NO. 94-591
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
CHARLES S. ("CHUCK") BRAGG,
JR., and PATRICIA S. BRAGG,
husband and wife,
Plaintiffs and Respondents,
v.
WILLIAM D. MCLAUGHLIN and
SONJA INDRELAND MCLAUGHLIN,
husband and wife,
Defendants and Appellants.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron L. Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William D. McLaughlin and Sonja Indreland
McLaughlin, Pro Se, Wilsall, Montana
For Respondent:
Jeffrey N. Pence, Huppert & Swindlehurst, P.C.,
Livingston, Montana
Submitted on Briefs: August 17, 1995
Decided: September 7, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
William D. and Sonja Indreland McLaughlin appeal from a
preliminary injunction issued by the Sixth Judicial District Court,
Park County. We affirm.
The McLaughlins argue that: (1) the plaintiffs Bragg neither
pled nor proved vested title to or prescriptive rights over the
property, and the court consequently erred in ordering the
McLaughlins to let trespassers in; (2) the status quo was wrongful-
ly altered and the injunction order wrongly transferred property
rights; (3) findings 5, 8, 10, and 12 and therefore conclusions A,
c, D, and E are clearly erroneous; and (4) the court acted
arbitrarily.
The parties own adjoining property in Park County, Montana.
Charles S. ("Chuck") Bragg, Jr., and Patricia S. Bragg maintain
that they have a reserved easement for access to their property
across the land owned by the McLaughlins. The McLaughlins deny the
existence of a reserved easement and have interfered with the
Braggs' access to their land over the McLaughlin property.
The Braggs brought the underlying action in four counts:
interference with easement, quiet title, slander of title, and
interference with contract. At issue is the effect of the
following "special provision," which appeared in the warranty deed
by which the McLaughlins purchased their property:
"Grantees agree to provide an access (roadway) easement
for the benefit of the property being acquired by Chuck
Bragg, his heirs and assigns, over the most direct route,
reasonable and possible for access purposes, which
easement shall not be more than fifteen (15) feet in
width. Grantees may, at their option, designate Bragg's
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said easement to coincide with the roadway to be con-
structed by the Grantees, when such roadway is complet-
ed."
The Braggs moved for a preliminary injunction during the pendency
of their case. After a two-day hearing, the court granted the
preliminary injunction, restraining the McLaughlins from interfer-
ing with the Braggs' right of access to their property.
The District Court determined that the Braggs were entitled to
injunctive relief under 5 27-19-201(l) and (21, MCA. Those
subsections provide that a preliminary injunction may be granted:
(1) when it shall appear that the applicant is entitled
to the relief demanded and such relief or any part
thereof consists in restraining the commission or
continuance of the act complained of, either for a
limited period or perpetually;
(2) when it shall appear that the commission or continu-
ance of some act during the litigation would produce a
great or irreparable injury to the applicant.
Our overall standard of review is that this Court will not disturb
a district court's grant of a preliminary injunction except in
cases of manifest abuse of discretion. Porter v. K & S Partnership
(1981), 192 Mont. 175, 181, 627 P.2d 836, 839.
The District Court did not determine, and we do not determine,
the matters alleged in the McLaughlins' first and second arguments.
By its terms, the preliminary injunction will be in effect only
until the underlying action is resolved on its merits. The
injunction does not by its terms transfer any property rights. A
preliminary injunction does not require proof or determination of
the final merits of the case. See Porter, 627 P.2d at 840.
This Court will reverse findings of fact when substantial
evidence does not support the findings, when the district court has
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misapprehended the effect of the evidence, or when a review of the
record leaves us with the definite and firm conviction that a
mistake has been committed. Interstate Production Credit v. DeSaye
(1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. The findings
challenged by the McLaughlins are:
5. The particular terminology of the special provision
was at the request of defendant Sonja McLaughlin, an
attorney purportedly licensed to practice in the State of
Washington. Ms. McLaughlin testified that the language
of the special provision was taken verbatim from the Buy-
Sell Agreement between Clarks and McLaughlins for the
purchase of the subject property, which Buy-Sell Agree-
ment preceded the deeds to both plaintiffs and defen-
dants. Mr. Clark testified that it was his intention to
reserve an easement for access to Tract C-2 by this
special provision when he conveyed the subject property
to McLaughlins, and that McLaughlins were aware of his
intentions. Consequently, defendants had notice of the
provision.
8. The roadway described above abuts an access road
which traverses property currently owned by Leland E.
Cook, situated in section 18, township 3 north, range 10
east, P.M.M., Park County, Montana. This road across the
Cook property provides access to a county road via a 60-
foot road easement reserved on certificate of survey No.
173 for all of the S'x of section 17, township 3 north,
range 10 east, P.M.M., Park County, Montana.
10. Defendants have refused access over the established
road across their property to Braggs to Tract C-2, and
placed locks on the gates across the access road without
providing keys to plaintiffs. Defendants have also
placed vehicles in the roadway, effectively blocking
access over the road. In addition, defendants have
represented to agents of sales associates of EPA Paradise
Properties of Livingston that no access exists for Tract
c-2. Plaintiffs have a current listing agreement with
EPA Paradise Properties of Livingston for the sale of
Tract C-2, and defendants have interfered with sale of
Braggs' property by threatening and intimidating the real
estate agents.
12. The court finds the testimony of plaintiffs and
their witnesses more credible than that of defendants and
that Braggs are more likely to prevail at a trial on the
merits of the action.
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The record contains substantial credible evidence to support each
of the above findings. It does not appear that the court misappre-
hended the evidence nor are we left with a definite and firm
conviction that a mistake has been committed. We therefore affirm
the above findings of fact. Because the McLaughlins' arguments
against the above-mentioned conclusions of law were based on their
arguments that the above findings were erroneous, we need not
address the conclusions further.
Finally, the McLaughlins' fourth claim, of arbitrariness, is
based upon their opinion that the District Court was prejudiced
against them. We have reviewed the record. Our review of the
record does not support this claim.
No manifest abuse of discretion has been shown on the part of
the District Court. The decision of that court is therefore
affirmed.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to State Reporter Publishing Company and West Publishing Company.
Chief Justice
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September 7, 1995.
CERTIFICATE? OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
William D. McLaughlin
Sonja Indreland McLaughlin
214 Horse Creek Road North
Wilsall, MT 59086
Jeffrey N. Pence
HUPPERT & SWINDLEHURST, P.C.
P.O. Box 523
Livingston, MT 59047
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BV: &-&ti
Deputy
Bragg v. McLaughlin
Combined Opinion