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Bam Ventures, LLC v. Schifferman

Supreme Court of Montana

March 19, 2019

BAM VENTURES, LLC, a Montana Limited Liability Company, Plaintiff and Appellant,
REED P. SCHIFFERMAN and ROBIN SCHIFFERMAN and all other persons, known or unknown, claiming or who might claim any right, title, estate, or interest in or lien or encumbrance upon the real property described in the Complaint below which is adverse to Plaintiff's ownership or a cloud upon Plaintiff's title thereto, whether such claim or possible claim be present on contingent, Defendants and Appellees.

          Submitted on Briefs: January 16, 2019

          APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Beaverhead, Cause No. DV-17-14033 Honorable Luke Berger, Presiding Judge

          For Appellant: Zane K. Sullivan, Nathan G. Wagner, Datsopoulos, MacDonald & Lind, P.C., Missoula, Montana

          For Appellees: John S. Warren, Attorney at Law, Dillon, Montana


         ¶1 BAM Ventures, LLC (BAM) appeals the order of the Fifth Judicial District Court, Beaverhead County, Montana, granting a preliminary injunction in favor of Reed and Robin Schifferman (Schiffermans). We affirm and restate the issue on appeal as follows:

         Did the District Court err by granting a preliminary injunction without a finding of "great or irreparable injury?"


         ¶2 The facts herein are taken from the record as developed only for purposes of the District Court's consideration of a preliminary injunction. The dispute concerns access to one of two pieces of adjacent property located in Wise River, Montana, owned respectively by BAM and the Schiffermans. In 2003, before improvements were made to the properties, Schiffermans purchased their lot, which then lacked physical access. In 2004, in an apparently fortuitous development, the Montana Department of Transportation completed an improvement project for Montana Highway 43, which ran along the southern border of the properties, and, during the project, added a paved apron extending from the highway toward the border of the properties and installed a "green gate" nearby. Since 2004, Schiffermans have used these improvements to access their lot, and further improved the access by installing an elevated driveway with culverts. In 2005, Schiffermans built a 1200 square foot garage on their lot, and constructed a house there in 2016. They also had a cattle guard installed near the gate. Construction contractors and suppliers used the apron and driveway to access the property. During these years, Schiffermans believed the access was on their lot, and received no objections about its use.

         ¶3 In 2017, BAM purchased the lot adjacent to the Schiffermans' lot, and uses its property to host disabled veterans for recreational activities. BAM's principal, Noah McMahon, believed Schiffermans' driveway ran across the corner of BAM's property, so he fenced off the driveway with temporary fencing and removed Schiffermans' cattle guard.[1] In response, Schiffermans removed part of BAM's fencing and began driving across an unimproved grass and dirt area to access their driveway. As of the preliminary injunction hearing, Schiffermans had attempted to improve this altered route but found it did not provide comparable access. An expert testified it would take approximately two days and $7, 000 to build a comparable access across the new route to the existing driveway.

         ¶4 BAM initiated this action in quiet title to resolve the question of property ownership of the disputed area. The Schiffermans disputed the boundaries allegations in their answer, and counterclaimed for a prescriptively acquired easement over the access route. Schiffermans have acknowledged that "at least a portion" of their property's access is located on BAM's property and, pertinent here, sought injunctive relief under § 27-19-201(1)-(3), MCA, based on their claim of a prescriptive easement, to bar BAM from restricting access to their lot across the original route pending outcome of the litigation.

         ¶5 After the hearing, the District Court determined Schiffermans had made a prima facie showing of their claim for prescriptive easement, and granted them a preliminary injunction pursuant to § 27-19-201(1), MCA. Although the District Court agreed with BAM's argument that Schiffermans had not established irreparable harm, and that money damages could not be considered irreparable harm, because "money damages may be recovered in an action at law without resort to equity," citing Caldwell v. Sabo, 2013 MT 240, ¶ 29, 371 Mont. 328, 308 P.3d 81, the court reasoned that Schiffermans did not need to establish "irreparable harm" because that requirement was necessary only for preliminary injunctive relief under subsection (2), not subsection (1), of § 27-19-201, MCA.

         ¶6 BAM appeals.


         ¶7 District courts are afforded a high degree of discretion to grant or deny preliminary injunctions. Accordingly, we will not overturn the district court's decision absent a manifest abuse of discretion. "A manifest abuse of discretion is one that is obvious, evident, or unmistakable." Caldwell, ΒΆ 18 (quotation and citation omitted). However, we review an injunction based on conclusions of law for correctness. In considering whether to issue a preliminary injunction, neither the District Court nor this Court will determine the underlying ...

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