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Davis v. Westphal

Supreme Court of Montana

November 8, 2017

MONTE R. DAVIS, JR. and WILHELMINE S. DAVIS, Plaintiffs and Appellants,
DOUGLAS L. WESTPHAL and KATHY L. WILSON, Defendants, Appellees, and Cross-Appellants.

          Submitted on Briefs: June 21, 2017

         District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV 16-486A Honorable Amy Eddy, Presiding Judge

          For Appellant: Randall A. Snyder, Snyder Law Office; Bigfork, Montana

          For Appellee: Evan F. Danno, Danno Law Firm, P.C.; Kalispell, Montana


         ¶1 Plaintiffs Monte R. and Wilhelmine S. Davis (Davises) appeal from an order of the Montana Eleventh Judicial District Court, Flathead County, denying the portion of their motion for partial summary judgment seeking an order compelling Defendants Douglas L. Westphal and Kathy L. Wilson (Westphals) to immediately remove trespassing encroachments on Davises' property and to restore the property to its prior condition subject to Davises' right to do so at Westphals' expense if they fail to timely act. Westphals cross-appeal the District Court's underlying grant of summary judgment declaring their shop building and underground septic system to be trespassing encroachments on Davises' property. We affirm and remand for further proceedings.


         ¶2 The restated issue is:

Did the District Court erroneously deny summary judgment for immediate removal of Westphals' trespassing encroachments and restoration of Davises' land?


         ¶3 The parties are owners of adjoining tracts of rural property along Five Deer Lane in Flathead County near Bigfork, Montana. The Westphals own a 10.01-acre tract to the west known as Five Deer Lakes Lot 1. The Davises own an 8.562 tract to the east known as Five Deer Lakes Lot 2. Without verification or inquiry, the Westphals mistakenly assumed that a line of pink survey flags running across the ground from a corner survey marker delineated the boundary line between Lots 1 and 2. As a result, Westphals cut down several trees on Davises' property in 2013. In 2014-15, Westphals built a 40'x60' shop building, and installed an accompanying septic system drain field, near their property line, both which mistakenly encroached on Davises' property.

         ¶4 In September 2015, while visiting their undeveloped land from California, Davises first noticed the Westphals' progressing improvements and suspected that they encroached on Davises' land. By that time, the septic system drain field and concrete foundation for the shop were in place and Westphals were in the process of erecting the metal shop building on the foundation. After retaining a licensed surveyor and confirming that the shop building and drain field encroached across the property line onto their lot, Davises notified Westphals of the encroachments and requested that they remove them immediately. Westphals did not immediately respond. After they finished enclosing the shop in advance of the oncoming winter, Westphals responded, by correspondence dated November 13, 2015, wherein they acknowledged the encroachments, admitted fault for their mistake, apologized, and stated their desire to resolve the problem amicably.

         ¶5 Six months later, with no agreement or abatement effort underway or imminent, the Davises filed a district court complaint on June 10, 2016, asserting four unspecified causes of action seeking: (1) "an order of ejectment, deconstruction and removal of" the "encroachments, and reasonable restoration of [the] property;" (2) compensatory damages, trebled by statute, for the wrongfully felled trees; (3) relocation of the non-encroaching portions of the shop and septic system in compliance with county zoning setback requirements; and (4) punitive damages. The complaint separately prayed for judgment declaring the encroachments as trespasses, "ejecting" the encroachments, "ordering [their] immediate deconstruction and removal, " ordering restoration of the property, "enjoining [Westphals] from constructing any improvements on their own property in violation of . . . zoning . . . setback requirements;" and for compensatory and punitive damages "proximately caused by [Westphals'] conduct." The District Court issued a temporary restraining order on Davises' accompanying ex parte motion and set a hearing on their motion for a preliminary injunction for June 22, 2016. At the hearing, upon notice that the parties had reached an informal agreement for Westphals to remove the encroachments and restore the property in return for the Davises dropping their request for a preliminary injunction, the District Court denied the motion for preliminary injunction as moot.

         ¶6 On September 12, 2016, with abatement of the encroachments still not underway or imminent, Davises moved for summary judgment for: (1) declaratory judgment declaring the encroachments as trespasses on their property; (2) an order "ejecting" the encroachments and "ordering [their] immediate . . . removal" with restoration of the property; (3) "a permanent injunction" enjoining "any further trespass" and enjoining Westphals from "constructing any improvements on their own property in violation of" county "zoning regulations or setback requirements." For the first time and without reference to mandatory injunctive relief, Davises characterized their claims as claims for declaratory judgment of trespass, common law "ejectment, " and prohibitive injunctive relief. Westphals opposed the motion on the asserted ground that no legal trespass had occurred because they had not intentionally encroached on Davises' property. Westphals requested an additional year to remove the encroachments and restore the property in the face of the upcoming winter. Westphals filed a supporting affidavit describing the difficulty and cost of removing the encroachments and restoring the property. The affidavit described the Westphals' financial limitations and asserted that Davises' need for immediate abatement was not urgent because they lived in California, only occasionally visited the land, and had no immediate plans to build on the undeveloped property.

         ¶7 On October 24, 2016, the District Court granted Davises' summary judgment on the briefs without a hearing[1] declaring that the Westphal encroachments and tree-felling constituted civil trespasses. However, the court denied Davises' requests for "immediate ejection . . . and removal of all encroaching improvements, " site restoration, and a permanent injunction enjoining any further intrusion on Davises' property or noncompliance with county zoning setback requirements. The court reasoned that:

(1) the authority cited by Davises did not "order ejection, adopt the remedy of ejection, or otherwise establish standards for an ejection claim;"
(2) § 27-1-318, MCA, "generally provides for money damages for wrongful occupation of real property;"
(3) though "ejection is a possible remedy" under § 27-8-313, MCA (declaratory judgment supplemental relief provision), and Goodover v. Lindey's, 246 Mont. 80, 802 P.2d 1258 (1980) (affirming discretionary grant of supplemental mandatory injunction for removal of encroachments to afford complete relief to declaratory judgment of trespass), Davises presented "insufficient information to determine whether coercive supplemental relief, i.e., ejection, deconstruction, and restoration, " is necessary "as a matter ...

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