                                 NO. 89-303
                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1989



JOHN DUNCAN,
                  Plaintiff and Appellant,
          -vs-
CITY OF MISSOULA,
                  Defendant and Respondent.




                                                                    ,    ,
APPEAL FROM:      ~istrictCourt of the Fourth ~udicialDistrict, '
                  In and for the County of Missoula,             -c--
                                                                    ,-
                  The Honorable Ed McLean, Judge presiding.     '




COUNSEL OF RECORD:
          For Appellant:
                  Arthur D. ~gnellino;Due Process Legal clinic,         is sou la,
                  Montana
          For Respondent:
                  Jim Nugent, City Attorney, iss sou la, Montana



                                    Submitted on Briefs:   Aug. 31, 1989
                                      Decided: September 18, 1989
Filed :
Mr. Justice John C.   Sheehy delivered the Opinion of the
Court.


     The plaintiff, John Duncan, filed suit against the City
of Missoula to prevent the planting of trees in the boulevard
area of the sidewalk in front of plaintiff's downtown
property.   Following submission of motions on briefs, the
District Court for the Fourth Judicial District, Missoula
County, dismissed plaintiff's complaint for failure to state
a cause of action.    From that judgment, plaintiff appeals.
We dismiss the appeal as frivolous.
     John Duncan owns various properties in the Missoula
downtown central business district. When public sidewalks in
front of his building at 227-235 West Main were replaced, two
tree we11 openings were left for the planting of two
small-leaved honey-locust trees. Similar plantings were made
in the downtown area as sidewalks were repaired.
     Duncan expressed opposition to the planting at a City
Council Public Works Committee meeting on April 26, 1988.
Duncan's impression from that meeting was that no trees would
be planted at Duncan's location, and Duncan was notified that
his wish would be honored.
     Tenants in Duncan's building and others shortly
thereafter submitted a petition to the city requesting that
trees be planted, the committee recommended planting to the
Missoula City Council, which then approved such planting on
September 12, 1988. Duncan was informed of the decision, and
he proceeded to file a motion for temporary restraining order
in the District Court. The temporary restraining order was
granted on September 20, 1988.    Defendant City of Missoula
moved the court to dissolve the temporary restraining order
and to dismiss the proceeding.     On December 2, 1988, the
order was dissolved and the proceedings dismissed.
     On December 15, 1988, Duncan filed a complaint in the
~istrict Court alleging breach of contract, unreasonable
interference with property, and arbitrary action. The city
moved to dismiss pursuant to Mont. R.Civ.P. 12 (b)( 6 ) for
failure to state a claim upon which relief can be granted.
On March 29, 1989, the ~istrict Court dismissed Duncan's
complaint.
     The ~istrictCourt was correct in its dismissal of the
case. Duncan argues that the commitment of the public Works
committee was tantamount to an oral contract. No facts bear
this out. The committee's statement that no trees would be
planted if he objected does not create a contract binding
upon the City.    Not only are the elements of a contract
missing here, but no action of the city council itself
created a contract as required by S 7-5-4121, MCA.
     Duncan's argument that the planting of trees on the
walkway is not a reasonable use of the public easement also
lacks merit. ~ a i n
                   Street here is a dedicated public way, and
the City Council has broad powers to alter and maintain
streets and avenues. section 7-14-4101, MCA. As such, the
city has the right to maintain and improve the street,
including the planting of trees.
      ina ally, Duncan's contention that the city acted
arbitrarily and capriciously must fail.    ~ c t i o ntaken by a
City Council, well within its power to act, cannot constitute
arbitrary or capricious action. ~ccordingly,this appeal is
dismissed as frivolous.



We Concur:
   Ip   I


~ h / i e FJustice
