text:
    GREENWALT FAMILY TRUST, GARY GREENWALT and LINDA GREENWALT, TRUSTEES, Plaintiffs and Appellants, v. RICHARD L. KEHLER, JR., Defendant and Respondent.
    No. 94-164.
    Submitted on Briefs October 5, 1994.
    Rehearing Denied Dec. 15, 1994.
    Decided November 21, 1994.
    51 St.Rep. 1130.
    267 Mont. 508.
    885 P.2d 421.

      For Appellants: James E. Torske, Attorney at Law, Hardin.
    For Respondents: Martin J. Elison, Attorney at Law, Hardin.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiffs Greenwalt Family Trust, Gary Greenwalt and Linda Greenwalt, trustees (the Greenwalts), and defendant Richard L. Kehler, Jr., own adjacent tracts of land. The Greenwalts filed suit in the Thirteenth Judicial District Court, Big Horn County, claiming they had acquired a prescriptive easement across the northerly 30 feet of Kehler’s property. The Greenwalts sought to permanently enjoin Kehler from interfering with their alleged easement. The District Court decided that the Greenwalts failed to establish a prescriptive easement. The Greenwalts appeal from that decision. We affirm

The issue we find dispositive on appeal is:

Did the District Court err when it concluded that the Greenwalts failed to prove the elements necessary to establish a prescriptive easement?

FACTUAL BACKGROUND

The Greenwalts and Kehler own adjacent 40 acre tracts of land south of St. Xavier in Big Horn County, Montana. The Greenwalts’ property consists of the NWi/4NEi/4j Section 16, Township 5 South, Range 32 East, M.RM. Kehler’s property consists of the NEy4NEy4, Section 16, Township 5 South, Range 32 East, M.P.M. There is a large irrigation ditch running along the northern edge of both the Greenwalts’ and Kehler’s properties. Montana State Highway 313 is located long the west side of Section 16, and a gravel county road runs along the east side of Section 16.

The Greenwalts’ predecessor in interest is Gary’s father, Robert Greenwalt. The Greenwalts obtained the land from Robert by a warranty deed on March 29, 1985. Robert owned and farmed the property from 1966 through 1985, and claimed he continuously used the north 30 feet of Kehler’s property to remove crops to the gravel county road from 1966 to 1985. Kehler acquired his property by a quit claim deed from Aetna Insurance Company on March 27, 1990.

Henry Schneider, Jr., owns property bordering the Greenwalts to the north. To the north of both parties’ properties is a permanent elevated road which runs the length of Section 16. The ditch runs through a culvert, allowing access to the Greenwalts’property across the ditch from the elevated road. The alleged easement at issue crosses the north end of both the Greenwalts’ and Kehler’s properties, just south of the ditch. The Greenwalts, as well as other people, have used the purported easement across the north end of Kehler’s property as access for irrigation and for farming.

Clyde Hawks, one of Kehler’s predecessors, installed culverts at the northeast comers of both the Greenwalts’ and Kehler’s properties sometime after Robert Greenwalt purchased the property in 1966. The District Court found that the culverts were intended to channel waste water and to provide a bridge to access the Greenwalts’ property. The court found that this installation indicated reciprocal permission to drive over the alleged road for farming purposes.

Schneider and his family owned and leased properties in the vicinity of the claimed easement for over 50 years. He stated that he and his family sometimes used the alleged easement to irrigate and farm their property across the ditch to the north. Schneider testified that he had always observed numerous people using the route across Kehler’s property. He saw Bob and Gary Greenwalt, Kenneth Schneider, Floyd Boeckel, Doug Greenwalt, and ditch riders using the road for convenience to irrigate and farm nearby crops.

Schneider has given the Greenwalts permission to cross the property to the north side of the ditch to access their property. Schneider testified that over many years he acquired a good understanding of the prevailing community arrangement, which is that every landowner, since before the Greenwalts’ predecessor purchased the property, could access their property across their neighbors’ land, so long as they did not injure the owners’ crops or property. Schneider testified that he occasionally drove on the low road, but never during the winter or when Kehler was farming or irrigating.

The Greenwalts offered Warren Hill, one of Kehler’s predecessors, as a witness. During the 1970s, Hill farmed the property for at least three crop years and he stated that he farmed the property right up to the ditch. Hill testified that the claimed road was not actually a road, but people drove and impacted a track on it every year. He said it was common practice to use the packed portion and he left it there for himself, but nobody drove it when he irrigated because it was too muddy. Hill allowed people to use the alleged roadway, so long as they did not damage his crops. He testified that there was an implicit good neighbor policy to allow others access. The District Court also found that the Greenwalts and their predecessor honored a prevailing access policy by not driving across the road or interfering with Hill’s use when he was plowing, seeding, or installing ditches.

Gary Greenwalt testified that he used the road in the spring and in the fall, and sometimes for hay in the winter, and that he knew other people used the road. During the time period from 1987 until Kehler purchased the property in 1990, Aetna had title to the property and leased it to the LV Partnership which farmed the land. Kehler was a partner in LV at that time. The District Court asked Gary Greenwalt whether Aetna had notice that the Greenwalts were traveling the road, but Gary Greenwalt stated he was not certain whether Aetna knew.

Robert Greenwalt testified he used the road year round from 1966 until 1985 because he could not use any other road to get his crops out. However, he acknowledged that he did not use the road when it was muddy. Neither Robert nor Gary Greenwalt ever placed or replaced culverts, or repaired or maintained the alleged road.

Finally, Kehler testified that there was a permissive use policy in the area, including the time period he was a partner in the LV Partnership. Kehler honored the prevailing access policy allowing neighbors to cross his land. Kehler added that he observed no tracks on the purported roadway during the winter and it was neighborly not to drive across others’ property when it was muddy. He stated that on January 10, 1993, he revoked the good neighbor policy because of a confrontation with the Greenwalts.

After the confrontation, the Greenwalts sought a permanent injunction to prevent Kehler from interfering with the access to their property. The District Court originally issued a temporary restraining order, and order to show cause, without notice to Kehler. After a hearing on the order to show cause, the court issued a preliminary injunction. The trial was held December 6, 1993.

Based on its findings and conclusions, which were issued on January 31,1994, the District Court denied a permanent injunction and dissolved the preliminary injunction.

DISCUSSION

Did the District Court err when it concluded that the Greenwalts failed to prove the elements necessary to establish a prescriptive easement?

The Greenwalts challenge the District Court’s findings and conclusions pursuant to which their claim for a prescriptive easement was denied. This Court will not set aside a district court’s findings of fact unless they are clearly erroneous. Columbia Grain Int’l v. Cereck (1993), 258 Mont. 414, 417-18, 852 P.2d 676, 678. We also recognize that due regard is given to the trial court judge to determine the witnesses’ credibility. Rappold v. Durocher (1993), 257 Mont. 329, 331, 849 P.2d 1017, 1019. We review a district court’s conclusions of law to see if the court’s interpretation of the law was correct. In re Marriage of Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93 (citing In re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619).

In order to establish a prescriptive easement, the Greenwalts must prove that their use of the claimed roadway was open, notorious, exclusive, adverse, continuous, and uninterrupted for the full statutory period. Downing v. Grover (1989), 237 Mont. 172, 175, 772 P.2d 850, 852. In Montana, the statutory period is five years. Section 70-19-401, MCA.

Open and notorious is “ ‘a distinct and positive assertion of a right hostile to the rights of the owner and must be brought to the attention of the owner.’ ” Downing, 772 P.2d at 852 (quoting Poepping v. Neil (1972), 159 Mont. 488, 492, 499 P.2d 319, 321). Continuous means “ ‘it is necessary to have use made often enough to constitute notice of the claim to the potential servient owner.’ ” Downing, 772 P.2d at 852 (quoting Powell & Rohan, Powell on Real Property, Vol. 3, § 413, pp. 34/124-34/126 (1987)). Uninterrupted means “ ‘use not interrupted by the act of the owner of the land or by voluntary abandonment of the party claiming the right.’ ” Downing, 772 P.2d at 852 (quoting Scott v. Weinheimer (1962), 140 Mont. 554, 374 P.2d 91). “An ‘[exclusive’ use means that the claimants’ right to use the right of way is independent of a like right of way in another.” Cope v. Cope (1971), 158 Mont. 388, 392, 493 P.2d 336, 339. Finally,

[t]o be adverse, the use of the alleged easement must be exercised Tinder a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land; such claim must be known to, and acquiesced in, by the owner of the land.

Keebler v. Harding (1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356-57.

“All elements must be proved in a case such as this because ‘one who has legal title should not be forced to give up what is rightfully his without the opportunity to know that his title is in jeopardy and that he can fight for it.’ ” Downing, 772 P.2d at 852 (quoting Grimsley v. Estate of Spencer (1983), 206 Mont. 184, 670 P.2d 85, 92-93). However, we recently clarified our rule regarding a presumption of adversity.

While a presumption of adverse use or adversity arises once the claimant establishes open, notorious, exclusive, continuous, and uninterrupted (unmolested) use for the full statutory period, it remains the burden of the easement claimant to prove each of those remaining elements of prescription, and unless and until the claimant proves those elements under the general rule, the burden does not shift to the land owner to prove permissive use or license.

Warnack v. Coneen Family Trust (1994), [266 Mont. 203], 879 P.2d 715, 723 (citations omitted). If the presumption of adverse use is established, the other party may overcome that presumption by showing that the use was permissive. Therefore, to succeed, the Greenwalts had to prove all the elements, except adversity, in order to shift the burden to Kehler to show permissive use.

As required by Downing, the Greenwalts had to prove that their use of the alleged route across Kehler’s field was open and notorious and establish positive assertion of a right hostile to the owner which was brought to the owner’s attention. Downing, 772 P.2d at 852. Gary Greenwalt testified that he established an easement between 1985-1992 by using the roadway as a matter of right for at least the five-year period.

However, assuming there was sufficient evidence to entitle the Greenwalts to the presumption of adversity, there was substantial evidence to support the District Court’s finding that the local custom was to allow neighbors to cross the edges of neighboring fields. Where there is a community understanding, it is considered permission; there is no prescription if the use is allowed by express or implied permission. Wilson v. Chestnut (1974), 164 Mont. 484, 490-91, 525 P.2d 24, 27. In Wilson, we also recognized that there must be some circumstances or act to indicate the use was not permissive, and prescription does not arise if the use is originally from amity and continued in recognition of the owner’s title. “If the owner shows permissive use, no easement can be acquired since the theory of prescriptive easement is based on adverse use.” Rathbun v. Robson (1983), 203 Mont. 319, 322, 661 P.2d 850, 852 (citation omitted).

More recently, in Public Lands Access Ass’n, Inc. v. Boone and Crockett (1993), 259 Mont. 279, 856 P.2d 525, we recognized that a prescriptive easement does not arise from neighborly accommodation. In Boone & Crockett, testimony indicated that use of the road occurred because of neighborly accommodation which was insufficient to establish an easement by prescription. Boone & Crockett, 856 P.2d at 528. As we noted in Wilson, use by express or implied permission, even if continuous, is not sufficient. Wilson 525 P.2d at 27. In Boone & Crockett, we also reiterated important testimony cited in Rathbun, 661 P.2d at 852:

[sjeveral witnesses testified concerning local customs that began in the homesteading days concerning access across another’s land. There existed an understanding among landowners that permission was not required every time a person needed to cross his neighbor’s land. Permission was automatic if the individual closed the gates and respected his neighbor’s property.

Boone & Crockett, 856 P.2d at 528 (alteration in original).

The Greenwalts contend there was insufficient evidence to support the District Court’s finding that there was a permissive community practice. However, there was conflicting testimony regarding this issue. We have previously recognized that the district court is in the best position to resolve conflicts and judge the credibility of the witnesses pursuant to Rule 52(a), M.R.Civ.P. See Thomas v. Barnum (1984), 211 Mont. 137, 143, 684 P.2d 1106, 1110.

Numerous witnesses testified that there was a neighborhood policy of allowing others to travel across the edges of the fields to gain easier access to their own property. The District Court found, and testimony indicates, that nobody drove on the end of Kehler’s field during plowing, planting, or irrigating. Although nobody asked permission, users of the alleged roadway were aware that they were not to interfere with Kehler’s property. Even the Greenwalts testified they would not interfere with Kehler’s property. This indicates use subordinate to the true legal title holder’s interest.

In conclusion, there was substantial evidence to support the District Court’s finding that the Greenwalts’use of Kehler’s property was permissive, rather than adverse, and we conclude that this critical finding was not clearly erroneous. Without adverse use, the elements of a prescriptive easement were not established. Therefore, the judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT and WEBER concur.


source: Caselaw Access Project

author: JUSTICE NELSON

license: Public Domain

text:
    JACK MURER, JAY HARBRIGE, KEITH MORDJA, SUSAN VERNON, BRUCE NELSON, STEVE PRICKETT, and JAMES BROWN, Claimants/Co-Appellants, -v-STATE COMPENSATION MUTUAL INSURANCE FUND, Defendant/Co-Respondent, and LARRY MACK and WILLIAM LOGAN, Claimants/Co-Appellants, -vASARCO, INCORPORATED, Defendant/Co-Respondent.
    No. 94-067.
    Submitted on Briefs August 11, 1994.
    Rehearing Denied Dec. 15, 1994.
    Decided November 21, 1994.
    51 St.Rep. 1145.
    267 Mont. 516.
    885 P.2d 428.

      For Appellant: Allan M. McGarvey, McGarvey, Heberling, Sullivan & McGarvey, Kalispell.
    For Respondent: Bradley L. Luck, Garlington, Lohn & Robinson, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a Workers’ Compensation Court order granting the defendants/respondents summary judgment and its order denying plaintiffs/appellants partial summary judgment. We reverse and remand for a calculation of benefits consistent with this opinion.

The issue on appeal is whether the District Court erred in granting summary judgment to the defendants/respondents and denying the partial summary judgment motion of the plaintiffs/appellants. The underlying issue is whether the statutes at issue which set the maximum rate for workers’ compensation benefits at $299 for the periods from July 1,1987 through June 30,1991, were temporary or were permanent caps on benefit rates.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants are Montana workers who were injured in accidents occurring within the scope and course of their employment between July 1,1987, and June 30,1991, and who were paid disability benefits at a maximum benefit rate of $299 per week. Appellants’ maximum benefit rate of $299 per week was computed pursuant to § 39-71-701, MCA (1987) and (1989) which provided, in pertinent part:

(3) Weekly compensation benefits for injury producing temporary total disability shall be 66 2/3% of the wages received at the time of the injury. The maximum weekly compensation benefits shall not exceed the state’s average weekly wage at the time of injury.
(5) Notwithstanding subsection (3), beginning July 1, 1987, through June 30, 1989 [1991], weekly compensation benefits for [permanent or temporary] total disability may not exceed the state’s average weekly wage of $299 established July 1, 1986.

Section 39-71-701(3) and (5), MCA (1987).

Subsection (5) of § 39-71-701, MCA, was initially added to the statute in 1987. In 1989, subsection (5) was again amended to extend the $299 cap on benefits to June 30, 1991. In both 1987 and 1989, substantially the same language was added to §§ 39-71-702(6), 39-71-703(3), 39-71-721(8), and 39-71-1024(3), and our decision here applies to those statutes as well. Under the statutory scheme as amended, payments for partial disability were not to exceed $149.50, which was one-half the state’s average weekly wage established July 1,1986. See § 39-71-703(3).

Section 39-71-701(5), MCA (1987), placed an arbitrary “cap” or limit on the benefits payable to injured workers, as an exception to the regular benefit rate provided for at § 39-71-701(3), MCA (1987)— i.e. 66 2/3% of the workers’ wages at the time of injury, not to exceed the state’s average weekly wage. The cap provided for at subsection (5) pertained to benefits awarded to workers injured between July 1, 1987 and June 30, 1991. During that same period — July 1, 1987 through June 30,1991 — the state’s average weekly wage established by the Department of Labor ranged from $302 to $349, or, in other words, from $3 to $50 higher than the capped maximum benefit rate of $299.

The question presented is whether the cap terminated after June 30, 1991, as to benefits awarded during the time that the cap was in effect or whether such benefits continued to be limited to a maximum of $299 following after that date. Appellants contend that the cap was only temporary and that, under the terms of the statute, the cap terminated after June 30,1991, with the result that, after that date, the maximum rate for workers’ compensation benefits returned to the higher time of injury state’s average weekly wage under § 39-71-701(3), MCA. The insurers, on the other hand, maintain that, once benefits were awarded under the capped rate, those benefits, as limited, continued on past 1991 as the injured workers’ permanent time of injury maximum rate.

Appellants filed their petition on June 25, 1992, seeking to have their action filed as a class action suit but the Workers’ Compensation Court denied class certification. That denial was affirmed by this Court in Murer v. State Comp. Mut. Ins. Fund (1993), 257 Mont. 434, 849 P.2d 1036.

Appellants then brought their motion for partial summary judgment, filed on June 1, 1993, and on July 12, 1993, the respondents filed their motion for summary judgment. The Workers’ Compensation Court filed its order and memorandum on January 11, 1994, denying appellants’ motion for partial summary judgment and granting respondents’ motion for summary judgment. This appeal followed.

STANDARD OF REVIEW

The standard of review for an appeal from a Workers’ Compensation Court’s grant or denial of a motion for summary judgment is the same as that used by a district court. Lund v. State Compensation Mut. Ins. Fund (1994), 263 Mont. 346, 348, 868 P.2d 611, 612. ‘We determine whether there is an absence of genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Lund, 868 P.2d at 612. The material facts in the instant case are not at issue; the resolution of the question presented in this case hinges upon the proper legal interpretation of the §§ 39-71-701(5), MCA, 1987 and 1989. Our review of the conclusions of law of the Workers’ Compensation Court is plenary; we simply determine whether its legal conclusions are correct. Lund, 868 P.2d at 612.

DISCUSSION

While we have considered the various arguments raised by the parties to this appeal, we need go no further than to apply the well established rules of construction set forth in our statutes and case law. In construing a statute, this Court must “ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.” Section 1-2-101, MCA. Moreover, “[a] cardinal principle of statutory construction is that the intent of the legislature must first be determined from the plain meaning of the words used, and if interpretation of the statute can be so determined, the courts may not go further and apply any other means of interpretation.” Mont. Ass’n of Underwriters v. State, Etc. (1977), 172 Mont. 211, 215, 563 P.2d 577, 579-80. (Citations omitted.) We conclude that the statute at issue here, § 39-71-701(5), MCA (1987) and (1989), is clear and unambiguous and that, from the plain meaning of the language used by the legislature, the limitation on benefit payments of $299 (or $149.50 for partial benefits) per week was intended to be a temporary cap and not a permanent one.

While we decline to speculate on the language that the legislature could have used to make the $299 cap permanent, one thing is clear. Had the legislature intended to impose a permanent cap on benefits awarded to injured workers during the period July 1, 1987 through June 30,1989, and again during the period July 1,1989 through June 30,1991, it could have easily included language in subsection (5) to accomplish that. Instead, the language chosen merely sets forth a time-specific limitation on benefits — i.e. that notwithstanding the higher benefit rate to which the injured worker would normally be entitled under subsection (3) of § 39-71-701, MCA, beginning July 1, 1987 through June 30,1991, those benefits were capped at an amount not to exceed $299. There is simply no language in the statute that would lead to the conclusion that the benefit cap was to apply to any time period after June 30,1991, and it is improper to interpret the statute to insert such a provision where the legislature failed to do so.

The language used by the legislature, “beginning July 1 1987, through June 30, 1991... benefits ... may not exceed ... $299,” clearly limits the amount and timing of benefit payments. The statutory language does not, contrary to the insurers’ arguments, delineate the dates of injury or dates of the workers’ claims to which a “time of injury” compensation rate is permanently fixed at $299. Moreover, as pointed out above, had it been the legislature’s intention to establish a permanent time of injury benefit at the capped amount, the statute could have been written to accomplish that result. It was not, and we decline to interpret the statute in that fashion.

While the Workers’ Compensation Court attempted to divine “what the legislature was trying to do,” in capping the benefit rate at $299 during the time periods in question, it is improper and violative of the rules of statutory construction set forth above to go beyond the plain language of the statute when the legislature’s intent can be derived from the objective meaning of the words used. Montana Underwriters, 563 P.2d at 579-580.

If the cap of $299 was intended to be a permanent cap, the legislature would have so stated, and would not have provided for a time limitation for the cap to remain in effect. Tb interpret the statute as providing for a permanent cap on benefits of $299 would necessitate inserting that which the legislature omitted from the statute in its enactment of the amendment. Section 1-2-101, MCA. As asserted by the appellants, “[s]imply stated, the statute provides that benefits may not exceed $299.00 per week from July 1,1987 through June 30,1991.”

At the expiration of the time limitation provided for in § 39-71-701(5), MCA (1989), the statutory provision that the maximum benefit rate for workers is set at the state’s average weekly wage at the time of the injury governs. Section 39-71-701(3), MCA.

Respondents argue that the rate in effect at the time of injury controls throughout the life of a claim and that the appropriate rate in the instant case for workers injured from July 1,1987 through June 30,1991 is $299.00 for the duration of their claims. They contend that if the appellants’ argument is accepted, a maximum benefit rate claim would increase whenever the state’s average weekly wage would increase. The weekly compensation benefit rate is fixed at the time of injury; and the time of injury benefit rate during the time period in question is $299.

We agree that an injured worker’s weekly compensation benefit rate is fixed at the time of injury. Stuber v. Moodie Implement (1989), 236 Mont. 189, 192, 769 P.2d 1205, 1207. It is also well established that a claimant’s worker’s compensation benefits are determined by the statutes in effect at the time of injury. Buckman v. Montana Deaconess Hosp. (1986), 224 Mont. 318, 322, 730 P.2d 380, 382.

However, the appellants’ argument is also in accord with those legal precepts. Appellants argue, and we agree, that subsection (5) of § 39-71-701, MCA, for the years 1987 and 1989, was a temporary, time-specific limitation and that when the limitation expired, the claimants should then have been paid maximum benefit rates not to exceed the state’s average weekly wage rate at the time of the injury under § 39-71-701(3), MCA. In actuality, appellants ask for no more than they are granted by statute — that they receive benefits at 66 2/3% of their wages received at the time of injury with the maximum weekly compensation benefits not to exceed the state’s average weekly wage at the time of injury. Section 39-71-701(3), MCA.

From our reading of the plain, objective language of the statute, we conclude that this is precisely what the appellants should receive. We hold that the “cap” on benefits, of $299.00, set by the 1987 and 1989 legislatures in § 39-71-701(5), MCA, was a temporary cap on benefits which terminated on June 30, 1991, and that on that date the appellants should have begun receiving benefits under § 39-71-701(3), MCA, at the statutory rate determined as of the date of injury — i.e. “[w]eekly compensation benefits ... [of| ... 66 2/3% of the wages received at the time of the injury... not [to] exceed the state’s average weekly wage at the time of injury.” Section 39-71-701(3), MCA. We hold that the Workers’ Compensation Court erred in granting summary judgment to the defendants/respondents and denying partial summary judgment to the plaintiffs/appellants, and, accordingly, we reverse and remand for a calculation of benefits consistent with this opinion.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

JUSTICES HARRISON, TRIEWEILER, HUNT and WEBER concur.


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DEAN WADE FOLDA, Defendant and Appellant
    No. 94-144.
    Submitted on Briefs October 28, 1994.
    Decided November 21, 1994.
    51 St.Rep. 1149.
    267 Mont. 523.
    885 P.2d 426.

      For Appellant: Dean Wade Folda, Pro Se, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Brenda Nordlund, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Carol Donaldson, Deputy County Attorney, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant Dean Wade Folda was convicted in Yellowstone County Justice Court of four counts of operating a motor vehicle without liability insurance, in violation of § 61-6-304, MCA; four counts of operating an unregistered motor vehicle, in violation of § 61-3-301, MCA; and one count of not wearing a seatbelt while operating a motor vehicle, in violation of § 61-13-103, MCA. Folda was convicted in Billings City Court of four counts of operating a motor vehicle without liability insurance, in violation of § 61-6-304, MCA; four counts of operating an unregistered motor vehicle, in violation of § 61-3-301, MCA; and two counts of not wearing a seatbelt while operating a motor vehicle, in violation of § 61-13-103, MCA. On appeal to the Thirteenth Judicial District Court for Yellowstone County, the charges originating in Billings City Court were consolidated and the charges which originated in Yellowstone County Justice Court were consolidated separately. Bench trials were held on both appeals; Folda was convicted in both cases and appeals his convictions. We affirm the judgments of the District Court.

The issue on appeal is:

Were Folda’s constitutional or statutory rights violated as a result of his multiple convictions?

FACTUAL BACKGROUND

Folda was cited in Yellowstone County Justice Court for four counts of operating a motor vehicle without liability insurance, in violation of § 61-6-304, MCA; four counts of operating an unregistered motor vehicle, in violation of § 61-3-301, MCA; and one count of not wearing a seatbelt while operating a motor vehicle, in violation of § 61-13-103, MCA. Folda was cited in Billings City Court for four counts of operating a motor vehicle without liability insurance, in violation of § 61-6-304, MCA; four counts of operating an unregistered motor vehicle, in violation of § 61-3-301, MCA; and two counts of not wearing a seatbelt while operating a motor vehicle, in violation of § 61-13-103, MCA.

Folda contends that since he is a “free” man who is no longer a Fourteenth Amendment citizen, he is not required to register his vehicle, wear a seatbelt, or maintain liability insurance. Folda also asserts that he is not required to abide by any state or federal laws.

After bench trials, Folda was convicted in Yellowstone County Justice Court and Billings City Court on all counts.

On appeal to the Thirteenth Judicial District Court, bench trials were again held pursuant to both appeals; Folda did not cross-examine any opposing witnesses, nor did he offer any evidence on his own behalf. Folda was convicted in both cases. He was fined $125 and sentenced to ten days in jail (which would be suspended upon the completion of eight hours of community service), for each count of operating a motor vehicle without liability insurance. He was fined $100 for each count of operating an unregistered vehicle. Finally, he was fined $10 for each count of driving without a seatbelt. The District Court also found that Folda is unable to pay the fines.

DISCUSSION

Were Folda’s constitutional or statutory rights violated as a result of his multiple convictions?

When we review the constitutionality of a legislative enactment, we will presume the statute to be constitutional and will uphold the statute on review except when it is proven to be unconstitutional beyond a reasonable doubt. State v. Lilburn (1994), 265 Mont. 258, 261-63, 875 P.2d 1036, 1039 (citing City of Billings v. Laedeke (1991), 247 Mont. 151, 154, 805 P.2d 1348, 1349).

Folda contends that since he is a “free” man who is no longer a Fourteenth Amendment citizen, he no longer has to abide by any state or federal laws, including registering his vehicle or maintaining liability insurance for his vehicle. Folda also argues that in order to be prosecuted for a statutory violation, a person must injure or damage other persons or property and that, in this case, he has done neither.

In 1837, the United States Supreme Court held that state and local governments have an inherent power to enact regulations concerning the health, safety, welfare, and morals of the public. Charles River Bridge v. Warren Bridge Co. (1837), 36 U.S. (11 Pet.) 420 L. Ed. 773. We relied on this decision in City of Billings v. Skurdal (1986), 224 Mont. 84, 87, 730 P.2d 371. We have recognized that regulations enacted pursuant to the state’s police power “[w]ill be presumed reasonable absent a clear showing to the contrary.” Skurdal, 730 P.2d at 373 (quoting Bettey v. City of Sidney (1927), 79 Mont. 314, 319, 257 P. 1007, 1009).

Operation of a motor vehicle and abiding by the regulations and statutory licensing procedures that follow is a privilege. State v. Skurdal (1988), 235 Mont. 291, 295, 767 P.2d 304, 307. An individual’s ability or privilege to operate a motor vehicle on public roads is “[a]lways subject to reasonable regulation by the state in the valid exercise of its police power.” Skurdal, 767 P.2d at 307 (quoting Gordon v. State (Idaho 1985), 697 P.2d 1192, 1193). Reasonable regulations include Montana’s requirements for vehicle registration, insurance, and mandatory seatbelt usage. “[This] ... privilege ... [of operating a motor vehicle on public roads] may be revoked for noncompliance [with statutory regulations] ....” Skurdal, 767 P.2d at 307.

The statutes that Folda violated “[a]re regulatory in nature and no person in the state is exempt from [regulatory statutes] ...” City of Whitefish v. Hansen (1989), 237 Mont. 105, 107, 771 P.2d 976, 977. Persons are not exempt from regulatory statutes, even if they claim they are “free” men who are not Fourteenth Amendment citizens and do not have to obey state or federal law.

We conclude that Folda has not shown that §§ 61-6-304, 61-3-301, and 61-13-103, MCA, are unreasonable or unconstitutional. We conclude that neither Folda’s statutory nor constitutional rights were violated by requiring him to register his vehicle, carry liability insurance, or wear a seatbelt. We conclude that Folda’s argument is without merit and affords no basis for relief. The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and WEBER concur.


author: JUSTICE HARRISON

text:
    FOX GRAIN AND CATTLE CO., Plaintiff and Respondent, v. FRANK F. MAXWELL, Defendant and Appellant.
    No. 91-622.
    Submitted on Briefs February 17, 1994.
    Rehearing Denied Dec. 15, 1994.
    Decided November 21, 1994.
    51 St.Rep. 1136.
    267 Mont. 528.
    885 P.2d 432.

      For Appellant: Donald A. Ranstrom; Sias & Ranstrom, Chinook.
    For Respondent: James A. Hubble, John R. Christensen; Christensen & Hubble, Stanford.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal and cross-appeal from a jury verdict in the Tenth Judicial District Court involving the termination of a farm lease. By special verdict the jury found that Frank F. Maxwell (Maxwell), did not materially breach the farm lease which he entered with Fox Grain & Cattle Co. (Fox Grain). The jury, however, found that Maxwell owed Fox Grain $38,779.60 for farming expenses; it then awarded Maxwell $23,013.42, plus 75 percent of the net Federal Crop Insurance Payment, for Fox Grain’s failure to mitigate its damages, and found in favor of Maxwell on his counterclaims: 1) $16,721.15 for his share of the Conservation Reserve Program (CRP) proceeds; and 2) $16,500 for his loss of machinery claim. The jury also awarded Maxwell $95,000 for Fox Grain’s breach of the implied covenant of good faith and fair dealing.

The District Court granted judgment notwithstanding the verdict eliminating the jury’s award of $95,000 to Maxwell. Maxwell appeals the District Court’s decision to grant judgment notwithstanding the verdict. Fox Grain cross-appeals: 1) the jury’s findings on the breach issue; 2) the court’s failure to grant it a judgment notwithstanding the verdict on the issue of Maxwell’s other damages; and 3) the court’s grant of summary judgment to Maxwell on the issue of the volunteer crop ownership. We affirm in part and remand.

The issues on appeal are:

1. Did the District Court err by granting Fox Grain’s motion for judgment notwithstanding the verdict on the jury’s award of $95,000 for Fox Grain’s violation of the covenant of good faith and fair dealing?

2. Did the District Court err by denying Fox Grain’s motion for judgment notwithstanding the verdict on the issue of Maxwell’s other damages?

3. Was there sufficient evidence in the record to support the jury’s findings that Maxwell did not breach the lease?

4. Did the District Court err by granting Maxwell summary judgment on Fox Grain’s ownership claim of the volunteer winter wheat crop?

Maxwell entered a three-year farm lease with Fox Grain on February 17,1989.

The lease agreement entered into between the parties gave Maxwell the right to farm Fox Gram’s land during the crop seasons of 1989, Í990, and 1991. As part of that agreement, Maxwell agreed that he would occupy and cultivate the land in a “farmer-like manner” and would not permit damage to the land. In return, he was entitled to all of the 1989 crop and 75 percent of the 1990 and 1991 crops. Maxwell also agreed that all acres would be cultivated either by planting crop, or by summer fallow.

Fox Grain terminated the lease based on its claim that Maxwell breached the lease agreement by not cultivating the entire property and by failing to care for the property in a “farmer-like manner.” However, after listening to three and one-half weeks of testimony, including several experts who testified on behalf of Fox Grain, the jury concluded that Maxwell’s failure to cultivate 100 acres of the property was not a material breach and apparently also found that he had performed in a “farmer-like manner” and had not allowed the property to be damaged.

In an effort to prove the value of its damages from Maxwell’s alleged failure to properly care for the farm land, Fox Grain offered testimony from several neighboring landowners to establish what the land would have been capable of producing had it been properly cultivated and cared for.

For example, Larry Kalina testified that he farmed 1300 acres of land about four miles north of the Fox Grain property; that he was familiar with the Fox Grain property; and that his property and the Fox Grain property were quite similar. In the fall of 1990 (after Maxwell had been evicted from the Fox Grain property), Kalina planted a winter wheat crop on his land which produced a 1991 harvest of 30 to 35 bushels per acre.

Jess Knerr farms 2800 acres of land adjoining the Fox Grain property. He testified that his property is likewise similar to Fox Grain’s land. In 1991, he produced 37 bushels of winter wheat per acre and 20 bushels of spring wheat per acre. He testified that 1991 was a better-than-average year due to increased moisture.

Kyle Grimsrud farms 1400 acres of property ten miles from the Fox Grain land. He testified that he was familiar with the Fox Grain property and considered it similar to the property that he farms. In 1991, he raised 43 bushels of winter wheat per acre and 29 bushels of spring wheat per acre. His production in 1991 exceeded that for either of the two previous years. It was his opinion that the Fox Grain property, if properly cared for, was capable of producing similar yields.

Alex Smith, who farms land south of Lewistown, was called as an expert witness to testify on behalf of Fox Grain. He testified that in 1991 it cost $12 an acre to harvest wheat. He estimated the price of wheat during 1991 was $2.80 a bushel.

Fox Grain served notice on Maxwell that the lease was being terminated on July 23, 1990. Maxwell actually left the property on August 23 — one month later. Because he was wrongfully evicted from the property and was unable to plant a winter or spring crop for 1991, Maxwell was denied the opportunity to realize a profit from whatever crop he could have produced. The testimony was that had he remained on the property he could have seeded 1503.9 acres.

I

Did the District Court err by granting Fox Grain’s motion for judgment notwithstanding the verdict on the jury’s award of $95,000 for Fox Grain’s violation of the covenant of good faith and fair dealing?

It is well settled that this Court will review a district court’s grant of a JNOV with the identical standard used to review a motion for directed verdict. Simchuk v. Angel Island Community Ass’n (1992), 253 Mont. 221, 225, 833 P.2d 158, 160.

[A] directed verdict may be granted only where it appears as a matter of law that... [the non-moving party] could not recover upon any view of the evidence, including the legitimate inferences to be drawn from it.

Simchuk, 833 P.2d at 160. Further, a

district court must view the evidence in a light most favorable to the non-moving party when considering a motion for [JNOV]; the court must deny the motion if the non-moving party built a prima facie case or if a substantial conflict in the evidence exists. Only if the evidence presents no room for an honest difference of opinion should a JNOV be granted.

Simchuk, 833 P.2d at 162 (citations omitted). Accordingly, this Court must examine whether Maxwell could recover upon any view of the evidence.

The jury found that Fox Grain breached the implied covenant of good faith and fair dealing. It was established by Maxwell and his witnesses that Fox Grain only complained once about Maxwell’s farming practices before Fox Grain evicted Maxwell from the land. Maxwell argues that if Fox Grain had left him alone, he would have planted and harvested wheat and made a profit just like the neighbors in the area.

Had Maxwell produced 36 bushels of winter wheat per acre (which was well within the range of his neighbors’ production); and had he provided 25 percent of that crop to Fox Grain pursuant to the parties’ lease agreement; and after deducting $12 per acre as the reasonable cost of harvesting the crop, he would still have realized a profit of $95,648.04.

Fox Grain argues that while it offered proof of what its property was capable of producing had it been cared for in a farmer-like manner, the property was not capable of producing that much wheat when Fox Grain took it back from Maxwell due to the terrible condition in which Maxwell left it. However, according to our conclusion under Issue IV, Fox Grain’s evidence to that effect apparently raised, at most, a question of fact which the jury resolved in favor of Maxwell. Had the jury found that the property was as unproductive as Fox Grain and its witnesses alleged, the jury would necessarily have had to find that Maxwell had permitted waste or damage to the property and, thereby, breached the lease agreement. The jury’s finding was to the contrary.

Fox Grain argues that the crop it produced in 1991 was unproductive, due to the condition of its land. However, Maxwell’s evidence was to the effect that he would have employed different farming techniques, which he felt would have been more productive than those employed by Fox Grain. The jury had a right to, and apparently did, believe Maxwell.

The jury’s verdict was further supported by the fact that in 1989, on the same piece ofland, Maxwell realized income of $79,885.84 from a winter wheat crop which he had not even planted, but which grew from seeds knocked from their stalks in 1988 as a result of hail damage. The jury had a right to find that if Maxwell could realize net income of over $70,000 from a volunteer winter wheat crop in 1989, he could earn substantially more than that on the same land by employing good farming techniques in the fall of 1990 and the growing season of 1991.

While there was substantial evidence produced by Fox Grain from which the jury could have found that Maxwell’s farming techniques would not have been profitable during the remainder of his lease term with Fox Grain, it was not the responsibility of the District Court, and is certainly not the appropriate function of this Court, to ignore a jury verdict which is supported by evidence, or inferences from the evidence, simply because the District Court found plaintiff’s evidence more persuasive. As we pointed out in Simchuk:

[A] directed verdict may be granted only where it appears as a matter of law that... [the nonmoving party] could not recover upon any view of the evidence, including the legitimate inferences to be drawn from it.

Simchuk, 833 P.2d at 160 (quoting Wilkerson v. School Dist. No. 15 (1985), 216 Mont. 203, 211, 700 P.2d 617, 622).

In this case, the jury found that Fox Grain breached the covenant of good faith and fair dealing which was implied from its contract with Maxwell. When a breach of that covenant occurs, contract damages are appropriate. Story v. City of Bozeman (1990), 242 Mont. 436, 450, 791 P.2d 767, 775. The purpose of contract damages is to make the nonbreaching party whole, or put the non-breaching party in a position as if the contract had been performed. Stensvad v. Miners and Merchants Bank (1982), 196 Mont. 193, 206, 640 P.2d 1303, 1310.

Maxwell’s contract damages for breach of the covenant of good faith and fair dealing were based on the profits he lost from being unable to farm Fox Grain’s land pursuant to his lease agreement. While damages for lost profits may not be speculative, it is only required that they be proven with “the best evidence under the circumstances [which] will support a reasonably close estimate of the loss.” Stensvad, 640 P.2d at 1310.

The best evidence of the profits which Maxwell could have produced, had he been allowed to continue farming Fox Grain’s land pursuant to their lease agreement, was evidence of what farmers on similar land in the area were able to produce.

In this case, Fox Grain introduced evidence of what neighboring farmers were able to produce in order to establish its own damages based on its allegation that Maxwell had damaged its land. The jury, however, found that Maxwell had not damaged Fox Gram’s land when it found that Maxwell had not breached the lease agreement. It is, therefore, only logical to conclude that had Maxwell been able to perform under the lease agreement he would have been able to produce crops similar to those produced on adjoining and neighboring lands. We conclude that the jury’s verdict on this issue was supported by substantial credible evidence, that the District Court erred in granting a JNOV on this issue, and reinstate the jury verdict awarding Frank F. Maxwell $95,000.

II

Did the District Court err by denying Fox Grain’s motion for judgment notwithstanding the verdict on the issue of Maxwell’s other damages?

The jury awarded Maxwell: 1) $23,013.42, plus 75 percent of the net federal crop insurance payment, for Fox Grain’s failure to mitigate its damages; and 2) $16,500 on his loss of machinery claim. According to Fox Grain, there was absolutely no evidence in the record to support these two jury awards. Fox Grain contends that the District Court improperly refused to grant a JNOV as to these awards.

First, Fox Grain challenges the award of 75 percent of the federal crop insurance payment. Fox Grain argues that the award was unnecessary. Since the jury concluded that the lease was in effect during 1991, pursuant to the lease terms Maxwell was entitled to 75 percent of all government payments, including crop insurance.

We conclude that Maxwell was entitled to 75 percent of all government payments, including crop insurance. We remand this issue to the District Court to determine the types of government payments received by Fox Grain during 1991 and the amounts due to Maxwell under each program.

Fox Grain further argues that the award of $23,013.42, was not supported by any evidence and thus, was speculative. Accordingly, the District Court should have granted a JNOV as to that award.

A review of the record, however, negates Fox Grain’s argument. Technically the award of $23,013.42 was not an award but, rather, that amount represented an amount which Maxwell was not hable since Fox Grain failed to mitigate its damages. The jury determined that the lease was in effect and, pursuant to the lease, Maxwell was liable for 75 percent of the farming expenses, or $38,779.60. The jury then determined that Fox Grain failed to mitigate those farming expenses and concluded that if Fox Grain properly mitigated its damages, it would have saved Maxwell $23,013.42.

The record reveals that evidence was elicited to prove that Fox Grain refused to sell stored grain, which resulted in $1,000 of extra storage costs. Further, Fox Grain refused to enter an agreement with Maxwell so that the Agriculture Stabilization and Conservation Service would release advance deficiency payments of $23,452 to Fox Grain. This evidence supports the jury’s finding that Fox Grain failed to mitigate its damages in the amount of $23,013.42. On that basis, we conclude that the District Court properly denied Fox Grain’s motion for a JNOV as to the $23,013.42.

Additionally, Fox Grain contends that the special verdict form was misleading. According to Fox Grain, the wording of question 2)b), is nonsensical, confusing, and the jury did not know what the question was asking. The special verdict provided, in pertinent part:

2) Do you find against [Fox Grain] and in favor of [Maxwell], that no material breach of the lease occurred?
Answer: Yes X No_
If your answer is yes, resulting in recognition of the continuing validity of the lease, then:
a) What amount of farming expenses incurred since July 23, 1990, do you find [Maxwell] responsible for the payment of?
$ 38,779.60
b) Taking into consideration mitigation of damages, what amount of damages, if any, do you award to [Maxwell] and against [Fox Grain]?
$23.013.42 + 75% of net Fed Crop Ins pmt

While question 2)b) is not a model question on the mitigation issue, we conclude that the special verdict form comports with the standards of Rule 49(a), M.R.Civ.P. In Story v. City of Bozeman (1993), 259 Mont. 207, 229, 856 P.2d 202, 215-16, we examined the three-part standard to determine the adequacy of a special verdict form:

1) whether, when read as a whole and in conjunction with the general charge, the interrogatories adequately presented the contested issues to the jury;
2) whether the submission of the issues to the jury was fair; and
3) whether the ultimate questions of fact were clearly submitted to the jury.

In the present case, when question 2)b) is read in context with the remaining portions of the special verdict form, the issue of mitigation was properly presented to the jury. The special verdict fairly and accurately submitted the issues, and specifically the mitigation issue, to the jury. Further, the ultimate question of fact of whether Fox Grain mitigated its damages was logically and clearly presented to the jury. We hold that the special verdict form complied with Rule 49(a), M.R.Civ.P.

Finally, Fox Grain maintains that the District Court should have overturned the jury award of $16,500 for loss of machinery. Fox Grain contends that Maxwell’s father, Tom, purchased the tractor in his own name. Since Tom was not a party to the lease, the loss of the tractor was Tom’s, and not Maxwell’s. Fox Grain argues that the District Court improperly allowed Maxwell to recover the loss of that tractor. The record, however, dilutes Fox Grain’s argument.

Even though Tom purchased the tractor in his name, Maxwell’s property — worth $14,300 — was used as a down payment, and Maxwell was responsible for the payments. Tom only assisted Maxwell in obtaining financing for the tractor. Further, two other items of machinery were lost, a posthole digger and rotary cutter valued between $2,500 and $2,750. After an extensive review of the record, we conclude that the District Court properly denied Fox Grain’s motion for a JNOV as to the machinery damages. We hold that the record contains sufficient proof to justify the jury’s conclusion that Fox Grain failed to mitigate its damages — $23,013.42—and owed Maxwell $16,500 for Maxwell’s loss of machinery. The District Court is affirmed on Issue II.

Ill

Was there sufficient evidence in the record to support the jury’s findings that Maxwell did not breach the lease?

The jury concluded that Maxwell had not breached the lease and the lease was in effect for 1991. Fox Grain contends that the jury’s conclusion on the breach issue is unsupported by the evidence. Moreover, Fox Grain argues that the District Court erred by granting Maxwell’s motion in limine relating to negotiations or discussions which predated the execution of the lease agreement.

We will not disturb a district court’s evidentiary rulings absent an abuse of discretion. Haines Pipeline Construction, Inc. v. Montana Power Co. (1991), 251 Mont. 422, 427, 830 P.2d 1230, 1234. In this case, the District Court’s order in limine excluded parol evidence of the lease agreement. Fox Grain contends that parol evidence should have been admitted to explain ambiguities in the lease. See Ellingson Agency, Inc. v. Baltrusch (1987), 228 Mont. 360, 366, 742 P.2d 1009, 1013. Fox Grain contends that the following provisions are ambiguous:

1) Maxwell agreed to “occupy, till and in all respects cultivate the premises above mentioned during the term aforesaid, in a farmer-like manner, and according to the usual course of farming practiced in the neighborhood;” and
2) Maxwell and Fox Grain “agreed that not less than all acres shall be cultivated each year of this lease, either by being in crop or summerfallow, except that Maxwell is allowed to stubble in approximately 1,000 acres of summerfallow and will leave 1,000 acres of summerfallow at the end of the lease.”

Fox Grain argues that the terms “farmer-like manner,” “usual course of farming practiced in the neighborhood,” and “not less than all acres shall be cultivated each year of this lease” were ambiguous and required parol evidence to explain their meaning. Further, the term “Maxwell is allowed to stubble in approximately 1,000 acres of summerfallow” is ambiguous, since any farmer knows that a person cannot “stubble in” summerfallow.

When ambiguous terms exist in a contract, parol evidence is admissible to explain the ambiguous terms. Ellingson Agency, 742 P.2d at 1013. In Ellingson Agency, we examined whether the term “conveyance” under a real estate broker’s exclusive listing agreement included a transfer of title in lieu of foreclosure. We concluded that summary judgment was improper because genuine issues of fact existed since the term “conveyance” did not have a fixed meaning. Ellingson Agency, 742 P.2d at 1013. We held that parol evidence was necessary to interpret the parties’ intention of including that term in the agreement. Ellingson Agency, 742 P.2d at 1013.

Fox Grain contends that the District Court should have allowed it to testify as to the meaning of the terms of the lease. According to Fox Grain, it was unable to explain to the jury that the lease required Maxwell to spray for weeds and summerfallow the property. The lease, however, did not provide that Maxwell was required to spray or summerfallow the property. The lease did provide “[t]hat Fox [Grain] is to be consulted by Maxwell as to the farming decisions, however, the final decision of Maxwell shall be binding upon Fox [Grain].” Even though the court refused to allow Fox Grain to testify about the meaning of the terms, the court did allow neighboring farmers’testimony on the issue of farming practices. We conclude that the court did not abuse its discretion when it limited Fox Grain’s testimony as to what it felt the lease required of Maxwell.

Fox Grain also argues that the jury’s finding that Maxwell did not breach the lease was not supported by substantial evidence. Fox Grain extensively argues the facts of this case and concludes that Maxwell breached the lease. When conflicting evidence exists, the jury must judge the credibility and weight of the evidence and we will not retry the case nor will we reweigh the evidence on appeal. Wisher v. Higgs (1993), 257 Mont. 132, 146, 849 P.2d 152, 160. After an extensive review of the record, we conclude that the jury’s finding that Maxwell did not breach the lease was supported by substantial evidence. We affirm the jury verdict on Issue III.

IV

Did the District Court err by granting Maxwell summary judgment on Fox Grain’s ownership claim of the volunteer winter wheat crop?

Our standard of review on a grant of summary judgment is identical to that of the trial court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. First, we examine the record to determine whether genuine issues of fact exist. Minnie, 849 P.2d at 214. If no genuine issues of fact exist, then we must determine whether the moving party is entitled to judgment as a matter of law. Minnie, 849 P.2d at 214.

The lease provisions stated that Maxwell would lease the premises during the 1989,1990, and 1991 crop seasons. Maxwell was to deliver to Fox Grain one-fourth of all crops produced on the land, except that Maxwell was to receive the entire 1989 crop and Fox Grain was not to share in that crop.

Fox Grain concedes that the volunteer crop was harvested in 1989, but contends that an issue of fact exists as to which year the crop began growing. Fox Grain contends that the crop was actually planted in 1987 for harvest in 1988. However, due to the hail storm in 1988, the volunteer crop sprouted in 1989.

We conclude that no genuine issue of fact exists and the agreement is clear on its face that since the volunteer crop was harvested in 1989, Maxwell had a right to receive the entire crop. At the beginning of the lease, the parties were aware of the existence of the volunteer crop, but chose not to address the ownership of that crop in their agreement. Moreover, when Maxwell harvested the volunteer crop in 1989, Fox Grain did not claim that it owned the crop. Rather, Fox Grain waited until 1990 — when it sent Maxwell the lease cancellation notice — to claim an ownership interest in that crop. We hold that the District Court properly granted summary judgment to Maxwell on the volunteer crop ownership issue.

On Issue IV, we affirm the District Court’s decision, except we remand for a determination of the government payments due to Maxwell under the lease terms.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, GRAY, NELSON, HUNT and WEBER concur.


author: JUSTICE HUNT JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF ROBERTA LEE MURPHY, Petitioner and Respondent, and DARRELL J. MURPHY, Respondent and Appellant.
    No. 94-073.
    Submitted on Briefs August 4, 1994.
    Decided November 22, 1994.
    51 St.Rep. 1198.
    268 Mont. 1.
    885 P.2d 440.
    JUSTICE TRIEWEILER filed a dissenting opinion in which JUSTICE HARRISON joined.
    For Appellant: Joan E. Cook, Miller & Cook Law Office, Great Falls.

      For Respondent: Merle Raph, Attorney at Law, Shelby.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Darrell Murphy appeals the findings of fact, conclusions of law, and order of the Ninth Judicial District Court, Toole County, modifying a prior custody and property settlement agreement and decree of dissolution. The District Court modified the original agreement and decree, designating Roberta Murphy as primary custodian of the parties’ three minor children, and ordered Darrell to pay $618 per month for child support. We affirm.

The following issue is raised on appeal:

Did the District Court, in determining the amount of child support owed by Darrell, err by not allowing a $6000 deduction for subsistence expenses incurred in his employment and reimbursed by his employer?

Darrell and Roberta entered into a common law marriage on February 14,1977. Three children were bom of the marriage. Roberta petitioned for dissolution on September 7, 1989.

On July 20, 1990, Darrell and Roberta executed a custody and property settlement agreement providing for joint custody of the children, granting Darrell primary custody, and allowing Roberta liberal visitation. They also agreed that neither party would pay child support to the other. Concluding that the agreement was reasonable and appropriate, the District Court adopted its provisions and issued the decree of dissolution on July 30,1990.

In June 1992, Darrell’s girlfriend called Roberta and asked her to come and get the children. Roberta called Darrell, and he told her that she now had custody of the children. At that time, Roberta lived in a one bedroom apartment and did not possess the children’s clothing, personal belongings, or furniture. Therefore, she rented a multi-bedroom dwelling and purchased beds, dressers, and clothing for the children.

According to Roberta, after the transfer of custody, Darrell sporadically paid child support until July 1993 when he began to make regular payments to the Child Support Enforcement Division (CSED). On September 9,1993, Roberta filed a motion requesting the District Court to determine the correct amount of child support owed by Darrell.

The District Court heard the parties’ arguments regarding child support on October 21,1993. Darrell testified that he had been paying $450 a month in child support through CSED and that the $450 figure had been determined through an administrative decision of CSED. Roberta claimed that Darrell owed $618 per month based on her Montana Child Support Determination Worksheet (worksheet) calculations. Darrell claimed that he owed $462 per month based on his worksheet calculations. The difference in the parties’ calculations was attributable to their differing treatment of $6000 of “subsistence pay” which Darrell received annually from his employer.

Darrell testified that he worked 26 to 28 days per month. He stated that, while on the road, he incurred expenses for food, gloves, tools, and telephone calls. Darrell testified that his employer reimbursed him $21 per day to cover these subsistence expenses, but that the $21 did not cover the total amount that he actually spent. He testified that, according to the Internal Revenue Service (IRS), he was allowed to deduct for tax purposes $30 per day for travel expenses within the United States and $34 per day for travel expenses within Canada.

In computing his gross income, Darrell stated that he included $500 per month for subsistence pay, and in determining net income, he calculated a “road subsistence” expense deduction using the $21 per day reimbursement, and not the full $30 or $34 allowed by the IRS. Roberta maintained in District Court, and maintains on appeal, that no deduction is allowed for Darrell’s reimbursed travel expenses.

The District Court requested briefs and copies of the parties’ worksheets. The District Court concluded that the $6000 which Darrell received in reimbursements was includable in gross income but not deductible from net income and ordered Darrell to pay $618 per month in child support pursuant to Roberta’s worksheet calculations. Additionally, the District Court ordered that Darrell be allowed to take the tax exemptions for the children provided that his child support payments are made timely and are kept current.

Did the District Court, in determining the amount of child support owed by Darrell, err by not allowing a $6000 deduction for subsistence expenses incurred in his employment and reimbursed by his employer?

Darrell argues that, in calculating his monthly child support obligation, the $6000 in subsistence pay should not only be included as gross income, but also should be deducted as a required employment expense. We disagree that the reimbursed expenses are deductible.

The District Court, in its findings of fact, conclusions of law, and order, made the following determinations:

7. The Administrative Rules of Montana (ARM) provide instruction for courts in their use of the Child Support Guidelines. ARM 46.30.1508 states that in determining the resources of each parent available for child support, gross income includes expense reimbursements such as reimbursed meals. ARM 46.30.151[6] states that net income means gross income less any deductions for unreimbursed expenses.
8. According to ARM, the $6,000.00 that Respondent is reimbursed for his road subsistence shall be included in gross income but not deducted from net income.

We review the findings of fact in child support modification cases to determine whether the district court clearly abused its discretion. In re Marriage of Durbin (1991), 251 Mont. 51, 55, 823 P.2d 243, 245. Similarly, we review the conclusions of law to determine whether the district court correctly interpreted the law. Durbin, 823 P.2d at 245.

In 1987, this Court specifically adopted the Uniform District Court Rule on Child Support Guidelines (guidelines) for use by the district courts of Montana. District Court Child Support Guidelines (1987), 227 Mont. 1. We have held that § 40-5-209, MCA, and the guidelines properly vest discretion in the district courts to apply the guidelines, and that under the broad standards of § 40-4-204, MCA, the district court must scrutinize all deductions and exemptions claimed by either party. Chiovaro v. Tilton-Chiovaro (1991), 247 Mont. 185, 189, 805 P.2d 575, 577.

Section 40-4-208(2)(b)(i) and (ii), MCA, provides that modification of a decree relating to child support may only be made “upon a showing of changed circumstances so substantial and continuing to make the terms unconscionable” or “upon written consent of the parties.” Section 40-4-208(2)(b)(iii), MCA, provides in part that “[t]he support obligation must be modified, as appropriate, in accordance with the guidelines promulgated under 40-5-209” which directs the Department of Social and Rehabilitation Services (SRS) to adopt uniform child support guidelines. Neither party contests the District Court’s conclusion that the threshold requirements of § 40-4-208, MCA, have been met in this case. The instant dispute arises over the District Court’s application of the guidelines and interpretation of the applicable Administrative Rules.

The Administrative Rules at issue in this case were promulgated by SRS “for the purpose of establishing a standard to be used by the district court ... in determining child support obligations.” Rule 46.30.1501(1), ARM. The Administrative Rules, therefore, work in conjunction with the guidelines to provide the district courts with guidance in determining child support.

Rule 46.30.1508, ARM, provides a framework for determining a parent’s gross income. In addition to salaries, wages, and the other forms of income listed in 46.30.1508(l)(a), ARM, subsection (b) states that “gross income also includes expense reimbursements ... if such reimbursements ... reduce personal living expenses.” According to the rule, examples of such expenses include “a company car, free housing or reimbursed meals ....” Rule 46.30.1508(l)(b), ARM. Darrell testified that he received reimbursements from his employer for food, gloves, tools, and telephone calls. Neither party disputes that Darrell’s reimbursements constitute income pursuant to 46.30.1508(l)(b), ARM. The District Court, therefore, properly included the reimbursements in Darrell’s gross income.

After gross income is calculated, the Administrative Rules provide an additional framework for determining net income:

“Net income” means gross income ... less any deductions for state or federal taxes, social security, and other similar deductions required by law or court order. Unreimbursed expenses incurred as a condition of employment such as union dues, uniform and other occupational or business expenses should also be deducted.

Rule 46.30.1516(1), ARM (emphasis added). Darrell argues that the Administrative Rules do not specifically provide instruction in this situation. However, 46.30.1516(1), ARM, clearly addresses the situation at hand, whereby unreimbursed expenses are deductible and reimbursed expenses are not. Because Darrell’s expenses are reimbursed, the District Court correctly concluded that they are not deductible from gross income pursuant to 46.30.1516(1), ARM.

Darrell argues that despite the express language of 46.30.1516(1), ARM, the “Internal Revenue Code, Section 162, supports the deductibility of the employment expenses claimed by Respondent in this case.” Treasury Regulation § 1.162-2 (1960) provides in pertinent part that

[traveling expenses include travel fares, meals and lodging, and expenses incident to travel such as ... telephone and telegraph .... Only such traveling expenses as are reasonable and necessary in the conduct of the taxpayer’s business and directly attributable to it may be deducted.

Darrell’s attorney framed the question before the District Court as follows:

MS. COOK: It’s not a question of whether or not the subsistence pay can be used. It’s a question of whether or not his over-the-road expenses can be deducted from his gross income. That’s what the IRS Code speaks to, the fact that he is a transportation worker, transporting goods by truck, entitles him to deduct the over-the-road expenses from his gross income to determine the net expenses on the Child Support Guideline Worksheet line item form.

This Court, however, has repeatedly stated that

[w]hen analyzing income under the Guidelines, it is the disposable income of the parent, and not their income tax returns alone, which need be considered by the court.

In re Marriage of Wersland (1991), 249 Mont. 169, 173, 814 P.2d 991, 993; Gray v. Gray (1990), 242 Mont. 69, 73, 788 P.2d 909, 912; In re Marriage of Mitchell (1987), 229 Mont. 242, 247, 746 P.2d 598, 601-02. Moreover, we have held that “[i]t is within the court’s discretion to determine whether business expense deductions are reasonable for purposes of calculating child support.” Chiovaro, 805 P.2d at 579. We conclude that the District Court did not abuse its discretion by disallowing a deduction for Darrell’s reimbursed travel expenses.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, WEBER and NELSON concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

The majority’s conclusion imposes a child support obligation on this noncustodial parent based on income that he does not have. The result is unrealistic, unfair, and will inevitably impose an additional future hardship on this already divided family.

The administrative regulations on which the majority opinion is based have no relationship to reality. The result in this case imposes a burden of support on a father which is beyond his means and is, therefore, not in the best interests of either parent or the children.

Furthermore, and perhaps most important for purposes of this discussion, the majority opinion is simply contrary to the law.

Section 40-4-204(2)(e), MCA, provides that when arriving at the amount of child support due, the court must consider “the financial resources and needs of the noncustodial parent....” Subsection (3)(a) of the same statute provides that guidelines adopted by the Department of Social and Rehabilitation Services should be followed “unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or is inappropriate in that particular case.”

The majority opinion follows neither of the above provisions. It affirms the District Court’s imposition of a child support obligation which does not reflect either the resources or needs of the noncustodial parent, and in doing so, it passively applies guidelines that the clear and convincing evidence establishes are unjust to the noncustodial parent.

The District Court and this Court can impose all the support obligation they want on the noncustodial parent. However, the money still has to come from somewhere. Where is this money going to come from when it is based on income that the noncustodial parent does not have? He is either going to have to go without food and housing, steal it, or just not pay it. None of these alternatives seem to reflect the kind of just and reasonable solutions this Court should strive for.

To include travel reimbursement in the calculation of gross income, and then exclude travel expense from the calculation of net income when, in fact, the child support obligation is arrived at based on net income, is to suggest that the noncustodial parent should create funds for child support from whole cloth. It may sound like a nice thing to do for the children, but in reality I fail to see how it is of any benefit to them.

I realize this is the “get tough on child support” age. However, imposing unrealistic and impossible burdens on noncustodial parents does not further anyone’s interest. It simply further divides and stresses families which already have more than their share of problems to deal with.

For these reasons, I dissent from the majority opinion.

JUSTICE HARRISON joins in the foregoing dissent.