No. 79-14
I N THE SUPREME COURT O THE STATE O M N A A
F F O T N
1980
MARY TOECKES,
P l a i n t i f f and R e s p o n d e n t ,
VS.
R N L D.
O AD BAKER,
Defendant and Appellant.
A p p e a l from: District Court of t h e E i g h t h , J u d i c i a l D i s t r i c t ,
H o n o r a b l e H. W i l l i a m Coder J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
A l e x a n d e r & Baucus, G r e a t F a l l s , Montana
For Respondent:
C u r e & B o r e r , Great F a l l s , Montana
S u b m i t t e d on b r i e f s : March 6 , 1980
Decided :
MAY 2 1 1
m
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
This action was commenced in the Cascade County District
Court by plaintiff-respondent Mary Toeckes. She sought actual
and punitive damages for an alleged malicious removal of a gate
and approach to state property which she holds as a cotenant
with her sister, Andrea Baker, and for a deprivation of the use
of the property through intimidation. The District Court entered
judgment against defendant Ronald Baker, Mrs. Toeckes' brother-
in-law, and awarded actual damages of $230 and punitive damages
of $1,000. Ronald Baker appeals.
Mary Toeckes and Andrea Baker inherited a leasehold interest
in 80 acres of state grazing land as tenants in common upon the
death of their mother in 1969. The land was subleased to Dan
Engelmeier until October 15, 1975. The parties could not reach an
agreement concerning the use of the leasehold interest after the
sublease terminated.
Appellant's counsel aptly describes this action as a "Hatfield-
McCoy dispute." It is apparent from the record that Mary Toeckes
and Ronald Baker have not been able to get along since 1969. Mrs.
Toeckes testified at trial that Mr. Baker had threatened bodily
harm to herself and Dan Engelmeier. This testimony was corrobor-
ated by Mr. Engelmeier, who also testified as did Mrs. Toeckes,
that Ronald Baker had threatened to shoot any livestock placed
on the leased land. Mr. Engelmeier leases other farmland from
Mrs. Toeckes and has at times, assisted her in farm work since
her husband's death in 1975.
Prior to May, 1977, there was no direct access to the prop-
erty from the adjacent county road, and in order to enter the
property one was required to drive past Mr. Baker's home or across
Mr. Engelmeier's land. Because of the strained relations between
Mrs. Toeckes and Ronald Baker, she contacted Cascade County in
order to have an approach constructed to give her direct access
to the property. She did not communicate with her cotenant,
Andrea Baker, concerning the installation.
The approach was constructed by Cascade County and Dan
Engelmeier installed a gate on behalf of Mary Toeckes in May,
1977. Ronald Baker saw the trucks and men installing the approach.
He and his wife then went to Helena to discuss the installation
with the State Department of Lands. Mrs. Baker testified that
she and her husband were told by a person of unknown professional
status or authority that a cotenant has no authority to install
an approach unless the other tenant consents. Allegedly on the
basis of this conversation, Mr. Baker, acting on behalf of his
wife, proceeded to tear our the gate and remove the approach with
a tractor and loader. This act prompted Mrs. Toeckes to commence
this litigation.
The District Court found that: (1) Defendant's threats to
shoot Mary Toeckes, Dan Engelmeier, and any livestock placed on
the property put the plaintiff in fear and prevented her from us-
ing her interest in the land; (2) Ronald Baker's action in remov-
ing the gate and approach was willful and malicious and was prompt-
ed by an intent to deprive the plaintiff of the use and enjoy-
ment of the leasehold; and (3) the plaintiff was entitled to actual
damages of $230 as a result of defendant's conduct. The District
Court also awarded $1,000 punitive damages.
The issue on appeal is whether there is substantial evidence
to support the findings of fact and conclusions of law of a will-
ful and malicious deprivation of the use of the property as well
as the amount of damages awarded.
With regard to the standard of review, this Court has repeat-
edly stated it will not overturn findings of fact and conclusions
of law if supported by substantial evidence and by the law. Evi-
dence will be viewed in the light most favorable to the prevailing
party. Rule 52, M,R.Civ.P.; Luppold v. Lewis (1977), 172 Mont.
280, 563 P.2d 538; Morgen & Oswood Const. Co. v. Big Sky of
Montana (1976), 171 Mont. 268, 557 P.2d 1017. The judgment of
the District Court is presumed to be correct and will be upheld
unless clearly shown to be erroneous; the burden of such showing
is upon the appellant. Kamp v. First National Bank and Trust
Co. (1973), 161 Mont. 103, 504 P.2d 987. Where a trial court
judge's findings are based upon substantial though conflicting
evidence they will not be disturbed on appeal unless there is
a clear preponderance of evidence against such findings. Cameron
v Cameron (1978),
. Mont . , 587 P.2d 939, 35 St-Rep. 1723.
The record in the instant case reveals substantial evidence
of intimidating actions toward Mary Toeckes' use of the property
in question, including the previously mentioned threats and cul-
minating in Ronald Baker's willful removal of the gate and approach.
Although the Bakers have denied the threats and other incidents
of intimidation, those denials are not sufficient to rebut the
presumption of validity of the trial court judge's findings. We
find substantial evidence to support the findings of fact. Thus,
the appellant must demonstrate a misapplication of law to prevail
on appeal.
Appellant contends on appeal that Mary Toeckes was not author-
ized to have the approach and gate installed, and therefore he
was entitled to remove it. He cites the following passage as
authority for this proposition.
". . . Thus, it is obvious that a tenant in comnon
has no right to a.lter or change the property to
the injury of his cotenant without his assent or
to obstruct, or deny to his cotenant, the latter's
equal right to its use . . ."
20 Am Jur 2d Cotenancy
and Joint Ownership S37.
However, we find that this provision does not apply to the facts of
this case since appellant's only contention of injury from the in-
stallation is that he cannot see the access to the property.
Cotenants have the right to equal access and use of property
held in common and one tenant cannot deprive the other of the use
of the property. It is also well-established that if one cotenant
attempts to use the property to the exclusion of the other, the
excluded cotenant may have access to the property by any reason-
able means which does not create waste. This common law rule has
been partially codified in section 70-1-311, MCA, which provides:
"If any person shall assume and exercise exclusive
ownership over or take away, destroy, lessen in value,
or otherwise injure or abuse any property held in
joint tenancy or tenancy in common, the party aggrieved
shall have his action for the injury in the same manner
as he would have if such joint tenancy or tenancy in
common did not exist; provided that nothing herein con-
tained shall prevent one cotenant or joint tenant or
any number of cotenants or joint tenants acting together
less than all from entering on the common property at
any point or points not then in the actual occupancy
of the nonjoining cotenants or joint tenants and enjoy-
ing all rights of occupancy of the property, without
waste. . ." (Emphasis added.)
On the basis of this common law and statutory authority and
the facts of this case we find that the installation of the access
to the property was authorized by law and appellant's actions were
not justified.
Appellant further contends that the actual damages of $230
was not supported by the evidence. The District Court does not
provide a basis for its calculation of the actual damages award.
However, we find substantial evidence in the record to support this
amount. The amount is not excessive. The record reveals that
Mrs. Toeckes was deprived of the use of the leasehold in 1976 and
a portion of 1977, that she incurred costs in constructing the gate
and reconstructing the gate after Mr. Baker removed it, and that
she received an itemized statement from Cascade County for $249.28.
The testimony of the value of the land for grazing purposes varied
from $7.50 to $10.00 per animal unit month and the state lease
specified a carrying capacity of 27 units per year. The testimony
also conflicts concerning the cost of constructing the gates with
the range being $10 to $50 for each gate. There was also con-
flict as to whether or not the statement from the county was
actually a bill. Although the evidence on damages is conflic-
ting, we find that $230 in actual damages is not excessive, since
combinations of these amounts could total a much higher figure
depending on the weight the District Court gives the testimony.
Next appellant contends that punitive damages should
not have been awarded. The basis of this contention is that
although Ronald Baker admits removing the gate and approach with-
out consulting Mary Toeckes, his trip to Helena and his discussion
with the Department of State Lands negates any malicious intent.
Section 27-1-221, MCA, provides the guidelines for an
award of punitive damages.
"27-1-221. When exemplary damages allowed.
In any action for a breach of an obligation not
arising from contract where the defendant has been
guilty of oppression, fraud, or malice, actual or
presumed, the jury, in addition to the actual
damages, may give damages for the sake of example
and by way of punishing the defendant."
The District Court, as the trier of fact, found that Ronald
Baker's actions of removing the gate and approach and intimidating
the respondent through threats of bodily harm were malicious.
Judge Coder properly admitted testimony concerning Ronald Baker's
conversation with an employee of the Department of State Lands for
the purpose of determining Ronald Baker's state of mind. This
conversation may be considered as a factor in determining the
propriety of an award of exemplary damages; the fact that the con-
versation actually took place does not preclude a finding of malice.
See Perkins v. Stevens (1957), 131 Mont. 138, 308 P.2d 620. There
is substantial evidence to support a finding of malice by reason
of appellant's conduct in destroying the gate and approach as well
as the intimidation exerted upon the respondent.
With regard to the amount of punitive damages, there is
no established rule to be followed for ascertaining whether such
an award is excessive. Johnson v. Horn ( 1 9 2 9 ) , 86 Mont. 314,
2 8 3 P. 427. The District Court is in a better position to deter-
mine the amount and this Court is unwilling to disturb the award
since it is not disproportionate under the circumstances of this
case.
We have deemed it unnecessary to discuss several incidents
of alleged misconduct which are contained in the record as they
would not change the result in this case.
The judgment is affirmed.
Chief Justice