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Show POOR COPY! THE DAILY RECORD FOUR PAGE COURT DECISIONS (Continued from Pago 3) SUPREME uearsay, parol evidence, - all in violation of the Statute of Frauds requiring a written conveyance subscribed by a grantor. tion of an easement has been changed by an agreement, either express or implied, between the owner of the dominant estate and the owner of the servient estate, such location cannot be again changed without the mutual consent of such owners, About the first 20 of the mam opinion is devoted to claimed by defendant to be accurate and such as to bind the plaintiff to the findings, and judgment of the trial court. This recitation in the opinion is disof its implications that such facts axe accurate and hence because arming defendant's position is sound. The balance of the opinion i.s simply a pumorted recital of what it says the record shows the facts to be, pius an application of legal principles to such related facts as a sort of ratio decindendi for the main opinion's ultimate conclusion affirming the trial court. .... similar view is expressed in 80 A.L. R. 2d 743, Relocation of Easements, wherein it is stated: A con-clusio- Anno: 751-75- 2, . . . There is, for example, authority supporting the conclusion that an agreement between dominant and servient estate owners to a change in the route of an easement will be enforced, even though oral, where the agreement has been performed by actual use of the new route. case. When the main opinion commences stating what the facts are where title is held until payment is complete tne conclusion to be drawn is that a conditional sale or general rather than what defendant claims them to be, it errs in the very first . . . relationship exists. ee of its recitation, when it says, "The flooding of the meadow a was area problem to both the Smiths defendants and Hickey. " There is no evidence whatever that it was any problem to Hickey, except by way of hearsay repeated by defendant Smith. The main opinion continues by saying "In 1961, Hickey orally consented to a change in the Carter Ditch with Smith." The only possible way the nain opinion could say this as i. controlling fact, is by the employment !A d statement by the defendant Smith that Hickey had so iv .id. It is disarming to a reader for this court to recite such con- -. n established fact without. supplementing it with the true fact t .r- ;t was based on hearsay to which a timely objection was made, thus g, objected-t- o, rendering it inadmissible in evidence. This bit of inadmissible evidence, really is the backbone of the defendant's entire contention, and the entire basis for the main opinion's conclusion that a transfer of a real property interest, without a subscribed written instrument, can be effected through hearsay and parol evidence of the most undependable, unprobative type. Without Hickey's presence and actual testimony in this case, Smiths' theory and this court's decision are duds. Hickey was not a witness in this case. Hickey's words are not in this record at all. His frame of mind, or consent to a conveyance of real property are here only in the mind and consent of a litigant, who, so far as this record is concerned, never sought nor saw the signature of the only person who could have created an interest in his own land favorable to a complete stranger to his title. Not even Hickey's conditional buyer under a written real estate contract had the inclination or fortitude to attempt an effective creation of a right in Smith by placing his signature to a writing that might be suggestive of such an intent. paragraph . . . Larsen's possessory interest and equitable title to the property at self-servi- the time of the relocation made his consent necessary, but it should be conceded that also the mortgagee and fee titleholder, Hickey, must consent. However, it is competent for the parties to change the location of an established easement by mutual consent, and such consent may be implied from the acts and acquiescence of the parties. Although the actual negotiations for a change in the location ot the ditch were conducted by Larsen, the tacts of thin case indicate that he wa-- . acting under the authorization o: Hickey and for the benefit of the servient estate. Hickey's consent m? further be implied from his failure to protest when Smith's application lor a change ot point ot diversion was advertised and Hickey's express provision in his deed subjecting his conveyance to ai.y easement granted by Larsen. xclf-servi- . rnirn r. f son re idnisiib! acainst Inr declaration: a partv wnenever pr. itv nf e$;aic exists lit: tv et-- the declarr. . tite" yeoi ndlx rienct- ant and tne partv, thi- term -- - j ...ccr ci I. a: i.s ci ...u iv. . i. v u: l,i aul c i u.v.i.s.w.i: lMt.tiAtt.jlt!. . . a f ' in. :i. ala'll ..ll1!! n rr.fc a V J self-servi- ti "r-ivi- lie . lllat DlalM'Jt: a euu ir.-.w- ng The main opinion continues to state without any qualifications whatever that "Iii June cl 1961, Hickey informed Smith that he had sold the property to I.arscn and that he had informed Larsen that he had previously consented to the relocation of the ditch." This gratuity should be tempered by saying this assertion was made by the defendant, without any showing of where the Hickey statement a as made, and the any kind wl o wan piesr-nt- , it. It is submitted that for this court to accept I as an) alleged statement ot Hick. y ntade m toe presence only of tncSmith, dcfenuaiit, and tr.e reporter tnerto.', without any chance to r its alh.ui,.;r..ty, .r ui,v appar.a.ii regard :or a oiiu is to depart c v. '. a e m: i u the iron. atou sa:i ir l sanctity and the '.rolcU'ly in c e - it foi ifii : . of ia. u. imr. p r,u property right? WAS J'lliia- I...,1 ng self-servin- Plaintiff assexts that the trial court erred by admitting the testimony Larsen and Smith concerning their aarot agreement tor relocation of the turned hearsay evident'-easement because such sta' cnii.nl: t ng - of or-- ns The difficulty is the fact that the main opinion is not quite accurate as to some of the facts, states the principles it espouses only to divorce itself from them either by ignoring or hurdling them, or by citation of authorities that are not applicable under the true facts of this laint'ff contends that the contract purchaser, Larsen, did not have the authority to consent to the permanent relocation of the easement. mortgagor-mortgag- WEDNESDAY, AUGUST 5, 1970 cirr.-inni.nce- n, f.t !..(ic i Ilia ;, , a . . y ift.li. lil-111 . : va ... 1 ilia. i V1 ii u( cl i i mi OuUi'l , - . -- , Wyoirm-.g- I . . . I. ,i iu. ! fa . ll 1 .'& i a I ll C7 ! . ., i ii.' I .1 .liigati it! p: il'.kliU IKU ltfi ' - i j i.it . .. iu Lt . !... . . aildi to bull Lai.. Cl t 1 II A : ' -- 1C T , cili'l tO .. :.-- t i : jo.-!.- , V. a au-.ii,- ; a it la a WC 11 -- eataOilallCsi rule awaremg aitirmatixe imunctivi- rcl:. to a .1! pica.-:a st.ow iiifc ul 31.(1:01 iX: a.I r f t av v1 A: ri or com- - p! .. 1. 1 a .imanu wisdom o: our tore- - t. g i;: ration apc-- protection of the hear- - i . ' f - - i. . - . :l.-- . at j; Lar-ser- and . eci iiiiiOngAt tnern- ir aii iui !e .i:t.ies, j a ai.d iiiu l.at Smith in a, u.gging ditches, el,. Smith i no party to . 'ii fin km a ): id :v tii i r to sel. ease- t,. m c. '.: r. t . .a'--I. oomu. ,, s.,i mat thu ina ic, it Smith and ' I ; u . . ,. i'. .ete- litle or I v ill.-- . v. o t:iun to the strange .iiiAii i - . . i lOu.pl. HI lli:2 tht: lliai Cot. and tl : . r.,ruM.i thereof by this e. affirmarii u. if.'s .v :. l! A a. 5 .i. i i ita'iii r. ilK1 . r .i iitar(l Cl pUU.llv'i. illliaut.i. o p r ... tu uni ee . iii . , i i i , . although . f r. . . .iMtiort-i- i , . .'ii.s. all .! . 4 a , I i - - ' . , tt.M 3 rip. !ror.. Luimt r.c, .. .. iiCaiu.) I 1 lot Il.h'.JS.uT.? . II. I .i 3 I A ai:n i .- i' .I . .'i-.-j- r : I:. - ('- t- tll'.Tl - I'. . . i '"I! . ur. i . Wltr.U-.- aij t ! . V ill Ol i'.V.HC. t:'a. Cdlilt Willi ll. tor. u. ic kllui l.c 'b Il ls a . .iULaiii-i- .,1 I l 1. 1 . :fi. fi ::i iai uu,in:p UUi ai ii-ji- .1,i-- to of s 4 ai ui!i, i ii-- i i,:il..i l inc 3 . .1 lyu a appeal, .hey jj.' pwiuia oa 1 i iiii'iii of .I, i.'.. Cii. I.. ii s i Costs .uniliiti i1 ! i .i WE CONCUR: R L. . 1 C the main opinion is its n notation Perh.vis the mosj unusual oai't oi a provision ol tne deed given to the bank by Hickev in 1966, wherein the conveyance was mane sunject to anv easements or rights of uay for reads, ditches, canals, pole lines, tram, miss ion lines Qr like lacuities granted ay Hickey's hu.er or by Hii key's ii.ar.tee sine- May io. 1961, justification lor the main opinion's conclusion that Hickey was a Dartv to the grant ui an easement ol any kind. A caetm reading oi that provision seems clearly to indicate that llickey pci sonally did not i on sent to any easement or the easement i untended for in the opinion. It says just the opposite and eliminates any other interpretation of his actions by carefully saying the conveyance was subject, - not to any encumbrances resulting from any action of his, - but only "as a result of the actions of Grantee the Bank or of the Buyers Larsons under that certain Sales Agreement dated May 26, 1961," - the date Hickey conditionally sold to Larsen. This is not hearsay. This is a writing, and seems to deny expressly and specifically any grant of an casement as a result of anything done or said by Hickey. justice ruck ttl, Chiet in a. it, .1 us 1 1 - The ii. A. 'l 1 . 1 !, 'I f. - - M--- i r I. t A n-j- 'I . . K i 'I .' ' 44. ( C. I, ll i ,!V , !964, r i i 1 c.. ' j - 'TV r- .' : - Ir ' '1 ' - v. I i tii'li xu an. K r . M . i' I " i . ff- - j l In) . ! . . Larsens and Smiths decided it would be to the best the ditch be relocated." This, of course, has nothing that interests to do with Hickey or this case. As a matter of fact, not only was there no admissible evidence that Hickey was any party to a conveyance, oral or written, but Hickey by the provision he inserted in his deed to the bank, .ictu.illy disclaimed any such intention, as pointed out supra. 79(P4t) 9 (i . i" ,i . i . . of the of both 1 . trial court made a rather novel finding. It said "Because excessive water Jilt, tu. . - V. - - in . J. Allan -- r- - plaintiff . t:i- - defi-nd- . r-- f j. to tu : n. ua.il-- award d . ir tnc irmi L.ourt ar- - o: - . n. n :s wit 4 i iWi-'. ui'.iii , t v. ' .. 1.. . I.a.i ullM till, thi :eccid uuta not support of the cxpe.ia. a. ui.u iit ml-.- aCC Ol . : . i I ?" .. .S. - I 'A' ii filii, t I . .. . i 7 I JC.l . I . t ft t. 1 1';--- ). One wonders what this court's position would be if, under identical circumstances, th.s case was concerned, not with the creation or grant of an casement for transportation of water, Larsen orally had agreed or attempted to convey half of Hickey's land to Smith for half of Smith's adjoining tract. . ... . -P to" (194J). 1 , - I P.2d W! (19fcJ; I ''i 4 'ill I case that quite appropriately reflects the observations of this dissent, and which states reasons that should be controlling in the instant case, is that of Cook v. Rigney, 113 Mont. 198, 126 P. 2d 325 (1942), which see. A i .I I'll i. 1 1 . 1 1 liMVl-- hii; I y . J if. i . b'-i-- l. Lull ..Ii.ill tu- - rri.,ii nee in ."riiii-g . A it , I r;i I mini "No. real interest ... utlicrw than the parly rrc;i!iun granting :t hi! jy-3- ; or granted d liv . . im- - or in , nrop- by cieecf or . . . the |