No. 85-324
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
RICHARD A. SHORS and ANN C. SHORS,
Plaintiffs and Respondents,
JERRY L. BRANCH, d/b/a JERRY L. BRANCH,
Consulting Geologist and Producer,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hash, Jellison, O'Brien & Bartlett; Kenneth O'Brien,
Kalispell, Montana
For Respondent :
Peterson, Peterson, Burns & Shors; William L. Burns,
Cut Bank, Montana
Submitted on Briefs: March 13, 1986
Decided: June 5, 1986
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant Mr. Branch appeals a judgment of the District
Court for Flathead County. That court granted a total of
$52,000 in actual and punitive damages against him, following
a bench trial on plaintiff's complaint of defamation and
violation of easement rights. We affirm.
Mr. Branch raises fifteen separate issues which we
restate as follows:
1. Is plaintiffs' claim for damages for interference
with their easement rights barred by statute of limitation?
2. Did Mr. Branch's installation and maintenance of the
gate on the road extinguish the plaintiffs' easement rights
by adverse possession or establish a prescriptive right to
the gate?
3. Did the trial court err in permitting testimony
concerning: 1) an incident in which Mrs. Shors and her chil-
dren were "buzzed" by the Branch children on a snowmobile;
and 2) Mr. Branch's reference to the Shors as
"trouble-makers" and "hippies" and his suggestion to third
parties that the Shors cabin be burned down?
4. Is there substantial evidence to support the court's
findings that: a) Mr. Branch did not complete construction of
the access road as required by the Declaration of Restric-
tions; b) Mr. Branch acted maliciously and with a reckless
disregard for the plaintiffs' rights in constructing the
gate; and c) plaintiffs were entitled to $2,000 for the loss
of use of the vehicle a-ccessroad?
5. Was the communication of the letter to the Flathead
County Sheriff's Office privileged?
6. Was there substantial evidence to support the
court's findings that: a) Mr. Branch was inspired by malice
and ill-will when he forwarded the alleged defamatory letter;
b) the statements contained in the letter constitute libel or
libel per se; and c ) the plaintiff Richard Shors was entitled
to $5,000 in special and general damages in the defamation
action?
7. Did the trial judge have authority to award punitive
damages and did he err in setting the amount of punitive
damages at $20,000 in the defamation action and $15,000 in
the action for interference with the easement?
8. Did the District Court err in admitting plaintiffs'
statement of attorney fees into evidence and in awarding
attorney fees?
Mr. Branch also argues that the punitive damages violat-
ed the Eighth and Fourteenth Amendments to the United States
Constitution. However, he did not raise this argument below
and we will not consider it now. Rule 2, M.R.App.Civ.P.;
Dodd v. City of East Helena (1979), 180 Mont. 518, 523, 591
Jerry Branch and Carl Disel subdivided property near
Essex, Montana, in Flathead County. The property borders the
Middle Fork of the Flathead River. The Declaration of F.e-
strictions governing those tracts provided for access to the
river for the purchasers of the lots as follows:
... This access is a specific route access, via
the sixteen foot East-West access road presently in
existence along the south boundary of Lots 1, 2, 3,
4 and 5, then east to the top of the hill at the
south turn of the existing trail-road. From this
curve, an access trail-road will be constructed by
the sellers, and will run northeast along the path
of most practical construction and will reach the
river beach within 150 feet of survey point number
seven. Future maintenance of this northeast road
will be the responsibility of the lot owners of the
subject lands of H.E.S. 867.
The access trail-road was understood and intended to be
suitable for two-wheel-drive vehicles under normal weather
conditions. The subdividers retained an easement over one of
the lots for construction of the access road. In 1972, they
had a trail-road constructed over the easement. At the time
it was constructed, this road was unobstructed by a gate,
fence, or other obstacle, and was passable in normal condi-
tions with a two-wheel drive vehicle.
Mr. Branch also retained a portion of the subdivided
land for his own use. Access to the river from his land was
achieved by way of a private logging road. A common road led
to Mr. Branch1s road and the lot owners1 road. For several
years, Mr. Branch kept a cable gate across the road to his
land., beyond the turn-off for the lot o w n e r s ~ c c e s s road.
Plaintiffs constructed a cabin on their lot in 1975. At
that time, the lot owners1 road had sloughed off and become
strewn with rocks and trees so that it was no longer passable
with a vehicle. As a result, and in the absence of extensive
maintenance, the road to Mr. Branch's land was the only means
of vehicular access to the river for the lot owners.
In about 1976, apparently to prevent continued use of
his road by others, Mr. Branch installed a metal, lock-type
gate on the road. He installed the gate ahead of the fork in
the two roads, thereby effectively preventing plaintiffs and
the other lot owners from using either road beyond the gate.
Following installation of the metal gate, Mr. Branch discour-
aged lot owners from attempting to widen and improve their
access road. In May 1983, Mr. Branch moved the gate and
bulldozed a "cul-de-sac" road to allow for potential lot
owner v e h i c u l a r p a s s a g e t o t h e r i v e r . He l e f t a s u b s t a n t i a l
mound o f g r a v e l a t t h e s i t e o f t h e o l d g a t e .
Mr. Branch a l s o e r e c t e d "no t r e s p a s s i n g " s i g n s c l o s e t o
t h e r i v e r and on t h e r o a d . P l a i n t i f f s saw t h e s e s i g n s a s an
additional indication of M r . B r a n c h ' s i n t e n t i o n t o keep them
away from t h e i r access road, h i s property, and t h e r i v e r .
P a r t l y a s a r e s u l t o f t h e above a c t i o n s , t h e r e l a t i o n -
ship between the parties deteriorated. On occasion Mr.
Branch r e f e r r e d t o t h e S h o r s a s " h i p p i e s " and "troublemak-
ers", and s u g g e s t e d t o t h i r d p a r t i e s t h a t p l a i n t i f f s ' cabin
be burned down. Also, in 1982, Mr. Branch intentionally
blocked t h e t r a i l t o p l a i n t i f f s f c a b i n w i t h l o g s and o t h e r
debris.
I n J u l y of 1982, M r . Branch d i s c o v e r e d one o f h i s "no
trespassing" signs i n the river, and e r r o n e o u s l y concluded
that plaintiff Mr. S h o r s had torn out that sign and two
others. He s e n t a c e r t i f i e d l e t t e r t o M r . S h o r s , and a copy
of the l e t t e r t o t h e F l a t h e a d County S h e r i f f ' s Department.
I n t h e l e t t e r , he stated that Mr. S h o r s had been o b s e r v e d
t e a r i n g down t h r e e s t e e l s i g n s a t t h e Branch p r o p e r t y . He
accused M r . Shors and h i s g u e s t s o f t e a r i n g down s i g n s " i n a
r o u t i n e manner," and t h r e a t e n e d t o f i l e c h a r g e s a g a i n s t M r .
S h o r s i f t h e s i g n s were n o t r e p a i r e d o r r e p l a c e d . In fact,
on t h e day i n q u e s t i o n , M r . Shors and h i s f a m i l y w e r e a t home
i n Cut Bank, Montana.
Mr. S h o r s , an a t t o r n e y , b r o u g h t s u i t a g a i n s t M r . Branch
f o r i n t e r f e r e n c e w i t h h i s a c c e s s t o t h e r i v e r and f o r defama-
tion. A f t e r a bench t r i a l l a s t i n g s e v e r a l d a y s , the court
entered extensive f i n d i n g s and c o n c l u s i o n s . The c o u r t o r -
dered M r . Branch t o pay p l a i n t i f f s $2,000 f o r l o s t u s e and
enjoyment o f t h e v e h i c l e a c c e s s r o a d f o r two y e a r s p r e c e d i n g
t h e f i l i n g of t h e i r complaint; to pay $15,000 i n p u n i t i v e
dama.ges f o r o b s t r u c t i o n o f t h e a c c e s s r o a d ; t o pay $10,000 i n
a t t o r n e y f e e s incurred i n connection with i n t e r f e r e n c e with
plaintiffs' access rights under the contract; and to pay
court costs. I t a l s o awarded p l a i n t i f f s $5,000 i n special
and g e n e r a l damages f o r d e f a m a t i o n and $20,000 i n punitive
damages f o r d e f a m a t i o n . I t f u r t h e r ordered M r . Branch n o t t o
interfere with p l a i n t i f f s ' right r e c o n s t r u c t , r e p a i r , and
maintain the original lot owners' road, and enjoined M r .
Branch from o b s t r u c t i n g o r i n t e r f e r i n g w i t h p l a i n t i f f s i n t h e
exercise of t h e i r r i g h t s under t h e D e c l a r a t i o n o f Restric-
t i o n s and t h e c o u r t ' s o r d e r .
Is p l a i n t i f f s ' c l a i m f o r damages f o r i n t e r f e r e n c e w i t h
t h e i r easement r i g h t s b a r r e d by s t a t u t e o f l i m i t a t i o n ?
Mr. Branch a r g u e s t h a t t h e two-year s t a t u t e of limita-
tion f o r i n t e r f e r e n c e w i t h r e a l p r o p e r t y e x p i r e d two y e a r s
after the metal g a t e was constructed, or in 1978. This
a c t i o n was n o t b r o u g h t u n t i l 1982. Mr. Branch a r g u e s t h a t it
i s t h e r e f o r e b a r r e d by t h e s t a t u t e o f l i m i t a t i o n .
The D i s t r i c t Court concluded t h a t :
The Defendant h a s u n l a w f u l l y and u n r e a s o n a b l y
r e s t r i c t e d P l a i n t i f f s ' r i g h t o f a c c e s s , i n deroga-
t i o n o f t h e D e c l a r a t i o n of R e s t r i c t i o n s , t h e r e b y
d i m i n i s h i n g t h e v a l u e o f t h e i r p r o p e r t y , and t h e i r
u s e and enjoyment t h e r e o f . S p e c i f i c a l l y , he f a i l e d
t o c o n s t r u c t a p r o p e r o r r e a s o n a b l y permanent
a c c e s s r o a d , s u i t a b l e f o r v e h i c u l a r u s e , and pro-
hibited Plaintiffs' and o t h e r l o t - o w n e r s ' free
a c c e s s t h e r e t o by any means i n 1976 and t h e r e a f t e r
u n t i l t h e f i l i n g o f P l a i n t i f f s ' Amended Complaint
The c o n c l u s i o n t h a t M r . Branch i n t e r f e r e d w i t h p l a i n t i f f s '
easement r i g h t i s based on b o t h h i s f a i l u r e t o c o n s t r u c t a
proper or reasonably permanent access road and his
interference with plaintiffs ' and the other lot owners '
access to the river. The failure to construct a proper
access road sounds in contract, with an 8 year statute of
limitation under 5 27-2-202, MCA.
As to Mr. Branch's interference with access to the
river, this Court has recognized as continuing torts those
torts in which the tortious act can be readily abated.
Haugen Trust v. Warner (Mont. 1983), 665 P.2d 1132, 1135, 40
St.Rep. 1036, 1039. In a continuing tort, recovery may be
had for damages accruing within the statutory period preced-
ing commencement of the action. Haugen, 665 P.2d at 1135.
We conclude that blockage of plaintiffs' access to the river
by the gate was a continuing tort, because it was easily
abated. The gate was, in fact, moved prior to trial. We
hold, therefore, that the statute of limitation does not bar
this action, and that damages accruing within 2 years of
initiation of the suit were recoverable.
Did Mr. Branch's installation and maintenance of the
gate on the road extinguish the plaintiffs' easement rights
by adverse possession or establish a prescriptive right to
the gate?
Neither of these theories were set forth in the plead-
ings or in the pretrial order. They were raised by motion to
amend the pleadings at the close of trial. The trial court
did not make specific findings as to either theory, apparent-
ly concluding that neither had been sufficiently proven.
Both adverse possession and prescriptive easement re-
quire proof of open, notorious, exclusive, adverse, and
continuous possession or use for the statutory period of five
years. The evidence is insufficient on several of these
elements. Mr. Branch did not consistently testify that he
intended to keep plaintiffs from all access to their ease-
ment. He stated at one point that he would have given the
lot owners keys to the gate, if they had wished to improve
their access road, and testified that access on foot, snowmo-
bile, or motorcycle could be achieved by going around the
gate. During the entire time involved here, the Declaration
of Restrictions remained on file with the Clerk and Recorder,
publicly stating the right to the easement. Sometimes Mr.
Branch's gate was left open. He did not affirmatively convey
to the lot owners at any date certain his intention that they
not go beyond the gate. Mr. Branch did not place his "no
trespassing" signs near the gate until about 1980 or 1981.
We conclude that there was insufficient proof of extinguish-
ment of the easement rights by adverse possession or of a
prescriptive right to the gate.
111
Did the trial court err in permitting testimony concern-
ing: 1) an incident in which Mrs. Shors and her children were
"buzzed" by the Branch children on a snowmobile; and 2) Mr.
Branch's reference to the Shors as "trouble-makers" and
"hippies" and his suggestion to third parties that the Shors
cabin be burned down?
Mr. Branch objects to the admission of the above testi-
mony on the basis of relevance. Rule 401, M.R.Evid. provides
that evidence is relevant if it has "any tendency to make the
existence of any fact that is of consequence to the determi-
nation of the action more probable or less probable than it
would be without the evidence." We hold that the action of
the Branch children in "buzzing" the Shors on snowmobiles is
irrelevant to the issue of malice on the part of Mr. Branch,
but that the testimony's admission into evidence was harm-
less, given the other independent evidence of malice. We
hold that the statements by Mr. Branch were relevant as they
relate to Mr. Branch's malice toward plaintiffs.
IV
Is there substantial evidence to support the court's
findings that: a) Mr. Branch did not complete construction of
the access road as required by the Declaration of Restric-
tions; b) Mr. Branch acted maliciously and with a reckless
disregard for the plaintiffs' rights in constructing the
gate; and c) plaintiffs were entitled to $2,000 for the loss
of use of the vehicle access road?
Mr. Branch argues that these three do not have support
in the record. Our standard of review is whether substantial
evidence exists to support the findings and conclusions of
the District Court.
Testimony by several parties, including Mr. Branch, that
the lot owners' access road began sloughing off almost imme-
diately supports the District Court's conclusion that no
proper or reasonably permanent access road was constructed.
There was testimony that only a few of the lots had been sold
at the time the access road was constructed. Only a few lot
owners had access to a useable road, and only for the short
time until the road eroded. The fact that Mr. Branch built a
locked gate in front of the turnoff to the lot owners' access
road supports a conclusion of reckless disregard for plain-
tiffs' rights. Additionally, we defer to the trial court's
opportunity to judge the demeanor of the witnesses, including
defendant. We conclude that there was substantial evidence
to support the findings that no proper or reasonably perma-
nent access road was constructed and that Mr. Branch acted
with malice or a reckless disregard for plaintiffs' rights in
constructing the gate.
The award of $2,000 in damages for loss of access to the
river is supported by plaintiffs' testimony that they pur-
chased their lot partially because it was represented as
having access to the river, and that their use of their cabin
and access to the river were curtailed as a result of Mr.
Branch's actions. We conclude that the award of $2,000 was
within the court's discretion.
v
Was the communication of the letter to the Flathead
County Sheriff's Office privileged?
Mr. Branch argues that under S 27-1-804(1), MCA, his
letter was absolutely privileged as a publication made "in
the proper discharge of an official duty," because citizens
have an obligation to communicate their knowledge of the
commission of crimes to law enforcement officials. The
statute he cites does not extend to this unsolicited com-
plaint by a private citizen. Any duty Mr. Branch had to
report the destruction of his "no trespassing" signs was a
civic duty, not an official duty. We hold that the letter
was not a privileged communication.
VI
Was there substantial evidence to support the court's
findings that: a) Mr. Branch was inspired by malice and
ill-will when he forwarded the alleged defamatory letter; b)
the statements contained in the letter constitute libel or
libel per se; and c) the plaintiff Richard Shors was entitled
to $5,000 in special and general damages in the defamation
action?
At trial, Mr. Branch testified that he was "only 80%
sure" that he had identified Mr. Shors on the opposite bank
of the river, at the time he discovered the pulled up signs.
Yet he mailed a letter to the sheriff's office, in which he
stated that "our signs have been consistently torn down over
the past years by [Mr. Shors] and [his] guests in [the Shors]
nearby cabin in a routine manner," and threatened to file
"appropriate" charges and prosecute "to the fullest extent"
if replacement or repair of the signs was not arranged. His
characterizations of the Shors as "hippies" and "troublemak-
ers" and his suggestion that their cabin be burned down also
occurred prior to this time. We conclude that there was
substantial evidence to support the court's conclusion that
the letter was mailed with malice.
In Montana, libel is defined as:
. . . a false and unprivileged publication by
writing, printing, picture, effigy, or other fixed
representation to the eye which exposes any person
to hatred, contempt, ridicule, or obloquy or which
causes him to be shunned or avoided or which has a
tendency to injure him in his occupation.
Section 27-1-802, MCA. Judge McPhillips testified that Mr.
Shors' professional reputation was jeopardized by Mr.
Branch's statements in the letter. Mr. Branch testified in
his deposition that the damaged signs were worth over $150;
therefore, he had accused Mr. Shors of a felony. We conclude
that the District Court's finding that the statements in the
letter constituted libel has substantial support in the
evidence.
The testimony of both Mr. and Mrs. Shors as to the
mental anguish, worry, and loss of worktime caused to Mr.
Shors by Mr. Branch's letter supports the award of damages.
Mental anguish and suffering are actual harm, and determina-
tion of the amount of damages is within the fact-finder's
discretion. Gallagher v. Johnson (Mont. 1980), 611 P.2d 613,
617, 37 St.Rep. 940, 945. We hold that there was substantial
support in the record for the court's award of $5,000 in
actual damages on the libel issue.
VII
Did the trial judge have authority to award punitive
damages, and did he err in setting the amount of punitive
damages at $20,000 in the defamation action and $15,000 in
the action for interference with the easement?
Mr. Branch argues that under S 27-1-221, MCA, only a
jury may award punitive damages. We have upheld the award of
punitive damages by a district court sitting as the trier of
fact. The statute has been construed to mean the trier of
fact may award punitive damages. Miller v. Fox (1977), 174
Mont. 504, 510, 571 P.2d 804, 808.
Mr. Branch also maintains that the punitive damages
awarded are disproportionate to the harm done and to his
wealth. This court has rejected mathematical ratios for
determining punitive damages. Butcher v. Petranek (1979),
181 Mont. 358, 364, 593 P.2d 743, 746. We will not disturb
the award of punitive damages, because we conclude that the
amount awarded is within the trial court's discretion.
VIII
Did the District Court err in admitting plaintiffs'
statement of attorney fees into evidence and in awarding
attorney fees?
Mr. Branch objects to the admission into evidence of the
statement of Mr. Shors' attorney fees, alleging that an
insufficient foundation was laid. He also argues that a pro
- attorney is not entitled to attorney fees, that plaintiff
se
was not the prevailing party, and that there was no clear
allocation of fees between the defamation issue and the
easement issue.
Mr. Shors testified to the truth and accuracy of his
detailed written statement of hourly charges for legal ser-
vices. He also testified to the reasonableness of his $60
hourly fee in this matter, as did Judge McPhillips, and to
the reasonableness of the fees of his co-counsel, Mr Epstein.
Mr. Branch has cited nothing which would require additional
foundation, and we conclude that sufficient foundation was
laid to show that the fees claimed were reasonable.
This Court has held that a pro - attorney is entitled
se
to be paid for his legal services, in a case in which award
of attorney fees is proper. Winer v. Jonal Corp. (1976), 169
Mont. 247, 545 P.2d 1094.
Paragraph 7 of the Declaration of Restrictions provides
that costs of suit may be awarded against a person "found
guilty of a breach of the provisions of this declaration."
The trial court s conclusion #2 that " [t]he Defendant has
unlawfully and unreasonably restricted Plaintiff's right of
access, in derogation of the Declaration of Restrictions,"
means that the plaintiffs were entitled to their attorney
fees under the contract and were the prevailing party in the
contract action. They also prevailed in the defamation
action. Mr. Branch's position that plaintiffs did not pre-
vail because he was not ordered to build them a new road is
unfounded. We conclude that plaintiffs were properly awarded
attorney fees.
Plaintiffs submitted an itemized statement of pretrial
attorney fees of over $13,000. Additionally, two attorneys
represented plaintiffs over three days of trial. Mr. Shors
testified that over half the fees both before and during
trial were attributable to the easement issue. This Court
will not disturb an amount set as reasonable attorney fees
absent abuse of discretion. Talmage v. Gruss (Mont. 1 9 8 3 1 ,
658 P.2d 4 1 9 , 420, 4 0 St.Rep. 176, 177. We conclude that the
court did not abuse its discretion in determining that
$10,000 in attorney fees were "reasonably and necessarily
incurred" by plaintiffs in litigating their easement claim.
We Concur: