text:
    IN THE MATTER OF E.B.G., a Youth, Defendant and Appellant.
    No. 92-304.
    Submitted on Briefs October 29, 1992.
    Decided April 29, 1993.
    50 St.Rep. 445.
    852 P.2d 538.
    258 Mont. 96.
    See C.J.S. Infants § 60.
    JUSTICE TRIEWEILER issued a dissenting opinion in which JUSTICES GRAY and HUNT concurred.
    For Defendant and Appellant: Mark S. Werner, Billings.
    For Respondent: Marc Racicot, Attorney General, Micheál S. Wellenstein, Assistant Attorney General, Helena; John S. Forsythe, Rosebud County Attorney, Forsyth.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from the Sixteenth Judicial District Court, Rosebud County, of a conviction of a minor for possession of stolen property. We affirm.

The sole issue on appeal is whether there was sufficient evidence to support the conviction under § 45-6-301(3), MCA.

On September 27, 1991, the State filed a petition for a youth hearing alleging that the minor, E.B.G., was a delinquent youth because he violated § 45-6-301(3), MCA, by committing the offense of possession of stolen property. The petition alleged that he “knowingly obtained control over stolen property, No. 1 and No. 2 copper wire, of a value of more than $300 owned by Prince Inc., knowing the property to have been stolen by another and used, concealed or abandoned the property in such a manner as to deprive the owner of the property.” The youth denied the charge and a trial was held. E.B.G. was found guilty by a jury and was later found to be a serious juvenile offender by the District Court Judge. He was ordered committed to Pine Hills School and ordered to pay restitution in the amount of $7047, the replacement cost of the wire.

Sometime between Monday, August 12, 1991, and Friday, August 16, 1991, David Quenzer (Quenzer) discovered that a large amount of wire was missing from his place of business, Prince Inc. Quenzer had seen the wire on Monday, August 12, but on Friday, August 16, he saw two empty pallets leaning against a boxcar used for storage of wire. He could see patterns of dust rings on the empty pallet where the wire had been. Quenzer called the police. He then started to call people in the recycling business and upon calling Border Steel, a recycling center in Glendive, Montana, Quenzer learned that they had received wire on the previous day that was similar to the wire which had been stolen.

The wire received at Border Steel on Thursday, August 15, 1991, was brought in by E.B.G. of ENT Recycling in Forsyth, Montana. Bret Smelser, part owner and manager of Border Steel, stated during trial that either E.B.G. or D.H., a youth assisting E.B.G., told him that the wire had been brought into ENT on Wednesday, August 14. E.B.G. told Smelser that he and his friend, D.H., burned the copper wire Wednesday night and early Thursday morning in South Dakota and then drove to Border Steel in Glendive.

Smelser bought most of the wire brought in by E.B.G., but did not accept some wire which was unbumed and some clamps and connectors. E.B.G. told Smelser that he would clean those items and sell them to Border Steel at a later date, so they were placed back in the ENT truck.

Officer Skillen, a deputy sheriff with Rosebud County Sheriff’s Department, investigated the case. He went to Border Steel where he interviewed Mr. Smelser and examined some wire from their storage area. Skillen examined No. 1 and No. 2 wire which were identified as wire brought in by E.B.G., as well as some connectors. The officer took several samples of wire and a Hubbel connector that had been brought in by E.B.G.

The investigating officer also examined the scene of the theft and took photographs of the area. He found an area within the boxcar, where wire was stored, that contained multiple footprints. The footprints appeared fresh and there were “three relatively different types of prints.” The officer stated that he was led to believe that the area was the same as it had been since the theft.

Officer Skillen also applied for a search warrant to search ENT, E.B.G.’s place of business. The search of ENT involved Officer Skillen, Sergeant McComb, and Quenzer, and occurred on August 21. The search yielded some wire, which Quenzer stated looked like wire taken from Prince Inc., some brass clamps, and some connectors. Smelser had previously told Officer Skillen about the wire, connectors, and clamps which had been rejected by Smelser and returned to E.B.G. This information formed the basis of the search. Officer Skillen took several samples of the wire, as well as two couplers, during the course of his search.

Officer Skillen also learned that the wire “had been brought in by Justin Smith within a relatively short period of time.” The officer asked for a receipt for the wire purchased by ENT from Smith and he was led to believe that the receipt should not be hard to locate because Smith had recently brought the wire into ENT. E.B.G.’s father, the manager of ENT, was going to locate the receipt and bring it to Officer Skillen, but it was never brought to him.

As another step in Officer Skillen’s investigation of the stolen wire, he took statements from E.B.G. and E.B.G.’s father on August 23, 1991. E.B.G. stated that he understood that Justin Smith brought in a lot of wire and he had borrowed E.B.G.’s father’s truck to haul the wire. E.B.G also stated that his dad told him that Justin received the wire from Justin’s dad. When asked what time E.B.G. left from Forsyth to Glendive, he stated that it was around 12:30 or 1:00 and he drove right to Glendive. When pressed by the detective as to where the wire came from, E.B.G. stated that:

Well, we got, like I said, that one pile Justin Smith brought in quite a bit back there, but I was in school and I just, I never seen what the weight was and stuff. And he worked out — he worked for us for awhile so — and we had him cutting tanks out there and stuff and that’s the time that he took it.

The officer asked: “At Prince’s?” and E.B.G. stated that they were cutting iron out there. Then the officer asked if E.B.G. knew that Justin took it from Prince’s and E.B.G. replied that “He said his dad gave it to him. I’m not familiar where his dad lives or anything.” Officer Skillen asked whether the wire was in the same condition when Smith brought it in as when E.B.G. took it to Glendive or if he had to clean it. E.B.G. answered “Most of it, like the No. 1, we had some No. 1 that we had to clean up.” “Q. That you stripped; it wasn’t burned?” “Yes,” answered E.B.G.

When Mr. G., E.B.G.’s father, was interviewed, he stated that he and his wife kept the business records. He further stated that Justin Smith had brought in a large supply of wire but he did not specify to the officers when the wire was brought in. He explained that when he called Smelser (Border Steel) to negotiate on the price of the wire on August 15 and he told Smelser the wire had come in on the previous day, he meant that “it was loaded up onto my vehicle to be finished prepared.” He said that although E.B.G. owned the business, Mr. G. controlled the money and E.B.G. He also later reported that Justin Smith brought the wire in on November 20,1990. He also related that E.B.G. cashed the check for the wire in Glendive, put some gas in the car and bought food for himself and D.H., who had assisted E.B.G. E.B.G. turned the remainder of the money over to Mr. G. upon his return to Forsyth.

Justin Smith testified that he had never brought in a large amount of copper wire but that he had helped Rob Watson bring in about 20 pounds at one time. He stated that he helped bring in that wire in November 1990. He further related that he had borrowed Mr. G.’s pickup truck at one time but had never used it to pick up wire. Finally, he stated that he could not have delivered wire to ENT in July or August 1991 because he was working from April 27 to August 23 or 24, 1991, on the Colorado River in Arizona.

Our standard of review is “[wjhether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Brown (1989), 239 Mont. 453, 456-57, 781 R2d 281, 284. (Citation omitted.)

Section 45-6-301(3), MCA, the statute at issue, reads:

(3) A person commits the offense of theft when he purposely or knowingly obtains control over stolen property knowing the property to have been stolen by another and:
(a) has the purpose of depriving the owner of the property;
(b) purposely or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or
(c) uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property.

E.B.G. argues that there was no proof that the wire had been stolen by another and there was no proof that the youth knew that the wire was stolen at the time he received the property. Each of these arguments will be taken in turn.

First, the State has provided sufficient evidence for a jury to conclude that E.B.G. knew that the wire was stolen. E.B.G. contends that “[t]here is absolutely no evidence in the record to show that at any period between August 12 and August 15, when the youth would have had physical possession of the wire, that he knew that it was stolen.” The State counters that he would not have burned the insulated copper wire and sold it as scrap unless it was stolen. According to Dave Quenzer, the wire, if insulated, would be worth three to six dollars per foot and he estimated that the wire which was stolen was worth $5000 to $6000. Bret Smelser stated that he bought most of the wire that E.B.G. brought him but did not accept some of the wire because it was not completely burned. E.B.G. told Smelser that he would clean the unburned copper later and sell it to Smelser. In total, Smelser purchased 784 pounds of No. 1 wire and 986 pounds of No. 2 wire for a total of $1,318.80. The burning of the insulated copper wire to sell for scrap at a much lower price is evidence that could lead a jury to determine that E.B.G. knew the wire was stolen, and therefore, tried to change its appearance.

Further, E.B.G.’s inconsistent statements may have damaged his credibility before the jury. Bret Smelser said that E.B.G. told him that he and D.H. had burned the wire in South Dakota on Wednesday night and early Thursday morning and then they drove from South Dakota to Glendive. However, when E.B.G. was interviewed by Officer Skillen, he stated that he drove straight to Glendive after leaving Forsyth between 12:30 and 1:00. He did not mention burning the wire and told Officer Skillen that the wire had been stripped, not burned. E.B.G.’s companion, D.H., testified at trial that they took the wire to Buffalo, South Dakota, to burn on Thursday, August 15. They left at about seven or eight o’clock that morning and then drove to Glendive, Montana, to Border Steel after burning the wire.

E.B.G. also made contradictory statements about how ENT had acquired the copper wire. When Officer Skillen asked E.B.G. during the taped interview where the wire he sold to Border Steel had come from the following discussion took place:

Q. Okay. Well, I guess where we’re at is this. Prince’s had about 2000 pounds of wire stolen in August. They’ve identified the connectors and they’ve identified the wire as being theirs.
A. Yes.
Q. Okay. You brought that wire to Glendive?
A. Yeah, I did.
Q. So the bottom line is where did you get the wire from?
A. We’ve had a lot of wire held up for a long time.
Q. You see what I’m saying, if that amount of wire was taken, No. 1 and No. 2, it was insulated?
A. Yes.
Q. Two thousand pounds approximately sometime the second week of August, maybe the first or second week ofAugust it was noticed; so those connectors and stingers and leads were all on that wire when it was in Glendive and it was identified, okay? So some of that wire, if not all, had to have come from Prince’s.
A. Yes.
Q. So what I need from you is a logical explanation of where you got the wire from?
A. Well, we got, like I said, that one pile Justin Smith brought in quite a bit back there, but I was in school and I just, I never seen what the weight was and stuff. And he worked out — he worked for us for a while so — and we had him cutting tanks out there and stuff and that’s the time that he took it.
Q. At Princes’s?
A. Yeah, when we were cutting iron out there.
Q. Do you know that he took it from Prince’s?
A. He said his dad gave it to him. I’m not familiar where his dad lives or anything.

“This Court has recognized that ‘possession of stolen property, accompanied by other incriminating circumstances, and false or unreasonable explanation by the suspect is sufficient to sustain a conviction ...’’’ State v. Ramstead (1990), 243 Mont. 162, 170, 793 P.2d 802, 807. (Citation omitted.)

Second, the State has provided sufficient evidence for a jury to conclude that the wire was stolen by another. E.B.G., himself, stated during his taped interview with Officer Skillen, that Justin Smith had taken the wire when he was working for ENT cutting up scrap iron at Prince, the scene of the theft.

“The weight of the evidence and credibility of the witnesses is exclusively the province of the trier of fact. If the evidence conflicts, it is within the province of the trier of fact to determine which shall prevail.” Brown, 781 P.2d at 284. (Citation omitted.) In the instant case, there was sufficient evidence for the jury to determine that the State proved all elements of § 45-6-301(3), MCA. Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and WEBER concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion. I would reverse the judgment of the District Court for the reason that there was insufficient evidence to support a conviction under § 45-6-301(3), MCA.

Under the above statute, the youth in this case was charged with theft for obtaining control over stolen property knowing the property to have been stolen by another. However, there was no evidence that the copper wire which the youth was accused of having illegally received was stolen by another. According to our prior case law, the absence of that proof was fatal to the State’s case.

In State v. Hernandez (1984), 213 Mont. 221, 224, 689 P.2d 1261, 1262, we held that to sustain a conviction under the statute with which this youth was charged “requires proof that the property must have been stolen by someone other than the receiver.”

Here there was no evidence of who stole the copper wire. In fact, during his closing argument the prosecutor argued that:

[I]f he [E.B.G.] stole the wire he is guilty of theft. And another does not mean that if he stole the wire he is not guilty of this offense, that there was anyone else involved in it[,] he is just as guilty of this offense.

However, that argument was incorrect as a matter of law. If the youth in this case actually participated in the theft of the wire, then he was, in effect, convicted of receiving the wire from himself. In Hernandez, we ruled out that scenario when we held that:

Here the charge essentially was that defendant received stolen property from himself. Defendant was charged with "... purposely or knowingly obtaining control over stolen property... knowing the property to have been stolen by Matt Hernandez ... [the defendant here].” In People v. Berg (1968), 91 Ill. App. 2d 166, 234 N.E.2d 400, the Illinois court set forth the elements to prove receipt of stolen property, one of them being a requirement that the property was stolen by a person other than the one charged with receiving the property. Applied here, the defendant could not be convicted of stealing the coins, and later be convicted of receiving those coins from himself.

Hernandez, 689 P.2d at 1262-63.

The State argues on appeal that this case is distinguishable from Hernandez since in that case there was actual proof that the defendant had stolen the coins, and in this case, the State offered no proof that E.B.G. participated in the actual theft of the copper wire. However, the fact that the State did not attempt to disprove its case did not relieve it of the obligation to offer proof on each element of the crime with which E.B.G. was charged. To sustain a conviction, the State has the burden of proving that every element of the crime occurred beyond a reasonable doubt. In this case, one such element is that the property was received by the youth from another.

The State also argues that based on the number of footprints found at the scene of the crime, and the weight and length of the wire that was stolen, there was evidence that more than one person participated in the theft of the wire. However, the mere fact that several people participated in the theft of the wire does nothing to suggest that E.B.G. was not among those several people. If he was, he was just as guilty of theft under § 45-6-301(1), MCA, as the others who participated, and according to Hernandez, could not be subject to criminal conviction for stealing the wire and later be convicted of receiving the wire from himself.

Finally, the State argues, and the majority seems to accept, that since E.B.G. stated in a tape recorded interview with the investigating officer that he had in fact received the wire from Justin Smith, that statement was sufficient to prove that he received the wire from another. However, both the State and the majority are selective about the weight they chose to give to E.B.G.’s statement about Smith.

When discussing the credibility of that statement for other purposes, the State referred to it as an “incredible explanation of how E.B.G. acquired the wire.” In its brief, the State pointed out that:

E.B.G. told Skillen that ENT had accumulated some of the wire and Justin Smith had brought in “quite a bit” of the wire. E.B.G. then explained that Smith stole the wire from Prince when Smith was cutting steel for ENT at Prince’s. Tony, after giving various accounts prior to trial of when Smith had brought the wire to ENT, testified that Smith brought the copper wire to ENT on November 20,1990. The time frame of the theft and Smith’s employment with ENT made it impossible for him to have stolen the insulated copper wire from Prince’s when cutting up steel there for ENT. Smith had worked for ENT for two months in the fall of 1990. In October 1990, while working for ENT, Smith cut up steel at Prince, Inc. The theft of the insulated copper wire occurred sometime between August 12 and August 16, 1991. Accordingly, it was impossible for Smith to steal the wire from Prince while he was salvaging steel there for ENT, because the theft had not yet occurred, and would not occur for approximately a year. Also, Smith could not have stolen the wire in August 1991 because he was working in Arizona at that time. Furthermore, Smith denied that he had brought in a large amount of wire to ENT. The jury, as trier of fact, clearly did not believe E.B.G.’s incredible and impossible explanation of how ENT acquired the copper wire.

Brief of Respondent, pp. 11-12.

Likewise, the majority opinion points out that the wire was stolen sometime between August 12,1991, and August 16,1991. The majority refers to E.B.G.’s statement that he received this wire from Smith in November 1990 as an example of why he had poor credibility before the jury, and then turns around later in the same opinion and uses that same statement as the only basis for supporting the jury’s finding that the wire was in fact received from another.

The fact is that the wire could not have been stolen by Smith because it was not taken during the time that Smith was working on Prince’s property, and Smith was out of state at the time that the wire was taken.

There was absolutely no evidence that the wire stolen from Prince, Inc., was stolen by anyone other than E.B.G. E.B.G. cannot be convicted under § 45-6-301(3), MCA, of receiving stolen property that he himself stole. Since there was not substantial evidence for each element of the crime with which the youth was charged, I would reverse his conviction and dismiss the complaint against him.

JUSTICE GRAY concurs in the foregoing dissent.

JUSTICE HUNT concurs in the foregoing dissent.


source: Caselaw Access Project

author: JUSTICE HARRISON JUSTICE GRAY

license: Public Domain

text:
    D. MICHAEL CURRAN, Plaintiff and Appellant, v. DEPARTMENT OF HIGHWAYS OF THE STATE OF MONTANA, Defendant, Respondent and Cross-Appellant.
    No. 92-388.
    Submitted on Briefs December 17, 1992.
    Decided April 29, 1993.
    50 St.Rep. 450.
    852 P.2d 544.
    258 Mont. 105.
    See C.J.S. Highways § 189.

      For Plaintiff and Appellant: William G. Sternhagen, Sternhagen Law Firm, Helena.
    For Defendant and Respondent: Stephen F. Garrison, Nick A. Rotering & James R. Beck, Legal Services, Department of Transportation, Helena.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant D. Michael Curran (Curran) appeals an order of the First Judicial District Court, Lewis and Clark County, denying his request for an injunction and dismissing his complaint against the Montana Department of Highways (Department). The Department cross-appeals. We affirm.

Montana Highway 200 crosses Flat Creek on Curran’s property in Lewis and Clark County northeast of Bowmans Corner. In 1985 the Department reconstructed the highway across Curran’s property, removing a large wooden bridge over Flat Creek and replacing it with twin culverts. Construction of the new stream crossing required a United States Army Corps of Engineers permit, which in turn required the concurrence of the United States Environmental Protection Agency, the United States Fish and Wildlife Service, and the Montana Department of Fish, Wildlife and Parks. To obtain the approval of these agencies, the Department revised its original plans and built the twin-culvert structure to conform to their standards.

In February 1986, during a flood caused by melting snow, the new culverts were blocked by ice and debris. The creek overflowed, covering approximately seventeen acres of Curran’s grazing land. The overflow caused erosion and left debris and gravel on the land after the flood subsided. Curran had to move cattle and feed from the affected area and thus was unable to use the land for its ordinary purposes.

In his complaint, filed in April 1987, Curran alleged that the Department had a duty to use ordinary care and skill in replacing the existing bridge and that it breached its duty by ignoring stream flow and engineering standards when it installed twin culverts that were too small to handle the flood waters. Causing the resulting flood, Curran charged, was a trespass by the Department. Further, Curran alleged, the new installation created a situation that was likely to recur unpredictably in the future, creating a continuing nuisance and future damages that could not be redressed by a legal remedy.

Curran’s original complaint prayed for past and future damages and for a mandatory injunction requiring the Department to replace the stream crossing with a crossing of adequate size and design that would prevent future flooding of his property, prevent future trespasses, and abate the nuisance.

In November 1990, however, Curran amended his complaint, deleting the request for damages and leaving only the request for a mandatory injunction. The Department moved in July 1991 to deny the injunction, and in June 1992 the District Court granted the Department’s motion and dismissed Curran’s complaint with prejudice. Curran appealed.

We have restated the issues on appeal as follows:

1. Whether a mandatory injunction is an appropriate remedy in this case.
2. Whether the twin-culvert stream crossing created a nuisance under § 27-30-101, MCA.

As our holding on the first issue is dispositive, we do not address the second issue.

A district court may issue an injunction when it appears that the commission or continuance of an act will produce “irreparable injury” to the party seeking such relief. The granting of an injunction is discretionary, and we will sustain it unless an abuse of discretion is shown. Madison Fork Ranch v. L & B Lodge Pole Timber Products (1980), 189 Mont. 292, 302, 615 P.2d 900, 906. The same standard of review applies to a District Court’s denial of an injunction. Smith v. Ravalli County Board of Health (1984), 209 Mont. 292, 679 P.2d 1249. Here, we conclude that the District Court did not abuse its discretion in denying Curran’s request for an injunction.

The Department argues that an injunction is not an appropriate remedy when “a plain, adequate, and speedy remedy at law” is available, and that such a remedy is available in the form of inverse condemnation. The Department relies chiefly on our decision in Riddock v. City of Helena (1984), 212 Mont. 390, 687 P.2d 1386. In Riddock we held that:

The landowner’s only remedy for the City’s construction of a pipeline on his land without obtaining an easement is an inverse condemnation action for just compensation for the value of the easement on the date of the taking.

687 P.2d at 1388. Riddock had asked for compensation for an alleged taking of land without compensation, or in the alternative for an injunction requiring the city to remove its pipeline. The court granted summary judgment for the city on the grounds that Riddock, as the successor in interest to the person who had owned the land when the city built the pipeline, had no right to compensation. The former landowner had a right to compensation through inverse condemnation, though he did not pursue it; therefore, an injunction was not an available remedy for Riddock.

Our rule in Riddock is based on the theory that to allow a landowner injunctive relief would permit that landowner to defeat a public entity’s power of eminent domain. 687 P.2d at 1388. We believe that as a matter of public policy the better alternative is to ensure compensation for a damaged landowner, like Curran, by requiring the state to purchase any property it takes for a public purpose. See Hurley v. Kincaid (1932), 285 U.S. 95, 104, 52 S.Ct. 267, 269, 76 L.Ed. 637, 643 (where a federally-sponsored flood control project threatened to flood the plaintiff’s land, failure to compensate him for taking his property “affords no basis for an injunction if such compensation may be procured in an action at law”).

Curran points out that in Riddock the plaintiff did not allege nuisance or trespass and argues that the case should be distinguished. Further, Curran argues, he is not asking for damages in any form, but for an abatement of the nuisance caused by the Department’s stream crossing. He cites a 1909 opinion in which we left open the possibility that an injunction ordering a power company to remove its dam might be warranted. Wilhite v. Billings & Eastern Montana Power Co. (1909), 39 Mont. 1, 101 P. 168.

In Wilhite the defendant’s dam flooded the plaintiff’s land, and the plaintiff requested an order compelling the defendant to lower, remove, or alter its dam in such a way as to avoid further damage to his property. The trial court ordered the power company to rebuild and repair its dam, but we remanded the case for a modified order that merely required the power company to abate the nuisance, commenting that the trial court’s injunction was “entirely too broad and drastic,” and that “there is no evidence that it is necessary to rebuild, repair, or remove the dam.” We concluded:

This Court will, in proper cases, order the entry of interlocutory restraining orders, either mandatory or prohibitory, as the case may require; but we find in this record no warrant for making such an order in this case.

101 P. at 171.

Here, too, we find no warrant for an order compelling the Department to reconstruct its stream crossing. If Curran can show, however, that the Department’s stream crossing caused Flat Creek to inundate his land, then he may be entitled to compensation for a physical taking of his property. We held in Knight v. City of Missoula (1992), 252 Mont. 232, 243, 827 P.2d 1270, 1276, that “a property owner may recover in an inverse condemnation action where actual physical damage is proximately caused to his property by a public improvement.”

If Curran’s loss can be compensated, of course, it is not an irreparable injury. He voluntarily waived damages by amending his complaint so as to limit his remedy to a mandatory injunction, but his waiver does not create an irreparable injury. Without a showing of an irreparable injury, Curran is not entitled to a mandatory injunction.

As Curran has not shown that his property was irreparably damaged, or that inverse condemnation would not be an adequate remedy, the District Court concluded correctly that his only remedy is an action for condemnation or damages.

The Department filed a cross-appeal, raising an issue not addressed by the District Court: whether the District Court has jurisdiction to order the Department to replace the stream crossing.

The Department argues that even if the District Court had ordered the Department to rebuild the stream crossing, the Department could not have done so without a permit from the United States Army Corps of Engineers, pursuant to 33 U.S.C. § 404 (the Clean Water Act). Further, the Department argues, because the District Court has no authority to order the Corps of Engineers to issue such a permit, the Department could find itself enjoined to rebuild a bridge that is prohibited by the federal government.

Because we affirm the District Court’s decision to deny the injunction, we need not address this issue. Federal permit requirements would be a consideration only if the District Court had decided to grant the injunction.

Affirmed.

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

JUSTICE GRAY

dissenting.

I respectfully dissent. The majority totally fails to address the alleged nuisance which is the pivotal issue in this case, and the availability of an injunction in a nuisance setting; in so doing, it ignores altogether the Decision and Order of the District Court which is before us for review. As a result, it is my view that the majority opinion is not only incorrect, it is substantially irrelevant to the case before us. Based on the analysis set forth below, I would reverse the District Court and remand for further proceedings.

As a threshold matter, I note that the District Court’s decision was issued prior to any factual determinations being made in the case. While that decision granted the Department’s Motion to Deny Injunction, rather than ruling on a Rule 12(b)(6), M.R.Civ.P, motion to dismiss, it is clear that the court accepted Curran’s allegations as true for purposes of its decision. I will do the same.

In general, the District Court determined that Curran’s nuisance allegations and request for injunction against a continuing nuisance “would be well taken but for” the fact that both arose out of the Department’s construction of a stream crossing pursuant to statutory authority. Specifically, the court first determined that, taking Cur-ran’s allegations as true, it is “likely’ the flood waters complained of could be considered a nuisance under § 27-30-101(1), MCA. The court went on to note that subsection (2) of that statute provides that nothing done or maintained under the express authority of a statute can be deemed a nuisance. I agree with the District Court’s analysis to this point.

The court then correctly determined that § 60-2-201, MCA, expressly authorized the Department to construct the stream crossing. On that basis, it concluded that no injunction was available because the flood waters could not constitute a nuisance, as a matter of law, pursuant to § 27-30-101(2), MCA. Having thus removed the nuisance question from the case, the District Court based its determination that an injunction was not available on Riddock, a case not involving a nuisance.

It is my view that the District Court erred in these latter stages of its analysis. It is true that § 60-2-201, MCA, expressly authorized the Department to construct the stream crossing. Nothing in that statute, however, authorizes the Department to create and maintain flood waters on the private property of a Montana citizen, the circumstance asserted by Curran to constitute a nuisance. The District Court’s statutory analysis is contrary to established principles and recent case law.

This Court has repeatedly held that a governmental entity is entitled to no more deference than a private citizen in matters of creating a nuisance. Knight v. City of Missoula (1992), 252 Mont. 232, 247, 827 P.2d 1270, 1279; Walton v. City of Bozeman (1978), 179 Mont. 351, 356, 588 P.2d 518, 522; Lennon v. City of Butte (1923), 67 Mont. 101, 106, 214 P. 1101, 1102-3. In each of those cases, we expressly rejected the governmental entity’s argument that § 27-30-101(2), MCA, prevented a claimant from asserting a nuisance claim against it. In Knight, we stated that:

[WJhen a governmental entity in its method of administration of... [its governmental powers] creates a nuisance it is not exercising the governmental function but is doing something forbidden by law.

Knight, 827 P.2d at 1279.

Here, no statute expressly authorized the actions of the Department alleged to constitute a nuisance — namely, the creation and maintenance of flood waters on private property. Therefore, the District Court erroneously concluded that § 27-30-101(2), MCA, prevented a finding of nuisance as a matter of law.

Once the nuisance claim is correctly reinserted in this case, and assuming with the District Court that Curran can establish a continuing nuisance, the availability of an injunction can properly be addressed. This Court has consistently held that an injunction is a proper remedy to abate a continuing nuisance. Boyer v. Karagacin (1978), 178 Mont. 26, 32, 582 P.2d 1173, 1177-8; Floyd v. City of Butte (1966), 147 Mont. 305, 313, 412 P.2d 823, 827; Wilhite v. Billings & Eastern Montana Power Co. (1909), 39 Mont. 1, 11, 101 P. 168, 171. In cases of continuing nuisance, damages are inadequate because the injured party is forced to bring a multiplicity of suits in successive actions for the recurring injury. See Floyd, 412 P.2d at 827; Hart v. Wagner (Md. 1944), 40 A.2d 47, 50.

I will not address at any length the majority’s inverse condemnation theory. I note, however, that the availability of such a remedy is entirely speculative on the limited record before us. In addition, as noted above, Riddock was itself an inverse condemnation case, not a nuisance case. We determined that an injunction was not an alternative or cumulative remedy to the inverse condemnation claim.

In this regard, it is interesting to note that neither party appears to assert — at least consistently — the propriety or availability of an inverse condemnation claim. Curran argues that no “public purpose” is served by the flooding of his land. In its answer to Curran’s complaint, the Department asserted as an affirmative defense that any flooding was attributable solely to a combination of warm weather and rain; in support of its Motion to Deny Injunction, it averred via affidavit that the creek had flooded Curran’s land prior to the installation of the culverts. The only fair characterization of this position is that the Department contends that no “taking” occurred. Thus, the record positions of both parties run counter to the existence of the elements necessary for an inverse condemnation action and, therefore, to the availability of such an action to Curran as a remedy.

I also disagree with the majority’s characterization of Wilhite. We concluded in Wilhite that an injunction was available under the circumstances of that case, circumstances that are, as the District Court stated, “so similar to the case at bar.” We stated that the record showed a simple and ordinary case of maintaining a nuisance to the plaintiff’s damage. Wilhite, 101 P. at 171. The majority’s statement that we “left open” the possibility of an injunction in Wilhite is simply incorrect; we expressly approved of an injunction to abate a nuisance against an entity with the power of eminent domain, remanding only for the district court to narrow the scope of the injunction it had issued. Wilhite, 101 P. at 171. Finally, the majority erroneously concludes as a matter of law that no injunction is available in this case and then makes unstated and entirely premature factual determinations in order to “find no warrant” for the issuance of an injunction of a certain scope. I cannot agree.

As a final matter, I agree wholeheartedly with the majority’s statement of public policy that we should ensure compensation for a damaged landowner by requiring the State to purchase any land it takes for a public purpose. The statement has little relevance to the case before us, however. Curran does not claim that the Department has taken his property; he maintains that the Department is maintaining a nuisance upon it.

The threshold issue before us is whether, taking Curran’s allegations as true, he may be able to establish a nuisance or whether, as the District Court concluded and the majority does not discuss, he cannot establish a nuisance as a matter of law. Upon that determination revolves the ultimate issue of whether an injunction is available.

I would reverse the District Court’s determination that the flood waters cannot constitute a nuisance as a matter of law and remand for further proceedings.

JUSTICE TRIEWEILER joins in the foregoing dissent.


author: JUSTICE McDONOUGH JUSTICE TRIEWEILER

text:
    ROBERT DEW, LEIGHTON DRESCH and JAMES POSEY, Plaintiffs and Respondents, v. DOUGLAS C. DOWER and ALYCE S. DOWER, also known as ALICE S. DOWER, Defendants and Appellants.
    No. 92-327.
    Submitted on Briefs November 11, 1992.
    Rehearing Denied May 20, 1993.
    Decided May 3, 1993.
    50 St.Rep. 454.
    852 P.2d 549.
    258 Mont. 114.

      See C.J.S. Interest and Usury; Consumer Credit § 49.

      For Defendants and Appellants: Robert J. Emmons and Joseph M. Sullivan, Emmons & Sullivan, Great Falls.
    For Plaintiffs and Respondents: Patricia O’Brien Cotter, Cotter & Cotter, Great Falls.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The Dowers appeal from a judgment of the Eighth Judicial District Court, Cascade County, finding that they fraudulently induced plaintiffs Dew, Dresch and Posey to enter contracts for deed. We affirm liability, but reverse and remand to recalculate damages.

This case previously came before us after the District Court granted a directed verdict in favor of the Dowers. Dew v. Dower (1989), 237 Mont. 476, 774 P.2d 989 (Dew I). In Dew I, we ruled that a jury question existed as to whether the Dowers fraudulently induced the plaintiffs into entering contracts for deed. Dew, 774 P.2d at 991.

Following a subsequent trial, the District Court determined that Alice Dower did fraudulently induce the plaintiffs to purchase property. The court found that she misrepresented the intended quality of road she promised to build as access to the property. Accordingly, the court granted monetary damages to each of the plaintiffs.

The issues on appeal are restated as follows:

1. Whether the District Court erred in admitting parol evidence that Alice Dower orally promised to improve the road, without first requiring plaintiffs to prove that she intended to defraud them.

2. Whether the District Court erred in determining that Alice Dower intended to defraud the plaintiffs when she induced them into entering the contracts for deed.

3. Whether the statute of limitations barred plaintiffs’ claims of fraud against the Dowers.

4. Whether the District Court erred in determining damages.

A. Whether the court’s property valuation was clearly erroneous.
B. Whether the District Court erred in awarding prejudgment interest.
C. Whether one co-tenant can sue for tort damages in a personal action arising from the tenancy and recover the entire amount of damages to both him and the other co-tenant.
D. Whether a court has jurisdiction to offset a tort judgment with the amount the plaintiffs owe the defendants on the contracts underlying the tort.

In May 1981, the Dowers purchased 205 acres of undeveloped land south of Great Falls, Montana for $75,000. They subdivided the land into ten tracts, each consisting of approximately twenty acres. During 1982 and 1983, the Dowers sold some of the tracts to the plaintiffs through separate contracts for deed.

The purchase price was $1000 per acre. Defendant Alice Dower admitted at trial that she set the price based on intended roadway improvements. In addition, she told plaintiff Dew that the purchase price reflected the fact that she would construct improved roadways.

Before entering into any agreements, Alice Dower told each plaintiff that she would provide improved access roads to the tracts. She showed each of the plaintiffs a survey plat depicting sixty-foot rights-of-way reserved for roadways in two locations on the property. While showing the property to prospective buyers, she pointed out some stakes marking the rights-of-way. She told each of the plaintiffs that between the stakes she would build a road with a twelve-foot wide ditch on each side.

The parties all agree that Alice Dower promised to improve the roads. The parties also agree that when she promised to provide access from the county roads to the plaintiffs’ tracts, she told them she could not guarantee the location of the access. She could not guarantee the location because she was negotiating a relocation of the railroad crossing with Burlington Northern Railroad (BN). The dispute centered on whether she promised county-grade roads or merely promised to improve the roads.

The evidence showed that the minimum “county-grade” road for Cascade County is a gravel road twenty-eight feet wide from shoulder to shoulder. The gravel on the shoulders may taper off beyond the outside edges. The roadbed must consist of a twenty-four foot wide surface with a base of eight inches of pit run gravel covered with two inches of 1 1/2 inch minus crushed gravel.

Alice Dower testified that she promised to provide a passable access road, but she denies promising county-grade roads. According to realtor Ken Stone, however, Alice Dower said she would construct county-grade roads with ditches. Stone testified that she told him county-grade roads were necessary for the county to assume responsibility for maintaining the roads. Alice Dower testified she intended that Stone relay what she told him to prospective purchasers.

Stone testified that he informed plaintiff Dresch that the Dowers would construct roads and turn them over to the county for maintenance. Dresch corroborated Stone’s testimony. Likewise, plaintiffs Dew and Posey testified that Alice Dower told them, during their respective negotiations, that she would construct county-grade roads. That way, she told them, the land owners could petition the county to maintain the roads and the county could not deny their request.

In the summer of 1983, after the plaintiffs had purchased all but one of their respective tracts, the Dowers did some road work. Defendant Douglas Dower and another man leveled out one access road where it intersected the county road and made a pass over both access roads with a grader. The Dowers did some additional road construction in the summer or fall of 1985. However, it is -undisputed that the road construction did not improve the roads to county-grade standards.

According to Douglas Dower, roots and grass remained in the road after he worked on it. He testified that an automobile could navigate the road in good weather, but a person would need a chained-up four wheel drive vehicle to travel the road in wet weather. He also testified that his idea of the roadway was something like two parallel cow paths and he never intended to do any work on the road other than what he completed that day in 1983.

At trial, the plaintiffs introduced photographs of the roads as they looked in 1987. The pictures show narrow, one-lane dirt roads with deep ruts and no gravel. Alice Dower said that the pictures accurately reflect the improved roadways she promised the plaintiffs, but the roads had gone three years -without maintenance. She testified that she had adequately performed her promises to provide the plaintiffs with improved roadways.

This opinion refers to additional facts where they are pertinent to the discussion.

I.

Did the District Court err in admitting parol evidence that Alice Dower orally promised to improve the road, without first requiring the plaintiffs to prove that she intended to defraud them?

The Dowers contend that evidence of Alice Dower’s promises of future road construction was not admissible unless the plaintiffs first showed that she intended to defraud them when she made the promises. The Dowers further argue that the parol evidence rule prevents the court from considering any oral statements made before the parties entered the contracts for deed.

We need not delve into the merits of these contentions because the Dowers failed to object at trial to testimony about promises concerning the road construction. Without a proper objection at trial, the Dowers waived the right to raise the matter on appeal. See Matter ofB.L.O. (1984), 213Mont. 164,169,689P.2d 1246,1249. Accordingly, we hold that the District Court did not err in allowing parol evidence concerning Alice Dower’s promises to improve the road.

The Dowers also argue that the court’s conclusion of law “D” incorrectly states the law. We disagree.

Conclusion of law “D” states:

Fraud in the inducement has always been provable by parol evidence, notwithstanding the Parol Evidence Rule. Dodds v. Gibson Products Company of Western Montana [(1979), 181 Mont. 373, 377, 593 P2d 1022, 1024]. When plaintiffs allege fraud in the inducement, it is incumbent on the Court to admit parol evidence on the question. Dodds, [593 P.2d at 1025].

In Dew I we cited Dodds for the proposition that to prove fraud in the inducement based on promises to be performed in the future, plaintiffs must also introduce evidence that the defendant intended to defraud them at the time she made the promises. See Dew, 774 P.2d at 990.

The Dowers interpret Dew I to mean that before the District Court could allow any parol evidence concerning Alice Dower’s promises concerning road construction, the plaintiffs first had to prove that she intended to fraudulently induce them to enter the contracts. However, this is not necessary as long as the plaintiffs ultimately present a prima facie case of fraud in the inducement. The parol evidence rule does not apply in cases such as this one, because the alleged fraud does not directly contradict the terms of the express written contract. See Sherrodd v. Morrison-Knudsen (1991), 249 Mont. 282, 285, 815 P.2d 1135, 1137.

The District Court took conclusion of law “D” almost verbatim from Dodds, 593 P.2d at 1024, 1025. We conclude that conclusion of law “D” is accurate and a more definitive statement of the law than the Dowers’ interpretation.

II.

Did Alice Dower intend to defraud the plaintiffs when she induced them into entering the contracts for deed?

The issue of whether Alice Dower had an intent to defraud presents a question of fact. This Court will not set aside factual findings of a trial judge sitting without a jury unless the findings are clearly erroneous. Rule 52(a), M.R.Civ.R

This Court uses a three part test to determine if a finding is “clearly erroneous” as provided in Rule 52(a). First, we review the record to see if substantial evidence supports the finding. If the necessary evidence exists, we then determine whether the trial court misapprehended that evidence. Finally, although the trial court correctly construed the evidence, we may still determine that a finding is clearly erroneous if we have a definite and firm conviction that the trial court made a mistake. Interstate Prod. Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

The following evidence supports the District Court’s finding that Dower intended to defraud the plaintiffs when she induced them to enter the contracts for deed.

Alice Dower showed the plaintiffs a survey plat depicting 60-foot rights-of-way where she promised she would construct improved roads. While showing the property to each of the plaintiffs at various times from 1982-83, she pointed out stakes marking where she intended to construct the improved access roads. She testified that she informed the plaintiffs she was a real estate broker so they would rely on her promises to provide improved access roads.

Plaintiffs Dew and Posey testified that Alice Dower promised to improve the roads to county-grade standards and they relied on her promises. A realtor testified that Alice Dower asked him to tell prospective buyers that she would provide county grade roads so the county would maintain the roads for the subdivision. The realtor relayed the information to Dresch, who relied on it.

Alice Dower disputes their testimony, stating that she merely promised to improve the roads. In a bench trial, the judge has the best opportunity to ascertain the credibility of a witness. Rule 52(a), M.R.Civ.P. Apparently, the judge did not find Alice Dower a credible witness on this point, as he found that she promised to improve the roads to county-grade standards.

Alice Dower knew about county-grade roads. Before Posey purchased his tract, he asked her the significance of a county-grade road. She gave a description that substantially fit a county-grade road.

The plaintiffs introduced photographs of the roads as they looked in 1987. The court found, and we agree, that the roads shown in the plaintiffs’ photographs are obviously not, and never were, up to county-grade standards as promised by Alice Dower. According to Alice Dower, the photographs accurately reflect the improvements she intended when she promised the plaintiffs improved roads. If, as Alice Dower testified, the rough-graded dirt roads in the photographs depict the roads that she intended when she promised county-grade roads, then it is clear that the District Court could find she had no intention of performing her promises when she told the plaintiffs she would construct county-grade roads.

As the court concluded, there is substantial evidence that Alice Dower had no intention of performing her promises when she made them. We do not have a definite and firm conviction that the District Court made a mistake. Consequently, we hold that the court did not err in finding that Alice Dower intended to defraud the plaintiffs when they entered their respective contracts for deed.

III.

Did the statute of limitations bar the plaintiffs’ claims of fraud against the Dowers?

Plaintiffs filed suit in October 1986. The applicable statute of limitations is as follows:

The period prescribed for commencement of an action for relief on the ground of fraud or mistake is within 2 years, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the fact constituting the fraud or mistake.

Section 27-2-203, MCA.

The District Court determined that the cause of action accrued in the summer or early fall of 1985. The time at which the statute of limitations began to run is a question of fact. Accordingly, we will not set aside the court’s finding unless it is clearly erroneous under the three part test discussed above. See Rule 52(a), M.R.Civ.P.; DeSaye, 820 P.2d at 1287.

The following evidence supports the court’s determination that the statute of limitations did not bar the plaintiff’s fraud claims against the Dowers.

Dresch testified that, before the plaintiffs filed suit, he contacted the Dowers every three or four months for four years. He testified that the Dowers continually assured him they would do road construction and gave him various excuses why the work had not yet commenced. The Dowers’ main excuse was that they were working with BN on an alternative easement across the railroad tracks.

BN had denied requests to allow a railroad crossing, so the Dowers filed for a prescriptive easement early in 1985. In the spring of 1985, Alice Dower told Dresch that once BN had time to react to notice of the prescriptive easement, she would bring the access road up to standard. She said she would have to wait two months so BN would have sufficient time to react. Dew testified that Alice Dower told him the same thing.

Dew further testified that in September or October of 1985, he asked Alice Dower when she planned to improve the roads. She told him that she still planned to have the work done but it was too muddy to get the gravel trucks in and out of the area.

Alice Dower testified that she actually had road construction done three times. In 1983, she had a grader scrape the road. In August or September of 1985, she had some work done on a ditch along one of the roads. She also had a mudhole filled in and a culvert installed. Dew testified that the last of this work was done in the fall of 1985.

In the fall of 1983, after the grader made a pass over the roads, Posey called Alice Dower. She told him that she would not do any more work on the upper road. Posey did not discuss the roads with the Dowers again. He did, however, communicate with Dew and Dresch about their conversations with the Dowers on the subject. Posey and Dew were friends and because Dew and the Dowers were related by marriage, Posey relied on Dew to communicate with the Dowers about the road construction.

The court found that with the exception of one conversation with Posey in 1983, the Dowers continued through the summer or fall of 1985 to assure the plaintiffs that they would improve the roads as Alice Dower had promised. Until the early fall of 1985, the Dowers’ statements and actions led the plaintiffs to believe that the Dowers would do the road construction as promised.

We find there was substantial evidence to support the court’s determination that the statute of limitations did not begin to run for any of the plaintiffs until at least the early fall of 1985, the earliest time the plaintiffs could have discovered all of the facts constituting the fraud.

The plaintiffs filed their case in October 1986, which is within the two year statute of limitations as prescribed in § 27-2-203, MCA. The court did not misapprehend the evidence and we do not have a definite and firm conviction that the District Court made a mistake. We therefore hold that the statute of limitations does not operate to bar the claims of any of the plaintiffs.

IV.

Did the District Court err in determining damages?

The court awarded each plaintiff damages representing the difference between the amount plaintiffs paid for their property, $1000 per acre, and the fair market value of the property following the actual improvements completed on the roadways by the Dowers, $500 per acre. In other words, the court awarded each plaintiff $500 multiplied by 20 acres multiplied by the number of 20 acre tracts purchased by that plaintiff.

The court also awarded prejudgment interest at a rate of 10% simple interest per annum beginning in August 1983. The court approximated that the damages were fixed when the Dowers performed the road improvements at that time.

Dresch purchased one lot before August 1983. The court calculated his damages as $10,000 principal plus 10% per annum from August 1983 through February 1992. Specifically, $10,000 plus $1000 interest per year for eight and one-half years, which equals $18,500.

Likewise, Posey purchased one lot before August 1983. Total judgment in his favor was also $18,500.

Dew negotiated the purchase of seven lots before August 1983. He had entered contracts for deed on six of the lots before that date and he entered the seventh in February 1984. The court calculated Dew’s damages as $70,000 principal plus interest at a rate of 10% per annum on the principal. Interest on the $70,000judgmentwas $8,500 per tract, for a total prejudgment interest award of $59,500. Total judgment in favor of Dew was $129,500.

The court also ruled that each plaintiff should receive post-judgment interest on the unpaid balance at the rate of 10% per annum until paid in full. In addition, the court ruled that the damage awards would be offset by the amount of money each plaintiff owed the Dowers under the respective contracts for deed.

A. Was the court’s property valuation clearly erroneous?

The Dowers contend that the District Court erred by determining damages in the amount of $500 per acre. They argue that $1000 per acre was a reasonable value for the property.

The Dowers paid $366 per acre for 205 acres in May 1981. They sold the property to the plaintiffs in 20 acre tracts for $1000 per acre in 1982-83. Alice Dower testified that the sale price reflected the fact that she would provide improved roadways from the county road through the subdivided tracts. The plaintiffs each testified that they agreed to pay $1000 per acre because she promised to provide the subdivision with county-grade roads.

The plaintiffs as landowners had a right to give reasonable testimony as to the value of their property for the uses to which they put the property. See Zugg v. Ramage (1989), 239 Mont. 292, 297, 779 P.2d 913, 916; State Highway Comm’n v. Marsh (1974), 165 Mont. 198, 203, 527 P.2d 573,575. Dew testified that his property was worth $400 per acre after the Dowers completed the road construction in the summer of 1983. He further testified that the 1983 road construction made access even more difficult than before, because it created runoff areas converging at the main access. According to Posey, the fair market value of his property was $500-$600 per acre following the road construction. Dresch estimated that his property was worth $500 per acre in the summer of 1983.

The Dowers presented their own evidence of higher property values, but the court found the plaintiffs’ evidence more convincing. The District Court determined that $500 was a reasonable estimation of the property’s fair market value after the road construction in 1983.

Substantial evidence supports the District Court’s valuation and the court did not misconstrue the evidence. We do not have a firm and definite conviction that the court made a mistake. Consequently, we find no cause to disturb the court’s determination of the property values. See DeSaye, 820 P.2d at 1287; Rule 52(a), M.R.Civ.P.

B. Did the District Court err in awarding prejudgment interest?

The Dowers contend that the District Court did not have a legal basis to award prejudgment interest. As this presents a question of law, we determine whether the District Court was correct. See Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

The court cited § 27-1-212, MCA, as authority for its prejudgment interest award. That statute states in pertinent part: “In an action for the breach of an obligation not arising from contract and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the jury.” Section 27-1-212, MCA. The Dowers argue that because the trier of fact in this case was a judge, rather than a jury, the court had no authority to award prejudgment interest. We disagree.

Montana patterned the statute after the California Civil Code § 3288. When interpreting a statute adopted from a sister state, we generally follow the construction placed on the statute by the highest court of the state from which it was adopted. State v. Murphy (1977), 174 Mont. 307, 311, 570 P.2d 1103, 1105. The pertinent language of § 27-1-212, MCA, is identical to that of the California statute.

The California Supreme Court noted that while the statute grants authority to award prejudgment interest only “to the ‘jury,’ the trial court, when acting as the trier of fact, may award prejudgment interest under [the statute].” Bullis v. Security Pac. Nat’l Bank (Calif. 1978), 582 P.2d 109, 116 n.16. Similarly, we hold that § 27-1-212, MCA, gives a District Court judge authority to award prejudgment interest when the judge, rather than a jury, is sitting as the trier of fact.

The Dowers further argue that the discretionary interest statute, § 27-1-212, MCA, does not give a court the authority to award prejudgment interest, unless the court can pinpoint a date from which the defendants owed and should have paid a sum certain to the plaintiffs. As authority for their argument, the Dowers cite several cases interpreting a different statute, § 27-1-211, MCA. See Thayer v. Hicks (1990), 243 Mont. 138, 793 P.2d 784; McPherson v. Schlemmer (1988), 230 Mont. 81, 749 P.2d 51; Safeco Ins. Co. v. Lovely Agency (1985), 215 Mont. 420, 697 P.2d 1354. That statute gives a person the right to recover prejudgment interest only from the particular day that the right to a sum certain in damages vests. Section 27-1-211, MCA; Thayer, 793 P.2d at 796.

In this case, the District Court awarded interest under the discretionary interest statute, § 27-1-212, MCA, rather than the right to interest statute, § 27-1-211, MCA. The statute on discretionary interest awards does not specify rigid certainty requirements, as does the right to interest statute. See § 27-1-212, MCA; § 27-1-211, MCA.

In contested fraud cases, like contested negligence cases, the right to recover a sum certain in damages usually does not vest until the date of the court’s judgment. Cf. McPherson, 749 P.2d at 54 (in cases where liability for negligence is contested, the right to recover damages vests “only on the date of the jury verdict, not on an earlier date certain”). Therefore, to interpret the discretionary interest statute to require absolute certainty, as to the specific time a sum certain in damages vests, before the trier of fact may award prejudgment interest would render the statute inoperative as to fraud cases. “An interpretation which gives effect is preferred to one which makes void.” Section 1-3-232, MCA.

In addition, the Supreme Court of California has held that the statute allows a trier of fact to award prejudgment interest whether or not plaintiff’s damages are “liquidated” before entry of judgment. Redke v. Silvertrust (Calif. 1971), 490 P.2d 805, 812. Likewise, we hold that in cases where it applies, § 27-1-212, MCA, gives the trier of fact the discretion to award prejudgment interest whether or not the plaintiff’s right to receive a sum certain in damages has vested before judgment. The District Court was correct in determining that the statute gave it discretionary authority to award prejudgment interest in this case.

The Dowers further contend that the District Court erred in awarding plaintiff Dew interest for damages on the last tract he purchased, starting before he purchased the tract. We agree.

The judge awarded interest from the day that the Dowers did the road construction. He determined that the damages were fixed on that day in August of 1983. Dew had purchased six tracts before August 1983, but he purchased a seventh tract in February 1984.

By awarding interest starting six months before Dew purchased the seventh tract, the District Court over-calculated the prejudgment interest due on Dew’s interest in that tract. We hold that interest on the seventh tract should begin on the date Dew purchased the tract.

C. May one co-tenant sue for tort damages in a personal action arising from the tenancy and recover the entire amount of damages to both him and the other co-tenant?

Initially, the wives of plaintiffs Dew, Dresch and Posey were also plaintiffs in the case because they were co-tenants with their respective husbands. An examination of the contracts for deed shows the vendees were tenants in common.

At trial, the claims of the female co-tenants were withdrawn during arguments on the Dowers’ motion for a directed verdict. Apparently, the plaintiffs saw no need to keep the female co-tenants as parties to the suit because there was no evidence that the Dowers made any misrepresentations to these women.

Although the plaintiffs each owned only a one-half interest in their respective tracts, the District Court awarded each plaintiff damages representing the difference between the amount each pair of co-tenants paid for their property and the fair market value of the property.

In Montana, a tenant in common may bring or defend an action in vindication of the tenant’s own rights without joining the other co-tenants as necessary parties. Section 70-1-310, MCA. However, absent an authorized agency relationship between co-tenants, we find no authority for one co-tenant to sue for the entire amount of tort damages to both him and the other co-tenant in a personal action arising out of the tenancy.

Adopting a general rule that allows one co-tenant to sue for all of the damages could easily infringe on the rights of another co-tenant, thus creating due process problems. See Mayo v. Jones (Wash.App. 1972), 505 P.2d 157, 161. In addition, co-tenants are not generally agents of each other and do not have the privity necessary for application of the doctrine of res judicata. 46 Am.Jur.2d Judgments § 573. Therefore, a rule allowing one co-tenant to sue in a personal action for the entire amount of tort damages for injury arising out of the tenancy could expose defendants to multiple actions.

Furthermore, the plaintiffs in this case asked the court to dismiss the female co-tenants from the suit because the Dowers did not make any misrepresentations to them. On dismissal with prejudice, the court lost jurisdiction over the female co-tenant’s interests in the property. See Rule 41(a), M.R.Civ.P.; Miller v. Northern Pac. Ry. (1904), 30 Mont. 289, 296, 76 R 691, 694. A court cannot rule outside of its appointed sphere. A court’s actions are void with respect to persons who are not party to its proceedings. Sloan v. Byers (1908), 37 Mont. 503, 510-13, 97 P. 855, 857-58.

Without deciding whether a single co-tenant may sue for tort damages for injury to the property itself and recover the entire amount, we hold that the court in this case erred in awarding damages for injury to the personal interests of persons who were not plaintiffs at the time of judgment. We remand to the District Court to determine the damages to the interests of the plaintiffs before the court.

D. Does a court have jurisdiction to offset a tort judgment with the amount the plaintiffs owe the defendants on the contracts underlying the tort?

The District Court required Alice Dower to file an accounting reflecting the principal balance due her from each of the plaintiffs for property purchased from her under the contracts for deed. The court then offset and credited the amounts due the plaintiffs from the judgment against the balance of the principal owed by the plaintiffs under the contracts for deed.

Generally, “a judgment must be based on a verdict or findings of the court and must be within the issues presented to the court.” Old Fashion Baptist Church v. Mont. Dep’t of Revenue (1983), 206 Mont. 451, 457, 671 P.2d 625, 628 (quoting National Surety Corp. v. Kruse (1948), 121 Mont. 202, 205-06, 192 P.2d 317, 319). In this case, the contracts themselves were not at issue before the court.

However, the respective obligations of the parties arise because of the same transaction, and the damages relate to the value of the premises and the purchase price, which was the basis of the principal under the contract. The District Court may act as a court of equity and use its authority to allow or compel set-off under special and peculiar circumstances like those presented in this case. The power to allow a set-off of debts by a court of equity exists independent of statute where grounds for equitable interposition are shown, such as fraud or insolvency. Southern Surety Co. of New York v. Maney (Okla. 1941), 121 P.2d 295, 298.

The District Court acted within its equitable authority when it offset the principal amounts due under the contracts with the judgment in this case. We affirm in part, reverse in part, and remand to the District Court to recalculate damages consistent with this opinion.

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

JUSTICE TRIEWEILER

concurring in part and dissenting in part.

I concur with the majority’s holding under Issues I, II, III, and IV(A), IV(B), and IV(D).

I dissent from the majority’s opinion under Issue IV(C).

CO-TENANT DAMAGES

The majority states that it could find no authority for one co-tenant to sue for the entire amount of tort damages to both him and the other co-tenant. The majority did not look hard enough. Other jurisdictions have allowed co-tenants to recover for the entire amount of damages to the tenancy whether the nature of the actions are in tort or in contract.

In Hurwitz v. CGJ Corporation (Fla. 1964), 168 So.2d 84, the Florida Supreme Court allowed one co-tenant to recover all of the damages to commonly held property under circumstances very similar to those in this case. In the Hurwitz case, the plaintiff purchased an interest with another co-tenant in a 99-year lease based on representations made by the defendants concerning the construction of an apartment unit on the leased property. That court found that where there had been a breach of the contract, it was correct to award damages based on the amount of damage sustained to the entire leasehold, even though the individual plaintiff had only a 37 percent interest in the property. In Lambert v. United States (1961), 153 Ct. Cl. 501, the United States Court of Claims held that where the government breached its lease covenant to restore leased premises to their original condition, the fact that plaintiff had owned only an undivided one-half interest in the tract did not prevent her from recovering the entire amount of cost necessary to restore the tract. That court held that any obligation the plaintiff may have had to account to her co-owner was immaterial. It held that the government had an obligation to restore the entire tract, rather than just that portion of the tract which represented the plaintiff’s ownership interest.

For the same result in a tort cause of action, see Pfannenstiel v. Central Kansas Power (Kan. 1960), 352 P.2d 51. In that case, the Kansas Supreme Court allowed one co-tenant to recover the entire amount of damage to the co-tenancy realty caused by a third party’s tortious act.

Generally, in the jurisdictions which have allowed recovery for the entire damage to the co-tenancy, those courts have held that all but the plaintiff’s proportionate share is to be held for the use and benefit of the other co-tenants. By resolving the issue in this manner, those courts have avoided the multiplicity of suits, which concerns the majority, while still protecting the nonparty co-tenant’s interest and allowing for a clear disposition of the issues at trial. Pfannenstiel, 352 P.2d at 55-56.

In addition to being contrary to the above authorities, the majority’s conclusion is unfair and devoid of common sense. Only one of two results can occur from the majority’s conclusion. Either the defendants, who defrauded the plaintiffs, reap a windfall by avoiding liability for one-half of the damages caused by their conduct, or the plaintiffs’ spouses must attempt to pursue additional litigation, thereby creating the kind of “multiple actions” about which the majority expresses concern.

For these reasons I dissent from that part of the majority opinion which reverses and reduces the District Court’s award of damages to the plaintiffs.

JUSTICE HUNT joins in the foregoing concurrence and dissent.


author: JUSTICE GRAY

text:
    IN RE THE MARRIAGE OF RAMONA MAE WELLMAN, Petitioner and Respondent, and ROBERT W. WELLMAN, Respondent and Appellant.
    No. 91-425.
    Submitted on Briefs March 26, 1992.
    Decided May 4, 1993.
    50 St.Rep. 462.
    852 P.2d 559.
    258 Mont. 131.

      See C.J.S. Indians § 68.

      For Respondent and Appellant: James D. Moore, Moore & Doran, Kalispell.
    For Petitioner and Respondent: Emilie Loring, Hilley & Loring, Missoula.
    For Amicus: Brenda C. Desmond, Missoula; John St. Clair, Fort Washakie, Wyoming (Montana-Wyoming Tribal Court Judges Association).
   JUSTICE GRAY

delivered the Opinion of the Court.

This is an appeal from an order of the Ninth Judicial District Court, Glacier County, dismissing an action for equitable apportionment of a marital estate for lack of subject matter jurisdiction. We affirm.

Ramona Mae Wellman (Ramona) and Robert W. Wellman (Robert) were married in Cardston, Alberta, in November 1951 and lived for the duration of their marriage on the Blackfeet Reservation near Browning, Montana. Ramona is a member of the Blackfeet Tribe; Robert is not an Indian. They have six children, all born before 1960. The parties accumulated substantial real and personal property during their marriage, including approximately 4,000 acres of Indian trust land with legal title in the United States and beneficial ownership in Ramona.

In December 1979, Ramona filed a petition for dissolution in state district court, stating that the marriage was irretrievably broken. She did not ask the court to divide the marital assets. Robert responded in March 1980, seeking an equitable distribution of the real and personal property accumulated by the parties during their marriage or, if the property could not be equitably distributed, a monthly award for his support, care, and maintenance from the income produced from the property.

The court issued a final decree of dissolution on November 18, 1981, amended in December 1981 to state as a conclusion of law that the court had jurisdiction over the marital status. All other jurisdictional questions and all matters concerning support, maintenance, and equitable distribution of property were reserved for later determination.

A pre-trial conference on the reserved issues originally was set for January 20, 1982, but was vacated for the convenience of Robert’s counsel. The court, apparently on its own initiative, re-set the conference for October 17, 1984, but continued it so that Robert’s counsel could complete discovery. Discovery efforts continued through 1987, and trial eventually was set for June 5, 1990.

On May 16,1990, Ramona moved to dismiss on the grounds that the District Court lacked jurisdiction to apportion property and debts on the Blackfeet Reservation. On May 24, 1990, the court issued an order postponing the trial indefinitely; on May 29, after reviewing the file, it set the matter for trial on June 5, 1990, requesting briefs on the jurisdiction issue by June 4.

On June 5, Ramona’s lawyer told the court that she had not had an opportunity to read Robert’s brief. The court suggested that the parties produce their evidence on the merits of the dispute that day, while it took the matter of jurisdiction under advisement. At the close of the hearing, after Robert and Ramona had testified at length on the property they had accumulated during their marriage, the court announced that it would rule on the issue of jurisdiction before proceeding further with matters concerning the marital estate.

The District Court ultimately granted Ramona’s motion to dismiss, concluding that "this Court has no jurisdiction to adjudicate the disposition of the only significant asset of the parties, the Indian Trust Land.” Robert appealed.

The sole issue on appeal is whether a Montana district court has jurisdiction to adjudicate the disposition of Indian trust land in a marital dissolution action filed in that court by a member of the Blackfeet Tribe against her non-Indian husband.

Because the District Court ruled only on the issue of jurisdiction, Robert’s assertions of error regarding the contents and valuation of the marital estate are not properly before us. For purposes of reviewing the jurisdictional issue, however, we assume that the Indian trust land is the Wellmans’ only significant marital asset. Even if the Wellmans did have other assets at the time of the divorce, as Robert contends, the parties agree that the Indian trust land was their most substantial asset; therefore, the District Court could not have apportioned the marital estate without exercising jurisdiction over the trust land.

I

In contending that the District Court has subject matter jurisdiction to apportion the marital estate, Robert relies on the Blackfeet Tribal Law and Order Code, which provides that “all divorces must be consummated in accordance with the State Law of Montana.” Robert argues that with this provision the Blackfeet Tribe “expressly ceded jurisdiction relative to dissolutions to the Courts of Montana.” We disagree.

We held in 1973 that a similar provision enacted by the Assiniboine-Sioux Tribe in 1938 did cede jurisdiction to the state. Our decision was based on the evidence before us, which showed that the tribal court had granted no divorces in the intervening period and had itself interpreted the provision as ceding jurisdiction over divorce matters to the state of Montana. State ex rel. Iron Bear v. District Court (1973), 162 Mont. 335, 512 P.2d 1292. Here, the record indicates that the Blackfeet Tribal Court has consistently exercised jurisdiction over the dissolution of Blackfeet marriages. We conclude, therefore, that this provision does not cede jurisdiction to the state but merely governs the tribal court’s choice of law.

Our approach is consistent with the Ninth Circuit’s determination that a similar provision in the Northern Cheyenne Law and Order Code does not confer jurisdiction on Montana but instead incorporates Montana law as tribal law. Sanders v. Robinson (9th Cir. 1988), 864 F.2d 630, cert. denied, 490 U.S. 1110, 109 S.Ct 3165, 104 L.Ed.2d 1028 (1989). Like the case before us, Sanders involved a tribal member married to a non-Indian and marital residence on an Indian reservation. Unlike Ramona Wellman, however, the Indian spouse in Sanders filed an action for divorce in the tribal court. Her non-Indian husband challenged the tribal court’s jurisdiction in federal district court, and the district court granted summary judgment in favor of the tribal court. In affirming that decision, the Ninth Circuit held that in a divorce case involving an Indian “plaintiff’ and a non-Indian “defendant,” the tribal court has “at least concurrent” but not necessarily exclusive jurisdiction. 864 F.2d at 633.

Where an Indian tribe has asserted jurisdiction over marriage and divorce actions between two of its members, we have deferred to that assertion. In In re Marriage of Limpy (1981), 195 Mont. 314, 636 P.2d 266, we deferred to an advisory opinion of the Northern Cheyenne Appellate Court, holding that the Northern Cheyenne Tribal Court has exclusive jurisdiction over dissolution of marriage actions between members of the tribe residing on the reservation. Similarly, in State ex rel. Stewart v. District Court (1980), 187 Mont. 209, 609 P.2d 290, we determined that the Crow Tribal Code gives the Crow Tribal Court exclusive jurisdiction over dissolution of marriage actions between tribal members living on the reservation.

Here, the dissolution action was brought by a tribal member against her non-Indian husband. No precedent suggests that in such a case the Blackfeet Tribal Court has exclusive jurisdiction over the dissolution, or that exercise of concurrent jurisdiction by a state district court interferes with tribal self-government. The specific issue before us, however, is whether the District Court, having dissolved the Wellmans’ marriage, had subject matter jurisdiction to apportion their marital estate.

II

Indian tribes are self-governing political entities whose powers can be circumscribed only by Congress, as the United States Supreme Court made clear in United States v. Wheeler (1978), 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303, 313: “[U]ntil Congress acts, the tribes retain their existing sovereign powers.... Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.”

When Wheeler was decided, Congress already had authorized state governments to assume jurisdiction over civil causes of action to which Indians are parties and which arise on Indian reservations within their boundaries. Public Law 280 (P.L. 280), codified at 28 U.S.C. § 1360. Six states assumed jurisdiction under the express terms of the statute; other states, including Montana, could “assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.” Pub. L. No. 280, § 7, 67 Stat. 588, 590 (1953). The 1968 Indian Civil Rights Act repealed § 7, however, and thereafter the consent of the enrolled Indians on the reservation, expressed as a majority vote of the adult Indians voting at a special election, was required before a state could assume jurisdiction over a civil action arising on a reservation and involving a tribal member. 25 U.S.C. § § 1322 and 1326.

With regard to the matter before us, it is undisputed that Montana has not assumed jurisdiction under RL. 280 and the Indian Civil Rights Act. Absent such an assumption of jurisdiction, civil jurisdiction over activities of non-Indians as well as Indians on reservation lands presumptively lies in the tribal court. Fisher v. District Court (1976), 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106. To overcome that presumption, a party seeking to bring such an action in state court must show that state jurisdiction is not preempted by federal statute or treaty and does not unlawfully infringe on the right of reservation Indians to make their own laws and be ruled by those laws. White Mountain Apache v. Bracker (1980), 448 U.S. 136, 142, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665, 672. We adopted the White Mountain Apache test in First v. State Dep’t of Social & Rehabilitation Servs. (1991), 247 Mont. 465, 471, 808 P.2d 467, 470.

In White Mountain Apache, the Supreme Court emphasized that traditional standards of preemption do not apply, for “the tradition of Indian sovereignty over the reservation must inform the determination whether the exercise of state authority has been pre-empted by operation of federal law.” 448 U.S. at 143, 100 S.Ct at 2583. Consequently, the Court required a “particularized inquiry into the nature of the state, federal, and tribal interests at stake,” to determine whether, “in the specific context, the exercise of state authority would violate federal law.” 448 U.S. at 145, 100 S.Ct at 2584.

In conducting that inquiry here, we will address the federal, tribal and state interests involved in an apportionment of the Indian trust land that constitutes the Wellmans’ only significant marital asset.

Ill

Indian trust property cannot be conveyed without the consent of the Secretary of the Interior. Tooahnippah v. Hickel (1970), 397 U.S. 598, 609, 90 S.Ct. 1316, 1323, 25 L.Ed.2d 600, 609. Further, the Quiet Title Act, 28 U.S.C. § 2409, gives the United States sovereign immunity as to Indian trust land; therefore, actions to adjudicate title to trust land are barred in state and federal courts. Ducheneaux v. Secretary of Interior (8th Cir. 1988), 837 F.2d 340, 342-343, cert. denied, 486 U.S. 1055, 108 S.Ct. 2822, 100 L.Ed.2d 923 (1988). Thus, an assertion of state court jurisdiction to apportion a marital estate consisting primarily of Indian trust land appears on its face to be in conflict with the federal government’s direct interest in Indian trust property.

Robert attempts to circumvent this barrier by arguing that even though the District Court has no authority to transfer title to the trust land to a non-Indian, it has the power to value the marital estate and the obligation to apportion it equitably, either by awarding him a monetary judgment equal to his equitable share of the estate or by ordering the land to be sold to other tribal members and the proceeds divided. We disagree.

It is true that § 40-4-202(1), MCA, provides, in pertinent part, that in a proceeding for dissolution of marriage the court “shall ... equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both” (emphasis added). We note that here, neither party holds legal title to the Indian trust land. In any event, however, the strong federal and tribal interests in trust property mandate our conclusion that § 40-4-202(1), MCA, cannot be construed to require or allow adjudication of Indian trust land by a state district court. As the Blackfeet Tribal Law and Order Code provides for consummation of divorce in accordance with Montana law, we presume that the Blackfeet Tribal Court will equitably apportion the Wellmans’ marital assets as prescribed by § 40-4-202(1), MCA.

Any state action that affects ownership of Indian trust land is closely circumscribed by 28 U.S.C. § 1360(b), even where state jurisdiction has been acquired pursuant to RL. 280. Section 1360(b) provides that:

Nothing in this section [P.L. 280] shall authorize the alienation, encumbrance, or taxation of any real or personal property ... belonging to any Indian or any Indian tribe ... that is held in trust by the United States;... or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein.

On its face, this statute precludes state jurisdiction to adjudicate any interest in Indian trust land. In light of this statutory circumscription even where the state has assumed jurisdiction, we infer the complete absence of Congressional intent to authorize or allow a state that has not assumed jurisdiction to adjudicate Indian trust land in any way whatsoever. See Sheppard v. Sheppard (Idaho 1982), 655 P.2d 895, 921 (Bistline, J., dissenting).

Robert argues that Sheppard authorizes state jurisdiction over Indian trust land in a marital estate. He cites its conclusion that in a dissolution involving an enrolled tribal member and a non-Indian, the Indian spouse must compensate the non-Indian spouse for “his or her share of the community contributions that have gone into property that is held in trust or subject to a restraint on alienation by the federal government.” Sheppard, 655 P.2d at 914.

The majority in Sheppard affirmed a district court order requiring the Indian wife to pay the non-Indian husband a substantial sum to offset the bulk of the real and personal property, including Indian trust land, awarded to the wife. The majority pointed out that the district court had done nothing to affect title to the property, which remained in the wife’s name, and that it had determined the size of the monetary award by the amount of community funds used to pay for the property. Under these circumstances, the Idaho court held, the district court’s action did not infringe on the authority of the federal government or on tribal sovereignty. Sheppard, 655 P.2d at 914-15.

We distinguish Sheppard on several grounds. First, Idaho, unlike Montana, assumed jurisdiction over enforcement of certain state laws and regulations in Indian country within the state, including laws and regulations concerning domestic relations, pursuant to P.L. 280. Sheppard, 655 P.2d at 907 (citing Idaho Code § 67-5101 (1963)). Second, Idaho is a community property state; Montana is not.

Finally, and more importantly, the decision of the Idaho court does not support Robert’s position in the case before us. In Sheppard, neither the trial court nor the Idaho Supreme Court exercised jurisdiction over the Indian trust property by bringing the property before it for valuation. Instead, the Idaho court merely ordered the Indian spouse to reimburse the non-Indian spouse for his share of the community funds used to purchase the land.

Here, we are urged to assert state court jurisdiction over Indian trust land by figuratively bringing it into state court for valuation prior to an ordered sale and division of proceeds or a monetary award equal to Robert’s equitable share of the value of the land. Based on our discussion of 28 U.S.C. § 1360(b), above, we conclude that any of these actions would result in a prohibited adjudication of interests in Indian trust land. See Sheppard, 655 P.2d at 923 (Bistline, J., dissenting).

Robert also relies on Conroy v. Conroy (8th Cir. 1978), 575 F.2d 175, suggesting that it authorizes the District Court to order the “sale of beneficial title in the said Trust lands to permissible beneficiaries ... e.g., other Blackfeet Indians.” Robert misreads Conroy.

Conroy involved a divorce action between two members of the Oglala Sioux Tribe, who had accumulated, during their marriage, 1,700 acres of land held in trust by the United States in the name of the husband. The divorce action was filed in the Pine Ridge Indian Reservation Tribal Court, which granted the divorce and awarded the wife roughly half the land and cattle accumulated through the parties’ joint efforts. The Eighth Circuit, affirming, upheld tribal court jurisdiction to divide the trust land. 575 F.2d at 183. Thus, Conroy provides authority for a tribal court to apportion beneficial interests in trust land in conjunction with a dissolution action between tribal members. It has no bearing on the issue of state court jurisdiction over Indian trust land.

Notwithstanding Robert’s failure to present authority requiring us to reverse the District Court’s decision, we conclude by returning briefly to the White Mountain Apache test, which required us to conduct “a particularized inquiry into the nature of the state, federal, and tribal interests at stake” in determining whether, “in the specific context, the exercise of state authority would violate federal law.” White Mountain Apache, 448 U.S. at 145, 100 S.Ct. at 2584.

There is no question but that the United States has a significant interest in matters relating to Indian tribes and reservations. Apart from its direct interest as legal owner of Indian trust land, the United States has a strong goal of encouraging tribal self-government. Numerous federal statutes express this goal. See New Mexico v. Mescalero Apache Tribe (1983), 462 U.S. 324, 335, 103 S.Ct. 2378, 2387, 76 L.Ed.2d 611, 621, citing the Indian Reorganization Act of 1934, the Indian Civil Rights Act of 1968, the Indian Self-Determination and Education Assistance Act of 1973, and the Indian Financing Act of 1974.

Nor can the interest of the Blackfeet Tribe in this matter be overstated. In general, of course, Indian tribes retain the power to regulate the domestic relations of their members, by virtue of their status as sovereign entities; in addition, a tribal court specifically has jurisdiction to adjudicate disputes over Indian trust land. Conroy, 575 F.2d at 181-182. Here, the Blackfeet Tribal Court has, and exercises, concurrent jurisdiction over the dissolution of Blackfeet tribal members’ marriages, while the Blackfeet Tribe has a strong interest in safeguarding its members’ beneficial interest in trust lands.

Unless the state interests at stake are sufficient to justify the assertion of state authority, state jurisdiction that is inconsistent or interferes with federal and tribal interests is preempted by operation of federal law. Mescalero Apache, 462 U.S. at 334, 103 S.Ct. at 2386. It is true that the State of Montana has an interest in ensuring the existence of a forum in which marital property located within its borders may be apportioned upon a dissolution of marriage. In the usual case, the state achieves this goal by providing access to its courts. Here, however, the state’s interest is met by the availability of an alternative forum in the Blackfeet Tribal Court. In short, the state’s interest in the property and proceedings at issue is inconsequential compared with the federal and tribal interests at stake.

We hold that, under the facts of this case, the District Court did not err in concluding that it lacked jurisdiction to adjudicate the disposition of the Indian trust land that was the parties’ only significant marital asset.

Affirmed.

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