author: JUSTICE HUNT

text:
    WESTFORK CONSTRUCTION COMPANY, Plaintiff and Appellant, v. NELCON, INC., and UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendants and Respondents.
    No. 93-489.
    Submitted on Briefs April 14, 1994.
    Decided June 28, 1994.
    51 St.Rep. 553.
    877 P.2d 481.
    265 Mont. 398.

      For Appellant: James C. Bartlett, Hash, O’Brien & Bartlett, Kalispell.
    For Respondents: Robert J. Phillips, Phillips & Williams, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Subcontractor Westfork Construction Company filed an action in the Fourth Judicial District, Missoula County, for contract damages against contractor Nelcon, Inc., and its bonding company, United States Fidelity and Guaranty (Fidelity). Westfork alleged that it was entitled to damages arising out of its subcontract agreement with Nelcon for Westfork to clear acreage and retain the timber on the acreage, and the subsequent discovery that timber had been removed. Westfork appeals the directed verdict and judgment and attorney fee award entered for Nelcon and Fidelity.

We affirm.

The sole issue on appeal is whether the District Court erred when it granted respondents’ motion for a directed verdict on the basis that the evidence established that appellant received all the payment it was entitled to under the written agreement.

On October 5, 1987, Nelcon entered an agreement with the State of Montana to complete a highway construction project known as Elk Hills-Lyon Springs in Lincoln County, and granting Nelcon the standing timber within the right-of-way. The project required the highway to be straightened and widened. Prior to this agreement, in mid-September 1987, Nelcon inspected the project and found timber to be standing on the site.

Westfork placed a bid for a subcontract with Nelcon to clear and grub the project grounds in preparation for excavation. Westfork’s written bid dated October 2, 1987, offered a price of $1200 per acre on the approximately 70 acre project area, plus the right-of-way timber.

As a result of the bid, Nelcon and Westfork entered into a subcontract dated October 5, 1987, providing for payment of $84,000 for clearing and grubbing the approximately 70 acre area at $1200 per acre. The subcontract did not refer to the timber. However, Nelcon concedes that its representatives agreed that Westfork “could do with the timber” as it “pleased.”

In mid-October 1987, it became known to the State, Nelcon, and Westfork that the timber was owned by Champion International and had been removed from the area. In response to this information, Westfork sent a letter to Nelcon stating that it would complete the job for $1700 per acre due to the absence of timber. Although the letter was received by Nelcon, no response was ever given. Westfork commenced the job and completed the clearing and grubbing.

At about the same time that Westfork sent the letter to Nelcon, Nelcon filed a claim with the State concerning the missing timber. After negotiations, the State offered to settle the issue with Nelcon by paying them $22,359.63 for the missing timber, which included the value of the timber, plus Nelcon’s costs in determining the amount of missing timber in the area. Of the $22,359.63 timber settlement, Nelcon paid Westfork $19,859.63 after retaining $2500 as markup costs.

Westfork filed an action against Nelcon and Fidelity alleging damages due to the modified contract terms wherein Nelcon agreed to pay at the rate of $1700 per acre due to the absence of timber, thus owing Westfork $15,277.47, plus interest. In the alternative, if the contract was found to have not been modified, then Westfork alleged it was entitled to receive damages for the missing right-of-way timber under the subcontract agreement with Nelcon.

A jury trial began February 10, 1993. At the close of Westfork’s case-in-chief, the District Court granted Nelcon’s and Fidelity’s motion for a directed verdict. In granting the directed verdict, the court noted that Westfork did not argue that the agreement should not be enforced because it was unconscionable or fraudulent, and found that the subcontract between Nelcon and Westfork constituted the entire agreement. The court found that Sections 7 and 8 of the subcontract between Nelcon and Westfork specifically provided for the resolution of any changed circumstances or construction claims, and Section 8 specifically provided that Westfork was bound to Nelcon to the same extent that Nelcon was bound to the State whenever any claims or disputes arise out of the performance of the contract. The court also found that the subcontract provided that Nelcon could not be liable to Westfork for its work on the project for any amount greater than the amount recovered from the State by Nelcon, less markup, and that Westfork received all the payments it was entitled to under the subcontract. Judgment was entered on March 22, 1993.

Did the District Court err when it granted respondent’s motion for a directed verdict on the basis that the evidence established that appellant received all the payment entitled to under the written agreement?

When this Court reviews a directed verdict granted pursuant to Rule 50(a), M.R.Civ.R, it looks to see if the evidence leads to only one conclusion. “If only one conclusion is reasonably proper, then the directed verdict is proper.” Semenza v. Leitzke (1988), 232 Mont. 15, 18, 754 P.2d 509, 511 (quoting Cremer v. Cremer Rodeo Land & Livestock Co. (1979), 181 Mont. 87, 92, 592 P.2d 485, 488). A directed verdict is properly granted when the “evidence is so insufficient in fact to be insufficient in law.” Semenza, 754 P.2d at 511 (quoting Parini v. Lanch (1966), 148 Mont. 188, 191, 418 P.2d 861, 863). In our review of a directed verdict for a defendant, we will view the evidence in the light most favorable to the plaintiff, and if the evidence tends to establish the case according to the plaintiff’s pleading, this Court will reverse the district court’s order. Cremer, 592 P.2d at 488.

Both Westfork and Nelcon agree that although there is no written agreement concerning the grant of timber to Westfork, both parties understood that the main contract between Nelcon and the State provided that Nelcon could retain any merchantable timber on the right-of-way, and Nelcon conceded that Westfork “could do with the timber” as it “pleased.” Westfork argues that the parties resolved their dispute concerning the missing timber by modifying the subcontract price from $1200 per acre to $1700 per acre, as evidenced by the letter Westfork sent to Nelcon on October 28, 1987. Westfork also contends that Nelcon representatives were aware that Westfork was performing the job, and therefore, Nelcon impliedly accepted the $1700 modification by its failure to respond. Therefore, Westfork asserts that there was sufficient evidence for the jury to conclude that the parties resolved their dispute concerning the absent timber and agreed that the job would be completed for $1700 per acre.

Nelcon, on the other hand, argues that the written contract was clear and unambiguous and provided all the terms of the agreement between the parties, and that both Westfork and Nelcon are experienced in the area of bidding and contracting construction jobs. Nelcon also argues that there is no evidence in the record that Nelcon executed any acceptance of Westfork’s letter to modify the subcontract price terms.

A written contract may be altered by another written contract or by an executed oral agreement. Section 28-2-1602, MCA. The record reveals that during the trial the District Court did not allow West-fork’s offer of the October 28,1987, letter as evidence that the parties modified their agreement price to $1700 per acre. The court limited the letter’s relevance to show the parties were aware the timber was gone and were negotiating the value of the timber. The court also determined that the letter was evidence of a proposal, not a modification. Westfork does not argue that the court erred when it limited the letter’s relevance, and our search of the record provides no evidence of written acknowledgement or acceptance by Nelcon to Westfork’s proposal.

An oral agreement modifying the written agreement must be fully executed to meet with the provision within § 28-2-1602, MCA. Additionally, an executed oral agreement requires full execution on both sides of the agreement. Kraft v. Hodson (1992), 254 Mont. 262, 264, 836 P.2d 1234, 1236. Here, Nelcon paid Westfork $1200 per acre for the clearing and grubbing completed, the amount specified in the written subcontract — not the alleged modified amount of $1700 per acre. Therefore, the alleged modification amount was not fully executed by both parties.

The District Court found that the subcontract between Nelcon and Westfork provided all the terms of the agreement. The following provision in the agreement provides for disputes concerning changes and extra work:

7A. Contractor [Nelcon] may at any time by written order of Contractor’s authorized representative, and without notice to the Subcontractor’s [Westfork’s] sureties, make changes in, additions to, and deletions from the work to be performed under this Subcontract and Subcontractor shall promptly proceed with the performance of this Subcontract so changed. Any increase or decrease of the Subcontract price or time resulting from such change or extra work shall be agreed upon in writing by the parties hereto and, if mutual agreement is not possible, the questions of entitlement to additional time or to a change in compensation and the amount thereof shall be determined as provided in the Disputes Clause of this Agreement ....

The provision in Section 8 is titled “Disputes” and states in pertinent part:

8A. In the event of any dispute or claim between the Contractor [Nelcon] and the Owner [the State] which directly or indirectly involves the work required to be performed by Subcontractor [Westfork] under this subcontract, or in the event of any dispute or claim between Contractor and Subcontractor which directly or indirectly involves a claim against the Owner for either additional compensation and/or an extension of time under the Contract Documents, Subcontractor agrees to be bound to Contractor and Contractor agrees to be bound to Subcontractor to the same extent that Contractor is bound to the Owner by the terms of the Prime Contract and by any and all procedures and resulting decisions, findings or determinations made thereunder by the person so authorized in the Prime Contract or by an administrative agency, board or court of competent jurisdiction, whether or not Subcontractor is a party to the proceedings before said person, agency, board or court.... It is expressly understood and agreed in connection with the determination of such claims or disputes that as to any work done by the Subcontractor. ... Contractor shall never be liable to Subcontractor to any greater extent than Owner is liable to Contractor, less any markups on costs incurred by Contractor.
8C. In the event either party institutes suit in court against the other party, or against the surety of such party, in connection with any dispute or matter arising under this Subcontract, the prevailing party shall be entitled to recover its attorneys’ fees, in addition to other relief granted by the court. [Emphasis added].

Where the language of the subcontract terms relative to the dispute resolution and recovery limits was plain and its meaning apparent, the trial court had the duty to declare that meaning and not leave it to the speculation of the jury. Section 1-4-101, MCA; Martin v. Community Gas and Oil Co., Inc. (1983), 205 Mont. 394, 399, 668 P.2d 243, 245. Where contract provisions are unambiguous, the courts have no authority to insert provisions in, or delete provisions from, the contract. In re Marriage of McKeon (1992), 252 Mont. 15, 826 P.2d 537. In the interpretation of contracts, each provision within the contract must be given effect. First Security Bank of Anaconda v. Vander Pas (1991), 250 Mont. 148, 818 P.2d 384.

The language of Section 7 was not ambiguous or vague, but provided for any dispute contingency in the work to be done or payments to be made, to be resolved by the procedure in Section 8. Section 8 was not ambiguous or vague, but provided that the parties were bound to each other to the same extent that Nelcon is bound to the State by the prime contract terms, and by all procedures and resulting decisions, findings, or determinations made thereunder, and that Westfork could not recover more from Nelcon than Nelcon could recover from the State. Section 8 also provided that the party who prevails in a court proceeding shall be awarded attorney fees.

Westfork contends that Section 8 does not apply because Nelcon never invoked the claim procedure provided within the subcontract. However, the record shows Nelcon submitted a Notice of Potential Claim to the State and subsequently entered negotiations and resolved the timber dispute. After the State paid Nelcon the $22,359.63 timber settlement, pursuant to the agreement terms, Nelcon paid Westfork $19,859.63 — the entire settlement amount less Nelcon’s markup total of $2500.

We hold that the record supports the District Court’s interpretation of the subcontract and the evidence was legally sufficient to withdraw the case from the jury. The evidence within the record provides only one reasonable conclusion — that the written subcontract provided the terms of the agreement between the parties.

We hold that the District Court properly granted the directed verdict in favor of Nelcon and Fidelity, and properly granted attorney fees.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE HARRISON JUSTICE NELSON JUSTICE TRIEWEILER

license: Public Domain

text:
    ALAN NICHOLSON; JERRY CALVERT; MONTANANS FOR RESPONSIBLE GOVERNMENT, an unincorporated association; MONTANA EDUCATION ASSOCIATION, a Montana corporation; MONTANA FEDERATION OF TEACHERS, a unincorporated association; MONTANA FEDERATION OF STATE EMPLOYEES, an unincorporated association; MONTANA PUBLIC EMPLOYEES ASSOCIATION/EMPLOYEES POLITICAL INFORMATION COMMITTEE, a Montana corporation; AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES/MONTANA COUNCIL NINE, an unincorporated association affiliated with American Federation of State, County, and Municipal Employees; ASSOCIATED STUDENTS OF MONTANA STATE UNIVERSITY, an unincorporated association; MONTANA STATE UNIVERSITY FACULTY COUNCIL; ASSOCIATED STUDENTS OF EASTERN MONTANA COLLEGE, an unincorporated association; MONTANA LOW INCOME COALITION, a Montana corporation; and ASSOCIATED STUDENTS OF THE UNIVERSITY OF MONTANA, Plaintiffs, Appellants and Cross-Respondents, v. MIKE COONEY, Secretary of State of the State of Montana; ROBERT G. NATELSON, individually and as Chairman of MONTANANS FOR BETTER GOVERNMENT, P.A.C.; MONTANANS FOR BETTER GOVERNMENT, P.A.C., a citizens group, registered as a political committee, Defendants, Respondents and Cross-Appellants.
    No. 93-657.
    Submitted on May 24, 1994.
    Decided June 30, 1994.
    51 St.Rep. 579.
    877 P.2d 486.
    265 Mont. 406.

      For Appellants: James H. Goetz (argued) and Richard J. Dolan; Goetz, Madden and Dunn, Bozeman; Jim McGarvey, Helena.
    For Respondents: Gerald J. Neely (argued), Billings; Joseph P. Mazurek, Attorney General, Beth Baker (argued), Assistant Attorney General, Clay R. Smith, Solicitor, Helena.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an action to declare unconstitutional Referendum 112 and the suspension of 1993 Mont. Laws 634 prior to a referendum vote. The District Court for the First Judicial District, Lewis and Clark County, granted summary judgment in favor of defendants.

Plaintiffs appeal, and defendant Secretary of State Mike Cooney cross-appeals. We affirm.

The issues are:

1. Did the District Court err in concluding that Counts II and V of the amended complaint were not time-barred under § 3-5-302(6)(a), MCA?

2. Does the suspension of Chapter 634 pending a referendum vote deny equal protection of the law in violation of the Fourteenth Amendment to the United States Constitution and Article II, Section 4 of the Montana Constitution?

3. Does the suspension of Chapter 634, which placed the state’s budget out of balance, violate Article VIII, Section 9 of the Montana Constitution?

4. Does Chapter 634 constitute an appropriations measure on which a referendum vote is prohibited?

5. Does suspension of Chapter 634 constitute a surrender and suspension of the taxation power in violation of Article VIII, Section 2 of the Montana Constitution?

In 1993, the Montana legislature enacted a revision of state income tax and corporate tax laws. The measure, 1993 Mont. Laws 634 (Chapter 634), increases the income tax burden on some individual taxpayers while reducing it on others, increases minimum corporate taxes, and imposes graduated corporate tax rates. The purposes of the measure include raising revenues for the general operation of state government and balancing the state’s budget.

Had Montana voters adopted a proposed four percent general sales tax at the June 1993 primary election, Chapter 634 would have been repealed beginning January 1, 1994, and the sales tax would have taken effect at that time. However, the voters rejected the sales tax. Therefore, under the scheme adopted by the legislature, Chapter 634 remained in effect.

During the summer of 1993, defendants Natelson and Montanans for Better Government circulated petitions in support of Referendum 112, in order to place Chapter 634 on the ballot in the November 1994 general election pursuant to Article III, Section 5 of the Montana Constitution. On September 3, 1993, defendant Secretary of State Mike Cooney certified to the Governor that he had received petitions containing sufficient signatures to place Chapter 634 on the ballot at that election. On September 28, 1993, defendant Cooney certified to the Governor that he had received petitions containing sufficient signatures to require suspension of Chapter 634 until the vote on Referendum 112, pursuant to subsection (2) of the Constitutional referendum power.

The Governor issued a proclamation calling the legislature into special session. Among other things, the proclamation stated that “the suspension of [Chapter 634] has made its provisions inoperative, thereby making it virtually impossible to balance the state’s budget without legislative action.”

Plaintiffs filed this action for declaratory judgment on October 18, 1993. While it was pending before the District Court, the special session of the legislature began. By the close of the special session in December 1993, the legislature had made substantial cuts in appropriations in order to balance the budget.

Plaintiffs’ amended complaint contains seven counts. Counts I through VI challenge the constitutionality of Referendum 112. Count VII alleges fraud on the part of defendants Natelson and Montanans for Better Government. At the hearing giving rise to this appeal, the District Court heard only those claims relating to the constitutionality of Referendum 112. Plaintiffs’ fraud claim, Count VII of the amended complaint, was reserved for possible hearing at a later date.

The District Court thoroughly analyzed the issues in a twenty-four page memorandum and order. Before it reached the plaintiffs’ constitutional arguments, it rejected the argument of defendant Cooney that portions of the amended complaint were time-barred. The court then considered and rejected all of plaintiffs’ constitutional arguments, upholding the constitutionality of the referendum process in this case.

❖ * *

This case requires reexamination of the referendum power which the people of Montana have reserved to themselves since 1906, when it was first adopted by amendment to the Montana Constitution. See Art. V, Sec. 1, Mont. Const. (1889). The referendum provision of Montana’s present Constitution provides:

Referendum. (1) The people may approve or reject by referendum any act of the legislature except an appropriation of money. A referendum shall be held either upon order by the legislature or upon petition signed by at least five percent of the qualified electors in each of at least one-third of the legislative representative districts. The total number of signers must be at least five percent of the qualified electors of the state. A referendum petition shall be filed with the secretary of state no later than six months after adjournment of the legislature which passed the act.
(2) An act referred to the people is in effect until suspended by petitions signed by at least 15 percent of the qualified electors in a majority of the legislative representative districts. If so suspended the act shall become operative only after it is approved at an election, the result of which has been determined and declared as provided by law.

Art. Ill, Sec. 5, Mont. Const.

In interpreting this provision, we are guided by the principle that “initiative and referendum provisions of the Constitution should be broadly construed to maintain the maximum power in the people.” Chouteau County v. Grossman (1977), 172 Mont. 373, 378, 563 P.2d 1125, 1128. We are also mindful, in considering this appeal, of the first two substantive provisions of the Montana Constitution. Article II, Section 1, provides:

Popular sovereignty. All political power is vested in and derived from the people. All government of right originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.

Article II, Section 2, provides:

Self-government. The people have the exclusive right of governing themselves as a free, sovereign, and independent state. They may alter or abolish the constitution and form of government whenever they deem it necessary.

With these principles in mind, we now consider the issues raised on appeal.

Issue 1

Did the District Court err in concluding that Counts II and Y of the amended complaint were not time-barred under § 3-5-302(6)(a), MCA?

Counts II and V of plaintiffs’ amended complaint allege that there are constitutional prohibitions against putting Chapter 634 to a public vote, which claims do not involve the issue of suspension of the law prior to the election. Secretary of State Cooney argues that these counts of the complaint are barred under § 3-5-302(6)(a), MCA, because the claims raised therein were not filed within 30 days after the ballot issue was certified to the Governor, on September 3, 1993.

On September 27, 1993, defendants Natelson and Montanans for Better Government filed a petition for declaratory judgment in this Court. They named as defendants Montanans for Responsible Government, P.A.C., and the State of Montana, and asked for a declaratory judgment that the suspension of Chapter 634 and its placement on the ballot did not violate federal or state constitutional provisions. Pursuant to order of this Court, responses were filed by the same counsel who appear in the present case on behalf of the plaintiffs and the Montana Secretary of State. This Court dismissed the action for declaratory judgment, without substantive discussion, on October 14,1993.

As stated above, the present action was filed four days later, on October 18,1993. The District Court ruled that the statute of limitations as to Counts II and V of the amended complaint was equitably tolled during the pendency of the declaratory judgment action.

The doctrine of equitable tolling of a statute of limitations applies when a claimant in good faith pursues one of several possible legal remedies and meets three criteria: (1) timely notice to the adverse party within the applicable statute of limitations in filing the first claim; (2) lack of prejudice to the adverse party in gathering evidence to defend against the second claim; and (3) good faith and reasonable conduct by the claimant in filing the second claim. Harrison v. Chance (1990), 244 Mont. 215, 228, 797 P.2d 200, 208. Cooney does not claim any deficiencies concerning the three criteria listed in Harrison. Rather, he asserts that equitable tolling is not available here because the plaintiffs were not the ones who filed the “first claim,” the action for declaratory judgment in this Court. He cites Erickson v. Croft (1988), 233 Mont. 146, 760 P.2d 706, in which this Court quoted a California case describing equitable tolling as available where an injured person has several legal remedies and, reasonably and in good faith, pursues one.

Cooney’s argument is not persuasive. In this case, there has been no showing of lack of notice or of prejudice to any party. The plaintiffs filed this action in District Court promptly after the action for declaratory judgment was dismissed by this Court. In this instance, where some defendants attempted to bypass the District Court by filing an original proceeding in this Court, and where this Court ordered responses to the arguments on the issues, we will not impose a requirement that the plaintiffs should have second-guessed that the action in this Court would ultimately be dismissed.

We conclude the plaintiffs should not be penalized because of the premature attempt by some of the defendants to have this Court resolve the same or similar issues as those raised in this action. We hold that the District Court did not err in ruling that Counts II and V of the amended complaint are not time-barred, under the doctrine of equitable tolling.

Issue 2

Does the suspension of Chapter 634 pending a referendum vote deny equal protection of the law in violation of the Fourteenth Amendment to the United States Constitution and Article II, Section 4 of the Montana Constitution?

Plaintiffs’ argument is based upon their interpretation of several reapportionment cases, most notably Reynolds v. Sims (1964), 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. Reynolds was a case concerning apportionment of legislative districts for the Alabama legislature. Despite Alabama’s constitutional requirements for legislative representation based on population and for decennial reapportionment, the 1900 census still formed the basis for the existing state legislative apportionment in 1961, when the complaint in Reynolds was filed. The complaint alleged serious discrimination against voters in counties whose populations had grown proportionately more than others since the 1900 census. In affirming a holding that plaintiffs had proven a violation of the Equal Protection Clause, the Court stated:

[Representative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State’s legislative body. Most citizens can achieve this participation only as qualified voters through the election of legislators to represent them. Full and effective participation by citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature.

Reynolds, 377 U.S. at 565, 84 S.Ct at 1382.

Plaintiffs argue that the suspension of Chapter 634 through the initiative of a small minority of electors violates this principle. They maintain that “[i]f a minority can negate a legislative act carried out through the body representing the will of the majority, the principles of equal representation — upon which both our state and federal governments rest — are rendered void.”

The authority cited by the plaintiffs is not dispositive of this case, nor is their argument persuasive. Unlike the reapportionment cases, this is not a case concerning access to the legislative process. Nor have plaintiffs met the requirement under traditional equal protection analysis of demonstrating that any class or segment of the population has been “fenced out” of the referendum process.

Here, the majority, through a constitutional referendum provision, has affirmatively granted certain powers to a minority. The majority retains the power to eliminate the referendum provision from the Montana Constitution or to amend it to increase the numbers of signatures needed to put a referendum on the ballot or to suspend a law through the referendum process. “[TJhere is nothing in the language of the Constitution, our history, or our cases that requires that a majority always prevail on every issue.” Gordon v. Lance (1971), 403 U.S. 1, 6, 91 S.Ct. 1889, 1892, 29 L.Ed.2d 273, 276.

Additionally, and critically, the referendum process is not yet complete in the present case. All Montana voters will have the opportunity to vote on Chapter 634 in the November 1994 general election. The majority of the voters at that election will decide the fate of Chapter 634. Therefore, the referendum process is not comparable, as plaintiffs attempt to argue, to a veto power given to a small group.

Article III, Section 5 of the Montana Constitution expresses the will of the majority in Montana on the matter of allowing referenda to be placed on the ballot and allowing the suspension of laws which are referred to the people. We hold that the District Court did not err in ruling that plaintiffs have failed to demonstrate any violation of their right to equal protection under the law.

Issue 3

Does the suspension of Chapter 634, which placed the state’s budget out of balance, violate Article VIII, Section 9 of the Montana Constitution?

Article VIII, Section 9 of the Montana Constitution provides: “Balanced budget. Appropriations by the legislature shall not exceed anticipated revenue.” Plaintiffs point out that Montana’s budget went out of balance when Chapter 634 was suspended, because appropriations made by the 1993 legislature then significantly exceeded the anticipated revenues for the biennium. They argue that harmonizing the referendum provision with the balanced budget provision requires a conclusion that general revenue bills are off limits to the referendum process.

We disagree. Article VIII, Section 9 places a restriction on the legislature, not on the people. The contention that it is inconsistent with the operation of the suspension provision in this case is groundless.

The reaction of the executive and legislative branches in calling a special session of the legislature to deal with an unforeseen decline in revenue (or increase in expenditures) might have been prompted by any number of causes. See, e.g., State v. Erickson (1933), 93 Mont. 466, 473, 19 P.2d 227, 229. Calling a special session to reconcile expenditures with anticipated revenues was entirely proper. The purpose of the balanced budget provision is therefore fully compatible with operation of the referendum process.

We hold that the District Court was correct in ruling that plaintiffs have shown no violation of Article VIII, Section 9 of the Montana Constitution.

Issue 4

Does Chapter 634 constitute an appropriations measure on which a referendum vote is prohibited?

This argument refers to the prohibition in subsection (1) of the referendum clause: “The people may approve or reject by referendum any act of the legislature except an appropriation of money.” (Emphasis added.) The plaintiffs argue that Chapter 634 constitutes an appropriation of money because it is a general revenue measure which is “inextricably tied” to appropriations legislation and is used to balance Montana’s state budget. They contend that the referendum provision cannot be read in isolation, but must be harmonized with other constitutional provisions, including the balanced budget requirement discussed above. Plaintiffs cite cases in which courts in Maryland and Michigan have interpreted the meaning of the word “appropriation” as used in their state constitutions in relation to specific referenda measures in those states.

The definition of “appropriation” under the above provision in Montana’s Constitution is well-established and quite limited. Along line of Montana cases has established that “appropriation” refers only to the authority given to the legislature to expend money from the state treasury.

“Appropriation” means an authority from the law-making body in legal form to apply sums of money out of that which may be in the treasury in a given year, to specified objects or demands against the state.

State v. Dixon (1921), 59 Mont. 58, 78, 195 P. 841, 845. See also Board of Regents of Higher Education v. Judge (1975), 168 Mont. 433, 543 P.2d 1323.

In the present case, the District Court stated,

Since Chapter 634 does not relate to the actual use or expenditure of money, the Court concludes it is not an act for the appropriation of money, and therefore, it is not excluded from the referendum process.

We agree with the District Court. Chapter 634 is a pure revenue-raising measure, and contains no provisions for expenditures. Itwas offered, debated, and voted upon separately from appropriation bills considered by the 1993 Montana legislature. We hold that Chapter 634 does not constitute an appropriations measure on which a referendum vote is prohibited.

Issue 5

Does suspension of Chapter 634 constitute a surrender and suspension of the taxation power in violation of Article VIII, Section 2 of the Montana Constitution?

In this argument, plaintiffs refer to the provision of the Montana Constitution that “[t]he power to tax shall never be surrendered, suspended, or contracted away.” Plaintiffs argue that this specific prohibition controls over the general right of the people to suspend the effect of legislation under the referendum power. They also argue that Referendum 112 has resulted in a surrender of the power to tax to a small minority of Montanans.

As under Issue 4, the plaintiffs have cited cases from two other states in which similar state constitutional provisions have been interpreted in relation to exercises of the referendum power reserved to the people of those states. Because we conclude that the language of our Constitution is clear on its face, we decline to adopt, extend, and apply the reasoning of those cases to the language of the Montana Constitution and to the facts of this case.

Plaintiffs fail to distinguish between a tax measure and the taxing power. There has been no surrender or suspension of the taxing power; Referendum 112 has merely resulted in the suspension and referral of one measure by which the taxing power is exercised. As the District Court pointed out, the State of Montana is still collecting taxes, and will continue to do so; under Chapter 634, if the voters approve it, or under the law in existence prior to the legislative enactment of Chapter 634, if the voters reject it. We hold that the plaintiffs have failed to establish any violation of the prohibition against suspension or surrender of the taxing power.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICE WEBER concur.

JUSTICE NELSON

concurs in part and dissents in part:

While I concur in the Court’s discussion of Issues 2 through 5 and with the result reached in its opinion on those issues, I respectfully dissent from the discussion on Issue 1 and from the conclusions expressed therein. I would hold that Counts II and V of plaintiffs’ amended complaint are time-barred by reason of the applicable statute of limitation, § 3-5-302(6)(a), MCA, which, in pertinent part, requires that:

... a contest of a ballot issue submitted by ... referendum may be brought prior to the election only if it is filed within 30 days after the date on which the issue was certified to the governor, as provided in 13-27-308,....

Here, it is undisputed that plaintiffs’ complaint was not filed within 30 days after the date on which the issue was certified to the governor. It is also undisputed that there was absolutely no legal reason or bar that would have prevented plaintiffs from filing their complaint within the time period allowed by the statute. Importantly, the Natelson/Montanans for Better Government petition for declaratory judgment filed as an original proceeding in and subsequently dismissed by this Court (Natelson action), did not in any way prevent or prohibit the timely filing of plaintiffs’ complaint, and no legitimate argument to the contrary has been advanced here.

At the outset, I note that this Court has in the past, looked disfavorably on pre-election attempts to invalidate ballot issues and has required strict compliance with the procedures and time limits statutorily mandated by the legislature in mounting such challenges. See, State ex rel. Boese v. Waltermire (1986), 224 Mont. 230, 234, 730 P.2d 375, 377-78. Given that Montana’s election laws are replete with numerous strict deadlines governing the election process, it only makes sense to protect the administration of that process and the election itself from disruptive litigation which might ultimately serve to frustrate the right of the people to vote.

No sound reason has been advanced here as to why we should back away from that general principle. While invoking the doctrine of equitable tolling may be appropriate when applying the doctrine would effectuate the policies and purposes underlying the statute of limitations, see, Hosogai v. Kadota (Ariz. 1985), 700 P.2d 1327, 1331, in pre-election challenge cases, invoking the doctrine actually encourages such challenges and tends to defeat the purposes and policy behind the statute of restricting such challenges.

Notwithstanding that plaintiffs’ claims may be important and interesting,

[t]he statute of limitations is explicit. By the letter of the law, the late filing was fatal to plaintiffs’ claim. We will not resurrect a complaint which was not properly brought before the court....
The statute of limitations does not discriminate between the just and unjust claim. The statute does represent legislative and public policy controlling the rights of potential litigants. In balancing these rights, the legislature placed the fulcrum precisely at [30 days] — no more, no less.

Schaffer v. Champion Home Builders Co. (1987), 229 Mont. 533, 536-37, 747 P.2d 872, 874, (statute of limitations barred plaintiffs’ wrongful death and survival actions when filed one day late.) With that principle in mind, we have been reluctant to judicially alter, change or lessen statutory limits for the commencement of actions, Schaffer, 747 P.2d at 874, or to expand tolling doctrines. See, Bestwina v. Village Bank (1989), 235 Mont. 329, 334, 767 P.2d 338, 341.

Accordingly, in the instant case, the basis on which we have chosen to ignore the statute of limitations — equitable tolling — is not only judgmentally unsound, but, as discussed below, having also distorted the elements of the doctrine itself, its application in this case is legally insupportable.

In Erickson v. Croft (1988), 233 Mont. 146, 760 P.2d 706, we discussed, but, on the basis of the facts of that case, did not recognize or adopt the doctrine of equitable tolling. Citing case law from other jurisdictions we described the elements of the doctrine as follows:

[C]ourts have adhered to a general policy which favors relieving plaintiff from the bar of a limitations statute when, possessing several legal remedies he, reasonably and in good faith, pursues one designated to lessen the extent of his injuries or damage. (Emphasis added).

Erickson, 760 P.2d at 708.

The three requirements referenced by this Court to justify the applicability of equitable tolling in the instant case were also mentioned in Erickson. Those criteria are, unfortunately, misstated in the opinion here. In Erickson, citing Collier v. City of Pasadena (1983), 142 Cal.App.3d 917, 191 Cal.Rptr. 681, 685, we listed the three requirements as follows:

(1) timely notice to the defendant [within the applicable statute of limitations] in filing the first claim;
(2) lack of prejudice to the defendant in gathering evidence to defend against the second claim; and
(3) good faith and reasonable conduct by the plaintiff in filing the second claim. (Emphasis added.)

Erickson, 760 P.2d at 708.

While declining to recognize equitable tolling in Erickson, we subsequently expressed some willingness to apply the doctrine when the Erickson requirements appeared to have been met. In Harrison v. Chance (1990), 244 Mont. 215, 797 P.2d 200, citing to the same three criteria as set forth in Erickson, we invoked the doctrine in order to allow a claimant to refile before the Human Rights Commission her claim which had become time-barred because she had erroneously, but in good faith, first filed in district court in reliance on previous case law which subsequently was legislatively overruled. Harrison, 797 P.2d at 208.

As referred to inHarrison, the doctrine of equitable tolling contemplates as threshold requirements (a) an injured party (plaintiff or claimant) who (b) had several possible legal remedies and (c) pursued one of those remedies reasonably and in good faith. Harrison, 797 P.2d at 208. Only if those threshold requirements are first met, is it then necessary to determine whether the injured party also meets the three additional criteria referred to, though misstated, in this Court’s instant opinion.

The plaintiffs in this case do not meet the three threshold requirements for the application of the doctrine. The plaintiffs here were not the plaintiffs in the Natelson action; they were the defendants. The plaintiffs here did not reasonably and in good faith first pursue a particular remedy from several others available to them; this is their first cause of action; they were defending the Natelson action. Quite simply, having failed to meet the threshold requirements for application of the doctrine of equitable tolling, we need not concern ourselves with whether plaintiffs comply with the remaining three criteria.

Moreover, in justifying the equitable tolling of the statute of limitations and the filing of plaintiffs’ time-barred causes of action on the basis of the premature filing of the Natelson action, this Court has also ignored other well established precedent. While equitable tolling addresses the reasonableness and good faith ofplaintiff’s actions in bringing successive suits, tolling doctrines are much more restricted where, as here, it is the defendant’s actions which are alleged to have been responsible for plaintiff’s untimely filing of his claim.

We have allowed tolling of statutes of limitation on the basis of defendant’s conduct only under narrowly defined circumstances unquestionably not at issue here: i.e. where there is a showing of fraudulent concealment by the defendant calculated to obscure the existence of plaintiff’s cause of action and which lulls him into a false sense of security leading to his failure to timely initiate suit, Keneco v. Cantrell (1977), 174 Mont. 130, 136, 568 P.2d 1225, 1228; or where there is a relation of trust or confidence between the parties which imposes upon the defendant a duty of making full disclosure of the facts, Skierka v. Skierka Bros., Inc. (1981), 192 Mont. 505, 511, 512, 629 P.2d 214, 217-18.

In short, by misapplying and distorting the elements of the doctrine of equitable tolling in this case, we have established some very bad precedent, indeed. Not only have we thrown the threshold requirements for application of the doctrine of equitable tolling out the window, but we have also significantly expanded the circumstances under which action by a defendant will toll the statute of limitations on a plaintiff’s claim. Our decision on Issue 1 proves the old maxim that “hard cases make bad law.” They do, and we have.

Failing to meet the threshold requirements to invoke the doctrine, I would hold that plaintiffs here are not entitled to equitable tolling of the running of the statute of limitations on Counts II and V of their amended complaint. I would reverse on that issue and, accordingly, I respectfully dissent from this Court’s opinion on Issue 1.

JUSTICE GRAY joins in the special concurrence and dissent.

JUSTICE TRIEWEILER

dissenting.

I dissent from that part of the majority’s opinion which concludes that the suspension of Chapter 634 did not violate the Federal and State Constitutions.

I conclude that when as few as eight percent of the State’s voters can exercise an effective veto over legislation enacted by representatives who were elected by a majority of the State’s voters; and when, based on that veto, services, benefits and educational opportunities are permanently lost by citizens who were denied any voice in the matter, then the principle of one equally weighted vote for each person is rendered meaningless and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and Article II, Section 4, of the Montana Constitution, have been violated.

I furthermore conclude that when a referendum, by suspending a revenue-raising measure such as 1993 Montana Laws, Chapter 634, leaves the Legislature with no alternatives other than an unbalanced budget in violation of Article VIII, Section 9, of the Montana Constitution, or rescinding an appropriation of money already made, then the referendum is, in effect, one to reject an appropriation of money in violation of Article III, Section 5, of the Montana Constitution.

Finally, I conclude that Referendum 112, by suspending Chapter 634 which was enacted pursuant to the Legislature’s power to tax, would unconstitutionally suspend that power in violation of Article VIII, Section 2, of the Montana Constitution.

Although these constitutional provisions are, of course, our foremost concern, I also conclude that the ramifications of the majority’s decision will be devastating to the ability of future legislatures to provide for the obligations and services of State government. Because of this decision, government in the State of Montana will always be hostage to tyranny by a small minority who are easily misled by those unimaginative but ambitious persons who would exploit the universal disdain for taxation for their own political benefit.

FACTUAL BACKGROUND

I find the following undisputed facts relevant to the conclusions I have reached:

1. House Bill 671 was passed by the Montana Legislature during the 1993 Legislative Session and was signed by the Governor on May 11,1993. The measure revises state income tax and corporate tax laws. It increased income tax revenue, but shifts the income tax burden. It increases minimum corporate taxes and imposes graduated corporate tax rates.
2. House Bill 671 was passed, in part, for the purpose of raising revenues for the general operation of State government and balancing the state’s budget.
3. House Bill 671 became effective after Montana voters rejected Senate Bill 235, which contained a four percent general sales tax, and was given retroactive application to January 1, 1993. ...
4. Defendants Natelson and Montanans for Better Government circulated the Petition Referendum 112 to place House Bill 671 on the ballot for the November 1994 general election.
5. On September 3, 1993, Defendant Cooney certified to the Governor that he received petitions containing sufficient signatures to place House Bill 671 on the ballot for the November 1994 general election.
6. On September 28, 1993, Defendant Cooney certified to the Governor that he received petitions containing sufficient signatures to require suspension of House Bill 671 until the vote on Referendum 112.

Stipulation of Facts entered into between the parties.

Based upon the Secretary of State’s certification that sufficient signatures were gathered to suspend House Bill 671 (which was enacted as 1993 Montana Laws, Chapter 634), the Governor of the State of Montana, on October 8,1993, issued a proclamation calling the 53rd Legislature for a special session. In his proclamation he stated that:

WHEREAS, Article VIII, Section 9, of the Montana Constitution provides that appropriations by the Legislature shall not exceed anticipated revenue; and
WHEREAS, Article VI, Section 9, of the Montana Constitution provides that it is the responsibility of the Governor to recommend measures necessary to balance the budget; and
WHEREAS, a referendum undertaken pursuant to Article III, Section 5, of the Montana Constitution, has resulted in both the suspension of House Bill 671 and in its placement on the ballot for approval or rejection by the qualified electors on November 8,1994; and
WHEREAS, the suspension of House Bill 671 has made its provisions inoperative, thereby making it virtually impossible to balance the state’s budget without legislative action.
NOW, THEREFORE I, Marc Racicot, Governor of the State of Montana, pursuant to the authority vested in me by the Constitution and laws of the State of Montana do hereby call the Fifty-Third Legislature into Special Session in Helena, at the State Capitol, at the hour of 9:00 A.M., the 29th day of November, 1993, and hereby direct the Special Session of the Fifty-Third Legislature to consider action on the following:
1. Legislation to balance the state’s budget and address appropriate personnel and operational issues.
7. Appropriations to state and local government and programs, allocation of revenue, accounting procedures and budget modifications for state and local government agencies ....

In other words, House Bill 671 was enacted to balance the state budget. When it was suspended, the budget was unbalanced and the Legislature was forced to meet and reduce appropriations.

The Legislature met in special session from November 29, 1993 through December 20,1993. During this time, the Legislature cut $19 million that had been appropriated for public education in kindergarten through twelfth grade; $12.5 million which had been appropriated for human services; and $11.8 million which had been appropriated for higher education. (Office of the Legislative Fiscal Analyst, Appropriations Report 1995 Biennium, November 1993 Special Session (February, 1994) at summary page 2.)

EQUAL PROTECTION CLAUSE

The majority dispenses with the constitutional principle established in Reynolds v. Sims (1964), 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506, that each person eligible to vote is entitled to cast an equally weighted vote with its conclusion that “[ujnlike the reapportionment cases, this is not a case concerning access to the legislative process.” However, contrary to that conclusion, access to the legislative process is exactly what this case is about.

This State’s legislative representatives were elected by a majority of Montana’s voters. In their representative capacity, a majority of those legislators enacted laws, including House Bill 671. However, their representative efforts were effectively vetoed by a small minority of voters who supported Referendum 112 without any opportunity by those who opposed Referendum 112 to cast a vote in opposition. The argument that those who oppose Referendum 112 will ultimately have an opportunity to express their view on November 8,1994, is of little constitutional significance, considering the irreversible suspension of the majority’s decision for the intervening 14 months.

To hold that Reynolds has no significance beyond legislative apportionment is to miss the important principle of “one equally weighted vote for each person” that it reaffirmed. While that principle was discussed in terms of representative government, that discussion was based on the historical principle that each person’s vote in this country has historically been given effect through their elected representatives. The court in Reynolds stated:

State legislatures are, historically, the fountainhead of representative government in this country. A number of them have their roots in colonial times, and substantially antedate the creation of our Nation and our Federal Government. In fact, the first formal stirrings of American political independence are to be found, in large part, in the views and actions of several of the colonial legislative bodies. With the birth of our National Government, and the adoption and ratification of the Federal Constitution, state legislatures retained a most important place in our Nation’s governmental structure. But representative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State’s legislative bodies. Most citizens can achieve this participation only as qualified voters through the election of legislators to represent them. Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature. Modern and viable state government needs, and the Constitution demands, no less.

Reynolds, 377 U.S. at 564-65, 84 S.Ct. at 1383.

It is clear that what the Court in Reynolds found offensive to the Equal Protection Clause of the Fourteenth Amendment was minority control over legislative bodies. In that regard, the Court stated:

[A]nd to sanction minority control of state legislative bodies, would appear to deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result.... And the concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged.

Reynolds, 377 U.S. at 565, 84 S.Ct. at 1383.

It is for these reasons that the Court majority in Reynolds made clear that while its discussion was couched in terms of representation, the principle with which it was really concerned was the right of each voter to participate equally in a representative democracy. For that reason, the Court explained that:

While the result of a court decision in a state legislative apportionment controversy may be to require restructuring of the geographical distribution of seats in a state legislature, the judicial focus must be concentrated upon ascertaining whether there has been any discrimination against certain of the State’s citizens which constitutes an impermissible impairment of their constitutionally protected right to vote. Like Skinner v. Oklahoma, [(1992)], 316 U.S. 535, [62 S.Ct. 110, 86 L.Ed. 1655], such a case “touches a sensitive and important area of human rights,” and “involves one of the basic civil rights of man,” presenting questions of alleged “invidious discriminations ... against groups or types of individuals in violation of the constitutional guarantee of just and equal laws.” 316 U.S. at 536, 541, [62 S.Ct. at 1111, 1113]. Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. Almost a century ago, in Yick Wo v. Hopkins, [(1886)], 118 U.S. 356, [6 S.Ct. 1064, 30 L.Ed 220], the Court referred to “the political franchise of voting” as “a fundamental political right, because preservative of all rights.” 118 U.S. at 370, [6 S.Ct. at 1071].

Reynolds, 377 U.S. at 561-62, 84 S.Ct. at 1381.

For these reasons, the Court in Reynolds held that legislative apportionment which diluted the weight of urban voters violated the Equal Protection Clause of the Fourteenth Amendment.

The State of Montana and the majority of this Court would contend on the one hand that the referendum process provided for in Article III, Section 5(2), of the Montana Constitution, is a continuation of the legislative process, and therefore, the result accomplished as a result of Referendum 112 was not a suspension of the power to tax held exclusively by the Legislature pursuant to Article VIII, Section 2, of the Montana Constitution. However, that argument finds no comfort in the Reynolds decision. The Supreme Court in Reynolds specifically held that a bicameral legislature in which only one house is apportioned according to population does not satisfy the equal protection requirement. In language relevant to the circumstances in this case, the Supreme Court stated that:

[W]e necessarily hold that the Equal Protection Clause requires both houses of a state legislature to be apportioned on a population basis. The right of a citizen to equal representation and to have his vote weighted equally with those of all other citizens in the election of members of one house of a bicameral state legislature would amount to little if States could effectively submerge the equal-population principle in the apportionment of seats in the other house. If such a scheme were permissible, an individual citizen’s ability to exercise an effective voice in the only instrument of state government directly representative of the people might be almost as effectively thwarted as if neither house were apportioned on a population basis. Deadlock between the two bodies might result in compromise and concession on some issues. But in all too many cases the more probable result would be frustration of the majority will through minority veto in the house not apportioned on a population basis, stemming directly from the failure to accord adequate overall legislative representation to all of the State’s citizens on a nondiscriminatory basis. In summary, we can perceive no constitutional difference, with respect to the geographical distribution of state legislative representation, between the two houses of a bicameral state legislature. [Emphasis added].

Reynolds, 377 U.S. at 576, 84 S.Ct. at 1389.

Likewise, in this case the fact that both Montana’s House of Representatives and Senate are apportioned on a population basis is of no benefit to the majority who elected them if a minority can routinely and effectively veto their efforts in a process which provides no opportunity for those who are opposed to the proposed referendum to cast their vote in opposition. In conclusion, I can comprehend no difference between the bicameral scenario prohibited in Reynolds and the referendum process permitted in this case. In each case, the will of the majority is effectively thwarted by a minority of voters.

The majority cites Gordon v. Lance (1971), 403 U.S. 1, 6, 91 S.Ct. 1889, 1892, 29 L.Ed. 2d 273, 276, for the principle that the will of the majority need not always prevail. However, the majority’s citation is incomplete and oversimplifies the holding in Gordon. The challenge in that case was to a West Virginia statute which provided that a political subdivision could not incur bonded indebtedness nor increase tax rates beyond those established by the Constitution without the approval of 60 percent of the voters in a referendum election. While the Court held that requiring a super majority did not violate the Equal Protection Clause of the Fourteenth Amendment, the Court qualified its holding by stating that:

We intimate no view on the constitutionality of a provision requiring unanimity or giving a veto power to a very small group. Nor do we decide whether a State may, consistently with the Constitution, require extraordinary majorities for the election of public officers.

Gordon, 403 U.S. at 8, n.6, 91 S.Ct. at 1893, n.6.

What the Court in Gordon refused to address is exactly the situation that exists in this case. Therefore, Gordon is no authority for the result arrived at by the majority.

Because the principles articulated in Reynolds are so clearly applicable to the situation in this case, I do not believe that further equal protection analysis is necessary, as is suggested in the majority opinion. For these reasons, I dissent from the majority’s conclusion that the process by which Chapter 634 was suspended does not violate the Equal Protection Clauses of our State and Federal Constitutions.

BALANCED BUDGET

The majority opinion deals with Article VIII, Section 9, of the Montana Constitution which requires a balanced budget, and that part of Article III, Section 5, which prohibits referenda rejecting appropriations, in isolation, and thereby, concludes that neither prohibition was violated. However, in doing so, the majority opinion violates a cardinal rule of constitutional construction, which is that u[a]ll of the provisions of the Constitution bearing upon the same subject are to receive appropriate attention and be construed together.” Board of Regents v. Judge (1975), 168 Mont. 433, 444, 543 P.2d 1323, 1330. For that reason, in Board of Regents, 543 P.2d at 1330, we held that our task is to harmonize in a practical manner those provisions of the Constitution which would otherwise be in apparent conflict. The majority opinion fails to do so.

On the one hand, the majority concludes that Referendum 112 did not cause an unbalanced budget because the Legislature exercised its only alternative which was to come into special session and cut appropriations. On the other hand, the majority concludes that Referendum 112 did not affect appropriations since it did not directly prohibit the expenditure of money. By isolating its consideration of these separate provisions, the majority has failed to harmonize in a practical manner the various provisions of the State Constitution.

The practical effect of Referendum 112 is that the Legislature was left with one of two alternatives. It could either leave the budget unbalanced in violation of Article VIII, Section 9, or it was forced to reduce expenditures in violation of the prohibition found in Article III, Section 5(1). Considering the practical effect of Referendum 112 and harmonizing the provisions of Montana’s Constitution requires the conclusion that under the facts in this case, the referendum was a rejection of the appropriation of money, and therefore, unconstitutional pursuant to Article III, Section 5(2). This conclusion finds support in other jurisdictions under similar circumstances and based on similar constitutional provisions.

Other states which have considered similar constitutional restrictions on referenda to protect appropriations passed by the Legislature have held that when appropriation bills, such as House Bill 2 from the 1993 regular legislative session, are dependent on revenue bills, such as House Bill 671, then the bills must be read in pari materia for purposes of determining whether they may be referred, and that where they are interdependent, revenue bills may not be referred for a vote. Winebrenner v. Salmon (Md. 1928), 142 A. 723; Dorsey v. Petrott (Md. 1940), 13 A.2d 630; Kelly v. Marylanders for Sports Sanity, Inc. (Md. 1987), 530 A.2d 245; County Road Assoc. v. Board of State Canvassers (Mich. 1979), 282 N.W.2d 774.

In Dorsey, 13 A.2d at 637, the Maryland Court reasoned:

It follows that revenue measures to raise the public funds to pay the appropriations of the Budget Bill are excepted from the operation of the Referendum Amendment, although the revenue thus procured is disbursed by the Treasury through the provisions of the Budget without any express authorization in the money bill for its disbursement.

Likewise, in this case, House Bill 671 cannot be considered in a vacuum. Its enactment was interrelated with the appropriations enacted in the 1993 regular session of the Legislature, and those appropriations depended upon the revenue that it raised. The effect of Referendum 112’s suspension of House Bill 671 was to also reject those appropriations which were dependent on the revenue that it generated.

For these reasons, I conclude that Referendum 112 did, in fact, reject an act of the Legislature for appropriation of money, and therefore, was unconstitutional in violation of Article III, Section 5(1), of the Montana Constitution.

SUSPENSION OF POWER TO TAX

Article VIII, Section 2, of the Montana Constitution specifically provides that “the power to tax shall never be ... suspended.” Chapter 634 was enacted by the Legislature pursuant to its power to tax. However, Chapter 634 was suspended pursuant to Referendum 112. The majority concludes that the Legislature’s power was unaffected, even though the tax that it enacted pursuant to that power has been suspended. The logic of this conclusion escapes me. What is the practical purpose of the power to tax if actual taxes levied pursuant to that power can be freely suspended pursuant to the whim of a small minority of voters?

To me, the language of Article VIII, Section 2, is clear. It prohibits exactly what was accomplished by Referendum 112 in this case.

While Article III, Section 5(2), does provide for the suspension of an act of the Legislature by 15 percent of the qualified voters in a majority of the representative districts, that provision of the Constitution (even if the exception for appropriation measures is not considered), is a general provision. The prohibition against suspension of the Legislature’s taxing power found at Article VIII, Section 2, is a specific prohibition. Whether talking about legislation or constitutional provisions, the specific control over the general. Grossman v. State Dept. of Natural Resources (1984), 209 Mont. 427, 682 P.2d 1319.

Therefore, I conclude that Referendum 112 violated Article III, Section 2 of the Montana Constitution and dissent from the maj ority’s conclusion to the contrary.

STATUTE OF LIMITATIONS

Although I dissent from the majority’s conclusion that Referendum 112 was constitutional, I concur with the majority’s conclusion that plaintiff’s complaint was not barred by the statute of limitations found at § 3-5-302(6)(a), MCA.

The principle of equitable tolling is based on principles of fairness and common sense which apply equally in this situation as where two successive actions are brought by the same party. The dissenting opinion of Justices Nelson and Gray, to the effect that it cannot be applied because the original action was, in fact, brought by Natelson and the second action was brought by Nicholson, even though the issues involved were the same, and even though common sense required resolving the first action before filing the second action, exalts form over substance. The approach taken by the dissenters is unduly mechanical and without regard for the equitable principles which are being invoked. In short, I find that the dissenting opinion on this subject is the antithesis of equity.

For these reasons, I concur with the majority’s conclusion that the statute of limitations was equitably tolled.

JUSTICE HUNT joins in the foregoing dissent.

         For example, to gather support for Referendum 112, Natelson claimed that the tax burden of Montanans was the eighth highest in the country, when, in reality, it is near the bottom - at 44th. According to figures from the U.S. Bureau of the Census, the only neighboring state where residents pay a lower percent of income in taxes is South Dakota, which is 45th among the states. However, Natelson failed to acknowledge the correct figures until after the necessary signatures were gathered in support of Referendum 112. (Mike Dennison, Montana Tax Burden Much Lower Than Natelson Claims, Great Falls Tribune (Montana), October 21, 1993, at 1A; Shirley Salemy, Natelson Admits Knowing Tax Claim Was Shaky, Great Falls Tribune (Montana), October 22, 1993, at 1A.)


author: CHIEF JUSTICE TURNAGE

text:
    IN THE MATTER OF THE ESTATE OF GLENDON CECIL BRUCE, Deceased: ALISON T. BRUCE, JONATHAN S. BRUCE and ISABEL S. NOBLE, interested parties, Petitioners and Appellants, v. DONNA BRUCE, surviving spouse, and NORWEST CAPITAL MANAGEMENT & TRUST CO., MONTANA, personal representative, Respondents and Respondents.
    No. 94-017.
    Submitted on Briefs June 2, 1994.
    Decided June 30, 1994.
    51 St.Rep. 576.
    877 P.2d 999.
    265 Mont. 431.

      For Petitioners and Appellants: Kent P. Saxby, Warden, Christiansen, Johnson and Berg, Kalispell.
    For Respondents and Respondents: Kirby S. Christian, Christian & Samson, P.C., Missoula (Donna Bruce); Walter S. Murfitt and Dale E. Reagor, Luxan and Murfitt, Helena (Norwest); Jeffrey Bruce and Christian Bruce, San Diego, California (Pro Se).
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

This is an appeal from an order certified pursuant to Rule 54(b), M.R.Civ.P. In that order, the District Court for the Eleventh Judicial District, Flathead County, determined that a Paine Webber individual retirement account (IRA) is part of the estate of Glendon Cecil Bruce. We reverse.

The issue is whether the court erred in ruling that the designated contingent beneficiaries of the Paine Webber IRA, Alison Bruce and Jonathan Bruce, are not entitled to the proceeds of the IRA.

In 1986, Glendon Cecil Bruce established a PaineWebber IRA account. He named his wife, Isabel, as the primary beneficiary of the account, and their children, appellants Alison Bruce and Jonathan Bruce, as contingent beneficiaries. The Custodial Agreement for the IRA account provided, at paragraph 5.5:

The term “Beneficiary” means the person or persons designated as such ... on a form acceptable to the Custodian .... The form may name persons or estates to take upon the contingency of survival. However, if no such designation on such a form effectively disposes of the IRA as of the time such distribution is to commence, the term “Beneficiar/’ shall mean the designating person’s estate.

In 1988, the marriage of Glendon and Isabel was dissolved. They entered a property settlement agreement which provided:

Husband has two Individual Retirement Accounts (IRAs) with Paine Webber [sic] (in the approximate amount of $360,000.00) and with Fidelity Funds (in the approximate amount of $15,000.00), which IRAs shall remain the sole and separate property of Husband.

The agreement also contained a comprehensive mutual release of claims, which provided in part as follows:

[E]ach party hereto releases and forever discharges the other party, his or her personal representatives and assigns from any and all rights, claims, demands and obligations except as herein specifically provided. Each party is forever barred from having or asserting any such right, claim, demand or obligation at any time hereafter for any purpose ....

Glendon later married respondent Donna Bruce and was married to her at the time of his death in February 1992. Despite the dissolution of his marriage to Isabel and his remarriage to Donna, he had never changed the named beneficiaries of his Paine Webber IRA.

After Glendon died, Isabel filed with the District Court a renunciation and disclaimer pursuant to § 72-2-101, MCA (1991), renouncing her interest in the Paine Webber IRA as the named primary beneficiary. Both the contingent beneficiaries (Glendon’s children Alison and Jonathan) and the personal representative of Glendon’s estate, Norwest Capital Management & Trust Co., have asserted claims to the proceeds of the Paine Webber IRA.

The District Court ruled that the 1988 property settlement agreement constituted an affirmative act evidencing Glendon’s intent that Isabel not receive the IRA. It ruled that Isabel lost the ability to renounce her interest in the account when she entered the property settlement agreement, pursuant to § 72-2-101, MCA (1991). It then concluded that neither Isabel nor the contingent beneficiaries are entitled to the account.

Did the court err in ruling that the designated contingent beneficiaries of the Paine Webber IRA, Alison Bruce and Jonathan Bruce, are not entitled to the proceeds of the IRA?

Section 72-2-101, MCA (1991), provides:

(1) Aperson... who is [a]... beneficiary under a... nontestamentary instrument ... may renounce, in whole or in part, the right of succession to any property or interest therein... by filing a written renunciation under this section. ...
(4) Unless the transferor of the interest has otherwise provided, the property or interest renounced devolves as though the person renouncing had predeceased the decedent....
(5)(a) The right to renounce property or an interest therein is barred by:
(i) an assignment, conveyance, encumbrance, pledge, or transfer of property or interest....

In the opinion of the District Court, the 1988 property settlement agreement constituted an assignment under subsection (5)(a)(i) above, and Isabel was thereafter barred from exercising a right to renounce. The respondents argue that the contingent beneficiaries are not entitled to the IRA because Isabel did not predecease them. They argue that there exists no effective designation of a beneficiary of the IRA, and therefore, under the terms of the Custodial Agreement, the estate is the beneficiary.

In Sowell v. Teachers’ Retirement System (1984), 214 Mont. 200, 693 P.2d 1222, this Court ruled that a marital property settlement agreement did not operate as a relinquishment of a right to be designated as the beneficiary of a retirement account. The Court stated:

[t]he property settlement agreement does not specifically refer to Carolyn’s designation as beneficiary, but rather, relinquishes Carolyn’s rights of “dower, support, maintenance, succession, homestead, inheritance, or heirship” and her right to “all property, both real and personal which the other party now has or may hereafter acquire.” This language does not specifically cover Carolyn’s inchoate right to acquire property upon the happening of a future event.

Sowell, 693 P.2d at 1224.

The respondents rely upon Soha v. West (1981), 196 Mont. 95, 637 P.2d 1185. In that case, this Court held that a property settlement agreement created a question of fact as to decedent’s intent concerning a previously-executed designation in a life insurance policy which named the ex-spouse as the beneficiary. That holding, however, was specifically overruled in Eschler v. Eschler (1993), 257 Mont. 360, 849 P.2d 196. InEschler, we quoted the following language with approval:

[W]hile a settlement agreement may require the beneficiary wife to surrender or “turn over” the policy to the insured, that fact alone does not destroy her right as beneficiary where the insured thereafter did not change her designation as beneficiary.
Whether a property settlement agreement should be deemed to bar the divorced wife is a question of the construction of the agreement itself. Where there is no provision that the effecting of the settlement agreement should deprive her of her rights as named beneficiary and she in fact remains named as beneficiary, the settlement agreement will not be given a broader scope than its express terms specify and she will not be barred from her right as the named beneficiary.

Eschler, 849 P.2d at 201; quoting Girard v. Pardun (S.D. 1982), 318 N.W.2d 137, 138-39 (emphasis in original).

The respondents argue that neither Sowell nor Eschler applies here, because, unlike the retirement account and life insurance policy involved in those cases, the PaineWebber IRA was specifically awarded to Glendon in the property settlement agreement. However, the property settlement agreement did not refer to Isabel’s interest as a beneficiary of the PaineWebber IRA, but only referred to the account in general. Under the language and logic of Sowell and Eschler, when she entered the property settlement agreement, Isabel relinquished any immediate ownership interest in the IRA by virtue of her marital interest therein. She did not, however, relinquish her right as a named beneficiary of the IRA.

After the dissolution of the marriage of Glendon and Isabel, and until the time of his death, Glendon retained complete control over who was named as the beneficiary of the IRA. The personal representative states that it is difficult to speculate on Glendon’s intent as to who should be the beneficiary of the IRA. However, it is not necessary to speculate, because Glendon specifically named a beneficiary and two contingent beneficiaries. He, at any time before his demise, possessed the power to change any beneficiary named in the IRA; either intentionally or inadvertently, he did not change the beneficiaries.

We hold that the property settlement agreement did not constitute a relinquishment of Isabel’s inchoate interest in the PaineWebber IRA as a beneficiary. Pursuant to § 72-2-101(4), MCA (1991), her renunciation of that right after Glendon’s death operated as if she had predeceased him and brought into effect the provision of the Custodial Agreement that the contingentbeneficiaries “take upon the contingency of survival.” The right to the PaineWebber IRA then vested in Alison Bruce and Jonathan Bruce, the contingent beneficiaries.

Reversed and remanded for further proceedings consistent with this Opinion.

JUSTICES GRAY, HUNT, NELSON and WEBER concur.


author: JUSTICE GRAY JUSTICE WEBER

text:
    LEO J. DUCHAM, VERNA M. DUCHAM and LENORA E. HYLAND, Plaintiffs and Appellants, v. ROBERT L. TUMA and PHYLLIS A. TUMA, Defendants and Respondents.
    No. 93-534.
    Submitted on Briefs March 17, 1994.
    Rehearing Denied July 29, 1994.
    Decided July 6, 1994.
    51 St.Rep. 595.
    877 P.2d 1002.
    265 Mont. 436.

      For Appellants: Claude I. Burlingame, Thompson Falls.
    For Respondents: David L. Astle, Kalispell.
   JUSTICE GRAY

delivered the Opinion of the Court.

In this case, we review a judgment issued by the Twentieth Judicial District Court, Sanders County, denying Plaintiffs’ request for a permanent injunction to stop Defendants’ discharge of water across their property. We reverse.

In 1959 and 1961, Lenora Hyland (Hyland) purchased adjoining tracts of property located north and south of each other in the Trout Creek drainage in Sanders County. She used the land for agricultural purposes, raising cattle, sheep and hay. A swale, or shallow depression, crossed the two tracts from the northeast to the southwest.

In 1963, Hyland built a small stock pond straddling the swale on the northern tract. The pond originally was fed solely by spring run-off; Hyland diverted seepage from an irrigation ditch to fill the pond in 1968. She sold the two tracts in 1975 and purchased property directly to the west of the southern tract. The swale crosses the southeast corner of this property.

After intervening ownership of the northern and southern tracts by other individuals, those tracts were purchased by the parties to this action. Robert and Phyllis Turna (the Turnas) purchased the northern tract containing the stock pond in 1986 and constructed a trout pond in the swale uphill from the stock pond. The next year, they reconfigured the diversion mechanism at the irrigation ditch, using a four-inch pipe to conduct water to the trout pond. Leo and Verna Ducham (the Duchams) purchased the southern tract in 1988.

In August of 1989, the Duchams and Hyland (collectively referred to as Plaintiffs) filed a complaint asserting that the water diverted by the Turnas to supply the trout pond was being discharged across their property via the swale. They alleged that the Turnas’ discharge of water constituted a continuing trespass and interfered with the Duchams’ cultivation of crops on the southern tract.

Plaintiffs sought a temporary injunction during the pendency of the action and a permanent injunction to stop the discharge of water. Following a show cause hearing in August 1989, the District Court declined to issue a temporary injunction but admonished the Turnas to decrease the discharge of water to the minimum amount required to maintain the trout pond. In response, the Turnas reduced the opening of the four-inch diversion pipe to one-inch, presumably reducing the amount of water diverted into the trout pond and discharged down the swale.

Following a nonjury trial on June 3, 1993, the District Court declined to grant Plaintiffs a permanent injunction. The court found that water from the Turnas’ trout pond flowed across Plaintiffs’ property via the swale and that the Turnas had no express easement or condemned right-of-way for the discharge of water. The court concluded that Plaintiffs were not entitled to an injunction, however, because they had not proven that the Turnas 1) had breached a legal duty in regard to the discharge of water; 2) were negligent in any manner; or 3) had engaged in any unlawful conduct. The grant or denial of an injunction is within the discretion of the district court and will not be reversed absent an abuse of that discretion. Gabriel v. Wood (1993), 261 Mont. 170, 174, 862 P.2d 42, 44.

Plaintiffs assert that the District Court side-stepped the dispositive issue before it — whether the Tamas had a legal right to discharge water down the swale that would defeat their trespass to real property claim. On that basis, they raise two arguments challenging the court’s conclusions of law.

They first argue that the court erroneously entered conclusions of law on the irrelevant issues of the Turnas’ breach of a legal duty and negligence. We agree. The Turnas’ negligence in regard to the discharge of water was not explicitly or implicitly raised in the Pretrial Order or at trial and, thus, simply was not before the court. See Rule 16(e), M.R.Civ.P.; Zimmerman v. Robertson (1993), 259 Mont. 105, 111, 854 P.2d 338, 342; Nentwig v. United Industry (1992), 256 Mont. 134, 139, 845 P.2d 99, 102-03. The court’s entry of extraneous conclusions of law, however, did not affect the substantial rights of the parties and is, therefore, harmless error. See Woolf v. Evans (1994), [264 Mont. 480], 872 P.2d 777, 782, 51 St.Rep. 355, 358.

Plaintiffs’ second argument concerns the court’s conclusion that the Turnas’ conduct was not unlawful as a trespass to real property. Given the court’s failure to ascertain the Turnas’ legal right to discharge the water, Plaintiffs argue that the conclusion is erroneous as a matter of law. Our review of a district court’s legal conclusion is plenary. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04.

We have adopted the elements of the tort of intentional trespass to real property set forth in the Restatement (Second) of Torts, § 158:

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in possession of the other, or causes a thing or third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.

Branstetter v. Beaumont Supper Club (1986), 224 Mont. 20, 24, 727 P.2d 933, 935 (emphasis added). In this context, the “intent” requirement is satisfied if the actor desires to cause the consequences of the act or believes that its consequences are substantially certain to result. Branstetter, 727 P.2d at 935.

The parties agreed in the Pretrial Order that water diverted by the Turnas into their trout pond flowed from the Turnas’ property onto Plaintiffs’ property. Thus, it is clear that the Turnas “caused a thing” — namely, water — to enter onto land owned by Plaintiffs, satisfying subsection (a) of Restatement (Second) of Torts, § 158. Furthermore, the District Court’s finding No. 10 indicates that the discharge was intentional:

That shortly after Defendants Turna purchased the property they constructed a fish pond on their property by diverting water from the Green Mountain Ditch and running it through the fish pond, then onto the original pond created by Plaintiff Hyland, then on to the swale.

It is clear that the Turnas desired the overflow from the trout pond to be dispersed via the swale and, as surely as water runs downhill, to cross Plaintiffs’ property. Thus, all elements of an intentional trespass to real property are met in the case before us.

Conduct which otherwise would constitute an intentional trespass is not unlawful if it is privileged conduct pursuant to an easement. Restatement (Second) of Torts, § 188. In Montana, easements are created by grant, reservation, exception or covenant, implication or prescription. Kuhlman v. Rivera (1985), 216 Mont. 353, 359, 701 P.2d 982, 985. The Turnas agreed in the Pretrial Order that an easement had not been created by express grant; nor did they attempt at trial to establish any other type of easement right to discharge water across Plaintiffs’ property.

As their sole defense, the Turnas argued that Plaintiffs were equitably estopped from asserting the trespass to real property claim. In support of this defense, the Turnas offered evidence of Hyland’s construction of the stock pond in 1963 and their reliance on the continuing ability to divert water into the stock pond and discharge it via the swale when purchasing the northern tract.

The District Court made findings relating to the Turnas’ equitable estoppel defense, determining that Hyland originally diverted water from the irrigation ditch to create the stock pond and that the Turnas relied on the continuing existence of the stock pond when purchasing the northern tract. The court did not enter any conclusions of law on the issue.

Equitable estoppel is not favored and will be sustained only upon clear and convincing evidence. Dagel v. City of Great Falls (1991), 250 Mont. 224, 235, 819 P.2d 186, 193. Six essential elements are necessary for equitable estoppel to apply:

1) There must be conduct, acts, language or silence by the estopped party amounting to a representation or concealment of facts;
2) these facts must be known to the estopped party at the time of the conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to the estopped party;
3) the truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time they were acted upon;
4) the conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under the circumstances that it is both natural and probable that it will be acted upon;
5) the conduct must be relied upon by the other party; and
6) the other party must in fact act upon it in such a manner as to change the other party’s position for the worse.

Dagel, 819 P.2d at 192-93.

It is clear that Plaintiffs did not make a representation or concealment of fact which would satisfy the first element of equitable estoppel. The Turnas purchased the northern tract from persons not involved in this suit; they do not contend that either Plaintiff played a role in that transaction. Thus, Plaintiffs were not in a position to — nor did they — make a representation or concealment of fact when the Turnas purchased the property.

There also is no merit to the Turnas’ contention that the “representation of fact” element is satisfied by Hyland’s construction of the stock pond in 1963 and subsequent use of that pond. These actions by Hyland are not representations of fact; they are existing facts which cannot be construed as representations by Hyland to the Turnas. Nor, we observe, does Hyland’s construction and use of the stock pond necessarily relate in any way to the Turnas’ later construction and filling of the trout pond at issue in this action. We conclude that Plaintiffs are not equitably estopped from asserting their trespass claim.

Thus, on the basis of our conclusions that Plaintiffs established a trespass to real property and that equitable estoppel is not applicable here, we also conclude that the District Court erred in concluding that the Turnas’ conduct was not unlawful. As a final matter, we must determine whether Plaintiffs are entitled to a permanent injunction to stop the Turnas’ discharge of water across their property.

An injunction is appropriate “when it appears that the commission or continuance of an act will produce ‘irreparable injury’ to the party seeking such relief.” Curran v. Dep’t of Highways (1993), 258 Mont. 105, 107, 852 P.2d 544, 545. The commission of a single act which is destructive to the affected property, either physically or in the character in which it has been held or enjoyed, can result in an irreparable injury. Madison Fork Ranch v. L & B Lodge Pole Timber (1980), 189 Mont. 292, 302, 615 P.2d 900, 906. A continuing invasion of property rights also constitutes an irreparable injury; absent injunctive relief, an injured party would be forced to bring a multiplicity of actions at law in order to be compensated for the ongoing injury. See Floyd v. City of Butte (1966), 147 Mont. 305, 313, 412 P.2d 823, 827.

Leo Ducham testified that he could not cross the swale with farm equipment because of the Turnas’ discharge of water across his property, specifically recounting incidents in which a small tractor and a fertilizer spreader became stuck in the swale. Because he could not directly cross the swale to reach his property on the other side, as historically had been done, Ducham indicated that he was forced to use a county road that skirted his property and crossed the swale via a culvert. The testimony supports Plaintiffs’ position that the Turnas’ discharge of water interfered with the agricultural use of the southern tract.

Ducham also testified that he was unable to hay the swale in 1989, 1990, 1991, and 1992 because of the discharge of water. In addition, Hyland’s testimony indicated that water flowed in the swale across her property throughout each year following the Turnas’ construction of the trout pond. Thus, the discharge of water constituted a continuing invasion of the Duchams’ and Hyland’s property rights. Absent equitable injunctive relief, the Duchams and Hyland would have no adequate remedy at law and would be forced to institute an action for damages against the Turnas on an annual basis. These are precisely the kinds of circumstances in which courts of equity should intervene.

We hold that the District Court abused its discretion in denying Plaintiffs’ request for a permanent injunction. We remand for the entry of a permanent injunction in Plaintiffs’ favor and for further proceedings on the issue of whether Plaintiffs have sustained damages and, if so, the extent of those damages.

Reversed and remanded.

JUSTICES HARRISON, TRIEWEILER and NELSON concur.

JUSTICE WEBER

dissents as follows:

I dissent from the majority opinion and its reversal of the judgment of the District Court denying a permanent injunction to stop a discharge of the defendants’ water across plaintiffs’ land.

In the Findings of Fact, Conclusions of Law and Judgment of the District Court dated July 22, 1993, the District Court included the following key findings of fact:

16. That the water discharging from Turnas’ fish pond follows the natural draw and flows across the Duchams’ property, Hyland’s property and onto Wilson’s property.
17. That water which flows onto land owned by Plaintiff Ducham was originally diverted by Plaintiff Hyland onto land which she herself owned.
18. That in times prior to Turnas discharging water from their fish pond, during the Spring of the year, the Ducham draw flowed water. This water flowed as a result of Spring snow melt and rain fall and water from the Green Mountain ditch. Typically the Ducham draw would dry up during the month of June, and by July the draw was passable with haying equipment. Since the construction of Defendants’ fish pond, the flow of water through the draw may have increased, but the Plaintiffs failed to establish the quantum of any increase. There is no evidence of any material decrease in the amount of Plaintiffs’ property available for hay production in its traditional usage which has been caused by Defendants. (Emphasis supplied.)

The foregoing are the findings which led the District Court to conclude that an injunction was not appropriate. The majority has not addressed this determination of fact by the District Court.

The above findings establish that the water flowed down this draw as a result of spring snow melt, rain fall, water from the Green Mountain ditch, and water originally diverted from the pond by plaintiff Hyland. While there is no argument that some water runs down the draw from the defendants’ fish pond, the District Court pointed out that the plaintiffs had failed to establish the quantum of any increase in the normal flow. In a similar manner, the plaintiffs failed to present evidence of any material decrease in the amount of their property available for hay production. I conclude there is substantial evidence to support the foregoing findings on the part of the District Court. I would therefore affirm the denial of the injunction.

CHIEF JUSTICE TURNAGE concurs in the foregoing dissent.

JUSTICE HUNT concurs in the foregoing dissent.