Eugene C. Walsh and Lois M. Walsh, plaintiffs, commenced this action in the district court against the United States of America and Cyprus Mines Corporation. Federal jurisdiction was predicated solely upon the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346 (b). No independent basis for federal jurisdiction against defendant Cyprus Mines Corporation was alleged, plaintiffs presumably relying upon the doctrine of pendent jurisdiction.

The complaint alleged that on August 2, 1960, plaintiffs sold and conveyed to defendants a highway easement across lands owned by plaintiffs and used by them for the pasturage of cattle. The easement deed granted to the United States of America and its assigns “an easement and right of way for highway purposes for a highway to be located,-constructed, operated and maintained under the authority of the Secretary of Agriculture of the United States.” The complaint further alleged that in the fall and winter of 1977-78, the United States of America granted or assigned the right to maintain the roadway to defendant Cyprus Mines Corporation. Cattle guards had been constructed on said easement to contain plaintiffs’ cattle. Plaintiffs assert that the defendants negligently permitted the cattle guards to become damaged and filled with dirt, snow and debris and rendered useless for livestock control. Damages to plaintiffs’ livestock operation were alleged and separate claims were stated for the years 1971-78 and 1978-79 aggregating in excess of $10,000.

The United States moved to dismiss upon the ground that plaintiffs’ complaint rested upon contract and that exclusive jurisdiction was in the Court of Claims. The district court dismissed the complaint as against the United States “because the court lacks jurisdiction.” Plaintiffs appealed. Subsequently, the case against defendant Cyprus Mines Corp. has been dismissed with prejudice as fully settled. It appears that the jurisdictional defect found by the court could not be cured by any amendment to the complaint, and thus the order may be treated as final. Blevins v. Ford, 572 F.2d 1336, 1338 (9th Cir. 1978). Inasmuch as the action against Cyprus has also since been dismissed, the judgment appealed from may be treated as a dismissal of the entire action, the court having disposed of all claims against all parties. Anderson v. Allstate Ins. Co., 630 F.2d 677, 680-81 (9th Cir. 1980).

Plaintiffs have consistently insisted in the district court and in this court that they have no interest whatsoever in asserting a contract claim, express or implied, and seek only to assert their rights to damages for conduct ex delicto. They have relied upon section 365 of the Restatement (Second) of Torts and cases sustaining the principles there enunciated.

We find these citations to be inapposite to this case. We are not concerned with the liability of a possessor of land to others “outside the land.” The allegations of the complaint implicate the rights and liabilities of the owner of the dominant tenement vis-a-vis the owner of the servient tenement in a common servitude situation involving a horizontal severance of the bundle of rights comprising ownership of real property. The Restatement of Property concerns itself with such problems. Section 485 of Restatement of the Law of Property, Vol. V, Servitudes, provides:

The Restatement comment under the foregoing section makes it clear that the problem has two aspects — who has the privilege of repairing and maintaining the easement, and who has the duty to do so. Both aspects are controllable by the terms of the conveyance, but in the absence of such terms the law grants to the owner of the easement the privilege of entering upon the easement to make reasonable repairs and the law also imposes upon the owner of the easement the duty for the benefit of the owner of the servient tenement to so maintain and repair the easement as to prevent unreasonable interference with the use of the servient tenement.

We find the Restatement principles to be fully supported by established precedent. Perhaps the leading case is Coulsen v. Aberdeen-Springfield Canal Co., 47 Idaho 619 , 277 P. 542 (1929). There plaintiff recovered for the loss of a bull which had fallen into a waste ditch created by the canal company’s negligent maintenance of the canal. The canal company appealed the adverse judgment, and the Supreme Court of Idaho said:

277 P. at 546 . The principles enunciated by the Idaho Supreme Court find uniform acceptance among the courts of the Western United States and elsewhere. See, in addition to precedents already cited: United States v. 5.61 Acres of Land, 148 F.Supp. 467 (N.D.Cal.1957); Durfee v. Garvey, 78 Cal. 546 , 21 P. 302 (1889); Rehwalt v. American Falls Reservoir District No. 2, 97 Idaho 634 , 550 P.2d 137 (1976); Kirk v. Schulz, 63 Idaho 278 , 119 P.2d 266 (1941) (easement by prescription); City of Payette v. Jacobsen, 57 Idaho 524 , 66 P.2d 1013 (1937); Triplett v. Beuckman, 40 Ill.App.3d 379 , 352 N.E.2d 458 (1976); Island Improvement Ass’n, etc. v. Ford, 155 N.J.Super. 571 , 383 A.2d 133 (1978); Sinkey v. Board of Comm’rs, 80 Nev. 526 , 396 P.2d 737 (1964); Nielsen v. Sandberg, 105 Utah 93 , 141 P.2d 696 (1943); Big Goose & Beaver Ditch Co. v. Morrow, 8 Wyo. 537 , 59 P. 159 (1899).

This action arose in Montana. The FTCA, 28 U.S.C. § 1346 (b), waives the sovereign immunity of the United States over actions for money damages “if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” None of the precedents cited declares Montana law and we have found none. We are, nevertheless, confident that if the case should arise, Montana courts will hold that the private owner of an easement has the privilege and duty of repair and maintenance to prevent unreasonable interference with the uses of the servient tenement and is liable for damages proximately caused by failure or neglect to perform such duty.

Inasmuch as the complaint does state a claim for relief under the FTCA within the jurisdiction of the district court, we must resolve the government’s contention that because the terms of the deed of conveyance do (colorably, at least) impose an implied in fact obligation on the government to maintain the highway, and the claim is for more than $10,000, this must be treated as a contract case of which the Court of Claims has exclusive jurisdiction.

First, we may observe that the terms of the conveyance do not unambiguously place a duty of repair upon the grantee of the easement. The language may as easily be construed as assuring only the privilege of going upon the easement to repair and maintain it. It is also obvious that the language of the conveyance does not add to, detract from or change in any way the common law privilege and duty of the owner of the easement to repair and maintain it, a duty which arises ex delicio and which exists if the deed of conveyance is wholly silent on the subject.

There is authority sustaining Tort Claims Act jurisdiction under these circumstances. The leading case is Aleutco Corporation v. United States, 244 F.2d 674 (3rd Cir. 1957), an action for damages for conversion by the government of war surplus materials which plaintiff had contracted to purchase. The court thoroughly discussed the jurisdictional issue citing precedents which we shall not repeat, held that the FTCA action was within the jurisdiction of the district court, and said:

Id. at 678-79 (footnote omitted). Accord, New England Helicopter Service, Inc. v. United States, 132 F.Supp. 938 (D.R.I.1955).

The Supreme Court has most recently considered the jurisdictional relationship between the Tucker Act and the FTCA in Hatzlachh Supply Co., Inc. v. United States, 444 U.S. 460 , 100 S.Ct. 647 , 62 L.Ed.2d 614 (1980). There it was held by a unanimous court (Blackmun, J. dissented on unrelated grounds) that the provision of the FTCA exempting liability for claims in respect of the detention of goods by a customs officer did not preclude an importer from recovering under the Tucker Act for breach of an implied contract of bailment. The court cited Aleutco, supra, and New England Helicopter Service, supra, with approval, and said:

Id. at 465-66, 100 S.Ct. at 650 . The Hatzlachh opinion may presage a lessening of the tension in jurisdictional disputes between the FTCA and the Tucker Act where tort and contract remedies co-exist.

The Ninth Circuit has dealt with the problem in a series of cases. In Woodbury v. United States, 313 F.2d 291 (9th Cir. 1963), the lower court had dismissed an action pleaded under the FTCA alleging a tortious breach of fiduciary duty which arose out of the execution and performance of contracts for the construction and financing of a housing project. The judg ment was affirmed upon the ground that the Tucker Act jurisdiction is exclusive where the cause of action is essentially for breach of contract. We, in Woodbury , tentatively disapproved the reasoning in Aleut-co, but distinguished that case: “We think that in Aleutco the action was essentially one sounding in tort, while here the action is one essentially sounding in contract.” Woodbury, 313 F.2d at 296 . Also in Woodbury , p. 296, we included the following caveat:

Subsequently, in Myers v. United States, 323 F.2d 580 (9th Cir. 1963), we declined to find FTCA jurisdiction in an action pleaded as one for damages for nuisance and waste where the case was essentially one for inverse condemnation, a claim founded upon the Constitution with jurisdiction in the Court of Claims under the Tucker Act. In Gardner Manufacturing Co. v. United States, 479 F.2d 39 (9th Cir. 1973), we declined to decide whether an FTCA cause of action for conversion could lie where the relationship was essentially one of contract because we found no basis for a claim for conversion. Aleutco was cited without comment as authority recognizing FTCA jurisdiction in a conversion case. Id. at 41 n.2. Most recently in Martin v. United States, 649 F.2d 701 (9th Cir. 1981), we carved out an exception in favor of FTCA jurisdiction in a case involving a claim for personal injuries caused by negligent performance of a government contract. (Ferguson, J. dissented citing Woodbury, supra.)

Whatever may be the correct state of the law since ’the Supreme Court opinion in Hatzlachh, supra, we have no difficulty in this case in distinguishing Woodbury on the same reasoning that Woodbury distinguished Aleutco, that is to say, this action is essentially one sounding in tort while Woodbury was essentially an action sounding in contract.

The complaint pleads claims for relief within the jurisdiction of the district court under the FTCA and the judgment is therefore reversed.

. The Tucker Act waives sovereign immunity with respect to claims against the U.S. founded inter alia upon the Constitution or contract or “for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491 . Only the Court of Claims has jurisdiction over Tucker Act claims in excess of $10,000. 28 U.S.C. § 1346 (a). The district courts, on the other hand, have exclusive jurisdiction over tort claims against the government under the FTCA. 28 U.S.C. § 1346 (b). . § 365 of the Restatement (Second) of Torts provides as follows: A possessor of land is subject to liability to others outside of the land for physical harm caused by the disrepair of a structure or other condition thereon, if the exercise of reasonable care by the possessor or by any person to whom he entrusts the maintenance and repair thereof (a) would have disclosed the disrepair and the unreasonable risk involved therein, and (b) would have made it reasonably safe by repair or otherwise. . The authors of the Restatement found the privilege and duty of the owner of the easement or the profit to repair and maintain to be recognized in the following cases: City of Bellevue v. Daly, 14 Idaho 545 , 94 P. 1036 (1908); Dudgeon v. Bronson, 159 Ind. 562 , 64 N.E. 910 (1902); Littlejohn v. Cox, 15 La. Ann. 67 (1860); White v. Hotel Co., 68 N.H. 38 , 34 A. 672 (1894); Dana v. Smith, 114 Me. 262 , 95 A. 1034 (1915); Moore v. White, 159 Mich. 460 , 124 N.W. 62 (1909); Edgett v. Douglass, 144 Pa. 95 , 22 A. 868 (1891); Wayne Sewerage Co. v. Fronefield, 76 Pa.Super. 491 (1921); Thompson v. Uglow, 4 Or. 369 (1873); Kesterson v. Caiifornia-Oregon Power Co., 114 Or. 22 , 228 P. 1092 (1924); Murray v. Dickson, 57 Tex.Civ.App. 620 , 123 S.W. 179 (1909). . We do not by this ruling intimate any opinion about the claim for damages alleged in Count V of the complaint.