Woodard v. Castle Mountain Ranch

NO. 80-92

I N THE SUPREME COURT O THE STATE O M N A A
F F OTN

1981

GORDON RASE, J I M WOODARD e t a l . ,

P l a i n t i f f s and R e s p o n d e n t s ,

VS .
CASTLE MOUNTAIN RANCH, INC.,

D e f e n d a n t s and A p p e l l a n t s .

Appeal from: District Court of t h e Third J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f P o w e l l .
H o n o r a b l e P e t e r Meloy, 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 Appellants:

Gough, Shanahan, J o h n s o n & Waterman, H e l e n a , Montana
Ward Shanahan a r g u e d , H e l e n a , Montana

For Respondents:

P o o r e , Roth, Robischon and R o b i n s o n , B u t t e , Montana
James P o o r e a r g u e d a n d Urban Roth a r g u e d , B u t t e ,
Montana

Submitted: March 2 6 , 1981

Decided: JUL 2 -
Filed : JUL 2 - 1981
//
Y
1 -
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the Court.

Both sides appeal from a judgment entered by the Third
Judicial District Court, Powell County, imposing a constructive
trust for more than 40 cabin sites at Rock Creek Lake in
Powell County, on real property now owned by Castle Mountain
Ranch, Inc., successor to Ward Paper Box Company (Ward).
The cabin sites which surround Rock Creek Lake about 15
or 20 miles from Deer Lodge, Montana, were owned until 1972
by Rock Creek Irrigation, Inc., a subsidiary of Williams and
Tavenner, Inc. (Tavenner), which operated the surrounding
ranch. In 1972, Tavenner sold the ranch, including the
lakeshore property, to Ward Paper Box Co. The ranch has
since been transferred to Castle Mountain Ranch, Inc. Louis
Ward is the principal shareholder or owner in both corporations
and was the primary actor in the purchase of the ranch, including
the cabin sites around Rock Creek Lake.
The respondents and cross-appellants here (plaintiffs
in the District Court) are owners of summer homes and cabins
around the lake. They and their predecessors, acting individually,
at various times since 1922, built and improved summer
homes, some quite substantial, on the Rock Creek Lake front,
on real property owned by Tavenner, and with the consent and
permission of Tavenner. The issue for us to decide, as in
the District Court, is the nature and extent of any agreement
between the cabin owners and Tavenner, individually or
collectively, express or implied, for termination of the
permission.
The cabins were built around the lake over a course of
many years, by friends, neighbors and employees of the ranch
owners, with their consent and possibly with their implied
invitation. These were permanent structures, sometimes
built with timber from the ranch and sometimes with the
assistance of the ranch owners. The ranch owners owned one
of the cabins. Reasons given for the ranch owners extending
permission include the wish for companionship at the ranch,
the help of the cabin owners in protecting the ranch properties,
their availability for fire lookout and fire fighting, and
their help in maintaining the roads, as well as their friendship
and society.
For at least 50 years, relations between the cabin
owners and the ranch owners were amicable. The cabins were
inherited, bought and sold without interference from the
ranch owners. Cabins were expanded and renovated, and the
ranch owners were advised of sales or inheritance of the
cabins, sometimes after the fact. Through the years, the
cabins were modernized, expanded and improved. The ranch
owners were aware of the continuing maintenance of the
summer homes. County records, at the time of trial, indicated
that the summer cabins had an assessed value of $300,000.
The ranch owners did insist on permanent structures to be
located on the cabin sites; no trailers or movable homes
were permitted.
On some occasions, various cabin owners attempted to
purchase the underlying cabin sites, but the ranch owners
advised that the lake provided water for the ranch, and the

ranch owners wanted to maintain control over the lake itself.
The use of the lake for irrigation did not interfere with
the owners' use of their cabins.
In the very earliest years, no documents were entered
into between the ranch owners and cabin owners. After some
period of time, some of the cabin owners entered into lease
agreements with the ranch owners, but these agreements
expired by their own terms. Starting in 1963, however, the
cabin owners signed documents that were entitled 'license
agreements." These documents had been drafted by the lawyer
for the ranch owners. All of the license agreements had the
same general provisions, and essentially provided as
follows:
1. A license from Rock Creek Irrigation, Inc.
to the cabin owner for the use of the cabin site
together with right of access thereto.
2. A term for the license, solely for a
summer camp or cabin site, beginning January
1, 1963 and ending on termination.
3. A fee for $6.00 per year payable
in advance or 50 cents per month for any part
of a year on or before January 1 of each year.
4. A provision for the erection of structures
on the cabin site by the licensee, to be approved
in advance by the licensor, and providing that
such structures should be removed by the licensee
at termination, or the structures became the
property of the licensor.
5. A provision making the licensee liable for
damages to the crops, timber, fences and improve-
ments of the licensor.
6. A save harmless provision for the licensor.
7. A termination provision which is the heart
of this lawsuit and which provided:
"Either party may terminate this agreement at
any time, without regard to payment periods,
by written notice to the other specifying the
date of termination, which notice shall be
given not less than thirty (30) days prior to
the termination date therein specified . .".
8. A provision that the relationship of
landlord and tenant was not created between
the parties, and that the license is personal
to the licensee and not transferable to
administrators, executors, successors or assigns
of the licensee.
9. A provision for written notice by
certified mail.
Tavenner did not ever serve a notice of termination
upon any of the cabin owners. In the years from 1963 to
1972, t h e p r o v i s i o n s o f t h e l i c e n s e agreement w e r e b r e a c h e d

i n many r e s p e c t s by v a r i o u s owners, w i t h o u t o b j e c t i o n from

Rock Creek I r r i g a t i o n , I n c . Particularly, the cabins w e r e

bought and s o l d o r t r a n s f e r r e d by i n h e r i t a n c e w i t h o u t

o b j e c t i o n from t h e l i c e n s o r .

R o b e r t Tavenner t e s t i f i e d , however, t h a t t h e r e a s o n

t h e r e w e r e no t e r m i n a t i o n s w a s "we had no t h o u g h t o f s e l l i n g

t h e ranch." H e f u r t h e r s a i d t h e y had no r e a s o n t o t e r m i n a t e

t h e p e r m i s s i o n s , b u t "we wanted t o be i n a p o s i t i o n t o

t e r m i n a t e i f w e had t o . "

I t was p r o b a b l y assumed by a l l p a r t i e s t h a t t h e ownership

of t h e r a n c h p r o p e r t y would remain unchanged t h r o u g h t h e

years. However, i n 1969, on t h e d e a t h o f one of t h e r a n c h

owners, t h e p o s i t i o n of t h e r a n c h owners changed, and t h e

r a n c h p r o p e r t y became a v a i l a b l e f o r s a l e . I n 1972, Ward

Paper Box Company e n t e r e d t h e p i c t u r e i n t h e p e r s o n of L o u i s

Ward, i t s c h i e f o f f i c e r . H e v i s i t e d t h e ranch i n t h e s p r i n g

o r e a r l y summer of 1972, and on J u l y 2 1 , 1972, h i s company

(Ward) e n t e r e d i n t o a c o n t r a c t t o p u r c h a s e t h e ranch i n c l u d i n g

t h e l a n d s u r r o u n d i n g Rock Creek Lake. The c o n t r a c t p r o v i d e d

f o r a c l o s i n g d a t e of December 1, 1972. Attached t o t h e

c o n t r a c t f o r s a l e w a s a s c h e d u l e of t h e l i c e n s e agreements

which i n c l u d e d t h e n o t a t i o n " c o n s e n t of l i c e n s e e s t o a s s i g n m e n t

not required."

R o b e r t Tavenner, one of t h e r a n c h owners, t e s t i f i e d

t h a t near t h e end of t h e n e g o t i a t i o n s , L o u i s Ward r e q u e s t e d

t h a t Tavenner t e r m i n a t e t h e c a b i n owners. Tavenner r e f u s e d .

He testified:

"Q. Now a s a m a t t e r of f a c t i f t h a t had been
made a c o n d i t i o n of t h e s a l e you w o u l d n ' t have
gone t h r o u g h w i t h t h e s a l e ? A. W e wouldn't
have gone t h r o u g h , w e t o l d him t h a t . I f t h a t had
been we w o u l d n ' t have gone t h r o u g h .
 "Q. So, basically he took the sale and lake as
it was, isn't that right? A. After I told
him that we had a family conference, he said
let me have a little time to think about it.
And a day or two went by and he said he would
take the ranch as planned, the cabins and all."

On October 13, 1972, counsel for Ward mailed a letter
to all cabin owners advising that the impending transfer of
ranch property would be consummated on December 1, 1972, and
which letter included the following paragraph:
"We are writing on behalf of Ward Paper Box
Company to advise you of this impending transfer
and also to advise you that the purchaser has
examined your license agreement and will construe
it according to its literal terms. There have
been no oral representations made to anyone with
respect to the purchasers' intentions as to this
property. You should therefore not assume that
you have any rights or privileges other than
those arising from your license agreement."
The transfer of the ranch property occurred according
to schedule and on July 11, 1973, the new owners sent each
of the cabin owners a notice of termination of their licenses.
On December 20, 1973, the cabin owners filed their action in
the District Court for interlocutory and permanent injunctive
relief, and to quiet the title in their cabins and establish
permanent easements thereto. The litigation limped along
through various motions, hearings, discovery and briefing
schedules until November 13, 1979, when the District Court
entered its findings of fact, opinion, conclusions of law
jvdgrnent and decree. After post-trial motions by both
parties, the court issued its final order of January 15,
1980. Timely notice of appeal was filed by Ward, and the
cabin owners thereafter cross-appealed.

THE APPEAL
Ward raises essentially the following issues:
1. The District Court erred in specified findings of
fact made, and in refusing offered findings from Ward.
 2. The e v i d e n c e d o e s n o t s u p p o r t t h e D i s t r i c t C o u r t ' s

decision.

3. The D i s t r i c t C o u r t d e c r e e v i o l a t e s t h e s t a t u t e of

f r a u d s and t h e p a r 0 1 e v i d e n c e r u l e , and d i s r e g a r d s w a i v e r

by t h e c a b i n owners i n s i g n i n g t h e l i c e n s e agreements.

4. Ward w a s a bona f i d e p u r c h a s e r w i t h o u t n o t i c e .

5. The c o u r t e r r e d i n imposing an e q u i t a b l e l i e n on

t h e Ward p r o p e r t i e s .

These a r e p r o c e e d i n g s o f an e q u i t a b l e n a t u r e . Under

s e c t i o n 3-2-204(5), MCA, o u r d u t y i s t o r e v i e w a l l q u e s t i o n s

of f a c t a r i s i n g upon t h e e v i d e n c e p r e s e n t e d i n t h e r e c o r d ,

w h e t h e r p r e s e n t e d by s p e c i f i c a t i o n s of e r r o r o r n o t and t o

d e t e r m i n e t h e same as w e l l a s q u e s t i o n s of law. Rule 5 2 ( a ) ,

M.R.Civ.P., r e q u i r e s f i n d i n g s of f a c t made by t h e D i s t r i c t Court

t o be upheld u n l e s s t h e y a r e c l e a r l y e r r o n e o u s . Rule 5 2 ( a ) ,

d o e s n o t make any d i s t i n c t i o n between c a u s e s o f a n e q u i t a b l e

n a t u r e and c a s e s a t l a w , as f a r a s t h e a p p e l l a t e r e v i e w o f

t h e D i s t r i c t C o u r t f i n d i n g s of f a c t i s concerned. W e have

s t a t e d i n o t h e r cases t h a t i n a p p e a l s o f e q u i t y c a u s e s , w e w i l l

r e v i e w b o t h q u e s t i o n s o f l a w and q u e s t i o n s of f a c t , b u t w e w i l l

n o t r e v e r s e t h e t r i a l c o u r t i n a n e q u i t y case on q u e s t i o n s of

f a c t u n l e s s t h e r e i s a d e c i d e d preponderance o f t h e e v i d e n c e

against t h e findings of the t r i a l court. Boz-Lew B u i l d e r s v.

Smith ( 1 9 7 7 ) , 174 Mont. 448, 452, 571 P.2d 389, 391; B a r r e t t

v. Zenosek ( 1 9 5 7 ) , 132 Mont. 229, 315 P.2d 1001. However b r o a d

t h o s e s t a t e m e n t s may a p p e a r , t h e y s h o u l d n o t be t a k e n t o mean

t h a t t h i s Court w i l l dodge t h e s t a t u t o r y d u t y f a s t e n e d on i t
t o make an i n d e p e n d e n t r e v i e w o f q u e s t i o n s of f a c t i n e q u i t y

cases. W e cannot s h i r k t h e s t a t u t o r y duty. Rather, t h e state-

ments s h o u l d be t a k e n t o mean t h a t i n equity c a s e s , where t h e

i s s u e s a r e c l o s e , as t h e y a r e h e r e , a d e g r e e o f d e f e r e n c e w i l l
be accorded the findings of the trial court since it is in
a better position to make decisions of fact. Such statements
are merely a reflection of the long-standing reluctance of
appellate tribunals merely to substitute their judgment for
that of the trial court in close issues of fact.
The findings of fact of the District Court to which
Ward objects are the essential findings upon which the
decision of the District Court is based. In essence, those
findings include: that Tavenner did not intend to cancel the
cabin site arrangements while it owned the ranch; that although
there were no express assurances, Robert Tavenner allowed
cabin improvements, assuring the cabin owners from time to time
that the license agreements were a "formality" and there was
to be no change in the way the cabins were held by the cabin
owners; that while the Tavenner corporation was involved in
selling the ranch, it permitted Martin Olsen and James Biodgett
to purchase homes from previous owners without informing the
new purchasers of the impending sale, nerely submitting the
usual license agreement to the new owners for execution; that
by allowing the cabin owners to make improvements and to assume
a long-term occupancy, Tavenner misled the cabin owners into
believing they did not have to fear the loss of their investment
and so allowed them to act to their detriment; that Louis Ward
was advised Tavenner would not sell the ranch if Ward insisted
on the cancellation of the license agreements; that Ward agreed
to take the property although he knew, or through the reasonable
exercise of inquiry, should have known, that the cabin owners
hoped for a long-term occupancy and had made substantial
improvements based upon the implied assurances of Tavenner; and,
that such conduct amounted to constructive fraud against the
cabin owners.
 To be sure, there were no express assurances from
Tavenner that the cabin owners had any right of possession
of the real property beyond the permission stated in the license
agreements. It is equally clear that Tavenner engaged in a
course of conduct, as we have set forth in our statement of the
facts, that gave the cabin owners an implied assurance of a
somewhat permanent tenure sufficient that they made substantial
investments in erecting ahd maintaining the cabins openly
recognized by Tavenner. From our review of the record, it
is abundantly clear to us that while Tavenner, through the
license agreements, wanted to be in position to terminate
the permission for any cabin owner it might find undesirable,
it was never the intention of Tavenner, in procuring the
agreements or in permitting the improvements, to use the
license agreements for a wholesale termination of every cabin
owner's permission in one clatter. In fact, Tavenner refused
to do just that. We determine from the record that it was the
intention of Tavenner to have a degree of control over who
possessed the cabins, though it never exercised that control;
that it wanted to be in a position, if it felt the need, to
terminate any undesirable possessors of the cabins; and perhaps
that the execution of the license agreements and the requirement
of a nominal sum per year eliminated any potential future claim
of adverse possession or prescriptive right.
We therefore conclude, though from a slightly different
viewpoint, that the findings of the District Court are
correct.
Ward particularly objects to the finding that it was
not a bona fide purchaser. Ward contends that it relied on
the language of the license agreements, that it had its
counsel write the October 13, 1972 letter to the cabin owners,
and that the contract for deed with Tavenner included the
statement that the consent of the licensees was not necessary
to the execution of the contract for deed. The cabin owners
point to the fact that Ward made no inquiry of the cabin
owners with respect to their rights, and that the physical
examination of the premises by Ward showed possession of the
lake property by persons other than the record holder in the
form of substantial permanent improvements, which put Ward
on notice of something more than a 30-day terminable interest
in the possession of the lands.
In Yost Farm Company v. Cremer (1968), 152 Mont. 200,
209, 447 P.2d 688, 693, we held that a purchaser of lands
with actual knowledge of an intervening contract for purchase
from the same owner was not an innocent purchaser without
notice, and was subject to the prior contract holder's
rights. It is generally conceded that when someone purchases
land under circumstances which suggest outstanding equities
in third parties, there is imposed on the purchaser a duty
to make a reasonable investigation as to the existence of
outstanding claims against the property, and one who fails
to use due diligence to ascertain the facts within his reach
is not an innocent purchaser. Berge v. Fredericks (1979), 95
Nev. 183, 591 P.2d 246; Modrok v Marshall (Alaska 19741,
.
523 P.2d 172; MacEwen v. Peterson (1967), 102 ~ r i z .209,
427 P.2d 527. When there appears possession of land by persons
other than the record holder, which possession is inconsistent
with the record title, there is a duty of inquiry imposed
upon a purchaser of that land. See, Valley National Bank of
Ariz. v. Avco Develop. Co. (1971), 14 Ariz.App. 56, 480 P.2d
671.
-10-
 Applying those rules here, Ward is not an innocent
purchaser. The letter of October 13, 1972 did not fulfill
the reasonable diligence that was imposed upon Ward to make
further inquiry.
We therefore determine from a review of the evidence
presented in the record, that the District Court findings are
supported by the evidence and that Ward is not entitled to
the status of an innocent purchaser without notice.
In its conclusions of law, the District Court determined
that the cabin owners had no right, title or interest in the
lake property under the doctrine of adverse possession or
prescriptive right, and their occupancy was based on permission
from Ward's predecessors in interest. The District Court
further concluded that the conduct of the predecessor land-
owners created a constructive trust in the improvements
placed on the property by the cabin owners and that the
trust was imposed upon Ward, as the landowners' successor in
interest, as an equitable lien on the property in favor of
the cabin owners. The court determined, as an exercise of
equity, that the equitable lien could be satisfied by a
continued use by the cabin owners for a reasonable period of
time or by compensation and money for the value of the
structures from Ward.
The evidence supports these conclusions sitting in
equity, and we find the District Court properly so concluded.
In its judgment and decree, the District Court provided that
in lieu of cash payment from Ward, the cabin owners may
continue to occupy their particular cabin sites with the
right of ingress and egress until December 31, 1987, at
which time the licenses to occupy should terminate and if
the improvements were not removed as set forth in the license
agreements, the improvements should become the property of
Ward without payment. Additionally, the District Court
provided that the cabin owners had the option (to be exercised
by them before May 1, 1980), to receive payment from Ward
for the cabin structuresand fixtures. If any cabin owner
and Ward could not agree on the purchase price, the court
would reserve jurisdiction to hear evidence and to make a
determination as to the amount Ward should pay for the
improvements.
Ward contends that the judgment and decree violates the
statute of frauds, the parol evidence rule, and disregards
waiver by the cabin owners in signing the license agreements.
The statute of frauds, section 70-20-101, MCA, provides
in essence that no estate or interest in real property can
be created except by an instrument in writing.
The parol evidence rule is found in two statutes,
sections 28-2-904, and 28-2-905, MCA, which provide in
essence that the written agreement supersedes the oral
negotiations or stipulations and that when the agreement is
reduced to writing, it is to be considered as containing all

the terms between the parties.
The written agreements relied upon by Ward are the
purchase contract of July 21, 1972, the warranty deed from
the seller to Ward, dated September 25, 1972, the further
warranty deed, dated December 1, 1972, and a relevant commitment
for title insurance, dated December 1, 1972. Attached to
the contract for purchase was a schedule of the license
agreements with the cabin owners, and,of course, the notation
thereon, "consent of licensees to assignment not required."
There is an exception to the parol evidence rule when
the validity of the agreement is the fact in dispute (section
28-2-905(1)(b), MCA). Here the validity of the terms of the
license agreements is the fact in dispute. When the validity
of the agreement is a fact in dispute, par01 evidence is
admissible, not to vary the terms of the instrument, but to
show that what appears on its face as a valid, binding
contract is in fact no such thing. Smith v. Fergus County
(1934), 98 Mont. 377, 390, 39 P.2d 193.
As to the statute of frauds set forth in section 70-20-
101, MCA, the next following statute, section 70-20-102,
MCA, provides an exception to the statute of frauds for "any
trust . . . arising or being extinguished by implication or
operation of law." This exception, of course, applies to a
constructive trust.
Ward's contention on the waiver argument is again based
on a 30-day clause in the license agreements, and the probable
existence of a similar clause in the earlier lease agreements.
The waiver argument is another way of saying that the provisions
of the license agreements control absolutely, and thus is
another string to Ward's bow in contending that the court
should not look outside the license agreements to determine
the intention of the parties. Waiver is a voluntary relinquishment
of a known right (Kelly v. Lovejoy (1977), 172 Mont. 516, 565
P.2d 3 1 and since the District Court concluded that the
2)
license agreements were not executed with the intention that
the cabin owners abandoned their permissive rights in favor
of a 30-day cancellation, a finding of waiver in the execution
of the license agreements would be inconsistent with the
court's conclusion that the license agreements did not
reflect the true intention of the parties at the time.
The final issue raised by Ward is whether the court
erred in imposing an equitable lien on the ranch owners
properties. Since this involves to some extent the cross-
appeal, we will discuss these matters at the same time.
Following the judgment, the cabin owners moved the
District Court to amend the judgment to provide for a possession
of 50 years instead of the 13 years granted in the court's
decree. The 50 years is contended to be the life expectancy
of the cabins built on the lake properties.
The cabin owners raise other grounds on cross-appeal,
but these are not argued.
Ward's contention that the District Court went beyond
its power in establishing its decree for an equitable lien
for a term of years, and the cabin owners contention that
the term should be for 50 years, go to the power of the
District Court in an equity case to fashion an equitable
result. A court sitting in equity causes is empowered to
determine the questions involved in the case and to do
complete justice. x
Ha mes v City of Polson (1950), 123
4-4 .
Mont. 469, 477, 215 P.2d 950, 955. The court has all of the
power requisite to render justice between the parties,
particularly if the intent and disposition of one of the
parties is not to perform his contractual obligations. Link

v. State By & Through Dept. of Fish & Game (1979),
Mont. , 591 P.2d 214, 222, 36 St.Rep. 355, 365. The
court obviously framed its judgment and decree in this case
so as to give the cabin owners an option to receive, from
Ward, the value of the cabin improvements, or to enjoy their
lakeside cabins for a term of years considerably shorter
than the useful life of the cabins. Under either option,
Ward will not be unjustly enriched, and recognition is given
by the District Court to the long-term intentions of Tavenner
and the cabin owners. Both parties won something from the
District Court: the cabin owners, a recognition of their
long-term rights and the value of their cabin improvements;
and Ward, a method of obtaining eventually an unimpeded
title to the lakeshore property. We find the result is
equitable.
The judgment of the District Court granted the cabin
owners a period of six months from the date of judgment in
which to notify Ward in writing that the cabin owners were
exercising their option to receive payment for the cabin
structures and fixtures. The prosecution of this appeal has
taken the case beyond the date fixed by the District Court
for the exercise of such option. We therefore modify the
judgment and decree and grant the cabin owners a period of
six months from and after the date remittitur is handed down
from this Court to the District Court, in which the cabin
owners shall have the option to be exercised by written notice
to the defendant Ward, to receive payment for the cabin
structures and fixtures. Except as so modified, we deny the
cross-appeal, and affirm the judgment and decree of the
District Court, and remand the cause to the ~istrictCourt
for further proceedings therein in accordance with its
judgment and decree.

Justice a/'

We Concur:
Mr. J u s t i c e D a n i e l J. Shea s p e c i a l l y c o n c u r r i n g :

I concur i n t h e o p i n i o n o f t h e C o u r t , w i t h t h e

e x c e p t i o n t h a t I would p e r m i t t h e p l a i n t i f f s t o u s e t h e

p r o p e r t y f o r a s u b s t a n t i a l l y l o n g e r t i m e t h a n u n t i l December

31, 1987.

The o n l y e v i d e n c e i n t h e r e c o r d on t h e l e n g t h of t i m e

t h e p l a i n t i f f s s h o u l d b e p e r m i t t e d t o s t a y on t h e p r e m i s e s ,

was p r e s e n t e d by t h e p l a i n t i f f s , and t h e e v i d e n c e p r e s e n t e d

was 50 y e a r s . A f t e r t h e t r i a l c o u r t made i t s d e c i s i o n ,

p l a i n t i f f s moved t h e t r i a l c o u r t t o amend i t s f i n d i n g s and

c o n c l u s i o n s t o p e r m i t t h e 50 y e a r s , b u t t h e t r i a l c o u r t

r e f u s e d t o s o amend t h e f i n d i n g s and c o n c l u s i o n s .

I do n o t s a y t h a t 50 y e a r s must be t h e f i g u r e , b u t

t h e r e i s no e v i d e n c e i n t h e r e c o r d f o r t h e t r i a l c o u r t ' s

d e c i s i o n t o p e r m i t t h e p l a i n t i f f s t o s t a y on t h e l a n d u n t i l

o n l y December 31, 1987. I do n o t , however, deem i t p r o p e r

f o r a n a p p e l l a t e c o u r t t o s e t t h e number o f y e a r s ; t h a t i s

t h e f u n c t i o n of t h e t r i a l c o u r t .

I would a f f i r m t h e t r i a l c o u r t i n a l l r e s p e c t s e x c e p t

t h a t I would remand f o r a d e t e r m i n a t i o n of t h e number of

y e a r s t h e p l a i n t i f f s s h o u l d be p e r m i t t e d t o s t a y on t h e l a n d ,

b a s e d on t h e e v i d e n c e i n t h e r e c o r d . That e v i d e n c e s u p p o r t s

a d e c i s i o n f a r beyond December 31, 1987.

T h i s c a s e i s a prime example o f what C o r p o r a t e America

t h r o u g h i t s a c t i v i t i e s i n t h e S t a t e of Montana i s d o i n g t o

the citizens. I t d e m o n s t r a t e s t h e d i f f e r e n c e between ownership

o f l a n d owned by r e s i d e n t s of Montana and ownership o f l a n d

owned by o u t s i d e c o r p o r a t i o n s who u s e t h i s s t a t e a s an

economic playground.

I concur w i t h t h e f o r e g o i n g .