No. 13504 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

ARTHUR GRINDE , ARTHUR F . WIEDEMAN, 

LEON JACOBS, JOE C. WICKS, ROBERT L. 

DISSLY, of the CITY-COUNTY AIRPORT 

COMMISSION OF THE CITY OF LEWISTOWN 

and COUNTY OF FERGUS, STATE OF MONTANA, 

Plaintiffs and Respondents, 

FRANCIS M. TINDALL and MARIAN B. TINDALL, 

his wife, 

Defendants and Appellants. 

Appeal from: District Court of the Tenth Judicial District, 

Honorable LeRoy L. McKinnon, Judge presiding. 

Counsel of Record: 

For Appellants: 

Robert L. Johnson, Lewistown, Montana 

Torger S. Oaas argued, Lewistown, Montana 

For Respondents : 

Bradley B. Parrish argued, Lewistown, Montana 

Submitted: January 26, 1977 

Decided: 'APR -6 19n 

Filed: 1YFi j 3jT 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

In a claim and delivery action tried before the district 

court, Fergus County, without a jury, the court found plaintiffs 

are entitled to the possession of certain property constituting 

a fuel tank installation. Defendants appeal. 

During World War I1 the United States government constructed 

and placed a fueling system on land belonging to Frank and Mary 

Hruska. The site was adjacent to the Lewistown Air Force Base 

and the government entered into a lease with Hruskas for the 7 

acres of land upon which the fueling system was located. The 

lease provided that the structures placed on the land would remain 

property of the government and could be removed or otherwise disposed 

of by the government. 

In 1947, the lease was renewed for a 10 year period. In 

June 1948, the government transferred and quitclaimed the fueling 

system and the fence surrounding it to the city-county airport 

commission of the city of Lewistown and county of Fergus, which 

plaintiffs herein represent. In July 1957, the commission 

entered into another lease with Hruskas. Again in May 1969, another lease was entered into with Hruskas similar to the leases 

of 1947 and 1957. The 1969 lease was for a period of 3 years with 

an option for an additional 3 years. The rental was $40 per year 

and Hruskas were paid $75 at the time of the execution of the 1969 

lease. 

In June 1970, Hruskas sold certain real property to defendants herein Francis and Marian Tindall. This sale included 

the 7 acres leased by plaintiff commission. In Y3 of the contract 
for deed appears this statement: 

"The Airport Commission leases about 7 Acres in 

the South part of SE 114 SW 114 and/or SW 114 

SE 114 of said Section 17, and Buyer will take said 

land subject thereto and he shall be entitled to all 

rents hereafter paid thereon. The six fuel storage 

tanks and stands thereon are owned by said Commission 

and they do not go with the land." 

When the 1969 lease expired the commission attempted to gain 

possession of the fueling installation but were refused possession by defendants who contend the fuel tanks are fixtures to 

the land. Defendants argue that while the United States government retained right of removal, the right did not pass to the 

commission and even if it did pass those rights terminated in 

1972 when the 1969 lease expired, or in 1970 when the commission 

stopped paying rent. 

While the parties argue the controlling issue is whether 

the fueling installation is real or personal property, we find 

the above quoted statement from 13 of the contract for deed 

controls. However, we will consider the issues raised. 

Defendants argue section 67-209, R.C.M. 1947, is controlling. 

However, in Pritchard Petroleum Co. v. Farmers Co-op, 117 Mont. 

467, 161 P.2d 526, this Court in interpreting that statute held 

it to be merely a rule for general guidance concerning itself more 

with ultimate than with probative facts. This Court's cases 

hold the proper test for determining whether a particular object 

has become a fixture or not, is said to comprise (1) annexation 

to the realty, (2) an adaption to the use to which the realty 

is devoted and (3) intent that the object become a permanent 

accession to the land. Of these three, the intent of the parties 

has the most weight and is the controlling factor. Montana 
Electric Co. v. Northern Valley Mining Co., 51 Mont. 266, 153 

P. 1017; Sanders v. Butte Motor Co., 142 Mont. 524, 385 P.2d 

263; Shipler v. Potomac Copper Co., 69 Mont. 86, 220 P. 1097; 

Butte Electric Ry. Co. v. Brett, 80 Mont. 12, 257 P. 478. 

Considering the evidence before the trial court clearly 

the intent of all parties, prior to defendants arrival, was that 

the fueling system installation was to be considered personal 

property after it was placed on the Hruska property. 

Defendants argue the trial court erred in that it went 

beyond the agreed statement of facts and included facts in 

its findings of facts and conclusions of law that came from a 

deposition taken from Frank Hruska. We find no merit to this 

allegation. True, a deposition was taken from Hruska and included 

in the court file, but we note the deposition was properly noticed 

and when taken no representative of defendants appeared. That 

fact is not controlling here for the general rule is, in considering 

an agreed statement of facts, that a court may make any legitimate or reasonable inference or inferences of which the facts 

may rightly be susceptible. The court may draw-the reasonable 

and legitimate inferences in the same way and to the same extent 

had the facts agreed upon been adduced by the taking of testimony 

in open court. 83 C.J.S. Stipulations 3 25, p. 73. When a 

court feels it needs evidence other than that presented in the 

agreed statement of facts to make a decision, it may refer to 

other evidence than the agreed statement in arriving at its 

decision. State ex rel. Nelson v. District Court, 107 Mont. 167, 

81 P.2d 699; 83 C.J.S. Stipulations 1 25, p. 70. 
Defendants further argue that even though the facility is 

held to be personal property, the commission is foreclosed from 

removing the property by the running of the 2 year statute of 

limitations as applied to recovery of personal property. Not 

so! Whether or not the commission ceased to pay rent, and 

this is a question, this of itself does not mean the lease was 

automatically terminated. The 1969 lease contained no default 

clause and there was no evidence before the court that defendants 

terminated or attempted to terminate the lease before it expired 

on April 30, 1972. 

under 

We findlthe facts that the lease was voidable and not void 

and the statute did not begin to run until there was a demand 

by the commission and a refusal by defendants. Gates v. Powell, 

77 Mont. 554, 252 P. 377; Interstate Mfg. Co. v. Interstate 

Products Co., 146 Mont. 449, 408 P.2d 478; 51 Am Jur 2d, Limitations of Actions, $107, p. 680, 4484, p. 959. 

Judgment of the trial court is affirmed. 

pr: 

Chief 

- 

Justice 

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