           I N THE SUPREME COURT O F THE STATE O F MONTANA




STANLEY GILMAN and JEANNETTE GILMAN,
           plaintiffs and Appellants,
     -v-
STEPHEN R. BECK and CHARLENE BECK,

           Defendants and Respondents,

     and




           Defendants and Respondents.




APPEAL FROM:    ~istrictCourt of the Third ~ u d i c i a l~ i s t r i c t ,
                In and for the County of Powell,
                The Honorable Mark P. Sullivan, Judge presiding.


COUNSEL OF RECORD:

           For Appellant:

                John L. McKeon, Anaconda, Montana
           For Respondent:
                Karl Knuchel, ~ivingston,Montana



                                 Submitted on Briefs:       April 21, 1994

                                               Decided:     July 6, 1994
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

     This is an appeal from a Third Judicial ~istrict
                                                    Court, Powell
County bench trial finding for the defendant/respondent on the
issue   of   the    boundary   dispute,    and   finding      for   the
plaintiffs/appellants on the nuisance issue.     We affirm.
     The following are issues on appeal:
     1. Did the District Court err by admitting hearsay evidence?

     2. Were the District Court's findings of fact, conclusions of
law and judgment based on substantial credible evidence?
     3. Did the District Court err in not awarding damages to the

Gilmans on the nuisance claim?
     The Gilmans bought Lots 1 and 2 of the Larabie Addition in
Deer Lodge in 1976. In 1984, Stephen and Charlene Beck bought Lots
3 and 4 in the Larabie Addition, making them the neighbors directly

to the south of the Gilmans.     Stephen Beck is presently the sole
owner of the two lots.   At some point after the two parties became
neighbors, friction developed between the them which resulted in
the present action.
     The Gilmans filed a complaint against Beck on May 15, 1987.
They then filed an amended complaint on July 1, 1987, contending
that Beck was encroaching on the Gilmans' property, and praying
that the item of encroachment, the garage, would be removed from
the Gilmansl property and that Beck be assessed general and
punitive damages.   Moreover, on March 27, 1989, the Gilmans filed
a complaint against the Becks, alleging that the Becks had
constructed a wood burning stove in such a manner as to cause the
                                  2
Gilmans' house   to become     smoke-filled and       their air to be
contaminated, thereby injuring the Gilmans' health and interfering
with the comfort and enjoyment of their home. The two actions were
consolidated on February 22, 1993.     On July 13, 1993, this action
was tried before the bench.      Other facts will be presented as
necessary for the resolution of the issues.
                          1. HEARSAY EVIDENCE

     The Gilmans contend that the District Court erroneously
admitted hearsay evidence and relied on the hearsay as the sole
basis for the judgment.    Beck asserts that the testimony provided
at trial came from former neighbors and property owners of the lots
in question and was not hearsay.        Hearsay is defined at Rule
801(c), M.R. Evid., and provides:
          (c)Hearsay. Hearsay is a statement, other than one
     made by the declarant while testifying at the trial or
     hearing, offered in evidence to prove the truth of the
     matter asserted.
     The document referred to as "hearsay" by the Gilmans is a lot
sketch produced by Robert Burgess which was given to Beck as part
of a package by the bank from which he obtained his loan to
purchase his property.       According to the lot sketch, the Beck
garage lies entirely within the Beck property.         When the document
was offered by Beck's attorney, he stated that    "   [w]e'd move for the
admission of Exhibit A illustrative as one of the documents that
Mr. Beck received prior [to] buying his property."          The document.
was not inadmissible hearsay, it was admitted purely as an
illustrative exhibit. It portrayed Beck's understandinq of the lot
lines.
                                   3
       Gilmans argue that the lot sketch provided the sole basis for
the District Court to determine the boundary lines between the two
properties. However, there was testimony provided by former owners
of the lots as to the historical understanding of the boundary
lines between the properties.
       William Browne owned Lots 3 and 4 prior to Beck's purchase of
the property.    Browne testified that when he bought the property,
he physically inspected the property with the former owner and he
found a round circle stamped and branded onto the sidewalk with a
line through it, marking the boundary between Lots 2 and 3. Brown€
testified that the mark was on the line "right between Lots 2 and
3."    Browne further related that when he called a contractor to
pour the foundation for his house, he showed the contractor the
location of the mark.      He also stated that when he built his
garage, he built it on his own property.      Finally, he testified
that when the City dug up the sidewalk to provide water service for
the Brownes, he marked the place where the original marker had been
and when the new sidewalk was put in, he marked the area of the old
marker onto the new sidewalk.
       Juanita Browne also testified that when they decided to build
the garage, the Springers, then owners of Lots 1 and 2, came out to
see where the Brownes wanted to build the garage and they requested
that the Brownes move the garage (to its present location) because
they    felt it was too close to their fence which they had
constructed, with Browne's assistance, between Lots 2 and 3.
Additionally, Juanita Browne was with William Browne when the
former owner, Mrs. Breeding, showed the marking on the sidewalk and
stated, "1 sold you this part, this land."
     David Streufert, who purchased Lots 3 and 4 from the Brownes,
testified that it was his understanding that the garden fence line
on the Gilman property, north of the Beck garage, was the correct
property line. He stated that they "maintained property along that
line all the way over to where the sidewalk was."   They were using
an additional "three feet or so north of the garage.   . . .11


     Beck testified that the Gilman house was just to the north of
his property line and that the northern section of Beck's garage.
was three feet from the property line as indicated by the lot
sketch.   He had been maintaining Lot 3 up to the chain link fence
that Gilmans have for their garden.   Beck also stated that he told
Gilmans that he would maintain the sixty feet he felt he had
purchased until it was proved otherwise.
     The District Court considered evidence presented by a numbel.
of people in determining the location of the boundary lines between
the two parcels    of   land.   The   lot   sketch, which was    not
inadmissible because it was not hearsay, was just one piece of
evidence used by the District Court to determine that the Gilmans
did not carry their burden to prove that the lot lines were those
established by the survey conducted by Hendricks, a surveyor hired
by Gilmans to determine the proper boundaries of the lots in
question.
                  2. SUFFICIENCY OF THE EVIDENCE

     The Gilmans contend that the District Court's Findings of
Fact, Conclusions of Law, and Judgment was not based on substantial
credible evidence. Beck asserts that the only evidence provided by
the Gilmans to demonstrate that there was an encroachment on their
property was the improper survey by Hendricks while Beck provided
testimony from former owners as to the historical property lines.
           [W]e note that this case was decided by the trial
     judge sitting without a jury. The trial judge observed
     the demeanor of the witnesses and is in a better position
     to judge their credibility than a reviewing court, thus
     ll[w]e will not substitute our judgment for that of the
     trier of fact, but rather will only consider whether
     substantial credible evidence supports the findings and
     conclusions" "Findings of fact shall not be set aside
     unless clearly erroneous, and due regard shall be given
     to the opportunity of the trial court to judge of the
     credibility of the witnesses."
Emcasco Ins. Co. v. Waymire (1990), 242 Mont. 131, 135, 788 P.22.
1357, 1360.   (Citations omitted.)
     At trial, Gilmans offered the testimony of Donald Hendricks,
a surveyor, who conducted a survey of the property involved in the
action, and testified that "the south line of Lot 2 [passes!
through the garage of Mr. Beck."     He stated that Beck1 garage
                                                         s
encroaches about three feet onto Gilmansl property according to his
survey.   He also testified that Gilmansl garage encroached into
Higgins Avenue and into the alley and all the lots in the area were
"out of kilter," and about six and eitht tenths feet too far north.
     However, Hendricks did not record the survey with the Poweli

County Clerk and Recorder Is office as required by   §   70-22-104, MCA.
He also stated that he did not speak with any of the former owners
of the properties at issue to determine whether they had any
history which might assist in the survey.       The District Court
allowed the admission of the survey as the surveyor's opinion of
the location of the lot lines.
     On the other hand, Beck provided the testimony discussed above
in Issue 1; former owners who stated that according to the
historical boundaries ofthe lots, Beck's garage is entirely within
his own property.    Both of the Brownes testified that when they
purchased Lots 3 and 4, the then current owner, Mrs. Breeding,
showed them a sidewalk marker, marking the lot line for the
property they were to purchase.   According to that marker, Beck's
garage would be entirely within his own property.
     Juanita Browne also stated that when they decided to build the
garage Beck currently owns, they invited their neighbors, the
Springers, over to obtain their opinion about the location of the
proposed garage.    The Springers wanted the garage moved a little
farther from the fence line, and the Brownes accommodated them,
building the garage at its present location. David Streufert also
testified and reported that it was his understanding that the
Gilmans' garden fence line was the proper lot line for the
property.
     Beck offered a lot sketch which he received from the bank from
which he obtained his loan to purchase his property.       The lot
sketch was provided to Beck from the bank, and was purported to
represent the proper lot lines of the property.     Beck testified
that his garage was three feet from the lot line according to the
lot sketch.   He stated that he had been maintaining Lot 3 up to
Gilmans' fence line.
      We hold that there was substantial credible evidence upon
which the District Court could base          its     in dings   of Fact,
Conclusions of Law, and Judgment, concluding that: Beck's garage was
built entirely on his own property and did not encroach ontc'
Gilmans' property.
                         3.   NUISANCE DAMAGES
      Gilmans insist that the District Court erred in not assessing
damages to the Gilmans for the nuisance created by Beck from the
wood stove. Beck counters that Gilmans did not "produce any expert
or other testimony to support any contentions that they were
damaged in any way by the smoke from Mr. Beck's chimney." We agree
with Beck.
      Gilmans offered no testimony, expert or otherwise, to prove
that they have suffered damages.        The only evidence presented.
concerning monetary amounts was Stan Gilman's testimony that he
would rent the upstairs apartment for $300 per month but he did not
feel he could rent it because of the problem with smoke from Beck's
wood stoves.
       Although the Gilmans testified to medical problems associated
with the smoke from the wood stoves, no expert medical testimony
was presented nor were any medical bills or pertinent documents
admitted by     the Gilmans to prove damages to their health.
"Plaintiffs have the burden of proving, by competent evidence, the
amount of damages which they suffered.     . ."   Smith v. Zepp (1977),
173   Mont. 358, 370, 567 P.2d 923, 930.   Here, the Gilmans have not
offered any competent evidence to demonstrate that they have
suffered damages and the amount of damages suffered. The District
Court did not err when it did not assess damages against Beck due
to the smoke from his wood stoves.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.
     AFFIRMED.




We Concur:   A,
              .
                                           July 6, 1994

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


John L. McKeon
Attorney at Law
124 Oak Street-P.O. Box 879
Anaconda, MT 59711

Karl Knuchel
Attorney at Law
P. 0. Box 953
Livingston, MT 59047


                                                                                  ED SMITH
                                                                                  CLERKOFTHE
                                                    SUPREME COURT
                                                                                   STATE       OF
                                                    MONTANA
