Davis v. Westphal, 2017 MT 276

Background

The Davises and Westphals own adjoining rural lots; Westphals built a 40'x60' shop and installed a septic drain field that, due to reliance on mistaken survey markers, encroached onto the Davises’ lot; Westphals also felled trees on Davises’ land.
Davises discovered the work in 2015, retained a surveyor who confirmed the encroachments, and demanded removal; Westphals acknowledged the mistake in writing and expressed willingness to resolve the issue.
Davises filed suit in June 2016 seeking declaratory relief (trespass/ejectment), immediate removal and restoration, damages for felled trees (trebled), relocation to meet setbacks, and punitive damages; a temporary restraining order issued and a preliminary injunction motion was later withdrawn by stipulation after an informal removal agreement was discussed.
On summary judgment the district court declared the shop, foundation, and septic drain field to be trespasses but denied Davises’ request for immediate ejection/removal, site restoration, and a permanent injunction, concluding the record lacked facts to award coercive equitable relief at that stage.
Davises moved under Rules 59/60 to “correct” the summary judgment to compel immediate removal; the district court denied that motion. Davises appealed; the Supreme Court of Montana affirmed the denial of immediate injunctive removal and remanded for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court erred by refusing to order immediate removal and restoration of encroachments	Davises: summary judgment declaring trespass requires mandatory injunctive abatement now (60 days) or plaintiff may abate at defendant’s expense	Westphals: removal is costly/difficult, they did not act with wrongful intent and need time; parties had discussed removal schedule	Court: No error—record lacked sufficient equitable facts to order mandatory abatement at interlocutory stage; denial not manifest abuse of discretion
Whether summary judgment declaring trespass was improper because encroachment was unintentional	Davises: trespass declared by survey and evidence; damages/remedies follow	Westphals: absence of intent negates trespass	Court: Affirmed declaratory judgment of trespass; intent for trespass is entry/holdover, not knowledge of wrongdoing, so mistake does not defeat trespass claim
Whether a preliminary injunction should have been issued to prevent conduct that would render judgment ineffectual	Davises: immediate preliminary injunction under §27-19-201(3) needed to preserve rights	Westphals: plaintiffs abandoned preliminary injunction earlier and failed to request a hearing or make required evidentiary showing	Court: Denial proper—preliminary injunction requires a noticed hearing and specific evidentiary showing which Davises did not present
Whether ejectment or writ execution required immediate physical removal by sheriff	Davises: ejectment supports immediate possession and removal	Westphals: practical/ statutory limits on execution and removal; equity considerations	Court: Ejectment is distinct, not self-executing; writs of possession involve separate statutory execution rules and may be premature until final judgment; district court not required to order physical abatement at summary judgment stage

Key Cases Cited

Branstetter v. Beaumont Supper Club, Inc., 224 Mont. 20, 727 P.2d 933 (Mont. 1986) (elements and scope of modern civil trespass)
Goodover v. Lindey's, 246 Mont. 80, 802 P.2d 1258 (Mont. 1990) (declaratory judgment may be supplemented by injunctive relief to afford complete relief)
Luoma v. Donohoe, 179 Mont. 359, 588 P.2d 523 (Mont. 1978) (mistake as to boundary does not defeat trespass intent element)
Ducham v. Tuma, 265 Mont. 436, 877 P.2d 1002 (Mont. 1994) (permanent injunction appropriate where recurring trespass causes irreparable harm)
Pritchard Petroleum Co. v. Farmers Coop. Oil & Supply Co., 121 Mont. 1, 190 P.2d 55 (Mont. 1948) (ejectment and mesne profits as remedies for wrongful occupation)