No. 13549 INTHE 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: DistrictCourt 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: 

## 101977

----AMr. Justice Frank I. Haswell delivered the Opinion of the Court.

The owners of a tract of land inRichland County secured

a permanent injunction restraining the holder of a lifeestate therein from selling and removing gravel from the premises. The lifetenant appeals. Plaintiffs Herman 0. Danielson and June Danielson Ward, owners of the land, are the adult issueof defendant Dan Danielson, holder of a lifeestate 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 titleto a portion thereof on certain conditions. One of the conditions was that he would have the right touse the land ashe saw fitduring his lifetime. The seller conveyed the tract directly to the son and daughter. They inturn conveyed a lifeestate inthe land back to their father, granting him "the right to use, ashe 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 infavor 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 lifeestate and atthe time the father went intopossession of the land thereunder, the premises was used only as grazing land andtherewas no commercial gravelpit in operation thereon. The district court also found the fatherhad only a life estate in thepremises "giving him the right to use said premises for the purposes forwhich itwas reasonably being used at the time of creation of the life estate and to receive the income and proceeds therefrom, but that such right doesnot include the right to sell and remove gravel from the premises or operate a commercialgravel pit thereon." After finding the sonand daughter had

no adequate remedy at law, the district courtperpetually 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 innot 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 therewas 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 fatherwas granted a life estate in the land under a written instrument grantinghim 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. Itmeans 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 involvean 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 thewriting 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*languageas written to the facts of the case,and decide the case accordingly. Nelsonv. Combined Insurance Co., 155Mont. 105,467 P.2d 707;Matteucci's Super Savev. Hustad Corp., 158Mont. 311,491P.2d 705. In such case, the court may not receive extrinsic evidence in aid of interpretation. Hill Cattle Corporationv. Killorn, 79Mont. 327, 256 

### P. 497. If such extrinsic evidence isnonetheless admitted without objection, the evidencemust be disregarded. First National Bank of Plainsv. Soil Conservation District, 130Mont. 1, 293 P.2d 289. While it iswithin 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 havemade. Emerson-Brantingham Implement Co.

v. Raugstad, 65Mont. 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--generalrule. In the construction of a

# *** instrument,the office of the judge is simply to ascertain and declarewhat is in terms or in substance contained therein, not to insert what has been omitted

# **

# *."

Here the district court imposed a restrictionon the use of thepremises by the life tenant that theparties themselves did not include in the written instrument creating the life estate. The district court limited the use of the land to "the purposes forwhich itwas reasonablybeing 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 thepremises "as hemay 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 "openmining 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 conformitywith this opinion. The injunction isvacated and judgment entered for defendants. 

# -,4 Justice.