No. 80-429 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

WALTER F. DUSSAULT and ARLENE S. DUSSAULT, 

Plaintiffs and Respondents, 

VS . 

F. HJELM, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Ravalli 

Honorable James B. Wheelis, Judge presiding. 

Counsel of Record: 

For Appellant: 

John M. McRae argued, Hamilton, Montana 

For Respondents: 

Recht and Greef, Hamilton, Montana 

John D. Greef argued, Hamilton, Montana 

- 

Submitted: April 21, 1981 

Decided: May 13, 1981 

Filed: -Mm 13 198f 

-p*ry 

Clerk 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

Defendant, Flo Hjelm, appeals from a judgment of the 

Fourth Judicial District, Ravalli County, entered in favor 

of plaintiffs, Walter F. and Arlene S. Dussault. his judgment terminated a lease of real property, granted possession 

of the property to plaintiffs, held that the Landlord and 

Tenant Act did not apply thereby entitling plaintiffs to 

treble damages under the unlawful detainer statutes, and 

awarded attorney fees and costs to plaintiffs. 

Flo Hjelm owned property outside the City of Hamilton, 

Ravalli County, Montana. On February 27, 1979, Hjelm sold 

this property to Walter and Arlene Dussault. The instrument 

formalizing the terms of the sale contained a lease-back 

provision by which Hjelm was given an option to rent the 

buildings on the conveyed property along with six acres of 

land. This lease-back provision stated: 

"The Seller herein may, at her option, rent from 

the Buyers the buildings conveyed by her to the 

Buyers, together with approximately six (6) acres 

of land for the annual rental of $3,000.00 for 

one year, commencing from the date of this agreement 

and said rent shall be payable on or before December 

1, 1979, and it is further provided that the agreement shall be automatically renewed from year to 

year unless one party gives written notice of at 

least ninety (90) days before the expiration of the 

current year of their intent to cancel or amend the 

terms. " 

Hjelm exercised the option to rent and continued in possession 

of the property. 

At the time of the sale and continuing throughout the 

possession of the property, Hjelm maintained 15 to 20 horses 

on the property. Hjelm also kept, on an intermittant basis, 

some cows, chickens, a goat and other domesticated animals. 

On November 9, 1979, Dussaults served notice upon Hjelm 

that the rental agreement would terminate on February 27, 
1980. Subsequently, a dispute between the parties arose regarding whether the first lease-year ended on December 1, 

1979 or February 27, 1980. As a result of the dispute, 

~jelm paid only $2,000 rent and refused to vacate the premises 

on February 27, 1979. 

On March 7, 1980, Dussaults commenced an action under 

the Montana unlawful detainer statutes. Section 70-27-206, 

MCA, provides for an award of treble damages. Hjelm moved 

to dismiss, claiming her occupancy of the premises was 

governed solely by Montana Residential Landlord and Tenant 

Act of 1977. (Hereinafter referred to as the Landlord and 

Tenant Act. ) Under this Act treble damages can only be 

awarded upon a showing of purposefulness and bad faith. 

Section 70-24-429 (I), MCA. The District Court granted 

Dussaults time to amend their complaint to allege sufficient 

facts excepting the tenancy from the province of the Landlord 

and Tenant Act. 

Dussaults amended the complaint, alleging that Hjelm's 

occupancy was exempt from the Act by virtue of the "agricultural" exclusion contained in section 70-24-104 (8) , MCA. 

Hearing on the matter was held May 30, 1980. On August 15, 

1980, the District Court held that the lease agreement was 

excluded from the Landlord and Tenant Act. The ~istrict 

Court rendered judgment in favor of the Dussaults in accordance 

with Montana unlawful detainer provisions. 

The dispositive issue on appeal is: 

1. Whether the District Court erred in concluding that 

the action on the subject lease agreement was properly 

brought under unlawful detainer statutes, precluding application of the Landlord and Tenant Act by virtue of the 

exclusionary provision, section 70-24-104(8), MCA? ~esolu- 
tion of this issue determines the question of whether treble 

damages were an appropriate award. 

Section 70-24-104, MCA, sets forth rental arrangements 

which are excluded from the province of the Landlord and 

Tenant Act. Pertinent to this appeal, this provision 

states: 

"Unless created to avoid the application of this 

chapter, the following arrangements are not governed 

by this chapter : 

" (8) occupancy outside a municipality under a 

rental agreement which includes hunting, fishing, 

or agricultural privileges along with the use of 

the dwelling unit." Section 70-24-104(8), MCA. 

In construing this statute, we are governed by the rule 

of construction that ". . . a relative clause must be construed 

to relate to the nearest antecedent that will make sense. " 

State v. District Court of the First Judicial Distr. (1936), 

103 Mont. 487, 501, 63 P.2d 141, 144; State v. Centennial 

Brewing Co. (1919), 55 Mont. 500, 513, 179 P. 296, 298. 

Therefore, the relative clause "which includes hunting, 

fishing, or agricultural privileges" necessarily modifies 

the noun phrase "rental agreement", not the more remote noun 

"occupancy". Thus, before a rental agreement can be excluded from application of the Landlord and Tenant Act by 

virtue of section 70-24-104 (8), MCA, hunting, fishing or 

agricultural privileges must be granted by the terms of the 

lease agreement. 

The granting terms of the rental agreement between appellant and respondents state: 

"The Seller herein may, at her option, rent from 

the Buyers the buildings conveyed by her to the 

Buyers, together with approximately --- six (6) acres 

-- of land . . ." (Emphasis added.) 

The difficulty in the case at bar arises as a result of the 

noted language. The buildings mentioned are not delineated 
anywhere in the agreement. Without description of the 

buildings it is impossible, without resort to parol evidence, 

to determine whether the lease intends commercial, agricultural or strictly residential purposes. Couple this with 

the grant of six acres of land and the parties' intent 

becomes even less clear. Thus, a close examination of the 

lease reveals an ambiguity which necessitates parol evidence. 

Section 28-3-303, MCA, provides that " [w] hen 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." (Emphasis 

added. ) As discussed, ascertaining the intentions of the 

parties to this action is not possible merely by examining 

the lease. Section 28-3-402, MCA, states " [a] contract may 

be explained by reference to the circumstances under which 

it was made and the matter to which it relates." This 

statute is in accord with section 1-4-102, MCA, regarding 

the interpretation of instruments, which provides "[£]or the 

proper construction of an instrument, the circumstances 

under which it was made, including the situation of the 

subject of the instrument and of the parties to it, may also 

be shown so that the judge be placed in the position of 

those whose language he is to interpret." Furthermore, 

section 28-2-905 (2) , MCA, specifically permits consideration 

of extrinsic evidence regarding a written agreement to explain an extrinsic ambiguity. Under this statutory authority, the District Court properly accepted parol evidence 

regarding the lease agreement in order to explain the circumstances surrounding the agreement, thus resolving the 

ambiguity which existed in the instrument. 

The parol evidence presented at trial consisted of 

photographs and testimony from the parties. The photographs 
established that the buildings, which were the subject of 

the lease, consisted of a small house, large barn and extensive corrals, several storage and chicken sheds and 

garages. Respondent testified that during negotiation of 

the terms, appellant stated to him that she needed the 

property to maintain her animals until she could locate a 

larger farm. Appellant testified that prior to entering 

into the lease and continuing throughout her possession, she 

maintained horses on the property, plus several cows, 

goats and other domestic animals on an intermittant basis. 

From this evidence, the District Court could determine 

the parties' intentions in leasing the property. Clearly, 

appellant needed the property in order to care for and raise 

the livestock which she owned. The only question remaining 

is whether maintenance of livestock in an operation of this 

scale is agricultural within the meaning of that term in 

section 70-24-104 (8), MCA? 

Appellant argues that the term "agricultural" as used 

in section 70-24-104, MCA, encompasses only occupancies 

where farming or ranching operations, whether primary or 

secondary, are engaged in for profit. Examination of section 

70-24-104, MCA, discloses that legislative intent forecloses 

such an interpretation. The term "agricultural" appears 

twice in section 70-24-104, MCA. Under subsection (6), 

"occupancy under a rental agreement covering premises used 

by the occupant primarily for commercial or agricultural 

purposes" is excluded from the Landlord and Tenant Act. 

Under subsection (8) , "occupancy outside a municipality 

under a rental agreement which includes hunting, fishing, or 

agricultural privileges along with the use of the dwelling 

unit" is excluded from the Act. 
Reading these sections together, it is clear the legislature intended a comprehensive coverage of all agricultural 

operations, whether they are large scale operations for 

profit, or small scale operations secondary to the use of a 

residence. The term "agriculture" has a very broad definition 

in the law. Black's Law Dictionary, Revised Fourth Edition, 

defines agriculture as: 

"The art or science of cultivating the ground, 

including the harvesting of crops, and in a 

broad sense, the science or art of production of 

plants and animals useful to man, including in 

a variable degree, the preparation of these 

products for man's use . . ." Page 91. 

In light of this definition and the format of section 70-24- 

104, MCA, the District Court properly determined that agricultural privileges, within the meaning of section 70-24- 

104 (8) , MCA, were granted by the lease agreement. Such a 

finding forecloses application of the Landlord and Tenant 

Act, and provisions of the unlawful detainer statutes govern. 

Plaintiffs were entitled to treble damages for the time 

defendant "held over" following termination of the tenancy. 

Each party shall be responsible for his or her own 

attorney fees relating to this appeal. 

The judgment of the District Court is affirmed. 

We concur: 

h Chief Justice