MONTE R. DAVIS, JR. and WILHELMINE S. DAVIS, Plaintiffs and Appellants, v. DOUGLAS L. WESTPHAL and KATHY L. WILSON, Defendants, Appellees, and Cross-Appellants.
No. DA 17-0003
Supreme Court of Montana
Submitted on Briefs June 21, 2017. Decided November 6, 2017.
2017 MT 276. 389 Mont. 251. 405 P.3d 73.
For Appellant: Randall A. Snyder, Snyder Law Office; Bigfork.
For Appellee: Evan F. Danno, Danno Law Firm, P.C.; Kalispell.
¶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 Courts 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.
ISSUE
¶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?
BACKGROUND
¶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 40x60 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 upcoming 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,
¶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 hearing1 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, Inc., 197 Mont. 80, 640 P.2d 1253 (1982) (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 of law to remedy the trespasses in addition to money damages (emphasis in original); and(4) Davises offered no factual basis or legal argument that [the requested prohibitive injunctive relief is necessary at this point
in time.
The court noted further that Westphals informally agreed to remove the encroaching structures in exchange for dismissal of the action, a result the court observed to be the most expeditious way to resolve the
¶8 Davises subsequently moved the District Court pursuant to
STANDARDS OF REVIEW
¶9 We review summary judgment rulings de novo for conformance to
¶10 The grant or denial of injunctive relief is a matter within the broad discretion of the district court based on applicable findings of fact and conclusions of law. Shammel v. Canyon Res. Corp., 2003 MT 372, ¶ 11, 319 Mont. 132, 82 P.3d 912; Walker v. Warner, 228 Mont. 162, 166, 740 P.2d 1147, 1149-50 (1987). The standard of review of a grant or denial of injunctive relief is whether the court manifestly
abused its discretion. Shammel, ¶ 12. A manifest abuse of discretion is an obvious, evident, or unmistakable abuse of discretion. Shammel, ¶ 12. The standard of review of lower court findings of fact and conclusions of law is whether the findings of fact are clearly erroneous and whether the conclusions of law are correct. We review district court rulings on motions for post-judgment relief under
DISCUSSION
¶11 At issue on Davises appeal and Westphals cross-appeal are summary judgment rulings that are also the predicate for Davises related appeal of the courts subsequent denial of their Motion to Correct summary judgment rulings. Orders granting or denying summary judgment are generally interlocutory orders not subject to immediate appeal. Trombley v. Mann, 2001 MT 154, ¶¶ 6-10, 306 Mont. 80, 30 P.3d 355;
¶12 Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
¶13 Did the District Court erroneously deny summary judgment for immediate removal of Westphals trespassing encroachments and restoration of Davises land?
¶14 Davises assert on appeal that the District Court erroneously refused to order Westphals to remove the subject encroachments and restore the property within 60 days of judgment, with the proviso that Davises could remove the drain field and shop building at Westphals expense if they failed to timely comply. Apart from their base request for a declaratory judgment of trespass, the Davises sought summary judgment ejecting the encroachments, ordering [their] immediate ... removal and restoration of the property, and permanently enjoining any further trespass or violation of applicable zoning setback requirements. Without reference to mandatory injunctive relief in the District Court and in contrast to their request for prohibitive injunctive relief, Davises sought an order compelling removal of the encroachments and restoration of the property as forms of relief available on the common law claim of ejectment. On appeal, Davises now assert that, in addition to common law ejectment, they are also entitled to mandatory injunctive relief compelling Westphals to remove
the encroachments and restore the property. Davises conflation of the torts of common law trespass and ejectment, declaratory judgment of trespass, and supplemental preliminary and permanent equitable relief requires that we sort out these causes of action and remedies as a prelude to addressing their assertion of error.
¶15 Modern common law trespass is an intentional tort claim for damages caused by an unauthorized entry or holdover upon real property of another. Tags Realty, LLC v. Runkle, 2015 MT 166, ¶ 15, 379 Mont. 416, 352 P.3d 616; Tally Bissell Neighbors, Inc. v. Eyrie Shotgun Ranch, LLC, 2010 MT 63, ¶ 38, 355 Mont. 387, 228 P.3d 1134; Slater v. Shell Oil Co., 137 P.2d 713, 715 (Cal. App. 1943). The essential elements of a modern common law trespass claim are: (1) an intentional entry or holdover; (2) by the defendant or a thing; (3) without consent or legal right. Branstetter v. Beaumont Supper Club, Inc., 224 Mont. 20, 24, 727 P.2d 933, 935 (1986); Restatement (Second) of Torts §§ 158 and 163 (1965). Because the legal harm is the interference with anothers right to exclusive possession of property, an unauthorized tangible presence on the property of another constitutes a trespass regardless of whether the intrusion caused any other harm. Tally, ¶¶ 37-38 (distinguishing tangible invasion of property by person or thing from an intangible invasion, e.g., invasion of sound, light, odor, gas, or electromagnetic field, requiring proof of actual harm beyond mere infringement of right); Restatement (Second) of Torts § 163 cmt. d. A civil trespass encompasses both the initial unauthorized entry upon the property of another and the subsequent failure to cease or abate the intrusion. Branstetter, 224 Mont. at 24, 727 P.2d at 935; Restatement (Second) of Torts §§ 158 and 163.
¶16 While civil trespass is an intentional tort, Miller v. Nat‘l Broadcasting Co., 232 Cal. Rptr. 668, 677 (Cal. App. 1986), intentional trespass does not require proof of specific intent, i.e., that the tortfeasor intended to enter or remain upon property owned or controlled by another. Restatement (Second) of Torts §§ 163 cmt. b, c and 164 cmt. a. The intent element of civil trespass only requires proof that the tortfeasor intentionally entered or remained, or caused a third party or thing to enter or remain, upon the property of another regardless of the tortfeasors knowledge, lack of knowledge, or good faith mistake as to actual property ownership or right. Luoma v. Donohoe, 179 Mont. 359, 365, 588 P.2d 523, 526 (1978); Miller, 232 Cal. Rptr. at 677; Restatement (Second) of Torts § 163, cmt. b, c and 164 cmt. a; W. Page Keeton and William Prosser, Prosser & Keeton on the Law of Torts § 13, 67-68 and 73-75 (5th ed. 1984) (interest of the landowner is protected at the expense of those who make innocent
mistakes).4
¶17 Though related tort claims of common origin for enforcement of an owners right to exclusive possession of real property, common law trespass and common law ejectment are technically distinct causes of actions providing distinct remedies. Tally, ¶ 38; Slater, 137 P.2d at 715; 28A C.J.S. Ejectment § 1 (2008). In contrast to a common law trespass claim for damages and a modern statutory claim for judgment declaring a trespass as a predicate for supplemental legal or equitable relief, common law ejectment is an action of ancient origin and greatly evolved purpose and scope. Soifer v. Beech, 459 A.2d 337, 339-43 (Pa. 1979); Dice v. Reese, 21 A.2d 89, 92 (Pa. 1941); Caperton v. Schmidt, 26 Cal. 479, 496-512 (Cal. 1864); Cincinnati v. Lessee of White, 31 U.S. 431, 441-43 (1832); Black‘s Law Dictionary 630 (10th ed. 2014).5 In modern form, common law ejectment is an action at law brought against a trespasser in possession of all or a portion of real property for immediate possession of the property based on proof of superior title and the right to immediate possession. Soifer, 459 A.2d at 339-40; Heroux v. Katt, 68 A.2d 25, 26-28 (R.I. 1949) (recognizing ejectment as action at law to remedy encroaching improvements); Slater, 137 P.2d at 715; Butler v. Frontier Telephone Co., 186 N.Y. 486, 488-92 (N.Y. 1906) (recognizing ejectment as an action at law to remedy vertical encroachment by overhanging wires); Agar v. Winslow, 56 P. 422, 423 (Cal. 1899); 25 Am. Jur. 2d Ejectment § 1 (2014); 28A C.J.S. Ejectment §§ 1-3 and 5-6; accord, Kootenai Corp. v. Dayton, 184 Mont. 19, 24, 601 P.2d 47, 49-50 (1979) (distinguishing common
¶18 Long predating modern declaratory judgment Acts,7 the primary relief available on an ejectment claim is a judgment declaring that the plaintiff has the right to immediate possession of the property. 25 Am. Jur. 2d Ejectment §§ 1 and 44; 28A C.J.S. Ejectment §§ 1-2 and 6. A successful plaintiff may also recover damages in ejectment as compensation for the loss of use of the property during the duration of the trespass.
¶19 Due to its limited nature as a mere declaration of right to possession, a judgment of ejectment is not self-executing. Page v. Luhring, 159 S.E.2d 527, 529 (Va. 1971). The remedy available at law to effect a judgment of ejectment is execution under a special writ known at common law as a writ of possession or ejectment, commanding the sheriff or levying officer to deliver possession of the property to the plaintiff by removing the defendant and personalty from the property.
¶20 Independent of common law trespass and ejectment claims, a modern declaratory
¶21 Here, Davises obtained summary judgment declaring that Westphals tree-felling and encroaching building and drain field constituted civil trespasses. As far as it goes, that declaratory judgment was the substantive equivalent of a judgment of ejectment declaring Davises right to exclusive possession of their property to the exclusion of the subject encroachments. Thus, Davises successfully obtained an interlocutory judgment, prevailing on their alternatively pled declaratory judgment and common law ejection claims. Except for as yet undetermined damages not at issue on appeal, and in contrast to any supplemental injunctive relief otherwise appropriate in equity, no other relief at law is currently available to Davises on their common law ejectment claim prior to final judgment.
¶22 To the extent that Davises assert that the District Court erred by failing to further order ejectment of the subject encroachments, their immediate removal, and restoration of the property, they seek forms of relief that are either premature or beyond the scope of relief available on a common law ejectment claim. The parties and the District Court have yet to consider whether a writ of possession executed by a sheriff or levying officer is available or adequate under
¶23 As to injunctive relief, it is unclear whether Davises assert that the District Court erred by failing to grant injunctive relief pursuant to
¶24 District courts have broad discretion to grant preliminary injunctive relief on any of the five grounds enumerated in
injunctions to preserve the status quo and minimize the harm to all parties pending final resolution on the merits. Porter v. K & S Partnership, 192 Mont. 175, 183, 627 P.2d 836, 840 (1981). The status quo is generally the last actual, peaceable, [un]contested condition preceding the controversy at issue. Porter, 192 Mont. at 181, 627 P.2d at 839. If a preliminary injunction will not accomplish [its limited] purposes, then it should not issue. Porter, 192 Mont. at 183, 627 P.2d at 840. Thus, even on proof of any grounds enumerated in
¶25 Inter alia, Davises assert that, upon granting summary judgment declaring the encroachments as trespasses, the District Court erred by failing to go further and issue a preliminary injunction for their removal pursuant to
¶26 Permanent injunctive relief, also known as final injunctive relief, see
¶27 Injunctive relief is generally not available to remedy a trespass where an action at law for damages or ejectment will provide complete relief. Jeppeson, 205 Mont. at 287, 667 P.2d at 431-32; King, 27 Mont. at 368, 71 P. at 156; Musselshell Cattle Co. v. Woolfolk, 34 Mont. 126, 132-33, 85 P. 874, 875-76 (1906). However, compensatory damages are generally inadequate to fully remedy a continuous or recurring encroachment on real property. Ducham, 265 Mont. at 443, 877 P.2d at 1006; Altman v. Stuart, 158 Mont. 402, 409-12, 492 P.2d 909, 913-14 (1972); Gibbons v. Huntsinger, 105 Mont. 562, 574-76, 74 P.2d 443, 449-50 (1937); Musselshell Cattle Co., 34 Mont. at 132-33, 85 P. at 875-76; Nellie Gail Ranch Owners Ass‘n v. McMullin, 209 Cal. Rptr. 3d 658, 675 (Cal. App. 2016); Hoffman v. Bob Law, Inc., 888 N.W.2d 569, ¶¶ 10-11 (S.D. 2016); Amkco, Ltd., Co. v. Welborn, 130 N.M. 155, ¶¶ 10-11 (N.M. 2001); Warsaw v. Chicago Metallic Ceilings, Inc., 676 P.2d 584, 588 (Cal. 1984); Arnold v. Melani, 437 P.2d 908, 911 (Wash. 1968); see also, Jeppeson, 205 Mont. at 287, 667 P.2d at 431-32; King, 27 Mont. at 368, 71 P. at 156.
¶28 Accordingly, Davises cite Ducham and Olsen v. Milner, 2012 MT 88, 364 Mont. 523, 276 P.3d 934, for the proposition that it is reversible error for a court to refuse to grant a mandatory injunction compelling removal of a continuous or recurring encroachment upon determining the encroachment as a trespass. In Olsen, upon determining that the defendant knowingly built a shop building partially on his neighbors property, the district court issued a mandatory injunction compelling the defendant to remove the trespassing encroachment within 60 days subject to the plaintiffs right to remove it at the defendants expense if he failed to timely do so. Olsen, ¶ 15. However, the narrow issues on appeal in Olsen were whether res judicata barred the plaintiffs trespass claim and whether the court correctly determined that the encroachment was a trespass, not whether the court properly granted mandatory injunctive relief. Olsen, ¶¶ 18-38. In Ducham, the district court denied a request for permanent injunctive relief based on a determination that the defendants recurring discharge of water across the plaintiffs property did not constitute a trespass. Ducham, 265 Mont. at 438, 877 P.2d at 1004. On appeal, we held only that the court erroneously concluded
¶29 To the contrary, regardless of a determination of a trespass, the grant or denial of mandatory injunctive relief remains highly discretionary dependent on the unique facts and circumstances of each case. Tally, ¶ 43 (flexible rules of equity require consideration of exigencies of each particular case). Though legal title must generally prevail if the equities are equally balanced or balance against the trespasser, Bonding Co. v. State Sav. Bank, 47 Mont. 332, 339, 133 P. 367, 368-69 (1913), the court must carefully weigh and balance the equities in each case when exercising its broad discretion to grant or deny injunctive relief. Four Rivers Seed Co. v. Circle K Farms, 2000 MT 360, ¶ 12, 303 Mont. 342, 16 P.3d 342.11 Thus, though often
appropriate on a balance of the equities in particular cases, mandatory injunctive relief is not available to remedy a trespassing real property encroachment as a matter of right in every case.
¶30 Here, unlike in Ducham and Olsen, the District Court has yet to grant or deny permanent injunctive relief upon entry of final judgment following full consideration of the equities. The courts grant of summary judgment declaring the subject encroachments as trespasses was merely an interlocutory order. Trombley, ¶ 7. Permanent injunctions are available only upon entry of a final judgment. Compare
¶31 The parties fully submitted Davises summary judgment motion to the court on their briefs. In support of the motion, Davises submitted only a one-page map prepared by a surveyor showing the boundary line encroachments, a copy of Westphals November
¶32 Davises failed to make any additional factual showing warranting injunctive relief in their subsequent
CONCLUSION
¶33 We hold that the District did not err at this stage in the proceedings in: (1) declining to grant other relief at law on Davises common law ejectment claim; (2) declining to grant preliminary or final injunctive relief compelling immediate removal of the encroachments and restoration of the property; or (3) denying Davises Motion to Correct those rulings. We hereby affirm the District Courts interlocutory rulings and remand for further proceedings in the ordinary course.
JUSTICES WHEAT, MCKINNON, BAKER and RICE concur.