No. 8 6 - 1 2 2
IN THE SrJPREME COURT OF THE STATE OF MONTANA
1986
LARRY BRANSTETTER and GERAIIDINE
BRANSTETTER,
Plaintiffs and Respondents,
and
BEAUMONT GREENS, INC., a Montana
corporation,
Defendant and Respondent,
BEAUMONT SUPPER CLUB, INC.,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph B. Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard C. Conover, Bozeman, Montana
For Respondent:
Scully, Lilly & Andriolo; ZJichael J. Lilly,
Rozeman, Montana
Lyman H. Rennett, 111, Bozeman, Montana
Submitted on Briefs: August 21, 1 9 8 6
Decided: November 6, 1 9 8 6
Filed: NOV 6 - 1986
a?? u 4
9
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
This is an appeal from a judgment entered by the
District Court of the Eighteenth Judicial District, Gallatin
County denying damages to Beaumont Supper Club, Inc. In this
Opinion we will refer to Beaumont Supper Club, Inc., as
Supper Club; to Beaumont Greens, Inc., as Developer; and to
Larry and Geraldine Branstetter, as Branstetters.
We affirm.
Appellant Supper Club raises five issues on appeal.
1. Did the District Court err in finding that the
respondents/plaintiffs, Branstetters, did not trespass on the
real property lawfully being used and owned by
appellant/defendant, Supper Club?
2. Did the District Court err in denying the appellant
Supper Club's motion filed prior to trial to dismiss the
cross-claim of the respondent/defendant Developer?
3. Did the District Court err in failing to grant
appellant/defendant Supper Club's motion for attorney's fees
requested pursuant to Rule 11 of the Montana Rules of Civil
Procedure?
4. Did the District Court abuse its discretion by
finding that the appellant/defendant Supper Club had been
damaged in the total amount of $1,825.00 rather than the
$6,785.00 it claimed?
5. Did the District Court err in failing to permit
Supper Club to recover its damages as ascertained by the
District Court?
In January, 1984, Branstetters were excavating on their
newly-purchased lot in preparation for building a triplex.
The excavating contractor severed a sewer septic tank drain
line which ran under the property and into a drain field.
Branstetters discovered the sewer drain line belonged to
Supper Club, which was located nearby. Branstetters
contacted the owner of the Supper Club who promised to see
that the septic tank was pumped to eliminate further
problems. Branstetters consulted with the city building
inspector and the county sanitation engineer and were told
that to avoid possible health hazards, they should plug the
drain line, and remove the contaminated soil and replace it
with gravel or other material. Branstetters did so.
Meanwhile, Supper Club was forced to have their septic tank
pumped until they were able to connect to the city sewer
system.
Originally, all the land near Branstetters and Supper
Club had belonged to Frank Valgenti, Donald Bianchi, Richard
Embry and William Boyer who sold one parcel to Supper Club
and another parcel to Developer who sold a lot to the
Branstetters. However, the warranty deed given to
Branstetters by Developer showed no easement for the sewer
line and drain system that ran under Branstetters' land.
In May, 1984, Branstetters brought suit for the damages
they incurred. They sued Developer for breach of warranty of
quiet enjoyment pursuant to the deed. They also claimed
against Supper Club for trespass caused by construction of a
septic system without their consent.
Developer answered and cross-claimed against Supper Club
for indemnity and/or contribution. Supper Club moved to
dismiss the cross-claim but that motion was denied. Supper
Club answered and also cross-claimed against Developer for
indemnity. In addition, Supper Club counterclaimed against
Branstetters in trespass for plugging the sewer line. After
hearing on issues, at which Developer admitted negligence to
the Branstetters for failing to discover the existence of the
drain field, the District Court entered its findings of fact
and conclusions of law.
The District Court found that because Developer admitted
liability to Branstetters, the proper level of damages was
$4,100. The District Court also found that because Developer
admitted negligence, it owed Supper Club $1,825. The Court
arrived at this figure by finding that the expenses incurred
by Supper Club in connecting the sewer system ($6,200) would
have been necessary in a year or two in any case. Therefore,
the District Court awarded interest of 10% on the $6,200 for
two years in the sum of $1,240. In addition, the court
awarded the cost of pumping the septic tank ($585) for a
total of $1,825. The court also found that Supper Club was
not guilty of trespassing on Branstetters' land, and that
Supper Club was not jointly and severally liable with
Developer to the Branstetters.
After a series of motions, the District Court entered an
order striking the damages awarded to Supper Club against
Developer because Supper Club had not, at any time,
cross-claimed in negligence against Developer. Judgment was
entered in favor of Branstetters and against Developer for
$4,100. Supper Club filed another motion to amend. The
District Court entered another order finding that
Branstetters had not trespassed against Supper Club in
digging up or plugging the drain field.
The first issue that Supper Club raises on appeal is
whether the District Court erred in finding that the
Branstetters did not trespass on the septic system owned and
used by the Supper Club. The District Court found that
trespass involves an intentional intrusion upon the land of
another. The court stated that Branstetters were rightfully
excavating the ground they owned pursuant to a warranty deed.
Since they had no notice of the drain line, the court held
they were innocent of the charge of trespass.
The elements of the tort of trespass to real property
are set out in Restatement (Second) of Torts S 158 (1965) as
follows:
158. Liability for Intentional Intrusions -
on
Land.
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.
Intent is defined in Restatement (Second) of Torts S 8A
(1965) as:
The word "intent" is used throughout the
Restatement of this Subject to denote that the
actor desires to cause consequences [sic] of his
act, or that he believes that the consequences are
substantially certain to result from it.
The District Court found, and we agree, that no
intentional intrusion upon the land of another has been shown
in this case. Supper Club argues that even if the initial
severing of the drain line was unintentional, the later
plugging of the line and destruction of the drain field by
removal of the contaminated soil was intentional. Appellant
relies on the Mountain States Telephone and Telegraph Company
v. Kelton (Ariz. 1955), 285 P.2d 168 to argue the owners of
the land should be held liable in trespass. Initially we
note that Mountain States proceeded under a negligence
theory, not on a trespass theory. In fact, the court states
that the contractor could not be held liable under a trespass
theory for having dug up plaintiff's telephone lines because
there was no proof of an intentional act. The contractor did
not know of the line's existence, nor was he charged with
knowledge for the purpose of determining intent. The owners
were liable under a negligence theory because they had actual
notice of a right of away for plaintiff's telephone lines but
failed to tell the contractor.
If Mountain States has any application to the case at
hand it shows that there could be no trespass when there was
no knowledge or notice of the drain line. Branstetters'
actions in plugging the drain line and removing the
contaminated soil from the drain field were required in order
for them to mitigate their damages and prevent a possible
health hazard. The District Court was correct in finding
that Branstetters did not trespass against anyone.
Next, Supper Club contends the District Court erred in
denying its motion to dismiss Developer's cross-claim. At
the same time they filed their answer, Developer filed a
cross-claim against Supper Club for both indemnity and
contribution. Supper Club contends this cross-claim should
have been dismissed by the District Court, pursuant to their
motion.
Rule 1, M. R.App.Civ. P. provides: " [a] party aggrieved
may appeal from a judgment or order . . ." A party is
aggrieved when it has a "direct, immediate and substantial
interest in the subject which would be prejudiced by the
judgment or benefitted by its reversal." Montana Power Co.
v. Montana Department of Public Service Regulation (Mont.
1985), 709 P.2d 995, 1001, 42 St.Rep. 1750, 1757.
Con17ersel.y~a party who is not aggrieved by a judgment may
not appeal from it. Carbon County v. Schwend (1979), 182
Mont. 89, 98, 594 P.2d 1121, 1126; In Re Stoian's Estate
(1960), 138 Mont. 384, 393, 357 P.2d 41, 46. In this case,
the District Court held that Supper Club was not jointly and
severally liable with Developer to the Branstetters. The
District Court held in favor of appellants on this issue thus
they are not aggrieved parties within the meaning of Rule 1,
M.R.App.Civ.P. and are not entitled to appeal.
The third issue raised by appellants is whether the
District Court erred in failing to grant them attorney's fees
pursuant to Rule 11, M.R.Civ.P. Appellant alleges that the
action against it by the Branstetters and by Developer was
frivolous and it should be awarded attorney's fees pursuant
to Foy v. Anderson (1978), 176 Mont. 507, 580 P.2d 114. In
-1 we awarded attorney's fees to a litigant who was forced
into a lawsuit despite the fact that she had asserted no
claim against the plaintiff and had no intention of doing so.
In the case at hand, the appellant defended itself at the
District Court level, cross-claimed against Developer, and
now appeals that it should have been awarded damages and yet
at the same time maintains this is a frivolous lawsuit. The
cause of action in question is not frivolous, it is the
subject of a genuine controversy.
The fourth issue raised by appellants is whether the
District Court abused its discretion by finding that the
Supper Club had been damaged in the amount of $1,825. We
decline to address this issue since it is rendered moot by
the fact that the District Court ultimately did not award
appellants any damages since none were claimed. - Montana
See
Power Company v. Charter ( 1 9 7 6 ) , 173 Mont. 429, 568 P.2d 118;
State ex rel. Adams v. District Court (1970), 155 Mont. 309,
The last argument raised by appellants is that the
District Court erred in failing to permit appellant to
recover its damages. Appellant contends they should at least
be able to recover $1,825 from Branstetters for trespass. We
have already held the District Court did not err in refusing
to find a trespass. The District Court disallowed the
damages it awarded against Developer since the appellants did
not plead or prove an action against Developer. The attorney
for the Supper Club was well. aware that he had not plead
against Developer:
THE COURT: That was one of the rules of the Court
that you hadn't plead Mr. Conover against
[Developer]. You just plead against Branstetter.
MR. CONOVER: There was no claim against
[Developer] .[Developer] had no title which they
could convey to the Plaintiffs in this matter.
They gave them a warranty deed, but it's like a
third party conveying my property which I have no
knowledge. They did nothing to me. They had no
property in which they could convey.
THE COURT: Why didn't you sue them?
MR. CONOVER: Because there was no damage that was
caused by their conveying something that they had
not title to. They are conveying as I said,
someone conveying my property away from me. They
cannot convey it. They don't own it to convey it.
THE COURT: Wasn't that--I don't know if it was a
compulsive counter-claim or cross-claim or not, but
I never could figure out why you didn't plead
against [Developer] .
MR CONOVER: This was an actual trespass on the
Plaintiffs' property. The Plaintiffs were damaged,
yes, and if the Plaintiffs had to pay us money
because they trespassed on our property, I think
there's every reason the Plaintiffs could recover
that money from the [Developer], but that doesn't
mean we have been damaged by it. They had no right
to sell it in the first place.
THE COURT: Who?
MR. CONOVER: The [Developer]. They had the title,
they had already conveyed it to us.
THE COURT: Why didn't you sue them?
MR. CONOVER: We sued--we chose to sue the
Plaintiffs. They trespassed on our property.
There's no question about it. Your findings find
that at least, I think, that the findings that you
entered, support that we owned the equipment
system, because of the severed drain line by the
Plaintiffs, the Defendant Supper Club incurred
pumping expenses of the septic tank.
THE COURT: I felt that you had a cause of action,
hut you never pled it against [Developer], and
that's the reason I ruled like I did.
The District Court did not err in refusing to allow
damages against Developer. The judgment of the District
Court is affirmed.
/
We Concur: