Soil Conservation 

District, 130 Mont. 1, 293 P.2d 289. 

While it is within the province of the court to interpret 

contracts which are open to interpretation, the court cannot make 

new contracts for the parties, or alter or amend the contract the 

parties themselves have made. Emerson-Brantingham Implement Co. 

v. Raugstad, 65 Mont. 297, 211 P. 305. The governing statute, 
section 93-401-15, R.C.M. 1947, expresses this principle in this 

language : 

"Construction of statutes and instruments--general rule. 

In the construction of a * * * instrument, the office 

of the judge is simply to ascertain and declare what is 

in terms or in substance contained therein, not to insert 

what has been omitted * * *." 

Here the district court imposed a restriction on the use 

of the premises by the life tenant that the parties themselves 

did not include in the written instrument creating the life estate. 

The district court limited the use of the land to "the purposes 

for which it was reasonably being used at the time of creation of 

the life estate" and prohibited operation of a commercial gravel 

pit on the premises. This was reversible error under a grant to 

the life tenant to use the premises "as he may deem fit" and 

granting him the income of the land for life. 

Under the language of the grant of the life estate, we 

need not consider the "open mining doctrine" as it would not 

change the result. 

The order and judgment of the district court is reversed. 

The findings and conclusions are amended in conformity with this 

opinion. The injunction is vacated and judgment entered for defendants. 

Just ice. -,4