No. 84-567 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

CHARLOTTE BOLLES KUBLMAN, Plaintiff andAppellant,

TEKSU RIVERA and SILKITWA RIVERA, husband and wife

## , Defendantsand Respondents.

APPEAL FROM: District Court of the Nineteenth JudicialDistrict, In and for the County of Lincoln, TheHonorable RobertM. Holter, Judgepresiding.

COUNSELOF PSCORD:

ForAppellant: L. Charles Evans,Libby,Montana

For Respondent: Keller & German;Ann C. German, Libby,Montana

Submitted on Briefs: April 11, 1985 Decided: June 13, 1985

ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.

This is an appeal from a judgment of the Nineteenth Judicial District, Lincoln County. Charlotte Bolles Kuhlman brought a quiet title action against Teksu and Silkitwa Rivera. The Riveras counterclaimed for a determination of their water rights and a road easement. The District Court concluded that the Riveras ha-dan easement for water from a spring on Kuhlman's land and that they had a right of way across Kuhlman's land as long as they reside on their property. The Court award.edthe Riveras $500 damages for interference with their rights. Kuhlman appealed. The judgment of theDistrict Court is affirmed. Kuhlman raises eight issues: 1. Did Kuhlman grant the Riveras a revocable licenseto takewater fromher spring? 2. Was the rightofway a revocable license? 3. DidKuhlmanma.keavalid oral contract to sellwater fromher spring to the Riveras? 

### 4. Was Frank Bolles, Kuhlman's son, her authorized agent? 5. Was the water well agreement fraudulently induced and lacking mutual understanding? 6. Was the District Court's finding that Kuhlman was present during the installation of the water line incorrect? 7. Was the District Court's finding that Kuhlman disconnected the Riveras' water line causing damages in the amount of $500 incorrect?8. Was the District Court's finding that the Riveras' expenditures to install the water line increased the value of Kuhlman's property incorrect? No issue has merit. As discussed bel.ow, this controversy centers on whether the Riveras fraudulently induced Kuhlman to make agreements concerning water and a right ofway. The DistrictCourt found that theparties made valid agreements and did not find fraud. These findings are supported by competent, substantial evidence andwill not be disturbed on appeal. In 1982 the Riveras moved onto land in Lincoln County

near Kuhlman's property. No water was available on their land so,when they firstmoved on the land,they hauledwater from Eureka. In June 1982 they became friendly with Kuhlman's son,Frank Bolles,andbegan hauling water from the spring on his mother's property. During the summer the Riveras and Bolles orally agreed that the Riveras could install a waterline from the Kuhlman spring to the Riveras' property. The Riveras had originally planned to drill a waterwell on their landbut decided the waterlinewas amore feasibleand easier solution to theirwater problem. At the time, the Riveras believed Frank Bolles and his mother owned the land. Frank Bolles's name,which appeared

on the land records, is the same as his father's. The Riveras paid Frank Bolles $10per month for thewater. They did not talk to the mother about using the water before they began work on the waterline but shewas present as the work

wasperformed and appeared agreeable to it. Constructing the waterline involved backhoeing 1,550 feet of waterline from Kuhlman'sproperty toRiveras' property and crossing 150 feet of ForestService landwith the ForestService's consent. Italso involved constructing a shelter with a pump at the spring. At the trial the Riveras introduced evidence that they spent $3,271onwater and road expenses. Kuhlman gave the Riveras a right of way across her property for the time they reside at their present location. She executed a written document to that effect signed and dated June 23, 1982. Their surveyor told the Riveras that they needed a written agreement about the water. The Riveras and Kuhlman and Bolles signed an agreement which Riveras sent to the State Department of Health and Environmental Sciences and then recorded. At the trial itwas thisdocument theRiveras introduced to substantiate their claim thatKuhlman gave them

an easement. The parties now disagree about the terms of the agreement granting Riveras the use of the water. Kuhlman asserts that in late June 1982 she agreed to the Riveras using the water if they signed.a written agreement and paid her $1,500. The Riveras assert that they were given the easement and there was no demand for a written agreement or $1,500 until November 1983 and,when they refused to sign and pay $1,500, this suit was commenced. In the spring of 1984 Kuhlman shut off the power to the pump and blocked the roadway. To substantiate their assertion, the Riveras introduced the document entitled, "Water Well Agreement" signed by all the parties, notarized on June 18, 1983,and recorded in the Lincoln County records at the request of Teksu Rivera on December 6, 1983. This document also bears a notation "Received July 11, 1983 by the Montana Department of Health and Environmental Sciences." The first page described theRiveras' property, entitled them to domestic water service from Kuhlman's spring,entitled each party to ahalf interest in the spring and to share the costs equally, reserved for Bolles the right to add one other domestic water user, and granted easements for the constructionandmaintenance of the system. Kuhlman contends that thiswas not the firstpage of the document she signed and that the Riveras fraudulently substituted thispage. Issue No. 1. Did Kuhlman grant Riveras a revocable 

### - - license to takeher spring water? Kuhlman's legal argument on this issue is so unclear that it is paraphrased here with reluctance. On appeal, Kuhlman claims she gave the Riveras a license to use the waterwhich she later revoked and theDistrictCourt erred in not so finding and concluding. In the District Court she sought to quiet title to her property by removing a recorded "WaterWell Agreement" that she contended clouded her title. Inher complaint she alleged fraud and she stated: "14. Plaintiff has at no time transferred to Defendants the right to use all of or any portion of the water from the spring

# . .."

A license is the permission or authority to do a particular act or series of acts upon the land of another without possessing an interest therein. Morrison v. Higbee

(1983), 40 Mont. 1041, 1044, 1045, 668 P.2d 1025, 1028, citing Rentfro et al. 

### v. Dettwiler (1933), 95Mont. 391, 26 P.2d 992. The use of a license is revocable at the will of the servienttenant. Kuhlman sued claiming fraud and lost. Her complaint says nothing about a license and, in fact,paragraph 14makes it clear no license was granted. Kuhlman could not have granted the Riveras permission to use the water and "at notime transferred to Defendants the right to use all of or any portion of thewater." The District Courtdid not err by not findinga revocable license. IssueNo. 2. Was the the right ofway across Kuhlman's land a revocable license? Kuhlman's position on this issue is also unclear. The District Court concluded that the Riveras have an easement

across a roadway for as long as they reside on the property and,because of fire,gave them threeyears to rebuild d-uring which time they would be considered to reside on the property. This conclusion isbased on ahandwritten document by Ruhlman which states: "I Charlotte Eolles Kuhlman give right of way across my property located at NE% NE& section 22, Township 36 N, Range 28 W across Pinkham Road from my existing house to Teksu and Sil-Kit WA Rivera. For which time they reside on their present location. June 23, 1982 (signed) Charlotte Bolles Kuhlman" On appeal, Kuhlman argues that because there was no contract there can be no easement. In her brief she cites Louis v. Patton (1911), 42 Mont. 528, 113 P. 745, for the rule that "without a contract there could be no easement." The argument that an easement requires a contract is not supported by Montana case law, including Louisv. Patton,or
our statutes. An easement is a non-possessory interest in land, "a right which one person has to use the land of another for a specific purpose or a servitude imposed as a burden upon land." Laden et al. v. Atkeson (1941)

## , 112 Mont. 302, 116 P.2d 881, 883. It isdistinguished from a license because a license is not an interest; a license ismerely a privilegeto do some act on the landwithout possessing an interest in the land. Kuhlman's written grantwas of an easement and not

a license because Kuhlman did not reserve to herself the right to terminate the grant while Riveras resided on the property. IssueNo. 3. Did Kuhlman make a valid oral contract to sellwater fromher spring to theRiveras? We agree with Kuhlman's contention that she did not enter into a valid contract for the sale of water rights to the Riveras' but that does not effect the outcome of this

case. The DistrictCourt did not find there was a contract, the courtnever used the term "contract" and did not rely on
a contract to find an easement. In fact, that 

### is exactly what the respondents successfully argued below. There is substantial credible evidence that Kuhlman gave, not sold, Riveras the right to use the water. The court's judgment decrees that the Riverashold an easement to

use the water. An easement can be created by grant, reservation, exception or covenant, by implication or by prescription. Prenticev. McKay (1909),38Mont. 114, 98 P. 1081. This case is a question of an easement by grant created with a writing. To be a valid conveyance, it must satisfy the formal requirements of a grant. The written waterwell agreement identified the grantor,Kuhlrnan, and the grantee,Riveras, adequately describedwhatwas conveyed,had language of conveyance and was signed. These satisfy the requirements of S 70-20-103, MCA. As discussed below, we agree with the District Court that this conveyed an easement to the Riveras and wa.s not fraudulently induced. While Kuhlman could have entered into a contract to sell the easement,the record establishes she gave it away.IssueNo. 4. Was Frank Bolles an agent of Charlotte Kuhlman? Kuhlman contends that her son was not her a.ctua1 or ostensible agent, but this issue is irrelevant to this appeal. For Riveras to prevail it was not necessary to establish that an agency relationship existed between Kuhlman and Bolles because Kuhlman herself granted the right of way and the right to use the spring water when she signed the writ.tendocuments. Although there is some controversy about when she became aware of the arrangement the record is clear that sheeventually participated in the agreement. Whether Bolles was Kuhlman's agent does not affect the judgment of this case. The function of this Court upon appeal is to review the judgment. Rule 2, M.R.App.Civ.P. This issuedoes not relate to themerit of this case and does not affect the judgment; therefore this Court does not reach the issue. IssueNo. 5. Was the water well agreement fraudulently induced? Kuhlman contends that the water well agreement is not the same document she signed before a notary on June 11, 1983. She contends that the Riveras substituted the first page of the two-page document. The Riveras contend the agreement is the document signed without any alterations. Both parties introduced evidence to support their contentions. The judge did not find fraud and concluded the waterwell agreement created an easement. In a non-jury trial witness credibility and the weight of the testimony are matters for the District Court. Findings of fact will not be set aside unless clearly

erroneous. Rule 52(a), M.R.Civ.P. If findingsare supportedby competent, substantial, although confl.icting evidence, theywill notbe disturbed on appeal. Holl-oway

### v. University of Montana (1978)

## , 178 Mont. 190, 582 P.2d 1265. Here, Kuhlman and her son testified that thepages they signed did not resemble the document filed. However, they each described a different document. The Riveras testified the document before the court was the document signed. Their surveyor testified that the document filed was the form he had supplied. The DistrictCourt found no fraud and this is supportedby evidenceand is not clearly erroneous. IssueNo. 6. Did the DistrictCourt err in finding that Kuhlman was present when the Riveras' constructed the waterline? There is conflicting testimony on this issue. Although this finding isnot relevant to the outcome of the case it is supportedby evidence and not clearly erroneous. IssueNo. 7. Did the District Court err in finding that Kuhlman disconnected the waterline, forcing the Riveras to move from theirproperty and causing $500damages? The District Court erred in two of these findings. The Riveras moved from their property because of fire and Kuhlman did notdisconnect the water line. She switched off the power. However, switching off the power caused the damage the District Court ordered Kuhlman to reimburse. The Riveras planted seed.sand plants on their land which died because they were not watered. The loss occurred because Kuhlman switched off thepower to thepump. IssueNo. 8. Did the District Court err in finding the Riveras' expenditures in installing the waterline increased thevalue of Kuhlman's property?This finding, while not crucial to the judgment, is supported by substantial credible evidence. The Riveras testified, and.Kuhlman agreed,that they built a pump house, laid a concretepad and installed apump. These improvements increa-sedthe value of the land. The judgmentof theDistrictCourt is affirmed.

We Concur:

J 

## /Justices