NO. l3746
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
HOLLIDAY LAND AND LIVESTOCK COMPANY,
a M0ntana c0rporati0n,
Plaintiff and Appellant,
CHARLES PIERCE et al.,
Defendants and Respondents.
Appeal from: District Court of the Fourteenth Judicial
District,
Hon0rab1e Nat Allen, Judge presiding.
Counsel of Rec0rd:
F0r Appellant:
John V. Potter, Jr. white Sulphur Sprinqs, M0ntana
Glen Neier argued, white Sulphur Springs, M0ntana
F0r Resp0ndents:
M00re, Rice and O'C0nnell, B0zeman, Montana
Barry O'Connell argued, B0zeman, Montana
David DePuy, Livingst0n, M0ntana
Submitted: September l5, 1977
Decided: NUy'_:v;9??
Filed:;i; -* 1L?
h§, n_
C erk
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the
Court.
This is an appeal from the District Court's order,
Wheatland County, granting the motion to dismiss the action in
which a lessor of agricultural property brought suit against
the lessees for unlawful detainer.
The record discloses that plaintiff leased to defendants
ranch property located in Wheatland County, Montana. The "Real
Estate Lease" commenced on December l, l973,and expired on
December l, l974. The annual rental sum of $l2,500 was to be
paid in advance upon execution of the agreement. By notice, de-
fendants exercised an option to renew for the term December l,
l974 through December l, l975. The agreed rental was paid in
advance. After December l, l975, defendants remained on the
property. No advance rental was paid to the plaintiff upon ex-
piration of the second rental term.
On September 9, l976, plaintiff served defendants with
a "Notice Requiring Payment of Rent or Possession of Property".
Following no response from defendants, plaintiff filed a "Com-
plaint for Unlawful Detainer". Defendants thereafter submitted
a motion to dismiss pursuant to Rule l2(b){6), M,R.Civ.P, The motion
to dismiss was argued before Hon. Nat Allen and granted February
l8, l977. Plaintiff appeals from this order.
The disposith&aissues before this Court are:
l. Whether a tenant upon agricultural lands holding
over for more than sixty days without notice can be guilty of
unlawful detainer as a matter of law?
2. Whether recovery of rent in an action for unlawful
detainer is dependent upon the finding of unlawful detainer?
Defendants argue that under section 93-9703(2), R.C.M.
l947, when an agricultural tenant holds over and receives no
notice to quit within 60 days, he is free from the action for
unlawful detainer for the term of the previous lease. we
agree.
On December l, l975, defendants became holdover tenants.
For more than 60 days thereafter, defendants enjoyed the quiet
and peaceful possession of the leased agricultural property with-
out plaintiff serving a notice to vacate or demand for payment
of rent. The statute defining unlawful detainer, section 93-
9703, R.C.M. l947, is clear and unequivocal. Miller v. Meredith,
Hill and whitfield, 149 Mont. l25, 423 P.2d 595 (l967). Pursuant
to section 93-9703(2), a holdover tenant upon agricultural property
is guilty of an unlawful detainer where:
(l) The term of the lease has expired; and
(2) Statutory notice is given the tenant within 60 days
after expiration of the lease.
Miller,l49 Mont. l29; Kenfield v. Curry, 145 Mont. l74, 399 P.2d
999 (l965).
The fulfillment of both is a condition precedent to the
initiation of an unlawful detainer action. Plaintiff admitted
in the complaint that notice was not given until ten months after
expiration of the lease. In so pleading, plaintiff could not
state a cause of action for unlawful detainer upon which relief
could be granted.
In Pipkin v. Connolly, 167 Mont. 284, 29l, 538 P.2d 347
(l975), this Court clearly discussed the issue of holding over
by an agricultural tenant.
" * * * while all other tenancies speak of holding
over without permission of the landlord, and this
Court is mindful of the cases holding three day
notice to pay or quit satisfies 'without permission'
impliedly, agricultural leases require demand after
holding over after the expiration of the lease
term * * *.
"*'k*
" * * * As stated heretofore, no notice or demand
was ever given Connollys after the expiration of
the lease. They remained on the property sixty
days after the lease terminated and planted their
crops. Therefore, under section 93-9703(2), they
had a right to harvest those crops and are protect-
ed from liability for unlawful detainer." (Emphasis
added.)
The lease was for agricultural land; the tenants held
over. The landlord did not send notice within 60 days to vacate
the property or pay the rent. Section 93-9703(2) clearly sets
out the procedure and clearly denies the liability of unlawful
detainer where the prescribed procedure is not met. Defendants
were not liable for unlawful detainer,
The second issue before this Court is whether a second
independent cause of action for rents is included within an un-
lawful detainer action. we hold that where the unlawful detaiher
action fails, the statutorily allowed incidents of rents and
damages also fail.
The nature of an unlawful detainer action is a civil action
at law sounding in tort. The action is a purely statutory civil
proceeding unknown to common law. Hutchenson v. Burton, 126 Mont.
279, 247 P.2d 987 (l952). The statute is therefore strictly
construed. Miller, l49 Mont. l29.
An unlawful detainer action is a summary proceeding in
which the primary purpose is to obtain the possession of real
property in situations specified by statute. Vasey v. California
Dance Co., Inc., App., 139 Cal.Rptr. 72, 74 (l977); 36A C.J.S.
Forcible Entry & Detainer, § 3, p. 96l. In such an action the
court has limited jurisdiction, having before it only the issue
of possession and its statutory incidents. Snuffin v. Mayo, 6
wash.App. 525, 494 P.2d 497 (l972).
Montana's unlawful detainer statute pertaining to agri-
cultural land is not unique. Several other jurisdictions have
similar provisions, including California and washington which
have nearly identical statutes to section 93-9703(2). This
Court's attention is directed to the California and Washington
courts' discussion of unlawful detainer, The California court,
when faced with a question similar to this second issue made
this pronouncement in Y§§§y, 139 Cal.Rptr. 74-75:
" * * * The sole issue before the court is the
right to possession. * * *
" * * * even where there is injury to a lessor
resulting from breach of covenants under the
lease, the lessor must resort to ordinary action
and cannot 'take advantage of the summary proceed-
ing designed solely to enable him to speedily
recover possession.' * * *
"The reasons for such a restriction are clear.
An unlawful detainer action is founded upon un-
lawful occupation and the principal relief sought
is early possession of the pr0perty; damages and
rent are incidental thereto and are recoverable
only because the statute so provides."
The washington court in passing on their like statute, stated in
Pine Corporation v. Richardson, l2 Wash.App. 459, 530 P.2d 696,
700 (l975):
"In short, the rule is that where the issue of
possession otherwise has been resolved, collateral
issues--such as the validity of a claim for accrued
rentals--will not lie in an action brought pursuant
to the unlawful detainer statute, RCw 59.l2. * * *"
Plaintiff brought this action solely under the unlawful detainer
statute. Damages can be allowed plaintiff only as an incident
to the right of possession. If plaintiff fails to prove unlawful
detainer, he cannot be awarded damages. If there is no claim
to recover possession or no recovery of possession, there can
be no award of damages, a claim for which must be asserted in an
ordinary civil action. 36A C.J.S. Forcible Entry & Detainer,
§ 58, p. l028. Loss of rents are usually included as damages
recoverable. 36A C.J.S. Forcible Entry & Detainer, § 59, P. l028.
In the case at hand, plaintiff prayed for relief solely
under the unlawful detainer statute, This is strictly a statutory
remedy. where the unlawful detainer action fails, incidents
allowable under the action fail. Fontana Industries, Inc. v.
western Grain & Fer. Co., 167 Ca1.App.2d 408, 334 P.2d 611 (l959).
This has been the rule in Montana since Bush v. Baker, 51 Mont.
326, 334, 152 P. 750 (l9l5). In §u§h this Court stated:
* * * Our statute is so worded, however, that
to support a recovery of rents in this action,
it was requisite for the plaintiff to estab1ish,
and for the jury to find, that there had been
an unlawful detainer. * * *"
The District Court was correct in ruling solely on the
merits of the unlawful detainer action and in granting the motion
to dismiss. Once the unlawful detainer action failed, the Dis-
trict Court lost jurisdiction to continue on the question of
incidents under the unlawful detainer action.
This Court also rejects p1aintiff's claim that Rule l8,
M.R.Civ.P., controls in this case. we are cognizant of the fact
that §u§h was decided long before the Montana Rules of Civil
Procedure. we are also cognizant of the fact that Rule 18 allows
the joinder of independent claims "as many claims either legal
or equitable or both as he has against an opposing party or co-
party". Rents sound in contract and constitute a cause of action
in themselves without regard to unlawful detainer. §u§h, 51
Mont. 333. Unlawful detainer sounds in tort. Hutchenson, 126
Mont. 298. By the liberal joining of independent claims under
Rule 18 these two independent claims could be joined. In the
case at hand, plaintiff did not join two independent claims.
The complaint filed by plaintiff presents only one prayer for
relief--an unlawful detainer action and its statutory incidents of
rents and damages. As a result plaintiff was entitled to only
one of two things: (l) a granting of an award for unlawful de-
tainer; or (2) a dismissal of the unlawful detainer action.
The question of accrued rents was raised by plaintiff
only as an incident to the unlawful detainer action. The
District Court had jurisdiction in the unlawful detainer action.
Once that action was dismissed, the District Court was without
jurisdiction to continue and rightfully did not. Therefore, the
question of accrued rents was not reached nor ruled upon by the
District Court. A claim for the accrued rents, being an inde-
pendent action from the unlawful detainer, must be asserted in
an ordinary civil action. 36A C.J.S. Forcible Entry & Detainer,
§ 58, p. l028. See also: Lees v. wardall, 16 wash.App. 233,
554 P.2d l076, (l976); Briggs v. E1ectronic Memories & Magnetics
Corp., 126 Cal.Rptr. 34, 53 Cal.App.3d 900 (l975), The regulating
of the accrued rents to the processes of an ordinary civil action
was discussed by the washington court in Pine Corporation, 530
P.2d at 700:
"Similarly, in Tuschoff v. westover, supra, where
the landlord had obtained possession of the prem-
ises in question, the court refused to allow him
to pursue his claim for accrued rent as part of
unlawful detainer jurisdiction, stating 65 wash.2d
at 73, 395 P.2d at 632:
"The special summons employed in an unlawful de-
tainer action is insufficient to give the court
jurisdiction of the parties in a general proceed-
ing. The court has obtained jurisdiction over the
parties only for the limited statutory purpose of
determining the issue of possession.
"The court obtained jurisdiction over the parties
for a limited statutory purpose only, name1y, to
determine the issue of possession in an unlawful
detainer action and, having obtained that limited
jurisdiction, it committed error in transforming
the special statutory proceeding into an ordinary
lawsuit for accrued rentals. Hence, respondents'
action for accrued rental is dismissed without
prejudice to any other appropriate action.'"
The order of the District Court is affirmed. The dis-
missal of the unlawful detainer action does not prejudice any
other appropriate action taken by the plaintiff on an independent
contract claim for accrued rents.
Chief Justice