author: JUSTICE NELSON

text:
    A.C. WARNACK, Trustee of the A.C. WARNACK TRUST, and KENNETH R. McDONALD, Plaintiffs and Respondents, v. THE CONEEN FAMILY TRUST; ELK CANYON ASSOCIATES LIMITED PARTNERSHIP, a Montana Limited Partnership, and J. BOWMAN WILLIAMS, Defendants and Appellants.
    No. 93-659.
    Submitted on Briefs June 24, 1994.
    Decided August 16, 1994.
    51 St.Rep. 739.
    266 Mont. 203.
    879 P.2d 715.

      For Appellants: Perry J. Moore & Cindy E. Younkin, Moore, O’Connell & Refling, Bozeman, (Elk Canyon Ranch Assoc. & J. Bowman Williams); Patrick F. Hooks, Townsend, (The Coneen Family Trust).
    For Respondents: John V. Potter, Jr. White Sulphur Springs.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the findings of fact, conclusions of law, judgment and injunction order of the Fourteenth Judicial District Court, Meagher County, which, following a bench trial, awarded Respondents Warnack and McDonald, as well as nonparty Melvin E. (Bud) Dawson, an easement for various purposes over, across and through the lands owned by the Appellants. We reverse and remand for further proceedings consistent with this opinion.

The following issues are raised on appeal:

1. Did the District Court err in granting a prescriptive easement to a nonparty?

2. Did the District Court err in granting a prescriptive easement to the Plaintiffs/Respondents?

3. Was the prescriptive easement granted overbroad?

Respondents Warnack and McDonald (Respondents) brought this action, claiming a prescriptive easement over a road which runs through the lands of Appellants Coneen, Elk Canyon and Williams (Appellants). The District Court, following a bench trial on March 22 and 23, 1993, concluded that the Respondents did, indeed, have a prescriptive easement over the road which runs “from the end of a county road westerly across state school section 36, then northwesterly over defendants Elk Canyon, Williams and Coneen to the south edge of plaintiffs’ premises, then continues northwesterly across Warnack and another area of Coneen to Bud Dawson’s land in the Tenderfoot.” The District Court also described an alternate route over which the Respondents also claimed a prescriptive easement. The dispute over this latter route was resolved over the course of this litigation and is no longer in contention.

The District Court found that thebe was a prescriptive easement because the origin of the use of the road remained “unexplained.” The court stated:

The primary easement claimed by plaintiffs is a clearly defined and visible roadway which several witnesses stated they had no trouble following, was improved .over the years for vehicles by Doggetts with heavy equipment long before Coneen came, was in use well before the memory of any living witness, and the origins of that use (whether permissive or adverse) remains unexplained.

The court further concluded that unexplained use for longer than the statutory period gave rise to a presumption that the use of the road was under a claim of right and adverse to the owners of the land upon which the route was located. Moreover, the court found that the Appellants acquiesced in the use of the primary easement by the Respondents. Finally, the court found that the appropriate uses of the primary easement included:

... use without obstruction [of] the primary access road by all ordinary modem means for purposes of access to their lands, construction of residences and outbuildings, all agricultural purposes, including timber management and logging, and hunting, fishing, camping and recreation.

From the above findings, conclusions, judgment and order, Appellants appeal.

STANDARD OF REVIEW

Our standard of review for conclusions of law by a district court is whether the tribunal’s interpretation of the law is correct. Public Lands Access v. Boone and Crockett (1993), 259 Mont. 279, 283, 856 P.2d 525, 527. Having concluded that the District Court erred in its application of the law to this prescriptive easement case, we decline to address the factual record established at trial and, instead, remand to the District Court for reconsideration of its decision in light of the legal principles set forth in this opinion.

1. NONPARTY EASEMENT

Appellants contend that the District Court erred in granting an easement to Melvin E. (Bud) Dawson because Dawson was not a party to the instant litigation. The Respondents merely state that the finding of a prescriptive easement for the nonparty Dawson was supported by uncontradicted evidence and that the road in question provides the only access to the Dawson place.

Dawson was not a party to this action, although he did testify at the trial and does live within the general area served by the roadway at issue. Further, Dawson stated that he generally uses a different road, a logging road, to access his property. Thus, in the present case, Dawson, a nonparty, was awarded an easement that he will likely not even use.

Because he is not a party to the action, Dawson cannot be a party to the judgment. In Moore v. Capitol Gas Corporation (1945), 117 Mont. 148, 156, 158 P.2d 302, 306, we stated:

[I] t is a fundamental principle of our jurisprudence that it is only against a party to the action that a judgment can be taken and that the judgment is not binding against a stranger to the action.

The same rule pertains where judgment is awarded in favor of a nonparty. See, 46 Am. Jur. 2d Judgments, § 86 at page 373. Accordingly, we reverse that part of the District Court’s judgment and order which grants a prescriptive easement to Melvin (Bud) Dawson.

2. EASEMENT TO THE RESPONDENTS

Appellants also contend that the District Court erred in granting a prescriptive easement to the Respondents based on the “unexplained” use of the roadway for more than the statutory period. Appellants argue that if a party can be deemed to have acquired a prescriptive easement merely because the use of the roadway is “unexplained,” then the party “wins” without proof of any of the elements necessary to establish prescriptive use. The Respondents counter that Montana law makes it clear that when “through the passage of time and beyond the recollection of living witnesses it becomes impossible to determine whether the initial use of a roadway was permissive or adverse under claim of right, the law will presume that initial use was adverse.” We agree with Appellants.

In Montana the general rule as to the establishment of a prescriptive easement is well settled:

To establish an easement by prescription, the party claiming an easement “must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period...” The burden is on the party seeking to establish the prescriptive easement. “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.’ ”

Boone and Crockett, 856 P.2d at 527. (Citations omitted.) “To be adverse, the use of the alleged easement must be exercised under 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, 1356-1357. (Citation omitted.) “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.)

It is axiomatic that it is the function of the district court, and not of this Court to hear the testimony, to resolve conflicts in the evidence, to judge the credibility of the witnesses and to determine the facts. According to the District Court, this case involved “... a grab bag of testimony, [mostly imprecise and relating to events and conversations of 10-50 years ago] so there was something for every attorney ...” Our concern here, however, is not so much with what testimony or with which witnesses the court believed, as with the legal principles the court applied to the evidentiary record in reaching its decision.

While the District Court concluded, as an aside, that Respondents had proven the elements of adverse possession as described above, it is equally clear that bearing heavily, if not primarily, in the court’s rationale that Respondents were entitled to a prescriptive easement over Appellants’ lands, was the proposition that a presumption of claim of right and adverse use arises by a long, continued “unexplained” use of the claimed easement for more than the statutory period and that such presumption relieves the easement claimant of proving the elements of prescription. As the court put it:

By reason of ... long continued unexplained use of the primary easement for much longer than the ... statutory period ... there arises a legal presumption that the road use was under a claim of right and adverse to the respective people whose lands it crossed. This is sufficient to establish title to the easement by presumption of a grant if not overcome by a preponderance of evidence that the use was permissive ... Finding of Fact No. 17.
* * * *
Where plaintiffs have established a presumption of adverse use of the primary easement by long unexplained use as aforementioned, it is not necessary that they prove all of the elements of adverse possession that would otherwise be necessary. However, plaintiffs have done so anyway .... Finding of Fact No. 42
* * * *
Plaintiffs ... have proven they are entitled to a prescriptive road easement along the primary route ... because of long continued unexplained use for over 70 years ... Conclusion of Law B.
* * * *
After plaintiffs established the presumption of adverse use by long continuous unexplained use for more than the ... statutory period ... it was not necessary for plaintiffs to also prove other elements of adverse possession, but plaintiffs did so ... Conclusion of Law D.

This notion — that a presumption of claim of right and adverse use arises by long, continued “unexplained” use — so permeates the District Court’s findings of fact and conclusions of law that we are unable to determine what decision the court might have otherwise come to on the evidentiary record, had it not so heavily relied on that proposition — a proposition which, as we will hereafter point out, is without legal foundation and is erroneous.

In fairness to the District Court, that it utilized the concept of “unexplained” use is understandable given the inadvertent and improper injection of that term into Montana case law by virtue of one of our prior decisions and by reason of the subsequent incorporation of that proposition, as dicta, in other prescriptive easement cases.

The term “unexplained” use first appears in Montana’s prescriptive easement case law as dicta in Scott v. Weinheimer (1962), 140 Mont 554, 374 P.2d 91. In that case, after reciting the general rule that a prescriptive easement is established by a claimant showing "... open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period...”, the Court then goes on to make the following statement:

If there has been the use of an alleged easement for ten years (or five years subsequent to the 1953 amendment referred to above), unexplained, it will be presumed to be under a claim of right, and adverse, and will be sufficient to establish a title by prescription and to authorize the presumption of a grant. (Emphasis added).

Scott, 374 P.2d at 95.

As authority for that statement, we cited Te Selle v. Storey (1957), 133 Mont. 1, 319 P.2d 218. However, as will be pointed out later in this opinion, our decision in Te Selle never mentioned the phrase “unexplained use,” nor was that case decided by utilizing that concept.

Importantly, Scott was not decided by application of the concept of “unexplained” use, but rather on the basis of the well settled general rule that in order to establish an easement, the party claiming such right must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement for the full statutory period.

The testimony by the plaintiff in Scott was to the effect that he traveled over the road in question without permission, that he felt he had a legal right to do so, and that he maintained the road. He also stated that he and his predecessors had used the road for over 45 years and that it was the only access to his land and buildings. Scott, 374 P.2d at 94. The defendant’s predecessor in interest testified that the road was continuously used by the plaintiff and his predecessors; that he never objected to their use of the road; and that the plaintiffs never asked for permission to travel the road nor was permission ever granted to use the road. We concluded that this testimony, in and of itself, “established] the fact that the luse by the plaintiffs and their predecessors in interest of the road in question was adverse and without license or permission.” Scott, 374 P.2d at 95. This statement appears as our conclusion that the elements necessary to prove a prescriptive easement were established.

However, after referring to the fact that the plaintiffs and their predecessor in interest used the road for 35 years before the defendants became the owners of their land, we also stated that, “[t]his use, unexplained, raises a presumption that it was adverse, and under a claim of right.” Scott, 374 P.2d at 95. (Emphasis added).

The confusion created by the Scott opinion stems from the fact that, although this Court stated that the use of the road was unexplained and that there was no proof that the use was continuous and uninterrupted, the testimony of the defendant’s predecessor in interest clearly demonstrated that the use of the road was “open, notorious, exclusive, adverse, continuous and uninterrupted” for the full statutory period. Boone and Crockett, 856 P.2d at 527.

Moreover, the testimony of the plaintiff also demonstrated his use of the road was without permission, under a belief that he had a legal right to traverse the road, and that it was the only means of egress and ingress to his land. The dicta regarding “unexplained” use of the claimed easement was not pertinent to the final disposition of Scott as adverse possession was clearly established by the evidence and on the basis of the general rule.

Furthermore, there was no legal precedent for the inclusion of the unexplained use concept in Scott. As mentioned above, Scott cited Te Selle for the proposition that unexplained use of a claimed easement will give rise to a presumption that the use of the easement was adverse. However, a careful reading of Te Selle, an easement case pertaining to the use of a water ditch and water pipeline, demonstrates that nowhere in that opinion does the phrase “unexplained use” appear nor is that proposition in any way discussed.

Te Selle does refer to the unmolested use of a claimed easement. Our opinion recites the rule that “where claimant had shown open, visible, continuous and unmolested use for the statutory period, such use will be presumed to be under a claim of right, and not by license.” Te Selle, 319 P.2d at 220. (Emphasis added). The trial court in Te Selle found that the defendant, his grantors and predecessors in interest had “been in open, visible, continuous and unmolested use of a right of way easement to flow 250 inches ... of water.” Te Selle, 319 P.2d at 219. (Emphasis added). The defendant testified that no one had molested him in his use of the water from the ditch or draw for over 20 years. Te Selle, 319 P.2d at 220. This Court affirmed the district court, stating that “[t]he evidence was ample to sustain the finding of the trial court that defendant had acquired title to the easement by prescription.” Te Selle, 319 P.2d at 221.

Accordingly, Te Selle was concerned with the “unmolested” use of a claimed easement, not the “unexplained” use. Unmolested use is not the same thing as unexplained use. In fact, in the context of the general rule and the numerous cases that cite the general rule, it is clear that unmolested use and uninterrupted use refer to the same element of prescription. “Uninterrupted” means “use not interrupted by the act of the owner of the land or by voluntary abandonment by the party claiming the right.” Downing v. Grover (1989), 237 Mont. 172, 176, 772 P.2d 850, 852. On the other hand, a use which is “unexplained” is simply a use, the origin or continuation of which is undecipherable, unknown or is, otherwise, without an articulable reason or justification. “Unexplained” cannot be substituted for “unmolested” or “uninterrupted” in the elements of the general rule.

Respondents cite Thomas v. Barnum (1984), 211 Mont. 137, 684 P.2d 1106, and Glantz v. Gabel (1922), 66 Mont. 134, 212 P. 858, in support of the District Court’s conclusion that a presumption of adverse possession arises from long, continuous unexplained use. Neither of those cases serve as authority for that proposition, however.

There is no mention whatsoever of unexplained use in Glantz. That case refers to unmolested use of an easement. Glantz recites and applies the general rule:

Where the claimant has shown an open, visible, continuous, and unmolested use of the land of another for the period of time sufficient to acquire title by adverse possession, the use will be presumed to be under a claim of right, and not by license of the owner. In order to overcome this presumption, thereby saving his title from the encumbrance of an easement, the burden is upon the owner to show that the use was permissive. This rule is sustained by the great weight of authority.

Glantz, 212 P. at 860. (Citations omitted.) (Emphasis added.)

Moreover, the only presumption discussed in Glantz is the presumption of adverse use which arises from proof of all of the elements of prescription required by the general rule. Immediately following the statement of the general rule quoted above, the Glantz court goes on to explain that presumption as follows:

This is a rule of repose. As said by Mr. Justice Story, in Richard v. Williams, supra:
“Presumptions of this nature are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consideration, that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in, the party in possession.”
When the claimant’s use has thus been open, visible, continuous, unmolested, and under a claim of right, the corollary is that it has been adverse to the owner. ...

Glantz, 212 P. at 860. (Citations omitted.)

Glantz does not state that a presumption arises from “unexplained” use. Accordingly, Glantz is not properly cited for the proposition that unexplained use of a claimed easement gives rise to a presumption of claim of right and adverse use.

Thomas, on the other hand, does refer to “unexplained” use. However, like Scott, it does so only after first reciting the general rule (quoted from Taylor v. Petranek (1977), 173 Mont. 433, 568 P.2d 120), that a prescriptive easement is established by the claimant showing open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement for the full statutory period. Thomas, 684 P.2d at 1110. Thomas then continues with the following statement:

“To be adverse, the use must be exercised under 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 owners of the land. White v. Kamps [119 Mont. 102, 171 P.2d 343]. If there has been use of an alleged easement for the full statutory period, unexplained, it will be presumed to be under a claim of right, and adverse, and will be sufficient to establish a title by presumption of a grant. Scott v. Weinheimer, supra; Te Selle v. Storey, 133 Mont. 1, 319 P.2d 218; Glantz v. Gabel, 66 Mont. 134, 141, 212 P.2d [P.] 858. This presumption exists to overcome ‘ “* * * the general infirmity of human nature, the difficulty of preserving the muniments of title * * *” ’ and to promote public policy of supporting long and uninterrupted possessions ...” (Citing Glantz) (Emphasis in quote from Thomas.)

Thomas, 684 P.2d at 1110.

While the Thomas court correctly quotes the dicta referring to “unexplained” use from Scott, as pointed out above, the use of the word “unexplained” in that case was without precedent, inadvertent and had nothing to do with the facts or disposition of that case. Similarly, the Thomas quote’s citations to Te Selle and Glantz are improper as neither of those cases even refer to the concept of “unexplained” use. Finally, as the actual passages from Glantz quoted earlier in this opinion clearly demonstrate, the “presumption” referred to in the quote from Thomas refers, not to a presumption of adverse use from “unexplained” use as Thomas leads the reader to believe, but, rather, to a presumption of adverse use which arises from proof of all of the elements of prescription under the general rule. Glantz, 212 P. at 860. Under the circumstances, the above passage from Thomas cannot stand as authority for the proposition that a presumption of claim of right and adverse use arises from “unexplained” use.

That passage from Thomas aside, a review of our decision, nevertheless, demonstrates that there actually was no issue as to an unexplained use of the claimed easement in that case. We concluded that “[t]he testimony of Thomas, Meuli and Wilhelm supports the trial court’s finding that use of the road was open, notorious, exclusive, adverse, continuous and uninterrupted for all the years leading up to the current dispute.” Thomas, 684 P.2d at 1110. The opinion also states that permission to use the road was never sought and that Barnum, himself, “personally acquiesced in the use of the road by area residents who believed they cOuld travel it under a claim of right.” Thomas, 684 P.2d at 1110. Accordingly, there was ample evidence in Thomas that the use of the road was adverse, not unexplained, and that all elements necessary to establish a prescriptive easement under the general rule had been proven. Thomas, therefore, provides no authority for the proposition that an unexplained use of a claimed easement gives rise to a presumption of adverse use.

Similarly, a review of easement cases decided since Scott which have either cited Scott or have referred to the concept of unexplained use as giving rise to a presumption of claim of right and adverse use, reveals that any mention of unexplained use was, in actuality, superfluous to the final disposition of the prescription issue. In each case, there was sufficient evidence to prove either adverse or permissive use of the claimed easements in question under the general rule. See, Lunceford v. Trenk (1974), 163 Mont. 504, 518 P.2d 266; Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613; Taylor v. Petranek (1977), 173 Mont. 433, 568 P.2d 120; Yecny v. Day (1977), 174 Mont. 442, 571 P.2d 386; Hayden v. Snowden (1978), 176 Mont. 169, 576 P.2d 1115; Johnson v. McMillan (1989), 238 Mont. 393, 778 P.2d 395; Granite County v. Komberec (1990), 245 Mont. 252, 800 P.2d 166; Murray v. Countryman Creek Ranch (1992), 254 Mont. 432, 838 P.2d 431.

Finally, the establishment of a prescriptive easement by “unexplained” use is without sound legal basis in any event. It is fundamental that in order to establish a prescriptive easement, the claimant “must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period.” Boone and Crockett, 856 P.2d at 527. (Emphasis added.) An easement established by “unexplained” use does not fulfill the requirement that the easement claimant bear the burden ofproving the elements of prescription — i.e. open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement for the full statutory period.

“To be adverse, the use of the alleged easement must be exercised under 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, 807 P.2d at 1356-1357. (Emphasis added.) A use “unexplained” is, in fact, the antithesis of the rule requiring proof of the elements of prescription. In effect, by proving nothing, the claimant proves everything.

Moreover, if the use of the easement is truly “unexplained,” there is no way in which the court can determine the character and scope of the easement during the prescriptive period so as to apply the rule, referred to in our discussion of Issue 3, that the use of the roadway cannot exceed the use which the easement claimants made of it during the prescriptive period. See also, State v. Portmann, (1967), 149 Mont. 91, 96, 423 P.2d 56, 58: “[R]ights acquired by adverse use can never exceed the greatest use made of the land for the full prescriptive period.”

We can only surmise that Scott inadvertently misquoted Te Selle by substituting the word “unexplained” for “unmolested” and, in so doing, created the legal error, perpetuated in subsequent cases, which we now find necessary to correct. We hold that a prescriptive easement cannot be established through “unexplained” use of the road or trail in question; the requisite elements for establishing a prescriptive easement must be proved by the claimant — i.e. that the use is an open, notorious, exclusive, adverse, continuous and uninterrupted (unmolested) use of the easement claimed for the full statutory period. Each of those elements is a term of art, defined in our prior cases. See, Rappold v. Durocher (1993), 257 Mont. 329, 332, 849 P.2d 1017, 1019.

The fact that the origin and early use of the road or trail may be lost in history or is beyond the recollection of witnesses, does not negate the obligation of the easement claimant to prove the elements of prescription. In this regard it should be remembered that the claimant need only prove the elements of prescription for the full statutory period, not for the entire existence of the roadway or trail at issue.

Moreover, our decision on this issue mandates that Scott and its progeny be overruled to the extent that those cases stand for the proposition that a prescriptive easement may be established by merely showing the long, continued unexplained use of a road or trail for the statutory period; to the extent that those cases stand for the proposition that a presumption of claim of right and adverse use arises from long, continued “unexplained” use; and to the extent that such presumption negates an easement claimant’s burden of proving the elements of prescription.

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, (see Glantz, 212 P. at 860, and Rappold, 849 P.2d at 1020), 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. Rappold, 849 P.2d at 1020.

As pointed out above, adverse use or adversity simply refers to the requirement that the easement must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land and that such claim must be known to, and acquiesced in by the owner of the land. Keebler, 807 P.2d at 1356-1357. Given that definition, it logically follows that adverse use or adversity will, in most instances, be proven from the same evidence by which easement claimant establishes his open, notorious, exclusive, continuous and uninterrupted (unmolested) use of the easement for the full statutory period. Adverse use or adversity cannot, however, be presumed from the claimant’s inability to prove those remaining elements of prescription; if those elements are not proven, then the presumption of adverse use or adversity never springs into existence. Adverse use or adversity will not be presumed from “unexplained” use.

In the instant case, while the District Court concluded, as an aside, that Respondents had proven the elements of adverse possession, it is also clear that the court relied heavily on our statements regarding unexplained use in Scott and its progeny, and that the erroneous application of that concept to the evidentiary record significantly influenced the court’s decision. Under the circumstances, it is appropriate that the District Court reconsider its decision on this issue and apply the correct legal principles set forth in this opinion to the evidentiary record established at trial. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

3. SCOPE OF EASEMENT

In its conclusions of law, the District Court stated:

The rights of plaintiffs, their heirs, successors, assigns and agents to use said primary road easement should be on foot, horseback, and all ordinary modem means of transportation for purposes of access to their lands, construction of residences and outbuildings, all agricultural purposes, including but not limited to timber management and logging, and hunting, fishing, camping and recreation. However, none of the parties should be prohibited from placing unlocked gates or cattleguards on their property boundaries to confine livestock.

The Appellants contend that the easement granted by the District Court was overbroad and far exceeds the character and extent of the use of the claimed easement during the prescriptive period. The Respondents answer that the evidence supports the District Court’s finding as to the scope of the easement. Since we are remanding this case to the District Court for its reconsideration of whether, on application of the correct law to the evidentiary record established at trial, there exists a prescriptive easement in favor of the Respondents, we decline to address the merits of this issue.

For the guidance of the District Court on remand, however, we note that if the court determines that the Respondents have met their burden of proof and have established a prescriptive easement over the lands of the Appellants, the court must then determine the appropriate scope and extent of the easement under the following rale:

It is settled law in Montana that in acquiring a prescriptive easement, “the right of the owner of the dominant estate is governed by the character and extent of the use during the period requisite to acquire it.”

Marta v. Smith (1981), 191 Mont. 179, 183, 622 P.2d 1011, 1013. (Citation omitted.) The Marta court went on to state, “[therefore, Martas’ use of the roadway cannot exceed the use which they made of it during the prescriptive period.” Marta, 622 P.2d at 1013. (Citations omitted.)

The District Court must carefully evaluate the prior use of the roadway and, applying the above stated rule, limit the scope and extent of any easement found to have been established to the use made of it during the prescriptive period.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

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


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    BRIAN WRAY, Petitioner and Appellant, v. STATE COMPENSATION INSURANCE FUND, Respondent and Insurer for HARP LINE CONSTRUCTION COMPANY, Employer and Respondent.
    No. 94-054.
    Submitted on Briefs June 9, 1994.
    Decided August 16, 1994.
    51 St.Rep. 735.
    266 Mont. 219.
    879 P.2d 725.

      For Appellant: Darrell S. Worm; Ogle & Worm, Kalispell.
    For Respondent: Thomas Bostock; Warden, Christiansen, Johnson & Berg, Kalispell.
   JUSTICE GRAY

delivered the Opinion of the Court.

Brian Wray appeals from the Findings of Fact, Conclusions of Law, and Judgment entered by the Workers’ Compensation Court which determined that no agreement existed between himself and the State Compensation Mutual Insurance Fund regarding recoupment of lump sum advances and, as a result, that recoupment from his current workers’ compensation disability benefits is appropriate. We conclude that the parties agreed to recoupment only from Wray’s future permanent partial disability benefits and, therefore, reverse the Workers’ Compensation Court.

On December 5,1985, Brian Wray (Wray) injured his cervical spine during the course of his employment with Harp Line Construction Company in Kalispell, Montana. The State Compensation Mutual Insurance Fund (State Fund) determined that the injury was compensable and paid weekly temporary total disability benefits of $266.66 from the date of injury.

Wray petitioned for partial lump sum advances in November of 1987, June of 1988, and March of 1989. The State Fund joined in the petitions as submitted by Wray, the Division of Workers’ Compensation of the Montana Department of Labor and Industry (the Division) approved them for payment, and the State Fund paid the requested lump sum advances totalling $14,671.43. Wray’s ultimate disability status was unknown at the time these advances were made.

In February of 1990, Wray was awarded social security disability benefits retroactive to March of 1987 based on his back injury. The State Fund subsequently was notified of Wray’s social security award and in July, 1990, it reduced Wray’s temporary total disability benefits to $193.01 to offset the social security benefits he was receiving. Notification of the social security award apparently was the State Fund’s first indication that Wray might be permanently totally disabled. The State Fund continued Wray’s temporary total disability benefits.

Wray again petitioned for a lump sum advance in January, 1992. The order approving the advance provided for recoupment to begin immediately from Wray’s current disability benefits. Wray returned the advance because of the immediate recoupment provision.

In June of 1992, the State Fund further reduced Wray’s temporary total disability benefits to $153.06. The reduction was instituted to recoup both the lump sum advances and an overpayment of workers’ compensation benefits which resulted from the retroactive social security award.

Wray petitioned the Workers’ Compensation Court for reinstatement of his full temporary total disability benefits in December, 1992. The State Fund generally denied his entitlement to the full amount. With regard to the State Fund’s reduction to recoup the lump sum advances, Wray contended that the language of his petitions for the advances, the State Fund’s concurrence in the petitions as submitted, and the Division’s approval of those petitions, allowed recoupment only from future permanent partial disability benefits.

After the hearing held on May 24, 1993, the hearings examiner entered Findings of Fact, Conclusions of Law, and Proposed Judgment which were adopted by the Workers’ Compensation Court. The court subsequently denied Wray’s motion to amend the judgment as it pertained to the recoupment of the lump sum advances from his current benefits and for a rehearing. Wray appeals.

The Workers’ Compensation Court found that there was no written agreement between the parties concerning recoupment of the lump sum advances. In its order declining to amend the judgment as it pertained to recoupment of the advances, the court in essence concluded that the petitions for advances were ambiguous and that the testimony of Wray and Bill Visser (Visser), claims manager for the State Fund, demonstrated that the parties failed to have a meeting of the minds regarding recoupment.

The Workers’ Compensation Court also found that the State Fund had begun recoupment from Wray’s current benefits based on his age and medical history. The court concluded that “it is only fair” to allow the State Fund to recoup the lump sum advances from Wray’s current temporary total disability benefits.

The parties agree that a workers’ compensation insurer generally is entitled to recoup lump sum advances. See, e.g., Hedegaard v. Knife River Coal Mining Co. (1989), 238 Mont. 290, 293, 776 P.2d 1225, 1227. The threshold issue before us is whether Wray and the State Fund entered into an agreement as to the type of disability benefits from which Wray’s advances could be recouped. Wray argues that the approved petitions for the advances constitute unambiguous, enforceable agreements allowing recoupment only from his future permanent partial disability benefits. The State Fund contends that the approved petitions are ambiguous and relies on extrinsic evidence purportedly establishing the absence of a meeting of the minds.

Although the Workers’ Compensation Court’s determination that no agreement concerning recoupment existed is denominated a “finding,” the construction and interpretation of written agreements is, as a general rule, a question of law. First Sec. Bank v. Vander Pas (1991), 250 Mont. 148, 152-53, 818 P.2d 384, 387. Thus, we treat the “finding” as if it were denominated a conclusion of law. We review a legal conclusion of the Workers’ Compensation Court to determine whether it is correct. Lund v. State Fund (1994), 263 Mont. 346, 868 P.2d 611, 612.

Wray’s petitions, including the State Fund’s written concurrence in them as submitted, constitute the “agreements” or contracts in the case before us. The principles governing interpretation of contracts are well-established:

When the language of a contract is clear and unambiguous, the contract does not require the application of the rules of construction and it is the court’s duty too [sic] enforce the contract as made by the parties. ... Where the words are clear, certain, and unambiguous, the language alone controls and there is nothing for the courts to interpret or construe. The language employed must be given its ordinary meaning.... We may resort to the usual rules of construction to ascertain what the parties intended by the language they employed only when an ambiguity exists. An ambiguity exists when the contract taken as a whole in its wording or phraseology is reasonably subject to two different interpretations.... In interpreting a written contract, the intention of the parties must be ascertained, first and foremost from the writing alone, taken as a whole if possible, and resort to extrinsic evidence in aid of discovering the parties’intent may be had only when the contract appears on its face to be ambiguous or uncertain in this regard.

Morning Star Enterprises v. R.H. Grover (1991), 247 Mont. 105, 111, 805 P.2d 553, 557 (citations omitted; emphasis in original). Applying these principles to the agreements before us, we conclude that the agreements are not reasonably subject to two different interpretations.

In each of his petitions, Wray requested a partial lump sum advance in a specified dollar amount representing a certain number of weeks of compensation benefits at the benefit rate of $146.50 per week. The stated benefit rate did not reflect the temporary total disability rate Wray was receiving at the time of each petition. Rather, it corresponded to the permanent partial disability rate to which both Wray and the State Fund believed he would be entitled in the future. The only reasonable interpretation of the requirement on the Division’s official form that a claimant include the number of weeks at a stated benefit rate is to provide with specificity the benefits against which the advance is sought and from which recoupment can be made.

Each petition also contained the following language: “I understand that such a lump sum advance payment will be deducted from any award or settlement I may receive in the future.” Again, the petitions are clear and unambiguous that Wray requested advances of future permanent partial disability benefits rather than the temporary total benefits he was currently receiving.

An authorized representative of the State Fund concurred and joined in each petition as submitted by Wray; no changes were suggested or made. The Division ultimately approved each of Wray’s petitions for a lump sum advance, as submitted, and the State Fund paid the advances accordingly.

The State Fund argues that the agreements are ambiguous because the phrase “any award or settlement... in the future” may be interpreted to include the benefits that Wray is currently receiving; it cites no authority for this position. The State Fund also contends that use of the alternative “award or settlement” language renders the agreement ambiguous as to the recoupment of the lump sum advances. These arguments ignore both the “ordinary meaning” principle (Morning Star, 805 P.2d at 557) and common sense. The operative word is “future,” and that word cannot reasonably be interpreted to mean “current.” We conclude that the only reasonable interpretation of the parties’ agreements is that the advances were made against, and can only be recouped from, Wray’s future partial disability benefits. We hold, therefore, that the Workers’ Compensation Court erred in concluding that no agreement regarding recoupment existed and, on that basis, in determining that the State Fund could recoup the lump sum advances from Wray’s current temporary total disability benefits.

Relying on a discussion by the Workers’ Compensation Court in its Order Amending Judgment, the State Fund contends that there was no meeting ofthe minds between the parties on recoupment. This argument is based on testimony by Wray and Visser regarding their “understandings” at the time of the agreements as to when Wray likely would be classified as permanently partially disabled and, therefore, when recoupment from permanent partial disability benefits would begin. The argument and the Workers’ Compensation Court’s discussion are fatally flawed, however, since both are premised on the court’s erroneous conclusion that no clear and unambiguous agreement regarding recoupment existed. Resort to extrinsic evidence for the purpose of discovering the parties’ intent is appropriate only when the contract appears on its face to be ambiguous or uncertain. Given our conclusion that the agreements at issue here were clear and unambiguous, the “no meeting ofthe minds” argument is not available to the State Fund.

The State Fund also contends that the parties committed a mutual mistake because they entered into the agreements believing that Wray was then permanently partially disabled. On that basis, the State Fund seeks modification of the agreements to allow immediate recoupment of the advances. It asserts that such relief is equitable, repeating the Workers’ Compensation Court’s concern regarding Wray’s purported health and the dollar amount of the advances. We disagree that the parties committed a mutual mistake.

A mutual mistake occurs when the contracting parties share a common misconception about a vital fact upon which they based their bargain. Mitchell v. Boyer (1989), 237 Mont. 434, 437, 774 P.2d 384, 386. Parties cannot avoid a contract because of mutual mistake, however, if they bear the risk of a mistake. Restatement (Second) of Contracts § 152 (1979). Parties bear the risk of a mistake when they know they have limited knowledge regarding the facts to which the mistake relates at the time the contract is made and treat their limited knowledge as sufficient. Restatement (Second) of Contracts § 154(b) (1979).

The State Fund bore the risk of mistake in the case before us. When approving the lump sum advances, the State Fund knew that it had limited knowledge of Wray’s permanent disability status. At that time, Wray was classified as temporarily totally disabled. That classification does not support the State Fund’s argument that Wray actually was permanently partially disabled. Moreover, it clearly indicates that his ultimate disability status had not yet been established. Visser conceded the State Fund’s limited knowledge of Wray’s disability status by testifying that the lump sum advances were approved based on the assumption that he was only partially disabled.

Notwithstanding its limited knowledge regarding Wray’s disability status, the State Fund approved his petitions which, as discussed above, unambiguously requested lump sum advances to be recouped from Wray’s future permanent partial disability payments. It could have included, as a hedge against an uncertain future, a provision for an alternative method of recoupment in the event Wray’s ultimate disability status was other than permanent partial; it failed to do so. Bearing the risk of mistake, the State Fund is not justified in seeking to modify- the agreements to obtain a result that it now finds more equitable than the terms of the agreements into which it entered.

We hold that the Workers’ Compensation Court erred in determining that the State Fund could recoup the lump sum advances from Wray’s temporary total disability benefits.

Reversed and remanded for entry of a judgment consistent with this opinion.

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


author: JUSTICE TRIEWEILER

text:
    PHILLIP N. CARTER, Plaintiff and Respondent, v. JERROLD L. NYE and NYE & MEYER, P.C.,a Montana professional corporation, Defendants and Appellants.
    No. 94-078.
    Submitted on Briefs June 30, 1994.
    Decided August 30, 1994.
    51 St.Rep. 781.
    266 Mont. 226.
    879 P.2d 729.

      For Appellant: Robert Edd Lee, Attorney at Law, Billings.
    For Respondent: Gene R. Jarussi, Jarussi & Bishop, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiff Phillip N. Carter filed a complaint in the Seventh Judicial District Court in Richland County, against Nye and Meyer, PC., and Jerrold L. Nye for malicious prosecution of District Court Cause No. DV-93-018, Karen Caveny v. Johnston-Will, Inc., a Montana Corporation, Marlin W. Johnston, Myron A. Johnston, Gregory W. Johnston, Dave A. Johnston, and Phillip N. Carter. Nye moved for a change of venue and now appeals the District Court’s denial of that motion. We affirm the District Court.

Our review is limited to the following issue: Did the District Court correctly deny Nye’s motion to change venue to Yellowstone County?

FACTUAL BACKGROUND

In Richland County District Court Cause No. DV-89-064, Karen Caveny sued Johnston-Will, Inc., to force a stock buy-back from her ex-husband’s family corporation, or in the alternative, to force the corporation to liquidate. Jerrold Nye represented Karen Caveny and Phillip Carter represented Johnston-Will. On the eve of trial, the parties entered a structured settlement agreement and stipulated to dismiss the lawsuit.

Caveny alleged that she received the first two installments of the settlement, but none thereafter. In November 1992, she filed a motion under the same cause number, DV-89-064, for an order to show cause why the settlement was not being performed, or in the alternative, why the stipulation should not be set aside or converted into a judgment for the amount due. At a January 5, 1993, hearing, Johnston-Will argued that the show cause order was improperly before the court and that the court lacked jurisdiction over Cause No. DV-89-064 because it had been dismissed. The District Court agreed, dismissed the order to show cause without prejudice, and granted leave for Caveny to petition to reopen Cause No. DV-89-064 or to pursue a separate claim for breach of the settlement agreement.

On February 11,1993, Jerrold Nye, as attorney for Karen Caveny, filed a complaint against Johnston-Will, Inc., and Phillip Carter. The District Court granted summary judgment in favor of Carter after it found no basis in fact to have named Carter as a defendant, and dismissed the claim against him with prejudice.

On December 10, 1993, Carter filed this action against Nye and alleged that Nye instigated and prosecuted the action against him without probable cause. On December 23, 1993, Nye moved for a change of venue from Richland County to Yellowstone County. The District Court denied his motion to change venue in an order filed February 7, 1994. Nye filed this appeal on February 16, 1994.

Nye argues that Montana does not recognize a tort action for malicious prosecution against the attorney who filed the underlying case. However, Nye did not file a Rule 12(b)(6), M.R.Civ.R, motion to dismiss for failure to state a claim for which relief may be granted, nor does the record contain any previous reference to this issue. It is well-settled that we will not address issues raised for the first time on appeal. Hislop v. Cady (1993), 261 Mont. 243, 250, 862 P.2d 388, 392.

Nye further argues that this Court should dismiss the case against him by issuing a writ of supervisory control or by a similar exercise of this Court’s inherent powers. However, Nye has not properly invoked these powers, as required under Rule 17, M.R.App.P., nor has he shown necessity for such extraordinary remedies. We find Nye’s requests for these remedies to be without merit.

Nye’s notice of appeal was limited to the order denying a change of venue. Our decision is necessarily limited to that issue. See Rule 4(c), M.R.App.P.; Tefft v. Tefft (1981), 192 Mont. 456, 461, 628 P.2d 1094, 1097 (citing State v. Todd (1945), 117 Mont. 80, 158 P.2d 299; Sperling v. Calfee (1888), 7 Mont. 514, 19 P. 204).

DISCUSSION

The denial or grant of a motion to change venue is a legal conclusion. Gabriel v. School Dist. No. 4, Libby (1994), [264 Mont. 177], 870 P.2d 1351, 1352. We review conclusions of law to determine whether the district court correctly applied the law. Emery v. Federated Foods, Inc. (1993), 262 Mont. 83, 87, 863 P.2d 426, 429; In re Marriage of Durbin (1991), 251 Mont. 51, 55, 823 P.2d 243, 245.

The cause of action alleged'in this case is the tort of malicious prosecution. The proper place of trial for a tort action is the county in which the defendant resides or the county where the tort was committed. Section 25-2-122, MCA. We have held that when venue properly lies in two different counties under this statute, a plaintiff may choose either county. Bradley v. Valmont Industries, Inc. (1985), 216 Mont. 429, 431, 701 P.2d 997, 998. We have also held that for purposes of venue “a tort is committed where there is a concurrence of breach of obligation and the occasion of damages.” BHC Holding Co. v. Hurly (1990), 242 Mont. 4, 6, 788 P.2d 322, 323 (quoting Whalen v. Snell (1983), 205 Mont. 299, 302, 667 P.2d 436, 437).

In an affidavit filed with the District Court, Carter alleged that his damages occurred in Richland County where he had his office for the past ten years. Because of the allegations in the complaint filed against him, he terminated his business relationship with Johnston-Will, Inc., whom he had served as legal counsel for several years, and advised them to seek other counsel. As a result, Carter alleges that he lost income that he would have continued to receive at his office in Richland County. While we do not decide whether the damages alleged were actually sustained, the evidence is uncontroverted that, if sustained, the alleged damages occurred in Richland County.

For purposes of venue, we must also identify the breach involved to determine where the tort was committed. Carter alleges that Nye breached his obligation by filing a lawsuit with malice and without probable cause. Nye argues that he drafted and signed the complaint in his office in Yellowstone County and contends that any breach necessarily occurred during the “lawyering process,” which took place at his office.

Nye cites Howard v. Dooner Laboratories, Inc. (1984), 211 Mont. 312, 688 P.2d 279, and Schutz Foss Architects v. Campbell (1990), 243 Mont. 194, 793 P.2d 821, in support of his position that when a professional person is alleged to have committed a tort, the tort necessarily occurs where the professional provides his or her services. However, those cases are distinguishable based on their facts.

Nye’s argument and emphasis on the ‘lawyering process” might have merit if he was defending against a professional negligence claim. The elements of a malicious prosecution cause of action, however, require in part, “[a] judicial proceeding commenced against the party alleging malicious prosecution ... and damages suffered by the party alleging malicious prosecution.” O’Fallon v. Farmers Ins. Exch. (1993), 260 Mont. 233, 238, 859 P.2d 1008, 1011. A judicial proceeding “is commenced by filing a complaint with the court.” Rule 3, M.R.Civ.R The judicial proceeding in this instance was commenced against Phillip Carter by a complaint filed in Richland County.

We conclude that if a breach of obligation occurred, it occurred when the complaint was filed in Richland County. Because we also conclude that the alleged damages occurred in the same county, we hold that venue was proper in Richland County and conclude that the District Court correctly denied Nye’s motion for change of venue to Yellowstone County.

The order of the District Court denying defendant’s motion for change of venue is affirmed.

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


author: JUSTICE GRAY JUSTICE NELSON

text:
    FRANKLIN T. CURTIS, Petitioner, v. DISTRICT COURT OF THE TWENTY-FIRST JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF RAVALLI, and THE HONORABLE JEFFREY LANGTON, Presiding Judge, Respondents. IVAN VILENSKY, Petitioner, v. DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF MISSOULA and THE HONORABLE JOHN S. HENSON, Presiding Judge, Respondents.
    Nos. 94-097 and 94-107.
    Submitted on Briefs August 23, 1994.
    Decided August 30, 1994.
    51 St.Rep. 776.
    266 Mont. 231.
    879 P.2d 1164.

      For Petitioners: Donald Spadone, Attorney at Law, Hamilton; Larry Mansch, Public Defender Office, Missoula.
    For Respondents: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; George Com, Ravalli County Attorney, Hamilton; Robert Deschamps, III, Missoula County Attorney, Missoula.
    For Amicus Curiae: Lonnie J. Olson, Mental Disabilities Board of Visitors, Warm Springs.
   JUSTICE GRAY

delivered the Opinion of the Court.

We accepted original jurisdiction of these consolidated cases to address the following issue of first impression presented in Applications for Writ of Supervisory Control: Whether a defendant awaiting trial on criminal charges, who has been determined to lack the fitness to proceed, may be involuntarily medicated or treated for his underlying mental condition during the 90-day commitment period prescribed in § 46-14-221, MCA. We reverse orders of the Twenty-First Judicial District Court, Ravalli County, and the Fourth Judicial District Court, Missoula County, authorizing such involuntary medication and treatment and remand for further proceedings.

These consolidated cases are factually similar to the extent necessary for our resolution of the legal issue before us. Thus, abbreviated factual summaries are sufficient to provide a foundation for our analysis.

State v. Franklin T. Curtis

In response to being charged by information with two counts of deliberate homicide and three counts of felony assault in the Twenty-First Judicial District Court, Ravalli County, Franklin T. Curtis (Curtis) moved for a psychiatric examination and filed notice of intent to rely on the defense of mental disease or defect. The District Court appointed Dr. William Stratford to conduct a psychiatric examination of Curtis.

Following the examination and upon motion of the State of Montana (State), the District Court determined that a doubt existed about Curtis’ fitness to proceed, and ordered that he be examined at the Montana State Hospital at Warm Springs (State Hospital) pursuant to § 46-14-202, MCA. Subsequent to that examination, the court determined that Curtis was “not now fit to proceed” and ordered him committed to the custody of the Director of the Department of Corrections and Human Services (Department Director) for placement, as recommended by the court, at the State Hospital pursuant to § 46-14-221, MCA. The court’s order suspended further criminal proceedings during Curtis’ commitment and authorized involuntary medication for Curtis’ mental illness as deemed necessary by the Department Director. The District Court stayed the involuntary medication pending Curtis’ application to this Court for a writ of supervisory control.

State v. Ivan Vilensky

Ivan Vilensky (Vilensky) was charged via information with two counts of felony assault and one count of misdemeanor assault in the Fourth Judicial District Court, Missoula County. Following a joint request by Vilensky and the State, the District Court ordered that Vilensky be examined to determine his fitness to proceed pursuant to § 46-14-202, MCA.

Subsequent to that examination and further proceedings, the District Court found Vilensky unfit to proceed and committed him to the custody of the Department Director pursuant to § 46-14-221(2), MCA. The court authorized involuntary antipsychotic medication and treatment of Vilensky, but stayed the involuntary medication and treatment pending Vilensky’s application to this Court for a writ. Vilensky’s counsel stipulated to preserving the State’s “right” to a full 90-day evaluation period.

May a defendant who is awaiting trial on criminal charges, and who has been determined to lack the fitness to proceed, be involuntarily medicated or treated for his underlying mental condition during the 90-day commitment period prescribed in § 46-14-221(2), MCA?

The issue before us is limited to whether the State may involuntarily treat and medicate the underlying mental condition of a defendant committed pursuant to § 46-14-221(2), MCA, and, in so doing, attempt to render the defendant fit to proceed to trial. Not before us are the questions of medication and treatment for medical conditions other than the underlying mental condition or whether, how, and to what extent, the State may involuntarily medicate a defendant committed pursuant to § 46-14-221(2), MCA, in order to constrain behavioral manifestations of the defendant’s underlying mental condition which demonstrably render the defendant a danger to himself or others.

All parties, including the State on behalf of Respondent District Courts and amicus curiae Mental Disabilities Board of Visitors, address the issue before us via both statutory interpretation and extensive constitutional analysis. The State argues that both § 46-14-221, MCA, and the United States Constitution permit involuntary medication and treatment of Curtis and Vilensky for their mental illnesses during this period of commitment for the purpose of rendering them fit to proceed to trial on the charges against them. Curtis, Vilensky and amicus curiae contend to the contrary. Because we hold that § 46-14-221(2), MCA, does not authorize the involuntary medication or treatment of a defendant’s underlying mental condition, we do not address the significant constitutional issues which would arise in the event of a different statutory interpretation.

Montana provides by statute that a person who, as a result of a mental disease or defect, is unable to understand the proceedings or assist in his or her defense, may not be tried, convicted or sentenced for the commission of a criminal offense. Section 46-14-103, MCA. The issue of a defendant’s fitness to proceed is raised and determined in a criminal proceeding pursuant to Title 46, Chapter 14, Part 2 of the Montana Code Annotated, which is entitled “Procedure When Mental Disease or Defect an Issue.”

A defendant’s fitness to proceed often arises first under § 46-14-202, MCA, and the court may order an examination of whether a defendant is fit to proceed pursuant to that statute; for purposes of such an examination, the defendant may be committed to any suitable facility for a period not exceeding 60 days unless the court determines that a longer period is required for the examination. Section 46-14-202(2), MCA. Areport of the examination must address the criteria set forth in § 46-14-206, MCA.

Section 46-14-221, MCA, provides for further proceedings in the event a report is filed pursuant to § 46-14-206, MCA. The court makes the determination of the defendant’s fitness to proceed pursuant to § 46-14-221(1), MCA, and if the court determines the defendant is not fit to proceed, § 46-14-221(2), MCA, governs subsequent proceedings. The interpretation of § 46-14-221(2), MCA, is before us in this case.

Our role in construing statutes is clear. We must “ascertain and declare what is in terms or in substance contained therein...;” we may not insert what has been omitted or omit what has been inserted. Section 1-2-101, MCA. The intention of the legislature is to be pursued. Section 1-2-102, MCA. If that intention can be determined from the plain meaning of the words used, a court may not go further and apply other means of interpretation. State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331, 1333 (citation omitted). Where the statutory language is “plain, unambiguous, direct and certain, the statute speaks for itself and there is nothing left for the court to construe.” Hubbard, 649 P.2d at 1333.

In the event of a court determination that the defendant is not fit to proceed, § 46-14-221(2), MCA, provides as follows:

[T]he proceeding against the defendant must be suspended, ... and the court shall commit the defendant to the custody of the director of the department of corrections and human services to be placed in an appropriate institution ... for so long as the unfitness endures. The committing court shall, within 90 days of commitment, review the defendant’s fitness to proceed. If the court finds that the defendant is still unfit to proceed and that it does not appear that the defendant will become fit to proceed within the reasonably foreseeable future, the proceeding against the defendant must be dismissed, ... and the prosecutor shall petition the court in the manner provided in chapter 20 or 21 of Title 53, whichever is appropriate, to determine the disposition of the defendant pursuant to those provisions.

It is clear that § 46-14-221(2), MCA, contains no reference to involuntary treatment and medication of the defendant’s mental condition during the prescribed period.

The State’s power to treat mentally ill persons is separately and specifically addressed in Chapter 21 of Title 53, MCA. The stated purpose of that chapter is to secure for each person who may be mentally ill the care and treatment suited to the person’s needs. Section 53-21-101, MCA. Under this chapter, the State is authorized to provide needed care and treatment involuntarily, where appropriate, but only pursuant to the procedural requisites and restrictions specifically provided by the Montana legislature. See, e.g., § 53-21-121, MCA.

The legislative intent of § 46-14-221(2), MCA, is clearly stated by the plain and unambiguous language used. The statute provides for the suspension of criminal proceedings and commitment of a defendant who is not fit to proceed to an appropriate institution for the period of unfitness. Section 46-14-221(2), MCA.

This latter provision is significantly limited, however. The defendant’s fitness to proceed must be reviewed by the court within 90 days of the commitment; if, at that time, the court determines that the defendant remains unfit to proceed and it appears that the defendant will not become fit to proceed “within the reasonably foreseeable future, the proceeding against the defendant must be dismissed ....” Section 46-14-221(2), MCA. No language in the statute supports the position that the legislature intended the defendant’s underlying mental condition to be involuntarily medicated or treated during the § 46-14-221(2), MCA, commitment period.

Moreover, the final portion of § 46-14-221(2), MCA, directly contradicts any such asserted legislative intent. There, the legislature specifically provided that, if the criminal proceedings are dismissed due to the defendant’s unfitness, “the prosecutor shall petition the court in the manner provided in chapter 20 or 21 of Title 53, ... to determine the disposition of the defendant pursuant to those provisions.” Section 46-14-221(2), MCA (emphasis added). As discussed above, such a petition would result — assuming the requisite showings were made — in a civil commitment which would include appropriate treatment for the person’s mental condition.

The language of § 46-14-221(2), MCA, is clear and the statute speaks for itself. It provides a means of committing a criminal defendant who is not fit to proceed for a limited period of time to determine whether the defendant will become fit to proceed to trial. If it appears that fitness to proceed will not occur within the reasonably foreseeable future, the criminal proceedings must be dismissed, and the State must proceed under statutes authorizing appropriate treatment for the underlying mental condition. We conclude that § 46-14-221(2), MCA, does not authorize the involuntary medication and treatment of a committed defendant’s underlying mental condition.

While the State concedes our conclusion, at least to the extent of agreeing that no specific authority for such involuntary medication and treatment of a defendant’s underlying mental condition is contained in § 46-14-221(2), MCA, it contends that the legislature’s intent vis-a-vis this statute can be determined only through examination of legislative history. It urges us to apply rules of statutory construction whereby statutes are to be interpreted so as not to defeat their purpose, and with a view to effecting their objects and promoting justice. Section 1-2-103, MCA; Maney v. State (1992), 255 Mont. 270, 842 P.2d 704; State v. Sunday (1980), 187 Mont. 292, 609 P.2d 1188.

Our conclusion that the legislature’s language, intent and purpose in enacting § 46-14-221(2), MCA, are clear comports with these rules. It advances the purpose and objects of the statute ascertained from a plain reading of the legislature’s language. It “promotes justice” by simultaneously effectuating the legislature’s will and requiring the State to pursue involuntary treatment of mentally ill persons under the civil statutes specifically authorizing such treatment. Nor does anything in any of the rules of statutory construction advanced by the State permit this Court to deviate from the “plain meaning” rule absent ambiguous or uncertain language which does not exist in § 46-14-221(2), MCA, or to insert language authorizing involuntary treatment for a defendant’s underlying mental condition which was not included by the legislature.

We hold that a defendant who is awaiting trial, and who has been determined to lack the fitness to proceed, may not be involuntarily medicated or treated for his underlying mental condition during the 90-day commitment period prescribed in § 46-14-221(2), MCA. Having so held, it remains necessary to return to the individual cases of petitioners Curtis and Vilensky.

State v. Curtis

The Twenty-First Judicial District Court, Ravalli County, authorized the involuntary medication of Curtis’ underlying mental illness; that provision was stayed. The District Court also ordered' a report within 90 days of the date of its order of February 17, 1994, and it appears from the record before us that the report has been prepared and forwarded to the District Court.

The District Court’s order authorizing involuntary medication of Curtis’ underlying mental illness is reversed. Curtis now having been committed to the State Hospital for a period in excess of twice that permitted without further court review under § 46-14-221(2), MCA, the District Court is directed to proceed with its statutorily-mandated review of his fitness to proceed as immediately as such proceedings can be scheduled on a priority basis.

State v. Vilensky

The Fourth Judicial District Court authorized the involuntary administration of antipsychotic drugs to treat Vilensky; it stayed that action. Vilensky’s counsel stipulated that “the prosecution’s right to a full ninety (90) day evaluation period will be preserved.”

The District Court also determined that the administration of medication during the § 46-14-221(2), MCA, commitment was necessary for the health and safety of Vilensky and others. Our resolution of the issue in this case of involuntary treatment of a defendant’s underlying mental condition addresses the court’s “health of Vilensky” determination. The “safety of Vilensky and others” determination relates to the issues not before us regarding when and how the State may involuntarily medicate behavioral manifestations of a defendant’s underlying mental condition which demonstrably render the defendant a danger to himself or others. Suffice it to say that our close review of the record reveals no basis for the court’s determination that the “safety” of Vilensky and others necessitated medication of any kind, much less the antipsychotic drugs recommended to treat the underlying mental illness.

The District Court’s order authorizing the involuntary administration of antipsychotic drugs to treat Vilensky is reversed. Any “right” the State has to the 90-day period prior to court review of Vilensky’s fitness to proceed has been fully met, in that some six months have elapsed since the stipulation. Vilensky having been committed to the State Hospital for a period longer than § 46-14-221(2), MCA, allows without further court review, the District Court is directed to proceed with its statutorily-mandated review of Vilensky’s fitness to proceed as immediately as such proceedings can be scheduled on a priority basis.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

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

JUSTICE NELSON

specially concurs.

I concur in the Court’s opinion. The examination — evaluation statutes (Title 46, Ch. 14, part 2, MCA) clearly do not provide authority for the involuntary medication or treatment of a pretrial detainee for purposes of rendering him mentally or emotionally fit to proceed to trial or to assist in his own defense.

While we clearly state that we are, here, addressing only that issue, nevertheless, speaking for myself, and out of concern that our opinion has been drafted with greater care than that with which it might be read, I emphasize that, absent some future statutory change or a decision of this Court addressing the precise issue, I do not interpret our opinion in the instant cases as precluding the State from involuntarily medicating or treating a seriously mentally ill detainee under the provisions and procedures prescribed by § 53-21-129, MCA. Under our statutory scheme, that latter treatment is, however, only for the purpose of dealing with the immediate, emergency situation; it is not for the purpose of rendering the detainee fit to proceed to trial or to assist in his own defense.

In neither of the instant cases, is there anything in the record that implicates involuntary medication or treatment under the emergency situation required by § 53-21-129, MCA.


author: JUSTICE WEBER

text:
    JAMES M. TROGLIA, JR., Plaintiff and Appellant, v. E. A. BARTOLETTI, et al., Defendants and Respondents.
    No. 94-091.
    Submitted on Briefs June 30, 1994.
    Decided August 30, 1994.
    51 St.Rep. 783.
    266 Mont. 240.
    879 P.2d 1169.

      For Appellant: Ward A. Shanahan, Gough, Shanahan, Johnson & Waterman, Helena.
    For Respondent: Edward Beaudette, Anaconda.
   JUSTICE WEBER

delivered the Opinion of the Court.

In a partition action in the District Court of the Fifth Judicial District, Jefferson County, this is an appeal from a property valuation and order allocating the sale proceeds from a public sale of the real property as between the co-tenant parties to the action. We affirm in part and reverse in part.

The issues on review are:

I. Did the District Court err in awarding defendant E. A. Bartoletti $24,450 for his interest in the land and improvements?

II. Did the District Court err in awarding defendants damages for “wrongful exclusion and wrongful deprivation” when the claim was not properly raised by the parties?

III. Did the District Court err in waiving the formal notice of entry of judgment pursuant to Rule 77(d), M.R.Civ.R?

The parties are tenants in comnion in the ownership of two patented mining claims, in Jefferson County, Montana, with a total acreage of 41.179 acres.

The property was first leased by James M. Troglia, Sr. and Louis Bartoletti, father of defendant E. A. Bartoletti. It originally included two older structures and also showed evidence of active mining operations. James M. Troglia, Sr. and Louis Bartoletti built a cabin on the property and jointly used it for recreation. In 1958, they purchased the property in equal shares and thereby became tenants in common. They also purchased another unpatented mining property nearby on which they built another dwelling. In 1964, this cabin was destroyed by fire.

James M. Troglia, Sr. and Louis Bartoletti began having business problems and defendant E. A. Bartoletti became involved in the disputes. Several lawsuits followed.

In October of 1970, James Troglia, Sr. deeded his half interest in the property to his son, plaintiff James Troglia, Jr. (Troglia) and in December 1971, Louis Bartoletti deeded his half in equal shares to his son defendant E.A. Bartoletti (Bartoletti) and his daughter Mrs. Thelma Casey (Casey) of Great Falls. Casey sold her one-quarter interest in the surface to Troglia for $7,000 in 1990 before the commencement of the present action. Casey retained her mineral rights. As a result, Troglia owned 75% of the surface estate and 50% of the minerals and Bartoletti owned 25% of the surface and 25% of the minerals. Casey owned the remaining 25% of the minerals.

Troglia and Bartoletti disputed the cause of the destruction of a cabin. Attempts by Troglia to settle the dispute and get the cabin rebuilt were unsuccessful. Troglia then notified Bartoletti that he was going to rebuild the cabin himself and that it would be his exclusive property. Bartoletti objected to this plan and stated his right to have the land partitioned.

Troglia proceeded to build a quite sophisticated lodge on a fenced 14.11 acre portion of the property. Troglia repaired the existing fence and also made extensive improvements to the other two older cabins on the combined properties. Troglia also filed a water right on a spring that runs through the property.

Troglia has paid taxes on all of the improvements since 1978. The county assessed Troglia based on a one-acre “homestead tract” valued as a homesite until the present time. The rest of the property was assessed as grazing land. Troglia, Bartoletti, and Casey have paid taxes on their respective interest in the land.

Troglia eventually filed an action claiming 1) an “ouster” and repudiation of Bartoletti’s surface rights in a 14.11-acre portion of the 41.179 acre property, 2) the need for a partition or sale of all of the property, and 3) a request for quiet title in himself against all other persons unknown. Bartoletti filed an answer containing a general and special denial.

The case was tried on February 26, 1992. In its order the court appointed a receiver to appraise and sell the property in the event an agreement between the parties concerning partition could not be achieved. The court granted Troglia a right of first refusal on the same terms and conditions of any bona fide offer. The court amended its order, striking this right of first refusal and directing the receiver that Troglia be compensated for the reasonable value of improvements made by him during his exclusive occupancy of the property. The court also at this time gave specific directions to the receiver for the appraisal and sale of the property.

The receiver did not complete the sale arrangements during the winter of 1992-93. He later requested permission of the court to try to effect a partition by mutual agreement. In June of 1993, he reported that he was unable to accomplish this. On July 28,1993, the court issued an order directing sale. The property was advertised for sale and bids were accepted. The bids were opened by the court on October 27, 1993 and Troglia’s bid of $201,000 was the highest bid received.

On November 5, 1993, Troglia moved the court for disposition of sale proceeds. The court issued an order on January 28,1994, finding that Bartoletti owned a 25% interest in both the land and the improvements and was owed the sum of $24,450. The court further determined that the reasonable rental value of the property from which Bartoletti had been “wrongfully excluded” equaled $1,000 per year for a total of $16,000. The court then waived the provisions of Rule 77(d), M.R.Civ.R, and made its judgment immediately effective, even though the actual document was not filed until January 31, 1994, and not received by the parties until February 1,1994. Troglia appeals this January 28,1994 order of the court. Judgment is stayed pending appeal and the quiet title action remains pending before the District Court.

I.

Did the District Court err in awarding defendants $24,450 for their interest in the land and improvements?

Troglia contends that the District Court was statutorily bound by § 70-29-207, MCA, to separate the value of improvements from the value of the land; instead, the court simply awarded Bartoletti the sum of $24,450 for land and improvements. Troglia contends the court ignored the evidence of valuation and did not base its decision upon any pertinent evidence. Troglia contends that the land was appraised by his appraiser at $30,000, and that Bartoletti is due only $13,000 of that sum. Bartoletti contends that the statute relied upon by Troglia is inapplicable because there was no partition.

Under Tonack v. Montana Bank of Billings (1993), 258 Mont. 247, 854 P.2d 326, our standard of review of the District Court’s findings of fact is to determine if they are clearly erroneous, that is if they are supported by substantial evidence, and then to determine if the trial court has misapprehended the effect of the evidence and last to determine whether this Court is left with a firm conviction that a mistake has been made. We evaluate the legal interpretations of a court as to whether those interpretations are correct. Doting v. Trunk (1993), 259 Mont. 343, 856 P.2d 536.

Section 70-29-207, MCA, cited by Troglia provides:

Allotment of shares of land — improvements. In all cases the court shall direct the referees, in making partition of land, to allot the share of each of the parties owning an interest in the whole or in any part of the premises sought to be partitioned and to locate the share of each cotenant so as to embrace as far as practicable the improvements made by such cotenant upon the property, and the value of the improvements made by the tenants in common must be excluded from the valuation in making allotments, and the land must be valued without regard to such improvements, in case the same can be done without material injury to the rights and interest of the other tenants in common owning such land. (Emphasis added.)

The wording of the statute makes it applicable to cases in which the court partitions land. The court did not do that in the present case, and therefore, the court was not bound by the statute’s directive to evaluate the land separately from the improvements upon it.

In its final order, the District Court issued the following findings:

2. The Court finds that the aggregate value of the property is $201,000. Allocation of the respective interests of the co-tenants must necessarily be based on that value. The Receiver’s appraisal was of little help to the Court in view of 24 bids ranging from a low of $7, 000 to the high of $201,000. The Court personally inspected the property, and from that inspection finds and agrees with the Plaintiff in his appraisal and his bid pursuant thereto.
4. The Court finds, based on Plaintiff’s $201,000 appraisal, that Defendants’ 25% interest in the land and improvements to be the sum of $24,450.

Twenty-four bids for the property were presented to the court. They showed a broad variation in sums that people were willing to pay for the property. Because of this great range, the judge personally inspected the property. And although he has not provided us with a detailed analysis of how he reached the final amount, we cannot say that his findings here are clearly erroneous.

Plaintiff’s appraiser valued the land at $30,000 and the lodge at $103,000. Plaintiff’s bid for land and improvements was $201,000. As pointed out by Bartoletti, by valuing Bartoletti’s interest at $24,450, the District Court set a value of $97,800 on the land and a value on the improvements made by plaintiff Troglia of $103,200. While it would have been helpful to have a more precise statement by the District Court, we conclude that the court had the right to disregard the appraiser’s value and to consider other credible evidence, and we further conclude that he was not clearly erroneous in valuing the defendant Bartoletti’s interest at $24,450.

We hold that the court did not err in awarding $24,450 to the defendant Bartoletti for his interest in the land and improvements.

II.

Did the District Court err in awarding defendants damages for “wrongful exclusion and wrongful deprivation” when the claim was not properly raised by the parties?

Troglia argues that the District Court erred in finding a claim for relief based upon “wrongful exclusion and wrongful deprivation.” Such claims, contends Troglia, were required to be plead under Rule 13(a) of the M.R.Civ.R which requires that any claim against the same parties arising from the same incident and not requiring the presence of a third party, must be plead in defendant’s answer to the original charges. Troglia asserts that the first mention of the aforementioned claims came in Defendant’s Memorandum Regarding Disposition of Proceeds filed December 3, 1993. Further, Troglia argues that the court held no hearing, and no evidence was presented, with respect to the proper amount of damages arising from these claims.

Bartoletti argues that he did seek equitable relief from the court and that such a request enables the District Court to award any and all relief available under the court’s equitable jurisdiction. Bartoletti further argues that § 70-29-209, MCA, specifically allows for a ruling in equity.

Bartoletti cites the following sentence from the prayer for relief found in his Answer as asking for an equitable settlement:

2. That a partition of the Viola and Jettie Pearl mining claims be made equitably by this Court according to the interests held by the parties.

In this sentence the word “equitably” modifies the word “partition.” Bartoletti asked for a fair partition in this sentence, he did not request any equitable award that the court can make — nor do we interpret the sentence as having such a broad meaning.

Next, Bartoletti argues that § 70-29-209, MCA, requires that the court make a decision in equity concerning the property. The section cited by Bartoletti concerns what the court “may” do if the court cannot make an “equal” partition. The facts of this case present us with a situation in which the court could effect no partition of any kind. Thus, this statute which defines a particular set of guidelines to be applied in circumstances when the court is making a partition is not applicable and is not precedent for the case before us.

Troglia argues that Bartoletti has not filed a proper counterclaim concerning “wrongful exclusion and wrongful deprivation” according to the dictates of Rule 13(a), M.R.Civ.P. This rule states:

Compulsory counterclaims. Apleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require tor its adjudication the presence of third parties of whom the court cannot acquire jurisdiction ....

A claim for wrongful exclusion or wrongful deprivation is a claim against the other party to the litigation arising out of the same incident and not requiring a third party for the adjudication. It is, therefore, a compulsory counterclaim. A close review of the Answer indicates that no counterclaim was made. If a compulsory counterclaim is not specifically plead, defendant loses the right to bring it up later. Julian v. Matson (1985), 219 Mont. 145, 710 P.2d 707.

We conclude that because Bartoletti did not raise this claim in his answer, he cannot raise it in subsequent documents pursuant to Rule 13(a), M.R.Civ.R Therefore, we hold that the District Court erred in awarding defendant damages for “wrongful exclusion and wrongful deprivation” when the claims were not properly raised by the parties. We reverse the court’s holding on this issue and vacate the court’s award of $16,000 to Bartoletti for “wrongful exclusion and wrongful deprivation.”

III.

Did the District Court err in waiving the formal notice of entry of judgment pursuant to Rule 77(d), M.R.Civ.P?

The District Court’s ruling dated January 28, 1994, states:

This order shall constitute a judgment in favor of the Defendants and against the Plaintiff and shall be effective this date without formal notice of entry thereof.

Rule 77(d), M.R.Civ.R, provides:

(d) Notice of Entry of Judgment Served. Within 10 days after entry of judgment or an order in an action in which an appearance has been made, notice of such entry, together with a copy of such judgment or order or general description of the nature and amount of relief and damages thereby granted, shall be served by the prevailing party upon all parties who have made an appearance, but any other party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers.

The ruling was filed with the clerk on January 31,1994, and received by plaintiff on February 1, 1994.

Troglia argues that the court should have followed the rule, but admits that the court’s error was harmless. While we agree that what happened in this instance was harmless error, we point out that a party’s allotted time in which to file an appeal does not begin to run until the notice of entry of judgment has been served. In re Marriage of Robertson (1989), 237 Mont. 406, 773 P.2d 1213. We therefore emphasize that the district courts cahnot eliminate the necessity for the prevailing party’s service of notice of entry of judgment.

While the court’s order was incorrect, we hold the action did not rise to the level of reversible error.

We affirm the award of $24,450 and reverse the award of $16,000 and remand for entry of appropriate [judgment.

JUSTICES GRAY, HARRISON, NELSON and HUNT concur.