granting clause in Montana

1950The majority opinion says: "If the deed purports and is intended to convey only the right, title and interest in the land, as distinguished from the land itself, it comes within the terms of a quitclaim deed, but if it appears that the intention was to convey the land itself, then it is not a quitclaim deed, although it may possess characteristics peculiar to such deeds." However, the above rule is contrary to and in conflict with that applied in Johannes v. Dwire, et al., 94 Mont. 590, 593 , 23 P.2d 971, 272 , where an assignment of oil royalty containing a granting clause which described the

1950The majority opinion says: "If the deed purports and is intended to convey only the right, title and interest in the land, as distinguished from the land itself, it comes within the terms of a quitclaim deed, but if it appears that the intention was to convey the land itself, then it is not a quitclaim deed, although it may possess characteristics peculiar to such deeds." However, the above rule is contrary to and in conflict with that applied in Johannes v. Dwire, et al., 94 Mont. 590, 593 , 23 P.2d 971, 272 , where an assignment of oil royalty containing a granting clause which described the

1983“Montana’s standard for determining whether there has been sufficient evidence as to a theory introduced to warrant the granting of an instruction is set forth in State v. Buckley (1976), Mont., 557 P.2d 283 , 33 St.Rep. 1204 , 1207: “ ‘. . .the District Court’s instructions must cover every issue or theory having support in the evidence, and the inquiry of the District Court must only be whether or not any evidence exists in the record to warrant an instruction on mitigated deliberate homicide.’ “This is the standard to be used when dealing with all lesser included instructions, regardless of

1983"Montana's standard for determining whether there has been sufficient evidence as to a theory introduced to warrant the granting of an instruction is set forth in State v. Buckley (1976), Mont., 557 P.2d 283 , 33 St.Rep. 1204 , 1207: "`... the district court's instructions must cover every issue or theory having support in the evidence, and the inquiry of the district court must only be whether or not any evidence exists in the record to warrant an instruction on mitigated deliberate homicide.' "This is the standard to be used when dealing with all lesser included instructions, regardless of t

1950The majority opinion says: "If the deed purports and is intended to convey only the right, title and interest in the land, as distinguished from the land itself, it comes within the terms of a quitclaim deed, but if it appears that the intention was to convey the land itself, then it is not a quitclaim deed, although it may possess characteristics peculiar to such deeds." However, the above rule is contrary to and in conflict with that applied in Johannes v. Dwire, et al., 94 Mont. 590, 593 , 23 P.2d 971, 272 , where an assignment of oil royalty containing a granting clause which described the

1950The majority opinion says: "If the deed purports and is intended to convey only the right, title and interest in the land, as distinguished from the land itself, it comes within the terms of a quitclaim deed, but if it appears that the intention was to convey the land itself, then it is not a quitclaim deed, although it may possess characteristics peculiar to such deeds.” However, the above rule is contrary to and in conflict with that applied in Johannes v. Dwire, et al., 94 Mont. 590, 593 , 23 Pac. (2d) 971, 272 , where an assignment of oil royalty containing a granting clause which describe

1950The majority opinion says: "If the deed purports and is intended to convey only the right, title and interest in the land, as distinguished from the land itself, it comes within the terms of a quitclaim deed, but if it appears that the intention was to convey the land itself, then it is not a quitclaim deed, although it may possess characteristics peculiar to such deeds." However, the above rule is contrary to and in conflict with that applied in Johannes v. Dwire, et al., 94 Mont. 590, 593 , 23 P.2d 971, 272 , where an assignment of oil royalty containing a granting clause which described the

1950The majority opinion says: "If the deed purports and is intended to convey only the right, title and interest in the land, as distinguished from the land itself, it comes within the terms of a quitclaim deed, but if it appears that the intention was to convey the land itself, then it is not a quitclaim deed, although it may possess characteristics peculiar to such deeds." However, the above rule is contrary to and in conflict with that applied in Johannes v. Dwire, et al., 94 Mont. 590, 593 , 23 P.2d 971, 272 , where an assignment of oil royalty containing a granting clause which described the

1950In this jurisdiction quitclaim deeds have long been used when a party wishes to dispose of or transfer an interest he may think he has in land but which interest he does not care to warrant. 1 Devlin on Real Estate, 3d Ed., sec. 27, at pages 44, 45, quotes with approval from Ely v. Stannard, 44 Conn. 528 , as follows: "A quitclaim or release deed is one of the regular modes of conveying property, and is almost the only mode in practice where a party sells, and does not wish to warrant the title.

1950In this jurisdiction quitclaim deeds have long been used when a party wishes to dispose of or transfer an interest he may think he has in land but which interest he does not care to warrant. 1 Devlin on Real Estate, 3d Ed., see. 27, at pages 44, 45, quotes with approval from Ely v. Stannard, 44 Conn. 528 , as follows: “A quitclaim or release deed is one of the regular modes of conveying property, and is almost the only mode in practice where a party sells, and does not wish to warrant the title.

1983“Montana’s standard for determining whether there has been sufficient evidence as to a theory introduced to warrant the granting of an instruction is set forth in State v. Buckley (1976), Mont., 557 P.2d 283 , 33 St.Rep. 1204 , 1207: “ ‘. . .the District Court’s instructions must cover every issue or theory having support in the evidence, and the inquiry of the District Court must only be whether or not any evidence exists in the record to warrant an instruction on mitigated deliberate homicide.’ “This is the standard to be used when dealing with all lesser included instructions, regardless of

1983“Montana’s standard for determining whether there has been sufficient evidence as to a theory introduced to warrant the granting of an instruction is set forth in State v. Buckley (1976), Mont., 557 P.2d 283 , 33 St.Rep. 1204 , 1207: “ ‘. . .the District Court’s instructions must cover every issue or theory having support in the evidence, and the inquiry of the District Court must only be whether or not any evidence exists in the record to warrant an instruction on mitigated deliberate homicide.’ “This is the standard to be used when dealing with all lesser included instructions, regardless of

1978The United States Supreme Court in Keeble v. United States (1973), 412 U.S. 205 , 93 S.Ct. 1993 , 36 L.Ed.2d 844 , said that the defendant is entitled to instructions on a lesser included offense, if evidence would permit the jury rationally to find him guilty of the lesser offense and acquit him of the greater.

1978The United States Supreme Court in Keeble v. United States (1973), 412 U.S. 205 , 93 S.Ct. 1993 , 36 L.Ed.2d 844 , said that the defendant is entitled to instructions on a lesser included offense, if evidence would permit the jury rationally to find him guilty of the lesser offense and acquit him of the greater.

1959Codes 1921.” Likewise this court in Musselshell Valley Farming & Livestock Co. v. Cooley, 86 Mont. 276 , 283 Pac. 213, 218 , quoted with approval the rule from Ruling Case Law as follows: “ ‘The modem tendency is to ignore the technical distinctions between the various parts of a deed and to seek the grantor’s intention from them all, without undue preference to any, giving due effect to all, including both habendum and granting clause, where such can reasonably be done, in order to arrive at the true intention, even to the extent of allowing the habendum to qualify or control the granting cla

1959Codes 1921.” Likewise this court in Musselshell Valley Farming & Livestock Co. v. Cooley, 86 Mont. 276 , 283 Pac. 213, 218 , quoted with approval the rule from Ruling Case Law as follows: “ ‘The modem tendency is to ignore the technical distinctions between the various parts of a deed and to seek the grantor’s intention from them all, without undue preference to any, giving due effect to all, including both habendum and granting clause, where such can reasonably be done, in order to arrive at the true intention, even to the extent of allowing the habendum to qualify or control the granting cla

1959Codes 1921.” Likewise this court in Musselshell Valley Farming & Livestock Co. v. Cooley, 86 Mont. 276 , 283 Pac. 213, 218 , quoted with approval the rule from Ruling Case Law as follows: “ ‘The modem tendency is to ignore the technical distinctions between the various parts of a deed and to seek the grantor’s intention from them all, without undue preference to any, giving due effect to all, including both habendum and granting clause, where such can reasonably be done, in order to arrive at the true intention, even to the extent of allowing the habendum to qualify or control the granting cla

1959Codes 1921.” Likewise this court in Musselshell Valley Farming & Livestock Co. v. Cooley, 86 Mont. 276 , 283 Pac. 213, 218 , quoted with approval the rule from Ruling Case Law as follows: “ ‘The modem tendency is to ignore the technical distinctions between the various parts of a deed and to seek the grantor’s intention from them all, without undue preference to any, giving due effect to all, including both habendum and granting clause, where such can reasonably be done, in order to arrive at the true intention, even to the extent of allowing the habendum to qualify or control the granting cla

1959Codes 1921.” Likewise this court in Musselshell Valley Farming & Livestock Co. v. Cooley, 86 Mont. 276 , 283 Pac. 213, 218 , quoted with approval the rule from Ruling Case Law as follows: “ ‘The modem tendency is to ignore the technical distinctions between the various parts of a deed and to seek the grantor’s intention from them all, without undue preference to any, giving due effect to all, including both habendum and granting clause, where such can reasonably be done, in order to arrive at the true intention, even to the extent of allowing the habendum to qualify or control the granting cla

1959Codes 1921.” Likewise this court in Musselshell Valley Farming & Livestock Co. v. Cooley, 86 Mont. 276 , 283 Pac. 213, 218 , quoted with approval the rule from Ruling Case Law as follows: “ ‘The modem tendency is to ignore the technical distinctions between the various parts of a deed and to seek the grantor’s intention from them all, without undue preference to any, giving due effect to all, including both habendum and granting clause, where such can reasonably be done, in order to arrive at the true intention, even to the extent of allowing the habendum to qualify or control the granting cla

1959Codes 1921.” Likewise this court in Musselshell Valley Farming & Livestock Co. v. Cooley, 86 Mont. 276 , 283 Pac. 213, 218 , quoted with approval the rule from Ruling Case Law as follows: “ ‘The modem tendency is to ignore the technical distinctions between the various parts of a deed and to seek the grantor’s intention from them all, without undue preference to any, giving due effect to all, including both habendum and granting clause, where such can reasonably be done, in order to arrive at the true intention, even to the extent of allowing the habendum to qualify or control the granting cla

1959Codes 1921.” Likewise this court in Musselshell Valley Farming & Livestock Co. v. Cooley, 86 Mont. 276 , 283 Pac. 213, 218 , quoted with approval the rule from Ruling Case Law as follows: “ ‘The modem tendency is to ignore the technical distinctions between the various parts of a deed and to seek the grantor’s intention from them all, without undue preference to any, giving due effect to all, including both habendum and granting clause, where such can reasonably be done, in order to arrive at the true intention, even to the extent of allowing the habendum to qualify or control the granting cla

1941The Flint Case, decided by the United States Supreme Court (Flint v. Stone Tracy Co., 220 U. S. 107, 31 S. Ct. 342 , 55 L.

1941The Flint Case, decided by the United States Supreme Court (Flint v. Stone Tracy Co., 220 U. S. 107, 31 S. Ct. 342 , 55 L.

1933(Krutzfeld v. Stevenson, 86 Mont. 463 , 284 Pac. 553 .) Therein it is declared that explanatory clauses may be considered as a part of the granting clause and may enlarge or diminish the grant, so long as they deal with the identical property or interest described in the granting clause.

1933(Krutzfeld v. Stevenson, 86 Mont. 463 , 284 Pac. 553 .) Therein it is declared that explanatory clauses may be considered as a part of the granting clause and may enlarge or diminish the grant, so long as they deal with the identical property or interest described in the granting clause.

1932He calls attention to the fact that it is “denied to be sound” in Fisher v. Thirkell, 21 Mich. 1 , 4 Am.

1931Surplus water, says Mr. Kinney, in section 321 of his work on Irrigation and "Water Bights, second edition, “may be defined as the water which remains in any stream or body of water after all those who are first entitled to the use of its waters have been fully supplied, and there is still some water remaining unclaimed and unappropriated.” In Quigley v. McIntosh, 88 Mont. 103 , 290 Pac. 266, 268 , in which we were passing upon an appropriation of water from an adjudicated stream, we had in mind the same idea, saying that the term “surplus water,” as used by water-right lawyers, simply means w

1931Surplus water, says Mr. Kinney, in section 321 of his work on Irrigation and "Water Bights, second edition, “may be defined as the water which remains in any stream or body of water after all those who are first entitled to the use of its waters have been fully supplied, and there is still some water remaining unclaimed and unappropriated.” In Quigley v. McIntosh, 88 Mont. 103 , 290 Pac. 266, 268 , in which we were passing upon an appropriation of water from an adjudicated stream, we had in mind the same idea, saying that the term “surplus water,” as used by water-right lawyers, simply means w

1930(McCurdy v. Mining Co., 3 Nev. 27 ; Dalton v. Bowker, 8 Nev. 201 ; Powers v. Hibbard, 114 Mich. 553 , 72 N. W. 347 ; Wilson v. Terry, 130 Mich. 78 , 89 N. W. 568 ; Bodine v. Arthur, 91 Ky. 53 , 34 Am.

1930(McCurdy v. Mining Co., 3 Nev. 27 ; Dalton v. Bowker, 8 Nev. 201 ; Powers v. Hibbard, 114 Mich. 553 , 72 N. W. 347 ; Wilson v. Terry, 130 Mich. 78 , 89 N. W. 568 ; Bodine v. Arthur, 91 Ky. 53 , 34 Am.

1930(McCurdy v. Mining Co., 3 Nev. 27 ; Dalton v. Bowker, 8 Nev. 201 ; Powers v. Hibbard, 114 Mich. 553 , 72 N. W. 347 ; Wilson v. Terry, 130 Mich. 78 , 89 N. W. 568 ; Bodine v. Arthur, 91 Ky. 53 , 34 Am.