APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 10-1078 Honorable Edward P. McLean, Presiding Judge
The opinion of the court was delivered by: Justice Jim Rice
Submitted on Briefs: August 1, 2012
Decided: November 7, 2012
Justice Jim Rice delivered the Opinion of the Court.
¶1 Wilbur Martin (Martin) appeals from the order of the Fourth Judicial District Court dismissing his complaint asserting nuisance and trespass against Keith and Gloria Artis (Artises), for failing to state a claim upon which relief can be granted. We affirm in part, reverse in part, and remand for further proceedings. We address the following issue:
¶2 Did the District Court err by dismissing the complaint for failing to state a claim upon which relief could be granted?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Martin filed a complaint and demand for jury trial against Artises in August 2010. These facts are taken from the complaint. Martin resides in the South Hills subdivision in Missoula. Artises' property lies immediately below and abuts Martin's property, and a boundary fence separates the properties. The complaint states:
On [Artises'] property is situated a tree, which has grown over the last several years so that it blocks a substantial portion of [Martin's] view of the city, valley and mountains. Last [I]ndependence [D]ay, for example, [Martin] and his guest could see virtually none of the South Gate Mall fireworks display solely because of this tree blocking the view[.]
¶4 Martin alleged that the tree's obstruction of his views was offensive to his senses, was an infringement upon the free use of his property, interfered with his comfortable enjoyment of his property, and diminished the aesthetic and monetary value of his property. He asserted that the tree was, and that Artises intended it to be, a nuisance.
¶5 Martin also alleged that "[r]oots from the tree are encroaching onto [Martin's] property and are starting to buckle the boundary fence" and that "the tree itself encroaches onto [Martin's] property over the common boundary fence." Martin asserted that the tree's encroachment upon his property constituted trespass. Acknowledging that Artises had "recently cut a few branches from the tree" after he contacted them, Martin nonetheless asserted that Artises "know their tree is growing over the fence onto [Martin's] property and is buckling his fence but refuse to do anything to stop it; that such trespass is continuing."
¶6 Finally, alleging that Artises had notice and knowledge of the alleged facts, Martin asserted that Artises are guilty of actual malice and that he is ...