No. 13504 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

ARTHUR GRINDE

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# . 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: 

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Filed: 1YFi j 

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Clerk

### Mr. JusticeJohn Conway Harrison delivered the Opinion of the Court.
Ina claim and delivery action tried before the district court, Fergus County, without a jury, the court found plaintiffs
areentitled to thepossession of certainproperty constituting
a fuel tank installation. Defendants appeal. During World War I1 the United States government constructed and placed a fueling system on landbelonging toFrank and Mary Hruska. The sitewas adjacent to the Lewistown AirForce Base and the government entered into a leasewith Hruskas for the 7
acres of land upon which the fueling systemwas located. The lease provided that the structures placed on the land would remain property of the government and could be removed orotherwise disposed of by the government. In 1947, the lease was renewed for a 10year 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 cityof Lewistown and county of Fergus, which plaintiffs herein represent. InJuly 1957, thecommission entered into another leasewith Hruskas. Again inMay 1969, 

### another leasewas entered intowith Hruskas similar to the leases of 1947 and 1957. The 1969 leasewas for a period of 

### 3 years with
an option foran additional 

### 3 years. The rentalwas $40 per year and Hruskas were paid $75 atthe 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. InY3 of the contractfor deed appears this statement: "The Airport Commission leases about 7Acres in the South part of SE 114 SW 114 and/or SW 114 SE 114 of said Section 

### 17, and Buyer willtake said land subject thereto and he shallbe 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 installationbut were refused possessionby 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 1972when the 1969 lease expired, or in 1970 when the commission stopped paying rent. While the parties argue the controlling issue 

### iswhether the fueling installation is real orpersonal property, we find the above quoted statement from 

### 13 of the contract for deed controls. However, we 

### willconsider the issues raised. Defendants argue section 67-209, R.C.M. 1947, 

### is controlling. However, inPritchard Petroleum Co. v. Farmers Co-op, 

### 117Mont. 467, 161P.2d 526, this Court in interpreting that statuteheld it tobe 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 towhich the realty isdevoted 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. MontanaElectric Co. v. Northern Valley Mining Co., 51Mont. 266, 153 

### P. 1017; Sanders v. ButteMotor Co., 142Mont. 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 trialcourt clearly the intent of allparties, prior todefendants arrival, was that the fueling system installationwas tobe considered personal property after itwas placed on the Hruska property. Defendants argue the trialcourt erred inthat 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 findno merit to this allegation. True, a depositionwas taken from Hruska and included inthe court file, but we note the depositionwas properly noticed and when taken no representative of defendants appeared. That fact 

### isnot controlling here for the general rule is, inconsidering
an agreed statement of facts, that a court may make any legitimate or reasonable inference or inferences of which the facts may rightlybe susceptible. The court may draw-the reasonable and legitimate inferences inthe same way and to the same extent had the facts agreed upon been adduced by the taking of testimony inopen court. 83 C.J.S. Stipulations 

### 3 25, p. 73. When a court feels it needs evidence other than that presented inthe agreed statement of facts tomake a decision, itmay refer to other evidence than the agreed statement inarriving at

### its decision. Stateex rel. Nelson v. District Court, 107Mont. 167, 81P.2d 699; 83 C.J.S. Stipulations 

### 1 25, p. 70.Defendants further argue that even though the facility 

### is held tobe personal property, the commission 

### is foreclosed from removing the property by therunning of the 2year statuteof limitations asapplied to recovery of personal property. Not so! Whether ornot the commission ceased to pay rent, and this 

### isa question, this of itself does not mean the leasewas automatically terminated. The 1969 lease contained no default clause and therewas no evidencebefore the court that defendants terminated or attempted to terminate the leasebefore it expired
on April 

### 30, 1972. under We findlthe facts that the leasewas voidable and not void and the statutedidnot begin to run until therewas a demand by the commission and a refusalby defendants. Gates v. Powell, 77 Mont. 554, 252 P. 377; InterstateMfg. Co. v. Interstate Products Co., 146Mont. 449, 408 P.2d 478; 51Am Jur 2d, Limitations of Actions, $107, p. 680, 4484, p. 959. Judgment of the trialcourt is affirmed.



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