No. 84-567 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

CHARLOTTE BOLLES KUBLMAN, 

Plaintiff and Appellant, 

TEKSU RIVERA and SILKITWA 

RIVERA, husband and wif e , 

Defendants and Respondents. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert M. Holter, Judge presiding. 

COUNSEL OF PSCORD: 

For Appellant: 

L. Charles Evans, Libby, Montana 

For Respondent: 

Keller & German; Ann C. German, Libby, Montana 

Submitted on Briefs: April 11, 1985 

Decided: June 13, 1985 

Clerk 
Mr. 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-d an 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.ed the Riveras $500 damages for 

interference with their rights. Kuhlman appealed. The 

judgment of the District Court is affirmed. 

Kuhlman raises eight issues: 

1. Did Kuhlman grant the Riveras a revocable license to 

take water from her spring? 

2. Was the right of way a revocable license? 

3. Did Kuhlman ma.ke a valid oral contract to sell water 

from her 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 of way. The District Court found that the parties made 

valid agreements and did not find fraud. These findings are 

supported by competent, substantial evidence and will 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 first moved on the land, they hauled water 

from Eureka. In June 1982 they became friendly with 

Kuhlman's son, Frank Bolles, and began 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 

water well on their land but decided the waterline was a more 

feasible and easier solution to their water 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 $10 per month for the water. They 

did not talk to the mother about using the water before they 

began work on the waterline but she was present as the work 

was performed and appeared agreeable to it. Constructing the 

waterline involved backhoeing 1,550 feet of waterline from 

Kuhlman's property to Riveras' property and crossing 150 feet 

of Forest Service land with the Forest Service's consent. It 
also involved constructing a shelter with a pump at the 

spring. At the trial the Riveras introduced evidence that 

they spent $3,271 on water 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 it was this document the Riveras 

introduced to substantiate their claim that Kuhlman 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 the 
Riveras' property, entitled them to domestic water service 

from Kuhlman's spring, entitled each party to a half 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 construction and maintenance of the 

system. Kuhlman contends that this was not the first page of 

the document she signed and that the Riveras fraudulently 

substituted this page. 

Issue - No. 1. Did Kuhlman grant Riveras a revocable - 

license to take her 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 

water which she later revoked and the District Court erred in 

not so finding and concluding. In the District Court she 

sought to quiet title to her property by removing a recorded 

"Water Well Agreement" that she contended clouded her title. 

In her 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), 95 Mont. 391, 26 

P. 2d 992. The use of a license is revocable at the will of 

the servient tenant. 

Kuhlman sued claiming fraud and lost. Her complaint 

says nothing about a license and, in fact, paragraph 14 makes 

it clear no license was granted. Kuhlman could not have 

granted the Riveras permission to use the water and "at no 
time transferred to Defendants the right to use all of or any 

portion of the water." The District Court did not err by not 

finding a revocable license. 

Issue No. 2. Was the the right of way 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 three years to rebuild d-uring 

which time they would be considered to reside on the 

property. This conclusion is based on a handwritten 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 Louis v. 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 is distinguished from a license because a 

license is not an interest; a license is merely a privilege 
to do some act on the land without possessing an interest in 

the land. Kuhlman's written grant was 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. 

Issue No. 3. Did Kuhlman make a valid oral contract to 

sell water from her spring to the Riveras? 

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 District Court did not find there was a contract, 

the court never 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 Riveras hold an easement to 

use the water. An easement can be created by grant, 

reservation, exception or covenant, by implication or by 

prescription. Prentice v. McKay (1909), 38 Mont. 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 

water well agreement identified the grantor, Kuhlrnan, and the 

grantee, Riveras, adequately described what was 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. 
Issue No. 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.ten documents. Although there is some controversy about 

when she became aware of the arrangement the record is clear 

that she eventually 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 issue does not relate to the merit of this case and does 

not affect the judgment; therefore this Court does not reach 

the issue. 

Issue No. 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 

water well 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 findings are supported 
by competent, substantial, although confl.icting evidence, 

they will not be disturbed on appeal. Holl-oway v. University 

of Montana (1978) , 178 Mont. 190, 582 P. 2d 1265. Here, 

Kuhlman and her son testified that the pages 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 District Court found no fraud and this is 

supported by evidence and is not clearly erroneous. 

Issue No. 6. Did the District Court err in finding that 

Kuhlman was present when the Riveras' constructed the 

waterline? 

There is conflicting testimony on this issue. Although 

this finding is not relevant to the outcome of the case it is 

supported by evidence and not clearly erroneous. 

Issue No. 7. Did the District Court err in finding that 

Kuhlman disconnected the waterline, forcing the Riveras to 

move from their property and causing $500 damages? 

The District Court erred in two of these findings. The 

Riveras moved from their property because of fire and 

Kuhlman did not disconnect 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.s and plants on their land which died 

because they were not watered. The loss occurred because 

Kuhlman switched off the power to the pump. 

Issue No. 8. Did the District Court err in finding the 

Riveras' expenditures in installing the waterline increased 

the value 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 concrete pad and installed a pump. These improvements 

increa-sed the value of the land. 

The judgment of the District Court is affirmed. 

We Concur: 

J / Justices