No. 13691
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
MOUNTAIN VIEW CEMETERY,
A Corporation,
Plaintiff and Appellant,
DAVID GRANGER and MRS. DAVID
GRANGER et al.,
Defendants and Respondents and
Cross Appellants.
Appeal from: District court of the Second Judicial District,
Honorable Arnold Olsen, Judge presiding.
Counsel of Record:
For Appellant:
Corette, Smith and Dean, Butte, Montana
Kendrick Smith argued, Butte, Montana
For Respondents:
Henningsen, Purcell & Genzberaer, Butte, Montana
Rex F. Henningsen argued, Butte, Montana
Submitted: October 3, 1977
Decided : JPN : 1978
i:
Filed:
Clerk
M r . J u s t i c e Daniel J . Shea d e l i v e r e d the Opinion of t h e Court.
Mountain View Cemetery appeals from a judgment e n t e r e d i n
t h e D i s t r i c t Court, S i l v e r Bow County, denying t h e Cemetery a
roadway easement over t h e adjacent property of defendants
Granger and denying an award of t r e b l e damages f o r t h e Grangers'
c u t t i n g of two 60 f o o t blue spruce t r e e s on t h e Cemetery's
property. The Grangers crossappeal from t h e D i s t r i c t C o u r t ' s
f i n d i n g s t h a t t h e cemetery fence l i n e was t h e t r u e boundary
l i n e between the p r o p e r t i e s and from t h e award of $4,000 damages
f o r t h e wrongful c u t t i n g of t h e cemetery's t r e e s .
The Cemetery, a corporation, brought a c t i o n March 21, 1975,
a g a i n s t t h e Grangers t o e s t a b l i s h t h e Cemetery's r i g h t t o an
easement by p r e s c r i p t i o n a c r o s s t h e southwest edge of Grangers'
property near the c i t y of Butte. The Cemetery a l s o a l l e g e d
damages of $12,000 f o r t h e c u t t i n g of t h e two t r e e s j u s t i n s i d e
t h e Cemetery's fence l i n e .
The Grangers answered and f i l e d a counterclaim a g a i n s t t h e
Cemetery f o r encroachments upon Grangers' property. Grangers
a l s o f i l e d a t h i r d p a r t y complaint a g a i n s t F.& S. Contracting
Company and T i t l e Insurance Company of Minnesota f o r i n s u r i n g
t i t l e f r e e of t h e encumbrance of t h e easement a l l e g e d by t h e
Cemetery. The D i s t r i c t Court ordered a s e p a r a t e t r i a l on t h e
t h i r d p a r t y complaint pending outcome of t h e Cemetery-Granger
dispute.
The Cemetery property i s adjacent t o and south of t h e
Granger property. For approximately 45 years cemetery personnel,
and v i s i t o r s t o t h e cemetery r e g u l a r l y used, without i n t e r f e r e n c e ,
a s t r i p of land approximately 25 f e e t wide by 247 f e e t long on
t h e south border of t h e Granger's land a s a second roadway i n t o
t h e cemetery. The road runs from west t o e a s t . The fence
l i n e involved i s j u s t t o t h e south of t h e roadway. The blue
spruce t r e e s were j u s t t o t h e south of t h e fence, a s was a
garage and shed owned and used by t h e Cemetery. Over a period
of 30 years t h e Cemetery corporation p r e s i d e n t , C a r r o l l Fabian,
had b u i l t up t h e roadway 2 t o 3 f e e t , maintained t h e road a t
a l l times, kept it plowed i n w i n t e r , and e r e c t e d a "slow" s i g n
near t h e road t o d i r e c t t r a f f i c coming i n t o t h e roadway from
Harrison Avenue, a major thoroughfare i n Butte which l e a d s south
o u t of Butte. U n t i l t h e time of t h e controversy h e r e , t h e
Granger land was open, unenclosed, and unimproved, although a t
one time p a r t of t h e land was used f o r a sand p i t .
The Grangers purchased t h e land a d j a c e n t t o t h e cemetery
i n 1968. I n 1973 t h e Grangers n o t i f i e d t h e Cemetery by mail t o
q u i t using t h e road. The Cemetery d i d n o t r e p l y and continued t o
use t h e road. Before t h i s l e t t e r t h e r e had never been c o n t a c t
between Cemetery personnel and t h e Grangers o r t h e i r predecessors
i n i n t e r e s t concerning t h e use of t h e road. The ~ r a n g e r s ' land
remained unfenced and unimproved u n t i l 1973, a t which time they
began c o n s t r u c t i o n of a c a r d e a l e r s h i p on t h a t s i t e .
The Cemetery continued t o use t h e roadway u n t i l t h e
Grangers blocked t h e roadway by parking l a r g e trucks and auto-
mobiles i n i t . The blockage of the road r e s u l t e d i n t h i s a c t i o n
f i l e d by t h e Cemetery a g a i n s t t h e Grangers seeking t o e s t a b l i s h
t h e roadway a s an easement. The Cemetery a l s o a l l e g e d damages
f o r wrongful c u t t i n g of 2 60-foot blue spruce t r e e s j u s t south
of t h e a l l e g e d easement and i n s i d e t h e cemetery's fence l i n e .
Eb~ding t h e outcome of l i t i g a t i o n t h e D i s t r i c t Court granted a
temporary o r d e r allowing t h e Cemetery t o use a s t r i p 15 f e e t by
130 f e e t of t h e a r e a i n q u e s t i o n , f o r access pending t h e outcome
of t h e t r i a l .
The D i s t r i c t Court denied t h e easement, f i n d i n g t h a t a l l
elements f o r a p r e s c r i p t i v e easement had been e s t a b l i s h e d e x c e p t
f o r adverse o r h o s t i l e use. The c o u r t a l s o f i x e d t h e cemetery
f e n c e l i n e a s t h e boundary l i n e between t h e a d j o i n i n g p r o p e r t i e s
and a s s e s s e d damages of $2,000 each f o r t h e 2 b l u e s p r u c e t r e e s
c u t by ~ r a n g e r s ' a g e n t s . The c o u r t d i d n o t award t r e b l e damages
i n t h e amount of $12,000 a s r e q u e s t e d by t h e Cemetery f o r t h e
c u t t i n g of t h e t r e e s .
The Cemetery contends t h e t r i a l c o u r t should have g r a n t e d
t h e easement and should have awarded $12,000 a s t r e b l e damages
f o r t h e c u t t i n g of t h e t r e e s . I n t h e i r c r o s s a p p e a l t h e Grangers
contend t h e t r i a l c o u r t e r r e d i n determining t h a t t h e cemetery
fence l i n e i s t h e a c t u a l boundary l i n e between t h e a d j a c e n t
properties. They f u r t h e r contend t h e $4,000 damages f o r c u t t i n g
of t h e t r e e s was improper because two surveys demonstrate t h e
t r e e s were a c t u a l l y on t h e ~ r a n g e r s ' p r o p e r t y .
Cemetery w i t n e s s e s , i n c l u d i n g u n d e r t a k e r s and f l o r i s t s ,
a s w e l l a s t h e Cemetery owners, t e s t i f i e d t h e y had r e g u l a r l y
used t h e road without s e e k i n g permission and w i t h o u t i n t e r f e r e n c e
d u r i n g p e r i o d s of up t o 45 y e a r s . The c o r p o r a t i o n ' s p r e s i d e n t
t e s t i f i e d t h a t on Memorial Day a l o n e , a s many a s 600 c a r s used
t h e roadway i n t h e p a s t . Each day a t l e a s t t e n automobiles used
t h e roadway t o go t o t h e cemetery. The Cemetery's evidence t h e r e
was n e v e r permissive use was u n c o n t r a d i c t e d . Grangers contend
i t i s n o t t h e i r duty t o prove t h e y o r t h e i r p r e d e c e s s o r s i n
i n t e r e s t gave permission t o t h e Cemetery t o use t h e road.
Over o b j e c t i o n , t h e Cemetery i n t r o d u c e d i n evidence a 1914
map d e p i c t i n g t h e boundaries of t h e cemetery p r o p e r t y t o be a s
t h e c o u r t found them. I t i s n o t c l e a r whether n o r n o t t h e map
was based on a previous survey. I n s u p p o r t of t h e map's accuracy
a former S i l v e r Bow County s u r v e y o r t e s t i f i e d t h a t d u r i n g a l l
t h e years he was i n o f f i c e , t h e county surveyor and h i s crews
r e l i e d on t h e map a s t h e i r "Bible" when they were working i n
t h e a r e a of t h e cemetery. Also, C a r r o l l Fabian, t h e Cemetery's
corporation p r e s i d e n t , t e s t i f i e d t h a t using t h e map a s a guide,
he had measured t o t h e fence l i n e and i t conformed t o t h e
dimensions s t a t e d i n the-map.
The Grangers introduced 2 independent surveys of t h e
land involved, which e s t a b l i s h e d t h e cemetery fence was a c t u a l l y
on t h e Grangers' property and t h a t t h e t r e e s south of t h e fence
were a l s o on t h e Grangers' property. There was a s l i g h t d i s -
crepancy between t h e 2 surveys. They agreed however, t h a t one
of t h e t r e e s r e s t e d midway between t h e cemetery property and
t h e Grangers' property. One of t h e surveys was made b e f o r e t h e
t r e e s were c u t , i n conjunction with t h e purchase of t h e land
by t h e Grangers, and t h e o t h e r was made a f t e r the t r e e s were
c u t and a f t e r t h i s controversy s t a r t e d . The Grangers contend
t h e c o u r t was bound t o accept t h e evidence and testimony o f f e r e d
by t h e 2 surveys.
Grangers f u r t h e r contend t h a t even i f i t i s u l t i m a t e l y
determined t h e t r e e s were n o t on t h e i r property, n e v e r t h e l e s s ,
i n c u t t i n g t h e t r e e s they r e l i e d i n good f a i t h upon a survey
which showed t h e t r e e s t o be on t h e i r property.
Under s e c t i o n 93-2507, R;C.M. 1947, a p a r t y claiming t h e
e x i s t e n c e of an easement by p r e s c r i p t i o n must show open,
n o t o r i o u s , exclusive, adverse continuous and uninterrupted use
of t h e easement claimed f o r t h e f u l l 5 years. Taylor v. Petranek,
(1977), Mont . , 568 P.2d 120, 34 St.Rep. 905,909; S c o t t
v. Weinheimer,(l962), 140 Mont. 554, 560, 374 P.2d 91; White
v.> Kamps, (1946), 119 Mont. 102, 114, 1 7 1 P.2d 343. The
controversy h e r e i s whether t h e use of t h e roadway was adverse
o r permissive.
- 5 -
Montana has consistently followed the minority rule with
regard to unimproved and unenclosed lands, which holds that
open, visible, continous and uninterrupted use of another's
land raises a presumption that the use was also adverse. Taylor
v. Petranek, supra; Lunceford v. Trenk, (1974), 163 Mont. 504,
508, 518 P.2d 266; O'Connor v. Brodie, (1969), 153 Mont. 129,
139, 454 P.2d 920; Scott v. Weinheimer, supra; TeSelle v.
Storey, (1957), 133 Mont. 1, 5, 319 P.2d 218; Glantz v. Gable,
(1923), 66 Mont. 134, 141, 212 P. 858. In O'Connor this Court
placed the burden upon the owner to show that the use was
permissive in order to overcome this presumption.
The District Court found the Cemetery's use was open,
visible, continuous and uninterrupted, but was not adverse or
hostile. It is plain the court did not apply the presumption
that the use is presumed hostile where the other elements are
established under section 93-2507. Accordingly, it was incum-
bent upon the Grangers to establish that the use was initially
permissive, and they wholly failed in this burden. They pre-
sented no evidence at all on this issue. They rely instead on
the general rule that mere use of land for right of way raises
a presumption of permissive use, and does not establish the
element of adverse or hostile use which ripens into a prescrip-
tive easement. See Anno. 46 ALR2d 1140. Grangers further con-
tend laches bars the Cemetery's right to assert a prescriptive
right.
Even where the general rule is followed however, exceptions
have been created where the circumstances of the claimant's use
indicate something more than "mere use." Among these are
circumstances where the owner is aware of and has not objected
t o - t h e use and t h e claimant has never s o l i c i t e d permission,
Flener v. Lawrence, (1920), 187 Ky. 384, 220 S.W. 1041; where
t h e claimant has improved t h e land and t h e landowner has
acquiesced i n t h e improvement, Gaut v. Farmer,(1963), 215 C.A.2d
278, 30 Cal.Rptr. 94,97; Akers v. Moore, (Ky. 1958), 309 S-W.2d
758; o r where t h e vacant land was s i t u a t e d i n an urban o r well-
#
s e t t l e d a r e a , o r otherwise i n such a condition t h a t t h e owner
knew o r should have known of t h e adverse u s e , C a s t i l l o v.
Tabet Lumber Company, (1965), 75 N.M. 492, 406 P.2d 361, 363;
Carlson v. Craig, (1953), 264 W i s . 632, 60 N.W.2d 395,398.
It cannot be reasonably contended t h e Grangers and t h e i r
predecessors i n i n t e r e s t d i d n o t know of t h e use. The t r i a l
c o u r t found t h i s a s a f a c t and t h e Grangers do not c o n t e s t
t h a t finding. Here, t h e Cemetery had b u i l t up t h e road t o a
height of almost 3 f e e t over a 30 year period and had maintained
t h e road f o r t h e t r a f f i c of t h e cemetery. The cemetery fence
l i n e was t o t h e south of t h e road and any owner of t h e land
involved would have been put on n o t i c e a s t o t h e use made by
t h e cemetery. T r a f f i c on t h e road v a r i e d from a s many a s
600 on a Memorial Day t o a minimum of 10 on a l l o t h e r days.
A "slowt' s i g n d i r e c t e d t r a f f i c on t h e road. This c e r t a i n l y
was evidence of h o s t i l e i n t e n t .
I n OIConnor v. Brodie, (1969), 153 Mont. 129,140, 454 P.2d
920, t h e Court s t a t e d t h e r e was a duty of a landowner t o be on
i n q u i r y a s t o t h e p h y s i c a l evidence of use of h i s land by another,
and t h a t l a c k of o b j e c t i o n by t h e landowner under c e r t a i n c i r -
cumstances "implies acquiescence and not a g r a n t of license."
Here, t h e Grangers and t h e i r predecessors i n i n t e r e s t f a i l e d t o
o b j e c t t o t h e use of t h e road and t h e a c t i v i t y on t h e road.
Even t h e general r u l e a s contended f o r by t h e Grangers would
n o t save them under t h e s e circumstances. The exceptions carved
o u t of t h e g e n e r a l r u l e would a l s o d e f e a t t h e i r claim t h a t t h e
use was i n i t i a l l y permissive.
Neither do we f i n d any merit i n t h e Grangers' claim t h a t
t h e Cemetery should be barred by laches from enforcing a p r e s c r i p -
t i v e easement. Over t h e e n t i r e 45 year period t h e Cemetery
enjoyed t h e use of t h e land with complete acquiescence of t h e
t r u e owners. I t was n o t u n t i l l a r g e t r u c k s and c a r s were
parked on t h e roadway t h a t t h e Cemetery was prevented from
enjoying t h e use of t h e road. By t h i s time t h e Cemetery had
a l r e a d y acquired i t s easement although n o t y e t j u d i c i a l l y
enforced. When Grangers bought t h e land, they bought i t
s u b j e c t t o t h e easement. Section 67-1607, R.C.M. 1947.
Accordingly, by operation of law t h e Grangers were put on
n o t i c e of t h e easement when they purchased t h e land. This
Court s t a t e d i n 0'Connor :
" *** P r e s c r i p t i v e t i t l e once e s t a b l i s h e d i s n o t
d i v e s t e d by t h e subsequent t r a n s f e r of t h e s e r v i e n t
e s t a t e . The defendants' l a c k of knowledge, i f any
*** i s a matter which must be s e t t l e d between t h e
defendants and t h e i r grantor." 153 Mont. 139.
The only c l e a r t h r e a t t o t h e enjoyment of t h i s roadway
was when i t was blocked by trucks and c a r s . Laches a p p l i e s
when a p a r t y has been n e g l i g e n t i n a s s e r t i n g h i s r i g h t , and
"* * * where t h e r e has been a delay of such d u r a t i o n a s t o
render enforcement of t h e a s s e r t e d r i g h t inequitable." Davis
v. Steingruber, (1957), 131 Mont. 468, 470, 311 P.2d 784. The
Grangers argue t h e i r property investment i s devalued because
t h e Cemetery delayed bringing the a c t i o n u n t i l a f t e r a l a r g e
investment had been made and c o n s t r u c t i o n s t a r t e d . However,
we see no duty imposed on t h e Cemetery t o take a c t i o n d e c l a r i n g
i t s easement u n t i l such time a s t h e Grangers threatened t h e
a c t u a l enjoyment of t h e use of t h e road. The Cemetery had no
duty t o seek j u d i c i a l enforcement of an easement u n t i l t h e
easement's b e n e f i t s were i n jeopardy.
W n o t e t h a t t h e only harm which r e s u l t s from upholding
e
t h e easement a r i s e s from t h e Grangers' p r e c i p i t o u s and premature
commencement of c o n s t r u c t i o n without f i r s t s e t t l i n g t h e q u e s t i o n
of t h e road, From p h y s i c a l evidence of t h e road i t s e l f , a s w e l l
a s t h e i r own knowledge of t h e use of t h e road, they, and t h e i r
predecessors i n i n t e r e s t , were on n o t i c e long before c o n s t r u c t i o n
began t h a t t h e Cemetery was using t h e property i n d i s p u t e a s a
roadway. Grangers cannot now claim t h a t laches b a r s t h e
Cemetery's r i g h t t o enforce an easement upon t h a t land.
The f i n a l i s s u e h e r e concerns t h e f a i l u r e of t h e c o u r t
t o award t r e b l e damages f o r c u t t i n g t h e t r e e s . The D i s t r i c t
Court found t h a t t h e cemetery fence l i n e was t h e t r u e boundary
l i n e between t h e adjacent p r o p e r t i e s and awarded a c t u a l damages
f o r t h e value of t h e t r e e s , $2,000 each. The Cemetery contends
t h e t r i a l c o u r t was bound by s e c t i o n 17-503, R.C.M. 1947, t o
award t r e b l e damages. The Grangers do n o t question t h e value
of t h e t r e e s , but contend i n t h e i r crossappeal t h a t t h e t r i a l
c o u r t was i n e r r o r i n f i x i n g t h e cemetery fence l i n e a s t h e
t r u e boundary l i n e between t h e adjacent p r o p e r t i e s . They contend
t h e t r u e boundary l i n e i s south of t h e fence l i n e and even a
l i t t l e south of t h e a r e a where t h e t r e e s were growing. If
c o r r e c t , then t h e fence and t h e t r e e s would be on t h e Grangers'
property and they would n o t of course be l i a b l e f o r damages i n
cutting the trees.
W do n o t agree t h e t r i a l c o u r t was bound t o e s t a b l i s h t h e
e
boundaries a s shown by t h e Grangers' evidence. The Grangers
r e l i e d on two independent surveys, one before t h i s controversy
a r o s e , and t h e o t h e r i n preparation f o r t h i s controversy. Each
survey e s t a b l i s h e d t h e t r u e boundary l i n e a s south of t h e fence
l i n e and south o f t h e t r e e s . However, t h e t r i a l c o u r t was n o t
bound t o accept t h e i r testimony.
During i t s c a s e t h e Cemetery introduced over o b j e c t i o n , a
1914 map which s e t o u t t h e boundaries of t h e cemetery property.
I t was n o t done i n conjunction with a survey nor apparently even
i n r e l i a n c e on a survey. However, t h e Grangers do not contend
on appeal t h a t i t was e r r o r t o admit t h i s evidence. The former
S i l v e r Bow County surveyor t e s t i f i e d t h a t while he was i n o f f i c e
he and h i s crews r e l i e d on t h i s map e x t e n s i v e l y a s e s t a b l i s h i n g
t h e boundaries of t h e cemetery. The p r e s i d e n t of t h e Cemetery
corporation t e s t i f i e d t o h i s own measurements which conformed
t o t h e measurements depicted by t h e map. Neither do t h e Grangers
contend i t was e r r o r t o admit t h i s testimony.
The c o n f l i c t i n t h e testimony and t h e evidence c r e a t e d a
question of f a c t f o r t h e t r i a l c o u r t and i t was, of course,
w i t h i n t h e province of t h e t r i a l c o u r t t o r e s o l v e t h a t i s s u e
a g a i n s t t h e Grangers a s long a s t h e r e was s u b s t a n t i a l evidence
t o support i t . Taylor v. Petranek, (1977), Mont .-
3
568 P.2d 120, 34 St.Rep. 905,909. There was s u b s t a n t i a l evidence
and accordingly, t h e t r i a l c o u r t was c o r r e c t i n determining t h a t
t h e cemetery fence l i n e was t h e t r u e property l i n e between t h e
adjoining properties.
W do n o t agree with t h e Cemetery however, t h a t t h e t r i a l
e
court was bound t o award t r e b l e damages a g a i n s t t h e Grangers
for cutting the t r e e s . The Cemetery r e l i e s on s e c t i o n 17-503,
R.C.M. 1947, which provides:
"For wrongful i n j u r i e s t o timber, t r e e s , o r
underwood upon t h e land of another, o r removal
t h e r e o f , the measure of damage i s t h r e e times
such a sum a s would compensate f o r t h e a c t u a l
detriment, except where t h e t r e s p a s s was casual
and involuntary, o r committed under t h e b e l i e f
t h a t t h e land belonged t o t h e t r e s p a s s e r , o r
where t h e wood was taken by t h e a u t h o r i t y of
highway o f f i c e r s f o r t h e purposes of a highway;
i n which cases t h e damages a r e a sum equal t o
t h e a c t u a l detriment. I t
Under s e c t i o n 17-503 t r e b l e damages may be allowed except
where t h e t r e s p a s s was "casual and involuntary, o r committed
under t h e b e l i e f t h a t t h e land belonged t o t h e t r e s p a s s e r * * *."
A t t r i a l i t was agreed t h a t t h i s s t a t u t e c o n t r o l l e d a s t o
whether o r n o t the Cemetery was e n t i t l e d t o t r e b l e damages.
I n e n t e r i n g i t s f i n d i n g s however, t h e t r i a l c o u r t r e l i e d on
s e c t i o n 93-6103, R.C.M. 1947 (a s t a t u t e regarding t r e s p a s s t o
property and c u t t i n g of t r e e s but n o t a p p l i c a b l e t o t h i s c a s e ) .
Section 93-6103 has been i n t e r p r e t e d by t h i s Court t o r e q u i r e
t h a t t r e b l e damages a r e only allowed where t r e e s were c u t with
malice, wantonness, o r e v i l design. The t r i a l c o u r t found t h a t
t h e r e was no malice, wantonness o r e v i l design, and accordingly,
denied t r e b l e damages. Because t h e same f i n d i n g i s n o t required
under s e c t i o n 17-503, t h e Cemetery a s s e r t s t h a t i t i s e n t i t l e d
t o t r e b l e damages a s a matter of law.
On t h e o t h e r hand, Grangers contend t h e t r i a l c o u r t ' s
d e c i s i o n on t r e b l e damages should be upheld, even i f i t was
given f o r t h e wrong reasons, because t h e r e was evidence t o
support such a finding. They r e l y on a survey upon which they
a c t e d i n c u t t i n g t h e t r e e s , f e e l i n g t h e t r e e s were on t h e i r
property. The r u l e which t h e Grangers ask us t o invoke i s ,
one,
under c e r t a i n circumstances a s a l u t a r y / I n r e Williams' E s t a t e ,
(1919, 52 Mont. 192, 156 P. 1087; E s t a t e of Maricich, 145 Mont. 146,
400 P.2d 873 (1965); b u t we do not agree i t should be followed
i n t h i s case.
The determination of whether t r e b l e damages should be
awarded under s e c t i o n 17-503, i s a f a c t u a l question. W cannot
e
s t a t e a s a matter of law t h a t t r e b l e damages were required. Neither
can we s t a t e t h a t under a l l circumstances one can avoid t r e b l e
damages by r e l y i n g on a survey i n d i c a t i n g the t r e e s were on
one's own property. The t r i a l c o u r t made no f i n d i n g s a s t o
the
whether/ t r e b l e damages provision of t h e s t a t u t e was excused
under t h e f a c t s of t h i s case.
W r e v e r s e t h e judgment of t h e D i s t r i c t Court and d i r e c t
e
t h a t judgment be entered g r a n t i n g an a p p r o p r i a t e easement t o
t h e Cemetery, together with t h e a p p r o p r i a t e dimensions. We
v a c a t e t h e f i n d i n g s and conclusions of t h e t r i a l c o u r t on t h e
i s s u e of t r e b l e damages and d i r e c t t h a t f i n d i n g s and conclu-
s i o n s be entered guided by t h e provisions o f . s e c t i o n 17-503,
R.C.M. 1947.
This cause i s remanded t o t h e D i s t r i c t Court f o r f u r t h e r
proceedings c o n s i s t e n t with t h i s opinion.
W Concur:
e
r
- L
h i e £ Justice