author: MR, CHIEP JUSTICE BRANTLY

text:
    MONTANA ORE PURCHASING COMPANY, Respondent, v. BOSTON & MONTANA CONSOLIDATED COPPER & SILVER MINING COMPANY, Appellant.
    (No. 1,629.)
    (Submitted March 6, 1903.
    Decided April 2, 1903.)

      Lode Mining Property — Deeds—Extralateral Bights — Action to Quiet Title — Constitution—Jury Trial — Appeal—Deeds —Construction—Finding of Trial Court — Conclusweness.
    1. where plaintiff — in or out of possession of real property — brings an action under Code of Civil Procedure, Section 1310, against a defendant not in possession, such action is cognizable in a court of equity only and neither party is entitled to a trial by jury as a matter of right, unless defendant, where plaintiff is in possession, raises by appropriate allegations a purely legal issue upon the right.to the possession, founded on an assertion of a legal title.
    2. Where plaintiff has title to and possession of the surface of a lode mining claim containing the apex of a vein with extralateral rights extending under the surface of a lode mining claim owned by and in possession of defendant, plaintiff, — under Revised Statutes, U. S., Section 2322, must be deemed to be in possession of all parts of said vein to which he has title, notwithstanding the presumption in favor of defendant’s title to and right to the possession of everything beneath his surface.
    3. The conclusion reached by the trial court as to the effect of a deed is not binding on the court on appeal, where the facts surrounding its execution are not controverted.
    4. Held, that, in view of the surrounding circumstances, .the grantors in a certain deed to a portion of a lode mining claim, which conveyed portion embraced parts of apices of veins with extralateral rights, intended to convey to the grantees conventional apices of said veins with all the rights ' thereon extralaterally which the grantors had.
    On Rehearing.
    Former opinion (27 Montana, 288, 70 Pac. 1114) modified.
   The following is a diagram of the property in question:

MR, CHIEP JUSTICE BRANTLY

delivered the opinion of the court.

At the rehearing granted herein two of the questions considered and determined in the original opinion were reargued at length, namely, whether the defendant wás entitled to a trial by jury as a matter of right, and whether the district court was in error in fixing the vertical plane, as it did, to limit toward the west the rights of the plaintiff upon the exterior portions of the veins in controversy. The rehearing upon the first question was granted upon the motion of the defendant, because of its importance not only in this case, but in all other similar cases. Counsel for plaintiff questioned the correctness of the conclusion of the court upon which the judgment of the district court was modified, and a rehearing was granted upon that point in order that they might be allowed an opportunity to call attention to matters in the record, the importance of which, it is insisted, this court had failed to notice in the consideration of the case.

1. We have given tbe matter of tbe right of trial by jury further consideration, by a review of the authorities cited upon tbe bearing, and have also examined tbe additional ones cited in tbe briefs submitted at tbe rehearing. While the solution of tbe question involves much difficulty, no suggestion has been made which inclines us to recede from tbe views expressed in tbe original opinion. After citing and commenting upon eases decided by tbe territorial supreme court, we said in that opinion: “But for these cases, we should bold that tbe right of trial by jury extends to all eases wherein tbe legal title or right of possession is at issue.” Seizing upon tbe doubt implied by this language, tbe defendant plausibly argued that., in tbe class of cases to which this belongs, tbe right of trial by jury was guarantied under the seventh amendment of tbe Constitution of tbe United States, and under tbe Act of Congress of April 7, 1874, making tbe provisions of this amendment expressly applicable to territorial governments, and that these cases were erroneously decided. It has always been tbe rule in this jurisdiction, both under tbe territorial and state governments, that where tbe right of possession to real estáte is at issue, whether tbe action be based upon a claim of legal title, or upon a mere possessory right, either party is entitled to a trial by jury. Such an action is strictly one at law. Even in an action brought to quiet title under tbe statute by tbe party in possession, whenever tbe defendant seeks by appropriate allegations to have bis title determined and tbe possession awarded him, either party is entitled to have tbe legal issue thus raised submitted to a jury. This view is sustained by tbe authorities cited and relied upon by counsel. Indeed, it seems that tbe only appropriate action to determine an adverse claim to property :n possession of tbe defendant in tbe action asserting title thereto is ejectment. Incidentally tbe equitable powers of tbe court may be invoked to aid tbe action at law by removing some obstruction to tbe legal title, or by preserving tbe property pending tbe ascertainment of tbe title, but tbe principal relief can be granted only after a trial of tbe legal issues according, to the course at common law. Neither tbe old form of tbe statute (Compiled Statutes, 1887, General Laws, First Division, Section 366), nor the amended form of it (Code of Civil Procedure, 1895, Section 1310), contains any intimation as to tlie form of action wliicb may be brought in any case. The purpose of the act was to authorize equitable actions where none would lie before. Where a party was in possession, though with full knowledge that there was an' outstanding adverse claim, he was helpless, so far as concerned the existence of any remedy to have the title determined, if ha were not harassed by suits by the adverse claimants. He was compelled to wait until disturbed by such actions, and could then proceed as the.actor only after he had successfully resisted one or more of them. Where neither party was in possession, neither could proceed, as against the other, in order to have his adverse claims determined. Under these circumstances, the holder of the legal title — the owner of the fee — was compelled to rest with a questionable title until his possession was disturbed, and to incur the risk of losing the evidence of facts necessary to establish, it. In neither case was there any form of action by. which he could compel a discovery by his adversary, and have the adverse claim determined. Recognizing the necessities of the case, the legislature authorized the persons so situated to institute the appropriate action, whatever that might be. The old statute authorized only parties in possession to institute a suit. The amended form of it authorizes suit whether the claimant to the legal title be in possession or not. As against the party in possession, the adverse claimant needed no legislation, because the action authorized by other statutes in the nature of ejectment to recover possession furnished an adequate and complete remedy. (United States v. Wilson, 118 U. S. 86, 6 Sup. Ct. 991, 30 L. Ed. 110; Frost v. Spitley, 121 U. S. 552, 7 Sup. Ct. 1129, 30 L. Ed. 1010.) But a plaintiff (in or out of possession) as against a. defendant not in possession, must, under the statute, resort to a court of equity, because, though the right to proceed is granted, no specific remedy is provided. Hence the theory of Mr. Pomeroy, that the action authorized by the statute is in its' nature cognizable in a court of equity only. (Pomeroy, E'q. Jurisprudence, Sec. 138.) This is the view taken by Chief Justice Field in Curtis v. Sutter, 15 Cal. 260, and also in Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, 28 L. Ed. 52. In the latter case, speaking of the situation of the parties and the necessities of the case, he says: “No adequate relief to the owners of real property against the adverse claims of parties not in possession can be given by a court of law. If the holders of such claims do not seek to enforce them, the party in possession or entitled to the possession — the actual owner of the fee — is helpless in the matter, unless he can resort to a court of equity.” This was said with reference to the jurisdiction of the United States circuit court, when sitting in equity, to entertain an action under the statute of Nebraska by the owner, when not in actual possession, against an adverse claimant also not in possession; and the conclusion was therein reached that, from the necessities of the casej the action is equitable in its nature, and must be tried in a court of equity. This conclusion is in full accord with the earlier view expressed in Curtis v. Sutter, supra. Nor is it inconsistent with the suggestion contained in the latter case, that, when purely legal issues arise, resort may be had to the ordinary legal procedure to determine them. If the plaintiff is in possession, and the defendant raise a purely legal issue upon the right to the possession, founded on an assertion of legal title, this issue is triable by a jury as a matter of right. Upon this view of the purpose of the statute, the eases of Donahue v. Meister, 88 Cal. 121, 25 Pac. 1096, 22 Am. St. Rep. 283, and Newman v. Duane, 89 Cal. 597, 27 Pac. 66, are entirely consistent with the cases of Gurtis v. Sutter and Holland v. Challen, supra, and- the other cases arising under similar statutes cited in the original opinion. Nor are any of them inconsistent with the cases decided by our territorial supreme court. Indeed, after further consideration of these cases, we are of the opinion that they are correct in principle, and that the doubt implied in the language quoted from the original opinion is not well founded. They are in no way in conflict with the seventh amendment of the Constitution of the United States, as counsel contend. It must not be overlooked that the right of trial by jury guarantied thereby is the right as it existed at the common-law; that is, in that class of cases in which there was no impediment in the way of complete and adequate redress by proceeding according to the course of the common law. The right of trial by jury under the territorial government was exactly the same as that guarantied by this amendment — no greater, no less. Where such impediment existed, and adequate redress could not be had in an action at law, even when legal issues were involved, the action was cognizable in equity, and not at law. (Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276, 34 L. Ed. 873; Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, 28 L. Ed. 52.) And though, under the old practice, courts of equity had no' jurisdiction to entertain suits to quiet title, except upon certain conditions — as. where, for illustration, the plaintiff in possession had first successfully maintained one or more actions at law against the adverse claimant — it was and is within the power of the legislature to dispense with such conditions without impairing the general authority of the court. (Holland v. Challen, supra; Pomeroy, E’q. Jurisprudence, Secs. 1396-1398.) This result has been wrought by the statute, so far as concerns the class of cases to which the present belongs.

But counsel for defendant insist that the facts in the record show that the plaintiff was not in possession at the commencer ment of the action, or, in any event, that such possession as it had was wrongful; that the real purpose of this action is to determine the right of possession; and that therefore a jury trial should have heen awarded, because, where possession is obtained by wrongful or fraudulent entry, as they say was the case; here, a court of equity will not entertain jurisdiction under the statuta They cite Gage v. Hampton, 127 Ill. 87, 20 N. E. 12, 2 L. R. A. 512; Hardin v. Jones, 86 Ill. 313; Comstock v. Henneberry, 66 Ill. 212; and Dyer v. Baumeister, 87 Mo. 135. We do not controvert the principle underlying these cases, but it has no application to this case. It is true that the defendant was and is in possession of the surface of the Pennsylvania claim. Prom this fact the presumption arose that it had title to and possession of everything beneath, the surface. The doctrine, “Gujus est solum, ejus est ad inferos” applies, but not in the same sense as it does to other species of real estate. At common law this presumption was conclusive where there was no reservation in the grant, or where it did not operate by reason of some local custom. Under the mining laws of the United States, however, it is not conclusive, except as against one who cannot show that ha enters beneath the surface in pursuit of a vein of which he owns the apex or portion thereof so intercepted by the end lines of his claim that he is entitled to follow it. When this appeal's, the presumption arising; from the cujus solum doctrine is overturned, and giv.es way to the presumption based upon the provisions of Section 2322 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 1425), which clothes the owner of the surface and the apex with the exclusive right to the possession and enjoyment both of such surface and the vein, including the right to follow it to its utmost depth. So, also, the owner in possession of the surface and apex of the vein must be deemed to be in possession of all parts of the vein to which he has title, though it departs beyond his side lines, just as he is in possession of that portion of the earth vertically beneath his surface. Therefore, when he has followed it beneath the surface of his neighbor, he has committed no wrong, and is not a trespasser. On the contrary, the objecting neighbor is setting up a claim for which there is no foundation, and to foreclose which the provision of the statute may be invoked. It ivould be intolerable, were the owner of the apex of a vein which departs beneath his neighbor’s surface compelled to resort to an action at law in every case in which the owner of such surface has trespassed upon a portion of the vein, basing his right to so enter thereon upon his surface ownership, merely. This view would involve a trial of the issue of ownership upon every assertion of title by the owner of the surface, and the actual owner of the vein would be compelled to establish his right to every foot of it on its descent into the earth.

2. In their brief accompanying the motion for a rehearing, counsel for the plaintiff criticise the following portion of the former opinion: “In our opinion, the decree should be modified so as to fix the west end planes in the direction of the lines L, M, and P, N, at the points where the different veins pass through the line E, F; the plaintiff conceding that this is proper if, upon a construction of the deeds, this court concludes that the trial court erred in fixing the west end plane in the direction of the line E, E.” They say that the court therein erroneously made them concede something which they in fact did not. Upon a re-examination of the briefs, we find no specific statement to justify the use of the' language employed by this court. The court was perhaps misled hy some suggestion made during the oral argument. We are therefore pleased to make the correction suggested by the criticism. The absence of the concession, however, does not relieve the difficulty of solving the question as to the correct position of the west boundary line limiting the extralateral rights of the plaintiff beneath the surface of the Pennsylvania claim. The plaintiff insists that this court is bound by the judgment of the district court in this connection, because, if the court did not expressly find the facts warranting the construction given the deed to the conveyed portion, yet, under the doctrine of implied findings which prevails in this state (Yellowstone Nat'l Bank v. Gagnon, 25 Mont. 268, 64 Pac. 664), it must be presumed that the district court found the facts; and in the absence of an effective attack upon the findings, either express or implied, we cannot review the conclusion of the court thereon. In this we do not agree with counsel. We shall not discuss the questions of practice presented in this connection, but pass them with the remark that there are in the record of the evidence no facts wiarranting a finding upon which the court could construe the deed as it did. The effect to he given to this deed presents a question of law. The court could look to the facts surrounding its execution to aid it in arriving at a just and correct conclusion, but the conclusion so reached is not necessarily binding upon this court — especially so since the facts surrounding the execution of the deed are not controverted.

Tbe facts apparent from tbe record to which counsel say we failed to give due weight in our consideration of the case are the following": That the Baras claim was located October 2, 1878, entered for patent September 2, 1883, and patented June 25, 1884; that the Johnstown claim was located January 24, 1879, entered for patent September 1, 1883, and patented November 15, 1884; that on March 7, 1883, the owners of the Johnstown gave the deed toi the conveyed portion; that at the same time the same persons who. are also the the owners of the Pennsylvania claim gave a deed to the small triangle in conflict between the Baras and Pennsylvania claims; that the discovery shaft of the Johnstown was within the limits of the Barns claim; and that at the time the deed was executed the owners .of both these claims knew that the discovery vein of the Johnstown dipped to the south. It follows, they say, that the location of the Johns-town was void, and therefore that, as the patent to the Baras excluded all the area in conflict between that claim and the Johnstown as located, the inference is conclusive that there was a compromise between the parties by which the owners of the Barns were to have extralateral rights upon the Johnstown vein, bounded by the vertical plane of the line F, E (see diagram), extended in its own direction. This theory is plausible, but cannot, we think, be sustained. The Johnstown claim was patented as the Johnstown claim. Such rights as appertain to it extralatérally came through that patent. The extralateral rights conveyed by its owners were such as were obtained through their patent. While it was competent for them to- convey all rights so obtained, they cannot be held toi have conveyed any more of them than were expressly granted under’ the terms of their deed, or such as, looking to the nature of the property they were dealing with, and the surrounding circumstances, must, bj necessary implication, have also been included. All of these facts, save those showing knowledge in the parties as to the direction of the dip of the vein, were fully considered in arriving at the construction given the deeds to the conveyed portion; and though we have taken them in connection with the fact of the knowledge of the dip, which latter was not called to. our attention at the first bearing, we do not thinlc there is any foundation in tbe record to support the claim of plaintiff that under the deed of March 1, 1883, the grantors intended to convey the vein extralaterally in the direction of the line E-, F, extended, as the district court held. This solution of the question presented would rest upon a speculative conclusion as to. what the purpose of the parties was in the transaction connected with the patent proceedings. Thei knowledge of the parties of the direction of the dip of the vein, however, taken in connection with the transactions surrounding the application for patent, supports the theory that the grantors by that deed intended to convey to plaintiff all of the vein extralaterally east of a vertical plane in the direction of the line E, Q. The deed clearly included all of the parts of the veins embraced within the boundaries of the conveyed portion. When the original opinion was prepared, we proceeded upon the presumption that the record contained no facts tending to show that the parties knew the direction of the dip of the veins, and hence, there being manifested by the terms of the deed and attendant circumstances an intention to convey extralateral rights, that the extent of these should not be left to depend upon the mere accident of the direction of the dip. We therefore adopted the theory that the most equitable solution of the matter “was to fix the boundaries extra-laterally by vertical planes passing in the direction of the lines E, N, and L, M. It appears, however, that, at the time surveys were made for patent for the Johnstown and Earus claims, some development work had been done upon the discovery vein, and that it was shown to have a dip. to; the south. This fact, taken in connection with the other circumstances stated, we think, justifies the conclusion that the line E, E, was fixed by the parties as the utmost limit to which the rights of the grantees should extend along the strike of the veins conveyed, and that they should have all the rights thereon extralaterally which the grantors had. The portion of the veins cut off by the vertical plane along the line E, E^ thereby became a conventional apex for the portion of the veins between the point E and the points at which they respectively cross the line F, El In view of the surrounding circumstances, this seems to be the most equitable solution of the very difficult question presented. The theory of the plaintiff, besides requiring speculative reasons to' support it, would also lead to the result that its grantors, in order to avoid complications in the proceedings instituted to secure the patent to the Johnstown claim, actually granted away substantially all their extralateral rights* because it is apparent that if the vertical plane of the line P, B, extended, should be taken as the boundary between the parties as to their extra-lateral rights, the defendant would have nothing left except the portions of the veins intercepted by that plane and one passing downward through the west end line of the Johnstown claim. While we think the conclusion reached in the original opinion is correct upon the facts that were then presented, the judgment should be modified to meet the inferences dedueible from the facts as they actually exist.

The order denying a new trial is therefore affirmed. The cause is remanded, with directions that the district court modify the decree by disallowing the items of costs complained of, and by limiting the extralateral rights of the plaintiff by vertical planes in the direction of the line P, E, to the point E, and thence in the direction of the line E, Q, extended. When so modified, the decree will he affirmed.

Modified and affirmed.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    No. 1,829.
    STATE ex rel. KNAPP, Relator, v. DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT et al., Respondents.
    Original — Writ of Supervisory Control.
    Decided June 2, 1902.

      Mr. J. K. Macdonald, and Mr. T. Bailey Lee, for Relator.
   Pee Cueiam.

— Relator’s application for a writ of. supervisory control, or some other appropriate writ, herein, is denied.


author: Per Curiam.

text:
    No. 1,808.
    STATE ex rel. OREGON SHORT LINE RAILROAD CO., Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT, Respondent.

      Original — Mandamus.
    Decided June 2, 1902.

      Mr. J. G, Willis, for Relator.

      Mr. J. E. Healey, for Respondent.
   Per Curiam.

— Upon motion of the relator this cause is dismissed at the cost of said relator.


author: Pee Oueiam.

text:
    No. 1,679.
    MUNGES, Respondent, v. BARNES, Appellant.

      Appeal from District Court, Granite Countyj Welling Nap-ton, Judge.

    On motion to dismiss appeals.
    Decided July 7, 1902.

      Mr. W. É. Moore, for Appellant.

      Mr. Joshua Shull, Messrs. Durfee & Brown, and Mr. George A. Maywood, for Respondent.
   Pee Oueiam.

— Tbe motion herein to dismiss the appeal from the judgment and the appeal from the order denying the motion for a new trial, is hereby sustained, and the appeals are accordingly dismissed.


text:
    No. 1,814.
    STATE ex rel. BOSTON & MONTANA CONSOLIDATED C. & S. MINING COMPANY, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    Original — Writ of Supervisory Control.
    Decided August 2, 1902.
   Per Curiam.

— The application for a writ of supervisory control herein is denied and the proceeding is dismissed. (Mr. Justice Pigott dissents.)

Mr. W. W. Dixon, Mr. ,A. J. Shores, Mr. G. F. Kelly, Messrs. Forbis & Evans, and Mr. D. Gay Stivers, for Relator.

Messrs. McHatton & Goiter, and Mr. W. G. Jones, for Respondents.


text:
    No. 1,708.
    BURKETT et al., Respondents, v. SHERLOCK et al., Appellants.

      Appeal from District Court, Jefferson County; M. U. Par-leer, Judge.

    On motion to dismiss appeal.
    Decided August 4, 1902.

      Mr. George F. Cowan, and Mr. T. J. Walsh, for Appellants.

      Mr. M. P. Gilchrist, for Respondents.
   Per Curiam.

— Upon motion of T. J. Walsh, Esquire, of counsel for appellants, this appeal is dismissed at the cost of appellants.


text:
    No. 1,847.
    BURNS, Appellant, v. KELLY et al., Respondents.

      Appeal from District Court, Powell County; Welling Nap-ton, Judge.

    On motion to dismiss appeal.
    Decided October 7, 1902.

      Mr. George B. Winston, for Appellant.

      Mr. W. U. Trippet, for Respondents.
   Per Curiam.

— Respondents’ motion to dismiss the appeal herein is sustained, and the appeal is accordingly dismissed.


text:
    No. 1,864.
    STATE ex rel. DONOVAN, Attorney General, Relator, v. McGIFFIN, Assessor, et al., Respondents.
    Original- — Alternative Writ of Mandate.
    Decided October 9, 1902.

      Mr. James Donovan, m pra. per.

   Per Curiam.

— Relator’s application for an alternative writ of mandate is denied.

Decided October 11, 1902.

Per Curiam. — Relator’s amended application for an alternative writ of mandate is denied.

Decided October 16, 1902.

Per Curiam. — Relator’s second amended application for an alternative writ of mandate,- — this day submitted to the court, is hereby denied.

(Mr. Justice Pigott, being disqualified, takes- no part in making the foregoing orders.)


author: Per Curiam.'

text:
    No. 1,865.
    STATE ex rel. DONOVAN, Attorney General, Relator, v. WADSWORTH, Treasurer, Respondent.
    Original — Injunction.
    Decided October 9, 1902.

      Mr. James Donovan, in pro. per.

   Per Curiam.'

— Relator’s application for an injunction herein is hereby denied.

(Mr. Justice Pigott, being disqualified, takes no part in making this order.)


text:
    No. 1,711.
    ROBINSON, Appellant, v. JOHNSON, Respondent.

      Appeal from District Court, LeuJs & Clarice County; Sydney II. Mclntire, Judge.

    On motion to dismiss appeal.
    Decided October 14, 1902.

      Messrs. McConnell & McConnell, for Appellant,
   Per Curiam.

— Upon- motion of counsel for 1he appellant herein, this appeal is dismissed.


text:
    No. 1,625.
    ROBERTSON, Respondent, v. PROCTOR, Sheriff, Appellant.

      Appeal from District Court, Cascade County; J. B. Leslie, Judge.

    On motion to dismiss appeal.
    Decided October 20, 1902.

      Mr. W. G. Downey, for Appellant.

      Messrs. Green & Cockrell, for Respondent.
   Per Curiam.

— -Dpon motion of tbe appellant herein this appeal is dismissed as settled, in accordance with the stipulation on file.


text:
    No. 1,848.
    STATE, Appellant, v. McDONALD et al., Respondents.

      Appeal from District Court, Silver Bow County; J. B. Mc-Clernan, Judge.

    On motion to dismiss appeal.
    Decided November 28, 1902.

      Mr. James Donovan, Attorney General, for the State.

      Mr. B. S. Thresher, and Mr. J. L. Wines, for Respondents.
   Per Curiam.

— -Dpon motion of the attorney general, the appeal herein is dismissed.


text:
    No. 1,884.
    MURDOCK, Respondent, v. JARDINE et al., Appellants. STRINGFEILD et al., Intervenors and Respondents.

      Appeal from District Court, Park County; Frank Henry, Judge.

    On motion to dismiss appeal.
    Decided November 29, 1902.

      Messrs. Toole & Bach, Messrs. H. 'Q. & 8. H. Mclntire, for Appellants. ■

      Messrs. Kirk & Clinton, Mr. A. P. Stark, Mr. A. J. Campbell, Mr. C. II. Fish, Jr., and Mr. T. J. Walsh, for Nespond-ents.
   Per Curiam.

— Upon motion of II. G-. Mclntire, Esquire, of counsel for appellants, this appeal is dismissed, without prejudice, at the cost of appellants.


text:
    No. 1,867.
    STATE ex rel. JARDINE et al., Relators, v. DISTRICT COURT OF THE SIXTH JUDICIAL DISTRICT et al., Respondents.
    Original — Writ of Prohibition.
    Decided November 29, 1902.
   Per Curiam.

— Upon motion of H. G. Mclntire, Esquire, of counsel for relators, this proceeding is dismissed, without prejudice, at the cost of relators.

Messrs. Toole & Bach, Mr. J. A. Savage, Messrs. Ti. G. & S. H. Mclntire, for Relators.

Mr. T. J. Walsh, Mr. A. J. Campbell, Messrs. Kirh & Clinton, for Respondents.


author: Pee Curiam.

text:
    No. 1,862.
    MILLER, Appellant, v. NORTHERN PACIFIC RY. CO., Respondent.

      Appeal from District Court, Yellotcstone County; C. H. Loud, Judge.

    On motion to dismiss appeal.
    Decided December 9, 1902.

      Mr. Gib A. Lane, for Appellant.

      Mr. William Wallace, Jr., for Respondent.
   Pee Curiam.

— The motion to dismiss the appeal herein is sustained, and the appeal is accordingly dismissed.


author: Pee Curiam:.

text:
    No. 1,897.
    STATE ex rel. NEIHOF, Relator, v. OLSON, Justice of the Peace, Respondent.

      Original — D ertiorari.

    Decided December 11, 1902.

      Mr. C. M. Parr, and Mr. G. J. Langford, for Relator.
   Pee Curiam:.

— The application for a writ of certiorari herein is denied.


text:
    No. 1,903.
    STATE ex rel. HOPKINS, Relator, v. McRAE et al., Respondents.
    Original — Writ of Prohibition.
    Decided December 24, 1902.

      Mr. E. J. Dierics, Mr. Sydney Sarmer, and Messrs. F. & H. Collins, for Relator.
   Per Curiam.

— Relator’s application for a writ of prohibition herein is denied.


text:
    No. 1,498.
    MAYO, Respondent, v. HUGHES, Administratrix, Appellant.

      Appeal from. District Court, Silver Boiv County; William Clancy, Judge.

    On motion to dismiss appeal.
    Decided Januaray 2, 1903.

      Messrs. Donlan <& Forestell, and Messrs. McBride & McBride, for Appellant.

      Messrs. Kirie & Clinton, for Respondent.
   Per Curiam.

The appeal herein is hereby dismissed in accordance with the stipulation on file herein.


text:
    No. 1,806.
    BORDEAUX, Respondent, v. BORDEAUX, Appellant.

      Appeal from District Court, Silver Bow Bounty; William Glancy, Judge.

    On motion to dismiss appeal.
    Decided January 9, 1903.

      Messrs. McHatton & Goiter, Mr. J. B. Root, and Mr. William A. Clark, Jr., for Appellant.-

      Messrs. Stapleton & Stapleton, and Mr. B. S, Thresher, for Respondent.
    (Eor former opinion, see 26 Mont. 539, 69 Pac. 1130.)
   Per Curiam.

The motion to dismiss the appeal herein is hereby sustained, and the appeal is accordingly dismissed.


text:
    No. 1,753.
    BENDER, Respondent, v. FUREY, Sheriff, Appellant.

      Appeal from District Court, Silver Bow County; B. W. Harney, Judge.

    On motion to dismiss appeal.
    Decided January 21, 1903.
   Per Curiam.

— The motion to dismiss the appeal herein is sustained, and the appeal is accordingly dismissed.

Messrs. McIIatton & Cotter, and Mr. George F. Shelton, for Appellant.

Messrs. Forbis & Fvans, for Respondent.


text:
    No. 1,804
    STATE ex rel. SUTTON, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    Original- — Writ of Supervisory Control.
    (For former opinion, see 27 Mont. 128, 69 Pae. 988.)
    On motion to- tax costs.
    Decided January 31, 1903.

      Messrs. McBride & McBride, for Relator.

      Messrs. McIIatton, & Cotter, for Respondents.
   Per Curiam.

— Relator’s cost bill and respondents’ ’ motion to tax costs herein having been submitted heretofore to the court: It is ordered that all the objections of respondents to the cost bill -of relator be and the same are hereby overruled, except as to- the item of $63.00 for preparation of the record, and that the said item of $63.00 be and the same is hereby stricken out and disallowed and the rest of said cost bill allowed.

(Mr. Justice Hollo wat, having taken no part in the consideration of this cause, takes no part in this decision.)


text:
    No. 1,876.
    STATE ex rel. GILCHRIST, Relator, v. WESTON, Defendant.

      Original — Mandamus.
    (For former opinion, see 27 Mont. 185, 70 Pac. 519.)
    On motion to tax costs.
    Decided January 31, 1903.

      Mr. B. Lee Word, Mr. O. F. Kelly, and Mr. W. M. Bickford, for Relator.

      Mr. J. J. McHatton, Mr. L. P. Forestall, and Mr. Guy Star yleton, for Defendant.
   Pee Curiam.

— Tire relator’s cost bill heretofore submitted ’ to the court is hereby allowed, and the motion of defendant to tax costs is overruled, except as toi the witness fees of M. P. Gilchrist, the mileage of G. H. MoDougall, and costs paid to the stenographer for copies of testimony and papers, and as to the service of writ of injunction.

(Me. Justice Holloway, having taken no part in the consideration of this cause, takes1 no part in this decision.)


text:
    No. 1,875.
    STATE ex rel. GILCHRIST, Relator, v. WESTON, Defendant.
    Original — Inj unction.
    (Eor former opinion, see 27 Mont. 197, 70 Pac. 1134.)
    On motion to tax costs.
    Decided January 31, 1903.

      Mr. B. Lee Word, Mr. G. F. Kelly, and Mr. W. M. Bickford, for Relator.

      Mr. J. J. Mediation, Mr. L. P. Forestall, and Mr. Guy Sta-pleton, for Defendant.
   Per Curiam.

— Relator’s motion to tax the costs herein, heretofore submitted to the court, is sustained, and the cost bill of defendant is disallowed.

(Me. Justice Holloway, having taken n'oi pait in the consideration of this cause, takes no part in this decision.)


text:
    No. 1,499.
    WORTH, Respondent, v. MONTANA CENTRAL RAILWAY COMPANY, Appellant.

      Appeal from District Court, Lewis and Clarke County; Henry C. Smith, Judge.

    On motion to dismiss appeal.
    Decided March 18, 1903.

      Mr. A. J. Shores, for Appellant.

      Mr. C. W. Wiley, for Respondent.
   Per Curiam.

— The appeal herein is hereby dismissed,-each party to pay his own costs, in accordance with the stipulation on file.


text:
    No. 1,925.
    HARRIS, Administrator, Appellant, v. ROOT et al., Respondents.

      Appeal from District Gourb, Silver Bow Gounty; E. W. Harney, Judge.

    On application for an injunction, and on motion for a stay.
    Decided March 30, 1903.

      Mr. E. N. Harwood, and Mr. John Lindsay, for Appellant.

      Mr. Charles B. Leonard/ and Mr. M. S. Gunn, for Respondents.
   Pee Curiam.

— The application for an injunction herein, and the motion to stay the remittitur in cause numbered 1,799, entitled In re Davis’ Estate, Leyson et al. v. Root et al. (27 Mont. 490, 71 Pac. 757), is hereby denied.


author: JUSTICE NELSON

text:
    BEULAH FARLEY, as an individual and as power of attorney for others; and ARMELLS LAND AND CATTLE CO., a Montana corporation, Plaintiffs and Respondents, v. BOOTH BROTHERS LAND AND LIVESTOCK COMPANY, a Colorado corporation, and WESTERN ENERGY COMPANY, a Montana corporation, Defendants and Appellants.
    No. 94-343.
    Submitted on Briefs October 28, 1994.
    Decided February 14, 1995.
    52 St.Rep. 46.
    270 Mont. 1.
    890 P.2d 377.

      For Appellants: Scot Schermerhom, Freeman & Schermerhom, Billings.
    For Respondents: Gary G. Broeder, Billings; R. Sam Oldenburg, Karowsky, Witwer, Miller & Oldenburg, Greeley, Colorado
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a Sixteenth Judicial District Court, Rosebud County, Memorandum and Opinion as well as Supplemental Memorandum and Opinion, concluding that Western Energy Company (Western) should be making its payments under the leases at issue, to Booth Brothers Land and Livestock Company (Booth). We affirm.

ISSUES

The following are issues on appeal:

I. Is scoria a mineral for the purposes of deciding the present action?
II. Is Farley entitled to the compensation payable by Western for the use of the surface?

FACTUAL BACKGROUND

The parties have stipulated to an agreed statement of facts. The following is a summary of the pertinent facts from the agreed statement of facts.

“Booth Land and Livestock Company, a successor to Booth Brothers Land and Livestock Company (herein called “Booth”) is the owner of ranch property located in Treasure, Big Horn and Rosebud Counties, Montana. The west part of the ranch, located principally in Treasure and Big Horn Counties, was purchased from the Federal Land Bank of Spokane on January 7, 1988, and the east part of the ranch, located principally in Rosebud County, was purchased from Armells Land and Cattle Company on October 12,1988.” Farley’s Inc. and Armells Land and Cattle Company were the original surface owners of the properties at issue.

“The ranch is burdened with the rights of the owners of the coal deposits and their lessees to use and consume the surface for coal mining under three agreements. The agreements generally provide that Western Energy Company (‘Western”) has the right to use the surface of the land subj ect to the agreements for mining purposes and provides for compensation for such use.”

The owner of the coal deposits, the owner of the property subject to the agreements and the lessee under the agreements are as follows:

1. The coal deposits are owned by Burlington Northern Railroad Company. Neither plaintiffs nor Booth own or have any interest in the coal deposits.

2. The surface of the property at issue is owned by Booth.

3. Western is the current tenant with the right to use the surface in connection with its mining of Burlington Northern’s coal, under the Consolidation Coal Company Agreement (Consol Agreement), the Surface Lease and the Scoria Lease and holds all rights as a tenant thereunder and has all of the obligations of the tenant under such agreements.

The central issue in the present action is to whom Western should be making payments under the leases associated with the property.

PROCEDURAL BACKGROUND

On June 20, 1990, Farley filed a complaint in the Sixteenth Judicial District Court, Rosebud County, seeking a declaratory judgment that they were to receive royalty payments from Western for Western’s use of the surface land. Western filed its answer on August 15, 1990, and Booth filed its answer and counterclaim on March 6, 1991. Booth, in its counterclaim, sought to have title quieted in the property at issue, except for the reservation of mineral rights and the payments under the Consol Agreement and to receive judgment with respect to the payments by Western for the use of the surface of the land. The parties stipulated that Western did not have to actively participate in the action because it is not affected, in any meaningful way, by the decision rendered here. It simply needs to know to whom to send the applicable payments.

The District Court issued an order, filed on July 16,1993, concluding that “the right to the compensation for damage to surface rights contained in the leases regarding coal deposits passed with the fee to Booth Brothers, except for that which was expressly reserved by Farley.” The court also issued a Supplemental Opinion, which was filed on May 11, 1994, stating that scoria was not a mineral for the purpose of this action. This appeal by Farley followed.

DISCUSSION

I.

Is scoria a mineral for the purpose of this action?

Farley states that scoria is located in “a relatively small portion of the United States [and], [i]n eastern Montana, northern Wyoming, and western North Dakota, [it] is used to construct roadways.” Farley also asserts that scoria is used to manufacture “mineral wool.” It argues that because scoria has limited availability and has a use which is an alternative to its use in constructing roadways, it has an exceptional value above ordinary substances such as sand, clay and gravel, and therefore, should be defined as a mineral. Booth counters that “[t]he District Court correctly decided that ‘scoria,’ as that term is used in eastern Montana, is ¿in to gravel and, therefore, not a mineral for conveyancing purposes. Thus, judgment was properly granted to Booth on this issue on the grounds that the scoria rock and all rights under the Scoria Lease had passed to Booth as the subsequent surface owner.” We agree with the District Court and Booth.

The term “mineral” has been the source of considerable confusion in mineral law litigation nationwide. As Miller Land & Mineral v. Highway Com’n (Wyo. 1988), 757 P.2d 1001, 1002, aptly states:

The courts which have held that the general reservation of “all minerals” is inherently ambiguous have traveled over a long and tortuous path in a complex and hopeless search to discover the particular minerals the parties intended to reserve. The only reliable rule which surfaces from the confusing and inconsistent approaches taken by those courts attempting to ferret out the subjective intent of the parties is that the word “mineral” means what the court says it means. The result is title uncertainty and the need to litigate each general reservation of minerals to determine which minerals it encompasses. (Citations omitted.)

We take this opportunity to clarify, in the context of this case, whether scoria is a “mineral” for the purpose of land transfers in Montana.

At the outset, we are concerned here only with “scoria” that is also characterized as “roof-rock” and which results from burning coal outcroppings. We are not concerned with, nor does our opinion cover scoria of the basaltic lava variety. Montana statutory law has previously defined the term “mineral” in specific contexts concerning mining regulation. Title 82 is entitled “Minerals, Oil and Gas” and is pertinent to our discussion in the instant case. Section 82-4-303(9), MCA, found under part 3, Metal Mine Reclamation, of Chapter 4, Reclamation, provides one definition for the term “mineral”:

“Mineral” means any ore, rock, or substance, other than oil, gas, bentonite, clay, coal, sand, gravel, phosphate rock, or uranium, taken from below the surface or from the surface of the earth for the purpose of milling, concentration, refinement, smelting, manufacturing, or other subsequent use or processing or for stockpiling for future use, refinement, or smelting.

Part 4 of Chapter 4, Reclamation, is entitled Opencut Mining Reclamation and it provides, under § 82-4-403(6), MCA, that:

“Minerals” means bentonite, clay, scoria, phosphate rock, sand, or gravel.

It appears that these definitions of the term “mineral” are not necessarily consistent. In § 82-4-403(6), MCA, “gravel” is a mineral but in § 82-4-303(9), MCA, “gravel” does not come within the definition of the term “mineral.” Scoria is included in the definition of “mineral” in § 82-4-403(6), MCA, but it is unclear whether it would be included under the definition of “mineral” in § 82-4-303(9), MCA. However, this apparent inconsistency can be clarified by recognizing that the definition of “mineral” can differ according to the context in which it is used. The definition of the term “mineral” in § 82-4-303(9), MCA, is applicable only with respect to the regulation of metal mine reclamation and the term “mineral” as defined in § 82-4-403(6), MCA, applies only in the context of the regulation of opencut mining reclamation. Thus, the term “mineral,” has varying definitions in different contexts.

The issue to be decided here is whether scoria is a “mineral” for the purpose of determining who should receive the payments from Western for the use of the surface of the land and the extraction of the scoria. This is an issue of first impression in Montana, and we therefore, consider case law from other jurisdictions which lead us to conclude that, for the purposes of land transfers, including exceptions and reservations, scoria is not a mineral.

In Hovden v. Lind (N.D. 1981), 301 N.W.2d 374, the Supreme Court of North Dakota, in deciding whether certain minerals had been reserved in a land sale contract, stated:

Though the word “minerals” has varying definitions,... this court, prior to the enactment of § 47-10-25, held in Salzseider v. Brunsdale, 94 N.W.2d 502 (N.D. 1959), that the term did not, in a reservation clause, include gravel. We believe this precedent applies to materials like clay and scoria also. A reasonable construction of the word “minerals” as used in a land sale contract excludes clay and scoria, as well as gravel.... Furthermore, we concur in the notion that materials like gravel, clay and scoria are not ordinarily classified as minerals because they are not exceptionally rare and valuable. (Citation omitted.)

Hovden, 301 N.W.2d at 378. Holland v. Dolese Company (Okla. 1975), 540 P.2d 549, cited in Hovden, involved the question of whether limestone was part of the reserved mineral right at issue. The Holland court stated:

"... substances such as sand, gravel and limestone are not minerals within the ordinary and natural meaning of the word unless they are rare and exceptional in character or possess a peculiar property giving them special value, as for example sand that is valuable for making glass and limestone of such quality that it may profitably be manufactured into cement. Such substances, when they are useful only for building and road-making purposes, are not regarded as minerals in the ordinary and generally accepted meaning of the word. (Cases cited.)” (Emphasis added.)

Holland, 540 P.2d at 550-551, citing Heinatz v. Allen (Tex. 1949), 217 S.W.2d 994. The court went on to declare:

In the case at bar, the limestone being quarried was a general part of the soil and subsoil. That limestone had no peculiar property so as to be rare and exceptional in character. It was not an exceptional substance and is comparable to sand and gravel. The quarry operation destroyed the surface for its normal uses, such as cattle grazing. The limestone was not included in the reserved mineral right. To hold otherwise would negate much of the substance of the transaction with the Wards and their subsequent real estate trade with Dolese. ... It would destroy the general intent of enjoyment of the surface. The limestone is not part of the minerals, under the reserved mineral rights in the deeds here involved.

Holland, 540 P.2d at 551-552. Finally Miller also cited the above language from Heinatz, concluding that the appellees should have been granted the title to the gravel in, on and under the surface of the land at issue because the court held that “gravel” was not a mineral, and therefore had not been reserved. Miller, 757 P.2d at 1004.

The above precedent leads us to conclude that for the purpose of determining to which party payments should be made by Western, scoria is not a mineral. The District Court stated that scoria is used in road construction. Moreover, the appellant agrees that scoria is used to construct roadways. Booth appended a letter, dated August 19, 1993, to its supplemental brief of September 14, 1993, before the District Court from Contract Analyst Carol Matter of Western Energy Company, which stated:

We have found that the term “Scoria” is a local term used to refer to the baked roof rock (which is shale, sandstone and clay) that results when the coal outcropping burns. According to Walter T. Huang, author of the text Petrology, the technical definition of Scoria is “a term applied to basaltic lava, in which the gas vesicles are numerous and irregular in shape.” The local term “Scoria” may háve evolved due to the rock’s reddish brown coloring often identified with basaltic rock.

The use of scoria in constructing roadways does not elevate scoria to the status of a compound which is “rare and exceptional in character” and therefore, a “mineral.” Holland, 540 P.2d at 550-551. The appellants did make one argument that scoria had special properties which made it rare and exceptional. Appellants argued that an alternative use for scoria was in the manufacture of “mineral wool.” Appellants contend that this use makes scoria more valuable than ordinary sand and gravel, which is used primarily for building and construction. However, this argument was raised for the first time on appeal and will not, therefore be addressed by this Court. Goodover v. Lindey’s Inc. (1992), 255 Mont. 430, 441, 843 P.2d 765, 772.

Therefore, the only evidence presented to the District Court and considered by this Court is to the effect that local “scoria” is baked roof rock, composed of shale, sandstone and clay, and is used in road construction. “Such substances, when they are useful only for building and road-making purposes, are not regarded as minerals in the ordinary and generally accepted meaning of the word.” Holland, 540 P.2d at 550-551. We agree and hold that the District Court did not err in determining that scoria, for the purposes of the present action, is not a mineral.

Because scoria is not a mineral for the purpose of the present action, the rights to the scoria benefits were not reserved in the mineral reservations in the leases. The scoria lease, and its resultant proceeds, passed with the land at its ultimate transfer to Booth. Booth, therefore, is entitled to the entire scoria lease proceeds. The District Court did not err in concluding that “[n]o specific reservation having been made, the rights to the scoria rock passed with the surface and the royalty payments with respect to the scoria lease passed to the Booth Brothers.”

II.

Is Farley entitled to the compensation payable by Western for the use of the surface?

Farley argues that the payments made by Western under the leases at issue are “royalty interests” and as such, are the personal property of Farley and did not pass to Booth upon its (Booth’s) purchase of the surface rights to the lands in contention. Booth contends that the payments are akin to rent and are appurtenant to the land. Therefore, Booth asserts, the right to the payments passed to Booth because it was not specifically reserved by Farley in Farley’s quitclaim or warranty deeds. In the quitclaim from Farley to Armells Land Company, however, Farley did specifically reserve one-half of all mineral interests. We agree with Booth that the payments made by Western, whether termed royalties or rents, are appurtenant to the land and passed to Booth upon conveyance of the surface interest in the lands at issue. We also agree that Farley did specifically reserve one-half of all mineral interests in the Armells quitclaim and Farley is entitled to payments from that specific reservation.

In addressing the question of who should receive the rights to Western’s payments, the District Court stated:

Surface rights, because they are part and parcel of what most people understand as land ownership, should, as a matter of public policy, automatically pass, unless expressly excepted or reserved. While this case does not involve oil and gas royalties, Williams and

Meyers, Oil and Gas Law, at § 213.8, at 155-157, by analogy, supports the District Court’s finding that the surface rights should pass to Booth and provides:

Classification of an interest in oil and gas as realty or personalty has been considered significant when the issue in controversy is whether such interest passes by a conveyance, devise, or mortgage of “real estate.” Thus, after the execution of a lease in which the lessor retains a royalty interest, when he conveys or mortgages the land without express mention of the reserved royalty interest under the lease, it may be contended that the royalty interest is not covered by the deed or mortgage. It is our view that the classification of the royally interest as realty or as personalty is properly of no significance in this context; the question is simply whether the royalty interest, even though it may be viewed as personalty in the particular state, is viewed as appurtenant to the land.

Two ALR articles lend further support to the District Court’s conclusion that the Western payments are appurtenant to the sale of the surface. These articles state:

The cases clearly establish that the rights of a grantor, provided for under an existing lease, in royalty unaccrued, that is, royalty not due, at the time of a conveyance of the land, pass to the grantee. It likewise seems clear that a mortgage of the land will, at least upon divestiture of the mortgagor’s general title by foreclosure, divest him of title to royalties unaccrued at that time. ...”
94 A.L.R. 660. Additionally,
The later cases agree that a sale or mortgage of land which is subject to an oil and gas lease includes unaccrued royalty where the same is not specially reserved and is not excluded by a prior assignment....
Clearly a covenant to pay royalty is one which “touches and concerns” the land, and so may well be regarded as running with the land and carrying unaccrued benefits to the purchaser of the land. In this respect royalty may be likened to rent.... The doctrine is well settled that rent to accrue is incident to, and accompanies, the reversion, unless severed by express reservation. ... (Citation omitted.) (Emphasis added.)

140 A.L.R. 1280, 1280. The issue in State v. Royal Mineral Ass’n (Minn. 1916), 156 N.W. 128, was whether payments made under certain mining leases were “credits” and as such taxable as personal property. The Royal Mineral court held that the amount payable by the lessee under the leases, “a royalty of twenty-five cents per ton upon all ore mined ...,” was rent. Royal Mineral, 156 N.W. at 129. They were “the compensation which the occupier pays the landlord for that species of occupation which the contract between them allows.” Royal Mineral, 156 N.W. at 129. (Citation omitted.) Further,

“[u]naccrued rents are not personal property. They are incorporeal hereditaments. They are an incident to the reversion and follow the land. They pass with a sale or devise of the land ... For what is the land but the profits thereof? (Citations omitted.)

Royal Mineral, 156 N.W. at 129-130. What, indeed is the land but the profits thereof? It makes little sense for Booth to purchase the surface rights to the lands at issue, and not receive compensation for the destruction of that surface or the benefits of the ownership of the surface. We conclude that the right to the payments for the surface area destruction passed to Booth upon his purchase of the lands at issue. However, because Farley specifically reserved one-half of all mineral interests in the Farley-Armells quitclaim, it is entitled to one-half of the payments for the mining occurring on those parcels of land flowing from the interest retained as described in the Farley-Armells quit claim deed. We hold that the payments by Western for the use of the surface land should be made to Booth, the owner of the surface lands at issue.

AFFIRMED.

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


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MELVIN JOHN-THOMAS BLANCHARD, Defendant and Appellant.
    No. 94-170.
    Submitted on Briefs December 1, 1994.
    Decided February 14, 1995.
    52 St.Rep. 54.
    270 Mont. 11.
    889 P.2d 1180.

      For Appellant: Brian P. Fay, Attorney at Law, Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Micheál S. Wellenstein, Assistant Attorney General, Helena; Mike Salvagni, Gallatin County Attorney, Gary Balaz, Deputy Gallatin County Attorney, Bozeman.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant Melvin Blanchard appeals the sentence imposed by the Eighteenth Judicial District Court, Gallatin County, ordering him to make restitution to the victims of the thefts and burglaries to which he admitted but was not charged or convicted. We affirm.

The issue on appeal is whether the District Court erred by ordering Blanchard to make restitution for offenses to which he admitted but was never charged or convicted as a condition of deferred imposition of sentence.

On May 10, 1993, the State obtained leave to file an information charging Blanchard with four counts of felony theft, three counts of burglary, and one count of misdemeanor theft. Blanchard appeared on May 13, 1993, and pled not guilty to the charges. In November 1993, Blanchard’s attorney arranged a plea bargain with the State and sent a letter to the prosecuting attorney which stated in pertinent part:

Pursuant to our telephone conversation of November 9, 1993 I hereby propose the following plea agreement:
5. That the Defendant will make restitution;
7. That the Defendant cooperate with the Bozeman City Police Department with respect to all thefts and burglaries of which he has knowledge. ...
8. That the State will provide the Defendant with transactional immunity for all testimony given with regards to other thefts and burglaries of which he has knowledge;
9. That both parties will recommend that the Court order a long form Pre-Sentence Investigation. ...

Hearing on the proposed plea agreement was held on November 16,1993. The letter from Blanchard’s attorney was admitted into evidence. Pursuant to the plea agreement, the State moved for and was granted leave to amend the information. The amended information charged Blanchard with four counts of burglary, six counts of felony theft, and one count of misdemeanor theft.

The District Court questioned Blanchard regarding the plea agreement. Blanchard stated that he approved of the agreement, that he understood that the court had no obligation to accept the agreement, and that he understood that the court could sentence him to the maximum penalty for each count. Blanchard then pled guilty to each of the eleven counts in the amended information. The court accepted his guilty pleas and reserved ruling on the plea agreement until sentencing. The court ordered the preparation of a presentence investigation report and permitted Blanchard to remain free on bail until the time of sentencing.

Probation and Parole Officer Bernie Driscoll prepared the presentence investigation report. With respect to restitution, the report provided as follows:

Counts I, II, III and IV: Team Bozeman (Burglaries and Thefts)
Restitution requested in the amount of $2491.62
Counts V and VI: Hohby Town Raceway (Burglary and Theft)
Cash in the amount of $ 113.76
Count VII: Theft of Motorcycle Cover
Recovered - no restitution being requested by [the victim]. ... $ -0-
Count VIII: Theft of Cellular Phone
Recovered $-0-
Counts IX and X: Office Stop (Burglary and Theft)
Amount requested $1,415.00
Count XI: Toy Shop (Theft)
Property recovered $ -0-
Counts I - XI Total $4,020.38
Information provided to the Bozeman Police Department regarding restitution owed for offenses that defendant has admitted to, but has not formally been charged, is as follows:
Hobby Town Raceway (Burglary) $100.00
Klip Joint (Burglary) 286.50
Checker Auto -0-
Silk Reflections (Burglary) 697.00
Video Hardware (Burglary) 500.00
Legendary Sounds 4.105.20
Uncharged Crimes Total $5,688.70

Driscoll recommended that Blanchard serve six months in county jail and receive a six year deferred sentence “with the conditions provided for in the plea agreement....”

The sentencing hearing took place on February 8, 1994. Blanchard’s aunt and girlfriend testified on his behalf, and letters from Blanchard’s bail bondsman and employer were introduced into evidence. The prosecuting attorney recommended that Blanchard receive concurrent sentences and be required to make restitution according to the tabulation in the presentence investigation report. The prosecuting attorney stated:

And according to our plea agreement, the restitution includes not only the crimes charged and pled guilty to, but some other ones that the police thought he did, and that he did come in later and admit that he did.

The prosecuting attorney explained that the police department had suspected Blanchard of committing other crimes in the Bozeman area. Blanchard subsequently admitted to Sergeant Tymrack that he had committed the uncharged crimes set forth in the presentence investigation report, and, pursuant to the plea agreement, the prosecuting attorney told Blanchard that “he would have transactional immunity for any evidence that he gave with regard to his commission of [the uncharged] burglaries and thefts.”

Blanchard’s attorney also requested that the District Court adopt the provisions of the plea agreement and that the court impose a deferred imposition of sentence. Blanchard’s attorney stated with regard to restitution:

I want to address one thing very briefly, that’s the restitution that’s involved. And I don’t want the Court to get the impression that Mr. Blanchard is trying to get out of something that he’s responsible for, but the restitution that he would be responsible for on the crimes that he is not charged with but admitted to I believe poses somewhat of a legal dilemma, in that the state has offered transactional immunity, and I don’t — I’ll leave that to your discretion, Judge, as to what you want to do with that.

The District Court sentenced Blanchard, imposing a concurrent six year deferred imposition of sentence on all felony counts, a six month deferred imposition of sentence on the misdemeanor counts, and conditions of deferment. As one of the conditions of deferment, the court ordered Blanchard to pay restitution in the amount of $9709. Blanchard appeals.

Did the District Court err by ordering Blanchard to make restitution for the offenses to which he admitted but was never charged or convicted as a condition of deferred imposition of sentence?

“We review sentences for legality only and will not disturb a District Court’s sentencing decision absent a showing that the District Court abused its discretion.” State v. Hurlbert (1988), 232 Mont. 115, 123, 756 P.2d 1110, 1115.

Section 46-18-201, MCA, provides in part:

(l)Whenever a person has been found guilty of an offense upon a verdict or a plea of guilty, the court may:
(a) defer imposition of sentence .... The sentencing judge may impose upon the defendant any reasonable restrictions or conditions during the period of the deferred imposition. Reasonable restrictions may include:
(iv) restitution;
(xii) any other reasonable conditions considered necessary for rehabilitation or for the protection of society; or
(xiii) any combination of the above.

Section 46-18-241(1), MCA, further provides:

Condition of restitution. (1) As provided in 46-18-201, a sentencing court may require an offender to make restitution to any victim of the offense.

Blanchard argues that an “offender,” as that word is used in § 46-18-241(1), MCA, is a person who has been convicted of or who has pled guilty to an offense, and that unless a person pleads guilty to or is convicted of an offense, restitution cannot be ordered for that offense. In support of his contention, Blanchard points to §§ 46-18-101(3)(a), -104(3), -404, and -501, MCA, which use the word “offender” to refer to a person who has entered a guilty plea or who has been convicted of a crime.

The State argues that the plea agreement alone controls the amount of restitution ordered. According to the State, Blanchard agreed to make restitution both for the crimes to which he pled guilty and the crimes to which he admitted but was not charged. By doing so, he waived his right to challenge the amount of restitution ordered. According to the State, Blanchard did not object at the time of sentencing to the amount of restitution ordered, nor did he argue that the amount ordered differed from the amount agreed upon in the plea agreement. Instead, his attorney specifically stated with regard to restitution: “I’ll leave that to your discretion, Judge, as to what you want to do with that.”

We determine that the District Court did not err in ordering Blanchard to make restitution.

While this is a question of first impression in Montana, a number of other jurisdictions have addressed the issue and have held that an accused is liable for restitution for offenses to which the accused (1) has admitted, (2) has been found guilty, or (3) has agreed to pay restitution. Buffington v. State (Nev. 1994), 868 P.2d 643, 645 (reaffirming Erickson v. State (Nev. 1991), 821 P.2d 1042, 1043); State v. French (Ariz. Ct. App. 1990), 801 P.2d 482, 483; State v. Madril (N.M. Ct. App. 1987), 733 P.2d 365, 367; see State v. Voetberg (Or. 1989), 781 P.2d 387, 388 (if a defendant is not convicted, restitution is authorized only if he admits the criminal conduct for which restitution is sought); Kimbrell v. State (Alaska App. 1983), 666 P.2d 454, 455 (it is permissible in sentencing defendant on one charge to impose restitution for separate dismissed charge if amount is certain, he admits to responsibility, and he consents to make restitution); State v. Gerard (1973), 57 Wis.2d 611, 205 N.W.2d 374, 378-80, app. dismissed (1973), 414 U.S. 804, 94 S.Ct. 148, 38 L.Ed.2d 40 (court did not deny defendant’s due process rights when requiring as a condition of probation, to which the defendant agreed, that he make restitution for crimes he was not charged with but which were “read in” to the record pursuant to agreement that he not be prosecuted for them); see also State v. Kennedy (Minn. 1987), 327 N.W.2d 3, 4-5 (court upheld condition of restitution where record showed that parties contemplated that restitution would be based on losses of all victims not merely those named in counts to which defendant pled guilty); People v. Quinonez (Colo. 1987), 735 P.2d 159, 163-64 (where defendant agrees to make restitution at time of entering plea, lie cannot later disavow agreement on basis that no showing was made that he caused victim’s injury); Killough v. State (Ala. 1983), 434 So.2d 852, 853, cert. denied (1983), 464 U.S. 1008, 104 S.Ct. 525, 78 L.Ed.2d 708, (defendant can be ordered to pay restitution in excess of amount stated in indictment if he made such agreement as part of plea bargain).

The plea agreement stated “[t]hat the Defendant will make restitution ....” While the plea agreement does not indicate for which burglaries and thefts restitution would be paid, the presentence investigation report clearly set forth the amount of restitution owed for eleven charged offenses and six uncharged offenses to which Blanchard admitted. At the sentencing hearing, the prosecutor stated that the plea agreement required restitution for the uncharged offenses to which Blanchard admitted. Blanchard did not object to or challenge the prosecutor’s statement. Similarly, Blanchard did not object to or challenge the inclusion of the uncharged offenses in the presentence investigation report. Blanchard clearly was aware of the contents of the report, and requested that the district court adopt the report’s recommendation of a deferred imposition of sentence. Blanchard’s attorney stated at the sentencing hearing:

I don’t want the Court to get the impression that Mr. Blanchard is trying to get out of something that he’s responsible for, but the restitution that he would be responsible for on the crimes that he is not charged with but admitted to I believe poses somewhat of a legal dilemma....

Blanchard clearly did not deny responsibility for the uncharged offenses; instead, defense counsel merely informed the court that he believed “a legal dilemma” existed. It is, therefore, undisputed that Blanchard admitted that he committed the uncharged offenses.

The ‘legal dilemma” posed by defense counsel is resolved by § 46-18-201(l)(a)(xii), MCA, which allows the district court to impose any reasonable, rehabilitative conditions upon a deferred imposition of sentence. In Dahlman v. District Court, Seventeenth Judicial District (1985), 215 Mont. 470, 473, 698 P.2d 423, 425, we upheld the district court’s order requiring the defendant, as a condition of sentence, to reimburse the medical expenses that he incurred while in jail. We determined that the condition fell under § 46-18-201(l)(a)(ix), MCA (1981), now codified at § 46-18-201(l)(a)(xii), MCA. We stated that “[t]he imposition of this condition on defendant was reasonable for rehabilitation purposes ....” Similarly, in State v. Shaver (1988), 233 Mont. 438, 448-50, 760 P.2d 1230, 1236-37, we upheld the district court’s condition of sentence requiring the defendant to pay child support. The defendant in Shaver claimed that he was not given notice or opportunity to be heard on the issue of child support. We noted that the defendant had been served with the presentence investigation report which set forth his child support payment problems and prior misdemeanor nonsupport charges and convictions. While the issue of child support was unrelated to the crime charged, we determined that the district court properly imposed the condition “for rehabilitative and restitution purposes.” Shaver, 760 P.2d at 1237.

During the sentencing hearing in the instant case, the court stated its reasons for deferring imposition of sentence:

The wisdom of the law is that these events, such as you have been involved in, do happen. If they happen and are perpetrated by a young person who is salvageable and redeemable, then we are to look everywhere outside the prison system itself to find a way to get to you to redeem yourself and to get you to correct the behavior that brought you before the Court. And it is primarily for that reason that I’m not going to sentence you to prison in this case. You certainly have slid by by a gnat’s eyelash.
Next, I was particularly motivated in this case by ... your coach in high school and one of your teachers. And he feels that you are redeemable ....

The repeated use of the words “redeem” and “redeemable” and the specific statement about correcting certain behavior evidences the District Court’s intent to rehabilitate the defendant outside of the prison system. We determine that the order requiring Blanchard to pay $9709 serves both rehabilitative and restitution purposes. See Shaver, 760 P.2d at 1237.

We hold that the District Court did not err in ordering Blanchard to make restitution for the uncharged offenses because he admitted committing the burglaries and thefts for which he received transactional immunity, because the record provides evidence that his admission was true, and because the conditions imposed by the District Court serve a rehabilitative purpose.

Affirmed.

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


author: JUSTICE HUNT JUSTICE WEBER

text:
    BRUCE GALBREATH, Plaintiff and Appellant, v. GOLDEN SUNLIGHT MINES, INC., PLACER DOME U.S., INC., and COMPENSATION ADJUSTERS, Defendants and Respondents.
    No. 93-371.
    Submitted on Briefs January 12, 1995.
    Decided February 15, 1995.
    52 St.Rep. 58.
    270 Mont. 19.
    890 P.2d 382.

      For Appellant: ErikB. Thueson and John A. Kutzman, Thueson and Lamb, Helena; Michael Cotter, Cotter & Cotter, Great Falls.
    For Respondent: Donald C. Rohinson, Poore, Roth & Robinson, Butte.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Bruce Galbreath appeals from a jury verdict and judgment of the Second Judicial District Court, Silver Bow County, finding that: (1) appellant failed to prove that respondent Golden Sunlight Mine, Inc. (GSM), discharged appellant for filing a workers’ compensation claim; (2) appellant failed to prove that respondent Compensation Adjusters violated their obligations to appellant during the adjustment of his workers’ compensation claim; and (3) appellant failed to prove that he was terminated without good cause.

We reverse and remand to the District Court for further proceedings.

While appellant raises several issues on appeal, the following issue is dispositive of the case:

Did the District Court err in allowing evidence that appellant was discharged for reasons other than the one set forth in the discharge letter?

Respondent Golden Sunlight Mines, Inc., employed appellant Bruce Galbreath as an instrument technician from 1982 until GSM terminated his employment on September 7, 1989. Following the on-the-job death of co-worker, Terry Olind, in 1987, appellant and co-workers, Joe Robertson and Denis Shaw, pressured GSM to address a variety of alleged work place safety violations. GSM terminated the employment of Robertson and Shaw at different times in 1988.

On May 22, 1989, appellant injured his left knee at work after stepping on a ball bearing while climbing down a ladder. Appellant returned to work the next day after Dr. Reiff of Whitehall examined his knee. On May 31, 1989, co-worker Mike Gallagher found appellant lying head down on a stairwell with his legs protruding through the opening between the top two stairs. There were no witnesses to the accident which, according to appellant, occurred after his previously injured left knee buckled, causing him to fall. GSM’s Quick Response Team, accompanied by safety supervisor Ron Dorvall, took appellant to Dr. Reiff, who discovered a bump on appellant’s head, and diagnosed a tender neck and an abnormal curvature of the cervical spine. After appellant became disoriented and his pupils began to dilate, Dr. Reiff referred appellant to St. James Community Hospital where he was examined by Dr. Pius Baggenstos, a neurosurgeon. Dr. Baggenstos diagnosed a lump on appellant’s head, an acute cervical sprain, and injury to appellant’s left knee. Appellant lost consciousness during the examination.

From the date of the accident on May 31,1989, appellant received his full salary under GSM’s short-term disability policy which provided for full pay up to four months for bona fide medical absences. Under that policy, GSM reserved the right to request verification of medical absences. GSM informed appellant that during short-term disability there was no light-duty work requirement. During appellant’s absence from the mine, he worked regular shifts at a restaurant he and his wife had recently purchased. On August 23, 1989, Compensation Adjusters recommended accepting liability for appellant’s May 31, 1989, accident.

On August 4,1989, Dr. Humberger performed arthroscopic surgery on appellant’s injured left knee to remove debris. On August 28,1989, appellant reported to work for the first time since May 31,1989, with a release to return to work from Dr. Reiff. Later that day, GSM’s Maintenance Superintendent, Paul Dale, delivered a letter to appellant explaining that before appellant could return to work, he was required to submit unconditional work releases from Dr. Reiff, Dr. Humberger, and the Ridgeview Clinic, along with a verified letter from each of the above explaining appellant’s absence from work from May 31,1989, through August 28, 1989.

In an effort to comply with Dale’s request, appellant returned to work on several occasions and presented Dale with a variety of medical documentation. On each of those occasions, Dale rejected appellant’s medical documentation and denied appellant’s request to return to work. Appellant was discharged on September 8, 1989, for failing to provide specific documentation explaining his absence from work from May 31, 1989, through August 28,1989.

On May 23, 1990, appellant filed a complaint alleging: (1) that he had been terminated without good cause under Montana’s Wrongful Discharge from Employment Act, § 39-2-901, MCA; (2) that his termination violated § 39-71-317, MCA, which prohibits employers from terminating workers for filing workers’ compensation claims and reqtdres employers to give job preference to employees returning to work after an industrial accident; (3) that his termination and its relationship to his workers’ compensation claim violated Montana’s Unfair Trade Practices Act, § 33-18-201, MCA; and (4) that all of the defendants acted fraudulently, oppressively, and maliciously in violation of Montana’s Punitive Damages Act, § 27-1-221, MCA.

The jury returned a special verdict finding that appellant was not terminated for filing a workers’ compensation claim; that Compensation Adjusters did not violate Montana’s Unfair Trade Practices Act; and that appellant was terminated for good cause. The District Court entered judgment for respondents on all of appellant’s claims. Thereafter, the District Court denied appellant’s motion for a new trial and a judgment n.o.v. Appellant appeals.

Did the District Court err in allowing evidence that appellant was discharged for reasons other than the one set forth in the discharge letter?

We review evidentiary rulings by the district court to determine whether the district court abused its discretion. State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380; State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054. The district court has broad discretion to determine whether evidence is relevant and admissible, and absent a showing of abuse of discretion, the trial court’s determination will not be overturned. Passama, 863 P.2d at 380; Crist, 833 P.2d at 1054.

GSM discharged appellant for failure to provide specific documentation explaining his absence from work from May 31, 1989, through August 28, 1989. Paul Dale, appellant’s supervisor and author of the discharge letter, testified that appellant was terminated solely for the reason set forth in the discharge letter.

Following Compensation Adjuster’s recommendation, GSM accepted liability for appellant’s May 31,1989, accident. Prior to opening arguments, the court expressed concern in chambers over the fact that although GSM had accepted liability for appellant’s injuries prior to trial, they intended to show that appellant’s May 31, 1989, accident was staged. As a result, the court narrowed the scope of inquiry about the accident to physical facts surrounding the accident. The court ordered that expert testimony or opinion testimony about the accident would be excluded.

Despite its order, the court allowed speculative testimony suggesting that appellant’s May 31,1989, accident was staged. The court also allowed GSM to present evidence suggesting that appellant was discharged for reasons other than the sole reason set forth in the discharge letter. For example, the court allowed testimony that appellant had been boating shortly after the May 31,1989, accident; that appellant appeared to be working full-time at his restaurant during his absence from work; and that appellant’s injury was not severe enough to prevent him from working at GSM.

GSM argues that this speculative evidence was offered to demonstrate why Dale requested medical verification, rather than to suggest additional reasons for appellant’s discharge. The issue, however, was not why GSM requested medical verification, but whether appellant’s discharge was wrongful, given the medical verification appellant provided to GSM.

In Swanson v. St. John’s Lutheran Hospital (1979), 182 Mont. 414, 597 P.2d 702, we concluded that in a wrongful discharge action the only reason for discharge the district court could consider was the reason set forth in the discharge letter. Reasons other than the reason stated in the discharge letter were irrelevant and excluded from evidence. Swanson, 597 P.2d at 704. By allowing the above testimony in the present case to go to the jury, the court, in effect, permitted the jury to decide whether the discharge was wrongful based on reasons other than, or in addition to, the sole reason stated in the discharge letter. Any collateral reasons suggested by the evidence, other than the sole reason stated in the discharge letter, were irrelevant, and therefore, inadmissible. Rule 402, M.R.Evid.; Swanson, 597 P.2d at 704.

We hold that the District Court erred in allowing GSM to offer evidence suggesting that appellant was discharged for reasons other than the reason set forth in his discharge letter.

Reversed and remanded for further proceedings on the single issue of whether appellant was discharged for the reason set forth in his discharge letter.

JUSTICES GRAY, TRIEWEILER, LEAPHART and NELSON concur.

JUSTICE WEBER

dissents as follows:

The majority opinion concludes that the District Court improperly allowed evidence which suggested that the appellant was discharged for reasons other than those set forth in the discharge letter to him. The foundation for this holding is Swanson v. St. John’s Lutheran Hospital (1979), 182 Mont. 414, 597 P.2d 702. It is true that in Swanson this Court concluded that the only reason for discharge which the District Court could consider was the reason set forth in the discharge letter and that reasons other than those stated in the discharge letter were irrelevant. However, I contend that Swanson is not appropriate authority for our case.

The distinction from the present case is that in Swanson the employee had demanded a letter stating the reasons for her discharge and such a letter had been written and delivered to her. Swanson specifically applied § 39-2-801, MCA (1979), which states:

Employee to be furnished on demand with reason for discharge. It is the duty of any person after having discharged any employee from his service, upon demand by such discharged employee, to furnish him in writing a full, succinct, and complete statement of the reason of his discharge and if such person refuses so to do within a reasonable time after such demand, it is unlawful thereafter for such person to furnish any statement of the reason of such discharge to any person or in any way to blacklist or to prevent such discharged person from procuring employment elsewhere ... (Emphasis supplied.)

In considering the foregoing statute, Swanson stated:

Under § 41-1311, RCM 1947, now § 39-2-801, MCA, upon such demand, the employer must furnish to the discharged employee a “full, succinct, and complete reason of discharge.” The letter of August 23,1977, was the employer’s compliance with that statute. ... Where, as in Montana, the purpose of the statute is to prevent “blacklisting”, it is our duty to interpret former § 41-1311 requiring a “full, succinct, and complete” statement to mean exactly what it says. Therefore, in the case at bar, the only reason which could be considered by the District Court was the reason set forth in the letter of August 23, 1977, ... (Emphasis supplied.)

Swanson, 182 Mont. at 422, 597 P.2d at 706. In the present case, there was no request or demand on the part of the appellant for a statement of the reasons for his discharge. As a result § 39-2-801, MCA, is not applicable. The only request was made by Golden Sunlight Mines (GSM) when it requested appellant to furnish specific medical documentation explaining his absence from work for a period of several months. When he failed to furnish such additional medical documentation, he was given his letter of termination which in pertinent part stated:

You have been asked to provide specific documentation explaining your absence from work from May 31 to August 28, 1989. We do not have documentation substantiating this absence and we have reason to believe that not all of this period was attributable to illness or injury. Since you have been unable to furnish this documentation in a reasonable period, August 25 to September 7, 1989, and given your statement on September 7 that you will not supply any further information, we cannot allow you to return to work. This being the case, we have no option but to terminate your employment effective September 8, 1989.

I conclude that § 39-2-801, MCA, is not applicable in the present case and as a result Swanson is not authority for the conclusion reached in the majority opinion. The letter given in the present case is not in any way comparable to the letter in Swanson which is required under the code sections pertaining to blacklisting and protection of discharged employees. The majority opinion has provided no appropriate legal support for its determination that the court abused its discretion by permitting testimony of other possible reasons for the discharge.

I therefore dissent from the majority opinion.

CHIEF JUSTICE TURNAGE joins in the foregoing dissent.


text:
    WAYNE THOMAS WAGNER, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent.
    No. 94-199.
    Submitted on Briefs November 17, 1994.
    Decided February 15, 1995.
    52 St.Rep. 61.
    270 Mont. 26.
    889 P.2d 1189.

      For Appellant: Wayne Thomas Wagner, Littleton, Colorado (pro se)
    For Respondent: Scott B. Spencer, Lincoln County Attorney, Libby; Hon. Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena;
   JUSTICE NELSON

delivered the Opinion of the Court.

Appellant, Wayne Thomas Wagner, filed a petition for post-conviction relief in the Nineteenth Judicial District Court, Lincoln County. Wagner appeals from the District Court’s dismissal of his petition. We affirm.

The issue on appeal is whether the District Court erred in dismissing Wagner’s petition for post-conviction relief.

On August 17, 1988, United States Forest Service officials were conducting a surveillance of property which was being used for the cultivation of marijuana. As the United States Forest Service officials were observing the property, Wagner drove towards the marijuana field on a motorcycle, carrying a duffle bag. After following him to an illegal camp on forest service property, the officials approached Wagner who immediately fled from the camp. Wagner left behind a duffle bag and two baggies containing marijuana.

The camp was searched pursuant to a search warrant, further evidence was seized, and the Lincoln County Justice Court issued an arrest warrant for Wagner. Wagner was served with the arrest warrant on August 26, 1988. On September 6, 1988, Wagner pled guilty to the charge of criminal possession with intent to sell. Wagner was sentenced on September 29, 1988.

On September 27,1993, Wagner filed a petition for post-conviction relief with the District Court, alleging that the District Court lacked subject matter jurisdiction over the criminal possession charge and that his trial counsel had been ineffective for failing to raise the jurisdiction defense. After considering the parties’briefs, the District Court issued an order dismissing the petition on April 7, 1994, for failure to state a claim for relief. Wagner appeals from this order.

STANDARD OF REVIEW

The facts underlying Wagner’s conviction and petition for post-conviction relief are not in dispute. Rather, Wagner argues the District Court erred in its legal conclusion when it determined that the State had subject matter jurisdiction. In reviewing a district court’s denial of post-conviction relief, we will not overturn the court’s legal conclusions if the tribunal’s interpretation of the law is correct. Eiler v. State (1992), 254 Mont. 39, 42, 833 P.2d 1124, 1126.

DISCUSSION

Wagner argues that the State lacked jurisdiction to prosecute the offense committed within the boundaries of the Kootenai National Forest. Wagner contends that the United States government has exclusive jurisdiction over the Kootenai National Forest absent consent or cession of jurisdiction to the State of Montana.

To determine whether the District Court was correct in concluding that the State court has jurisdiction within the Kootenai National Forest, we must examine the federal government’s power under the Property Clause of the United States Constitution, Article IV, Section 3, clause 2. The Property Clause provides that “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States ...”

In Kleppe v. New Mexico (1976), 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34, the United States Supreme Court addressed the federal government’s jurisdictional power under the Property Clause. The Court observed that states are free to enforce their criminal and civil laws on federal land so long as these laws do not conflict with federal legislation passed pursuant to the Property Clause. The United States Supreme Court stated:

Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause. And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause. U.S. Const., Art. VI, cl. 2. (Citations omitted.)

Kleppe 426 U.S. at 543, 96 S.Ct. at 2293, 49 L.Ed.2d at 45.

In California Coastal Com’n v. Granite Rock Co. (1987), 480 U.S. 572, 582, 107 S.Ct. 1419, 1425, 94 L.Ed.2d 577, 591, the United States Supreme Court reaffirmed its holding in Kleppe that the states may exercise criminal and civil jurisdiction on federal lands so long as the laws do not conflict with federal law. The United States Supreme Court added, “[t]he Property Clause itself does not automatically conflict with all state regulation of federal land.” California Coastal Com’n, 480 U.S. at 582, 107 S.Ct. at 1425, 94 L.Ed.2d at 591.

Accordingly, we must address two questions: (1) whether the State of Montana consented or ceded exclusive jurisdiction to the United States over lands within the Kootenai National Forest; and (2) whether the federal government has enacted legislation which has pre-empted state law regarding drug related crimes occurring on national forests.

The federal government can acquire exclusive jurisdiction over state land in any one of three ways: (1) excepting the place from the jurisdiction of the state upon the state’s admission into the Union; (2) by a cession of jurisdiction to the United States by a state after statehood; or (3) by federal purchase of land with state consent, pursuant to Article I, Section 8, clause 17 of the United States Constitution. Fort Leavenworth R.R. Co. v. Lowe (1885), 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264; State v. Cline (Okl.Cr. 1958), 322 P.2d 208, 212; State v. Vaughn (Ariz.App. 1989), 786 P.2d 1051, 1054.

The Organic Act of the Territory of Montana, 13 Stat. 85, established a temporary government for the territory of Montana. While the Organic Act excepted certain Indian lands from territorial jurisdiction, no special jurisdictional provision was made for public lands within the territory. In 1889, the Enabling Act provided for the establishment of the State of Montana. 25 Stat. 676. Section 4, of the Enabling Act disclaimed on behalf of the people of the proposed state “all right and title” to the unappropriated public lands lying within the boundaries of the proposed state. However, the Enabling Act did not consent or cede exclusive jurisdiction to the United States over the public lands.

The President of the United States was empowered to create forest reserves under the provisions of Ch. 561, Sec. 24, 26 Stat. 1103 (repealed by 16 U.S.C.A. § 471 (1976)). President Theodore Roosevelt established the Kootenai National Forest by presidential proclamation issued on August 13, 1906. 34 Stat. 3225. However, the proclamation did not expressly reserve exclusive federal jurisdiction.

The foregoing demonstrates that the Unites States government did not specifically reserve exclusive federal jurisdiction. Finally, we note that pursuant to 16 U.S.C. § 480, the states retain criminal and civil jurisdiction over national forest land. See also, United States v. County of Fresno (1977), 429 U.S. 452, 455, 97 S.Ct. 699, 701, 50 L.Ed.2d 683, 687; United States v. State of California (9th Cir. 1980), 655 F.2d 914, 919.

Next we address whether federal legislation has pre-empted Montana from prosecuting drug crimes on federal lands. Because of the Supremacy Clause of the United States Constitution, Article VI, clause 2, federal legislation necessarily overrides conflicting state laws. Kleppe, 426 U.S. at 543, 96 S.Ct. at 2293, 49 L.Ed.2d at 45. The federal government has passed extensive legislation regarding drug crimes. See e.g., 21 U.S.C. § 801 et. seq., Comprehensive Drug Abuse Prevention and Control Act of 1970; 16 U.S.C. § 559b et. seq., National Forest System Drug Control Act of 1986. However, 21 U.S.C. § 903 expressly provides:

No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.

Section 45-9-103, MCA, governs the offense of criminal possession with the intent to sell. This section in no way conflicts with the statutes concerning drug abuse which are contained in the federal code, including the statute which makes it unlawful for any person to knowingly or intentionally distribute or possess a controlled substance with the intent to distribute. 21 U.S.C. § 841. Therefore, concurrent viability of both statutes is possible. Accordingly, we conclude that the federal legislation has not pre-empted Montana’s jurisdiction in this case.

Finally, we note that other courts which have examined this issue have found state courts retain criminal jurisdiction over offenses committed on national forest property. See e.g., Hankins v. State (Mo.App. 1989), 766 S.W.2d 467 (Missouri Court of Appeals had jurisdiction over homicide occurring in Mark Twain National Forest). In a case factually similar, the Arizona Court of Appeals concluded that the state court had jurisdiction over drug violations occurring in the Tonto National Forest. State v. Quick (Ariz.App. 1991), 806 P.2d 907.

In the instant case, the District Court relied on Kleppe, and California Coastal Comm’n, to reach its conclusion that the State of Montana had subject matter jurisdiction under the facts and circumstances presented here. Accordingly, the court concluded that Wagner’s counsel was not ineffective for failing to raise the claim of lack of subject matter jurisdiction. We agree. We hold that the District Court’s interpretation of the law was correct, and that it properly dismissed Wagner’s petition for post-conviction relief.

AFFIRMED.

JUSTICES GRAY, HUNT, TRIEWEILER and WEBER concur.