                                No. 12521

       I N T E SUPREME COURT O THE STATE OF MONTANA
            H                 F

                                     1973



P R C U T ROD AND GUN CLUB,
 A K O NY
a Montana Non-Prof i t Corporation, e t a l . ,

                        P l a i n t i f f s and Respondents,



STATE O MONTANA, ACTING BY AND T R U H
       F                             HOG
THE DEPARTMENT O HIGHWAYS O THE STATE
                F               F
OF MONTANA; ROBERT LEROY WHITE and EDITH
WHITE, husband and w i f e ; A T U DIXON and
                              RH R
FRANCES DIXON, husband and w i f e ,

                        Defendants and A p p e l l a n t s .



Appeal from:    D i s t r i c t Court of t h e S i x t h J u d i c i a l D i s t r i c t ,
                Honorable Robert Wilson, Judge p r e s i d i n g .

Counsel of Record:

    For Appellants :

          Joseph E. Reber argued, Helena, Montana
          Leo J . K o t t a s , Jr. argued, Helena, Montana

    For Respondents :

          Keefer and Roybal, B i l l i n g s , Montana
          N e i l S. Keefer argued, B i l l i n g s , Montana
          John W. McDonald, Jr. argued, L i v i n g s t o n , Montana



                                              Submitted:         November 28, 1973

                                                 Decided :      DEC g 7 fg73
M r . J u s t i c e Wesley C a s t l e s d e l i v e r e d t h e Opinion of t h e Court.

             This i s a n a p p e a l from a judgment e n t e r e d upon f i n d i n g s
of f a c t and conclusions of law of t h e d i s t r i c t c o u r t of Park
County, t h e Hon. Robert H. Wilson, p r e s i d i n g . The judgment w a s
f o r p l a i n t i f f and e s s e n t i a l l y d e c l a r e d t h a t a c e r t a i n q u i t c l a i m
deed d a t e d J u l y 7 , 1966, from t h e S t a t e of Montana t o defendants
Robert LeRoy White and E d i t h White was void and t h e S t a t e owned
t h e property.
             P l a i n t i f f i s t h e Park County Rod and Gun Club.                     Defendants
a r e t h e Whites and t h e S t a t e , a c t i n g through t h e Department of
Highways.
             The c a s e i n v o l v e s a p i e c e of p r o p e r t y approximately 1.5
a c r e s i n s i z e a d j a c e n t t o and a b u t t i n g t h e Yellowstone River
next t o ~ a r t e 2 s
                     Bridge on o l d U.S. Highway 89 about 4 1 / 2 m i l e s
s o u t h of Livingston.            The t r a c t i s about 114 m i l e from t h e junc-
t i o n of o l d U.S.       Highway 89 and new U.S. Highway 89.                           The t r a c t
h a s been a f a v o r i t e s p o t f o r p i c n i c k e r s and fishermen f o r many
years.
             O June 1 7 , 1957, J. L. Anderson and C a r r i e E. Anderson
              n
executed a n instrument i n f a v o r of t h e S t a t e of Montana d e s i g n a t e d
     II
an        Easement".      A f t e r d e s c r i b i n g t h e p r o p e r t y , t h e following
language was used:
             "The P a r t y of t h e f i r s t p a r t does hereby g r a n t ,
             a s s i g n , and s e t over t o t h e p a r t y of t h e second
             part a l l t h a t p o r t i o n o f land d e s c r i b e d a s
             follows, to-wit:
                    " A l l t h a t p o r t i o n of land n o r t h of C a r t e r ' s
                    Bridge between t h e o l d U. S. Highway #89
                    and t h e Yellows tone River a s h e r e i n b e f o r e
                    described,
             a s a Public Park.
             "The P a r t y of t h e f i r s t p a r t s h a l l f u l l y use and
             enjoy t h e a f o r e s a i d premises, except a s t o t h e
             r i g h t s herein granted.
             I1
               To have and t o hold t h e s a i d premises a s set
             f o r t h i n s a i d easement and r i g h t unto t h e P a r t y
             o f t h e second p a r t t o use a s a P u b l i c park."
          The instrument was recorded and the State took possession
to the extent that the Highway Department did a small amount of
development as a public park or rest area and it was utilized
as a campsite, public boat landing and fishing access area.       The
Highway Department terminated maintenance of the tract as a public
park in the year 1962.
          In 1965 the Highway Department formally abandoned the old
highway which was immediately adjacent to the tract.
           In the meantime, the Andersons, who had executed the
11
     Easement" in 1957, died.   Carrie E. Anderson willed her entire
estate to her daughter Frances A. Dixon.      The decree of distri-
bution made reference to the "reversionary" interest in the tract
held by the State under easement.
           Subsequently defendants White purchased certain properties
from Frances A. Dlxon on a contract for deed, including the
1I
 reversionary" interest to the tract. Whites then contacted the
Highway Department and obtained a quit claim deed dated July 7,
1966, to the tract.     The quit claim deed was signed by the Governor
of Montana.     The deed was held by the bank which held the escrow
papers on the contract for deed.
          After 1966, the Whites fenced the property.
          Plaintiff, respondent here, alleged in its complaint that
the instrument entitled "Easement" was an absolute conveyance in
fee simple.     Defendants argue that the instrument was an easement.
In its findings and conclusions the district court did not deter-
mine whether the instrument conveyed an easement or a fee simple
title, but rather concluded:
           The interest conveyed *
          11
                                    * * by the instrument
          of June 17, 1957 * 9: * constitutes an interest
          in real property and property of a public nature
          subject to and governed by the provisions of
          Article 17, Sec. 1, of the Montana Constitution
          and subject to the procedural requirements of
          Title 81, Chapter 9, R.C.M. 1947, and Title 32,
          Chapter 39, R.C.M. 1947 * * * This result would
          necessarily follow whether the conveyed interest was
          a conveyance in fee simple or a conveyance of a les-
          ser interest such as an easement for park purposes,
                                          11
          or any other property interest.,
Then the court concluded that since the State had not followed
the law in calling for bids, etc. that the quit claim deed was
void and the State holds title and defendants White have no
interest.
           Defendants, appellants here, claim that the nature of the
interest conveyed by the instrument must be defined before any
conclusions can be made.      Defendants insist that only a "right
to useft,that
            is an easement right, was conveyed and that such
a right is not an "interest in real property", which would
require the State to comply with sections 32-3910 and 32-3911,
R.C.M. 1947, and Title 81, Chapter 9, R.C.M. 1947.
           Plaintiff, on the other hand, argues that (1) the "Ease-
ment" instrument conveyed a fee simple title, and (2) in any
                                                      1t
event, whether an easement or not, it is such an           interest in
real property" as to require sale procedures under the above
sections 32-3910 and 32-3911. Then, plaintiff argues, that since
no sale procedures were had and since the value of the tract
was over $100, the quit claim deed was a nullity.
           Defendants assert the easement was conveyed for use as
a public park pursuant to section 32-3903(5),      R.C.M. 1947, as a
ff
     park adjoining or near any highway".   And further, that such
easement was extinguished by the formal abandonment of the old
U. S. Highway 89 by the Highway Department in 1965, and by its
discontinuance of use of the land as a rest area.
          An easement may be lost by abandonment. Babcock v. Gregg,
55 Mont. 317, 178 P. 284. Also, the servitude (easement) is
extinguished by the performance of an act upon either tenement,
by the owner of the servitude, or with his assent, which is
incompatible with its nature or exercise.       Section 67-611(3),
R.C.M. 1947.      If the State, acting through the Highway Department,
abandoned the dominant tenement, the old highway, with which the
rest area park was intended to be used and abandoned its mainten-
ance and dominion over the area, it is clear that the easement was
abandoned as a matter of law based on those facts and the area
reverted to the owner.   Thus it is of importance to determine the
nature of the instrument of June 17, 1957.      Simply finding, as the
district court did, that the instrument created an "interest in
real property" is not enough to determine that such "interest in
real property" must be disposed of only upon appraisal, bid, etc.
More will be said about this later herein.
       An easement is defined as the 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 v. Atkeson, 112 Mont. 302, 305,
116 P.2d 881. The grant of an easement is the grant of a use
and not a grant of title to the land.     Bolinger v. City of Bozeman,
158 Mont. 507, 511, 493 P.2d 1062; 28 C.J.S. Easements, 5 28, p 682.
                                                               .
       A fee simple is defined as an estate of inheritance which
is not defeasible or conditional.      Section 67-503, R.C.M. 1947.
The holder of a fee simple holds an inheritance clear of any
condition, limitation or restriction, Gantt v. Harper, 82 Mont.
393, 404, 267 P. 296.
       The important distinction between an easement and a fee
simple ts that the former describes the right to a use of land
which is specific or restrictive in nature, while the latter is
the grant of title to the land itself.
       Here, the first consideration is whether the instrument
conveys the land itself or whether it refers to a right to use.
The instrument initially is entitled "Easement", It specifically
refers to use.    The purposes for which the land was granted, as-
signed and set over are expressed in the granting clause.      Section
67-1516, R.C.M.   1947, provides:
       "A clear and distinct limitation in a grant
       is not controlled by other words less clear
       and distinct. 11
Here, the limitation is clear and distinct.     Moreover, no con-
sideration was recited nor passed to Andersons.     23 Am Jur 2d,
Deeds, 5 195.
       We find then that the instrument was an easement.     It granted
the "use" of the land as a park connected to the use of the old
Highway 89.   This becomes important when considering whether
such an easement can be extinguished and abandoned, as was done
here.   The easement here, of course, was appurtenant to the
highway and was procured pursuant to the authority of section
32-3903(5),   R.C.M. 1947.
        In 1965, the Highway Department officially abandoned old
U.S. Highway 89.    It had ceased to maintain the area as a park
or rest area after 1962.     An easement may be lost by abandonment
(Babcock v. Gregg, supra).    Here, not only was the easement
abandoned, it was reconveyed back.    It reverted both by abandonment
and by intentional conveyance.
        The only problem then is whether the State, acting through
the Highway Department, can by administrative procedure give the
Whites a quit claim deed to clear their title.    There was,
according to the record, a long-established administrative pro-
cedure for handling easements which was followed by the Highway
Department. The Highway Department acquires various 11interests
    real
in /property" which might be termed "transitory" or temporary
licenses, permits, leases and easements for construction, main-
tenance and general highway uses.     To say that the language used
in section 32-3910, R.C.M.    1947, "any interest in real property"
must be sold at public auction, extends to interests of a limited
nature for specific highway purposes would make even neighborly
permission impossible.  Such interests of a limited or restrictive
                                         is
nature are not saleable interests. ~his/~articularl~ where the
                                                      so
11
 interest" is merely a right to use, as distinguished from an
estate of inheritance or title to real estate.
        In the instant case, plaintiff would have us hold the
instrument created a fee simple title with covenants running with
the title.    Under this theory, of course, the State would have
held such an "interest in real property" as to have required bids.
But, as we have pointed out heretofore, such was not the case.
        Another reason appears in the long standing administrative
interpretation of the language "any interest in real property"
                as not governing easements, leased and construction permits in
                that the interest is such a limited one, usually acquired for a
                specific highway purpose, that it is not saleable interest and
                is therefore not subject to section 32-3910, R.C.M. 1947.       State
                v. King Colony Ranch, 137 Mont. 145, 350 P.2d 841; State ex rel.
                Ebel v. Schye, 130 Mont. 537, 305 P.2d 350.
                            Accordingly, we find the district court was in error in
                holding an easement of this nature to be such an "interest in
                real property" as to require public sale.
                            We have examined plaintiff's contention that the Highway
                Department should have "given" the easement to the Fish and Game
                Department for use as fishing access.      We are not here concerned
                with the wisdom or advisability of the actions, but rather their
                legality.
                            By what has been determined heretofore, the district court
                judgment is set aside and the cause remanded for dismissal of
                the complaint.




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