Olsen v. Milner
364 Mont. 523
| Mont. | 2012Background
- Libby neighbor dispute over setback encroachment from Milner’s workshop addition.
- Initial city setback required seven feet; Milner’s initial plan used five feet and later escalated to seven feet with Olsen’s consent contested.
- A prior suit sought rescission and specific performance regarding the land strip; relief included return of money and removal of Olsen’s shed.
- Olsen later commissioned a survey revealing encroachment .81 feet past the boundary and filed suit for trespass and nuisance with abatement and damages.
- Milner asserted res judicata, equitable estoppel, and waiver defenses based on the prior action; sought malicious prosecution in counterclaim.
- District Court held Milner liable for trespass and nuisance, ordered abatement and removal if necessary, and denied Milner damages for malicious prosecution; Olsen awarded $10,000 and costs on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Olsen’s claims were barred by res judicata | Olsen contends the second suit raised different issues not decided in the first. | Milner argues the prior action barred new nuisance/trespass claims. | Not barred; elements of res judicata not met. |
| Whether Olsen’s claims were barred by equitable estoppel or waiver | Olsen did not knowingly waive rights; prior sale related to setback, not the nuisance/trespass claims. | Olsen’s sale of the strip and reliance on it estops him. | Not barred by waiver or estoppel; no knowledge, reliance, or prejudice established. |
| Whether Milner is liable for trespass | Encroachment of the roof eaves caused harm to Olsen’s property. | Milner lacked intent to trespass; responsible only for damages to property line. | Milner liable for trespass (reckless/negligent) and nuisance. |
| Whether Olsen is entitled to attorney fees and costs | Milner’s appeal was lacking substantial grounds; fees warranted under Rule 19(5). | Appeal had substantial grounds; sanctions inappropriate. | No attorney fees awarded; costs of appeal awarded to Olsen; District Court to resolve on remand. |
Key Cases Cited
- Touris v. Flathead County, 361 Mont. 172, 258 P.3d 1 (2011 MT 165) (res judicata elements and consideration of claim identity)
- Baltrusch v. Baltrusch, 130 P.3d 1267 (2006 MT 51) (foundational res judicata standards)
- Wiser v. Mont. Bd. of Dentistry, 251 P.3d 675 (2011 MT 56) (res judicata and related principles in professional conduct context)
- Phelan v. Lee Blaine Enters., 716 P.2d 601 (1986) (when a claim could have been litigated but was not)
- Baertsch v. Co. of Lewis & Clark, 727 P.2d 504 (1986) (scope of issues and subject matter identity for preclusion analysis)
- Traders State Bank v. Mann, 852 P.2d 604 (1993) (res judicata effects; later developments not barred where necessary)
- Murphy Homes, Inc. v. Muller, 337 Mont. 411, 162 P.3d 106 (2007 MT 140) (sanctions and appellate fees standards under Rule 19)
- Hughes v. Ahlgren, 258 P.3d 439 (2011 MT 189) (attorney fees standards on appeal)