                                  No. 79-95
                  IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1980

                              -
HAROLD R. MAGNUSON and RONALD MAGNUSON,
                         Relators and Respondents,
         VS   .
JAMES R. BILLMAYER,
                         Defendant and Appellant.



Appeal from:      District Court of the Twelfth Judicial District,
                  In and for the County of Blaine.
                  Honorable B. W. Thomas, Judge presiding.
Counsel of Record:
      For Appellant:
             Morrison, Ettien and Barron, Havre, Montana
             Robert D. Morrison argued, Havre, Montana
      For Respondents:
             Altman and Lilletvedt, Havre, Montana
             Brian Lilletvedt argued, Havre, Montana


                                   Submitted:   May 28, 1980
                                     Decided:   -- 8 - 1980
                                                SEP
Filed: SEP   0 - 18
                  90
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.

     Defendant James R. Billmayer, appeals from a judgment
entered upon a jury verdict in the Blaine County District
Court awarding general damages and punitive damages against
him as the result of an assault.
     Billmayer has two essential claims:        first, that the
evidence does not support an award of exemplary damages;
and second, that the trial court erred in not submitting his
proposed instructions to the jury with relation to the use
of justifiable force.    We affirm the judgment.
     The assaults arose out of a situation in which the
plaintiffs were working on the defendant's land to remove an
overhead telephone line system.        Triangle Telephone Cooperative
Association, Inc. (herein referred to as the telephone
company), had an easement on defendant's land for telephone
lines and poles, desired to remove the lines and poles,
and entered into a contract with the Magnusons to do so.
Four or five days later, the Magnusons discussed their
intention to remove the wires and poles, with the defendant,
and he told them not to remove any poles from his property.
Six weeks later Harold Magnuson telephoned the defendant and
told him he would be removing the poles.       The defendant told

him not to go on his land and that he (defendant) had an
interest in the poles.     The parties had a third conversation

concerning the poles and again the defendant told Harold
Magnuson not to go on his land.
     On August 23,   1976, defendant noticed Ronald Magnuson
removing wire from poles on the defendant's land and told
him to get off his land.     Ronald Magnuson reported this
conversation to Harold Magnuson, but they decided to go back
to the defendant's property the next day to remove the poles.
                                 -2-
     On August 24, 1976, defendant noticed that Ronald
Magnuson and Magnuson's wife had parked their vehicles on
his land. Defendant drove over, parked his truck and Harold
Magnuson drove over in another truck.   Harold Magnuson told
defendant that they were going to remove the poles and
defendant again told them not to remove the poles and to get
off his land. The Magnusons discussed the matter amongst
themselves and decided to proceed with the removal of the
poles.   When Ronald Magnuson started moving his truck,
defendant attempted to block his forward progress and twice
used his vehicle to ram Magnuson's vehicle.     Ronald Magnuson
immediately exited from his truck and attempted to take a
photograph of defendant's license plate, and defendant tried
to run him down.   Defendant's actions resulted in the present
lawsuit.
     The Magnusons sued defendant asking for wrongful detention
and conversion of property damages, damages for injuries to
Harold Magnuson's truck, damages for harm inflicted upon
Ronald Magnuson individually, and exemplary damages to be
awarded to Ronald Magnuson individually, and Ronald Magnuson
and Harold Magnuson jointly.
     The trial court directed a verdict against the defendant
on the issue of liability, ruling as a matter of law that
defendant's use of force was not justifiable.    Pursuant to a
special verdict, the jury awarded $400 to Harold Magnuson
for damages to his truck, $11,500 to Ronald Magnuson    as
exemplary damages assessed as a result of the assault, and
$1,244 to Ronald and Harold Magnuson jointly for the value
of the poles.
     There is no doubt that the evidence supports an award
of exemplary damages.   Ronald Magnuson testified that while
he was driving his truck, there was a crash and his truck
                               -3-
bounced off to the side, and that a few seconds later he
felt another crash.   Harold Magnuson testified that defendant
smashed into Ronald Magnuson's truck twice.       He smashed into
the truck, backed up, and took another run at the truck.
Ronald Magnuson then exited from his truck and while attempting
to take a picture of defendant's license plate on the truck,
defendant tried to run him down.       Magnuson saw defendant's
three-ton grain truck approaching him and suddenly Magnuson's
wife screamed for     Flaqnuson to get out of the way.    Magnuson
evaded the attempt to run him down and ran to the other side
of his truck for safety.   Defendant then left the scene.
     In awarding exemplary damages, the jury may take into
account whether the acts complained of are "of such nature
as to demonstrate a reckless disregard of the rights of
others. "   Butcher v. Petranek (1979), - Mont     .     , 593
P.2d 743, 745, 36 St.Rep. 830, 833; Mosback v. Smith Bros.
Sheep Co. (1922), 65 Mont. 42, 46-47, 210 P. 910, 912.
The record amply supports a determination that the defendant
evinced a reckless disregard for the rights of the Magnusons.
Under section 27-1-221, MCA, the malice required for exemplary
damages to be awarded may be actual or presumed.       Where
defendant's conduct is unjustifiable, "malice-in-law" is
presumed.   First Sec. Bank of Bozeman v. Goddard (1979), -
       ,
Mont. - 593 P.2d 1040, 1049, 36 St.Rep. 854 at 865;
Cherry-Burrell Co. v. Thatcher (9th Cir. 1939), 107 F.2d
65, 69 (applying Montana law).
     The defendant contends that the trial court should not
have taken the issue of justifiable force away from the
jury. He contends that he was merely exercising what he
believed to be his right to prevent the Magnusons from
entering upon his land and removing poles which he felt he
had a valid claim to do.   The trial court, on the other
                                 -4-
hand, based on an easement existing between defendant and
the telephone company, determined that the Magnusons had a
legal right to bid on defendant's land pursuant to the pole
removal contract they had with the telephone company.     This
being the case, defendant had no right to take the law into
his own hands by attempting to run the Magnusons down with
his truck.   The evidence supports this ruling.
     Defendant admitted that when he acquired the land,
that he had given easements to the telephone company in 1967
and 1975 which provided that all poles and wire located on
the land would remain the property of the telephone company
and could be removed at its option. He also admitted that in
1976, he learned that the telephone company was dismantling its
overhead line system in his locality and further that he
noticed the Magnusons entering upon land of his neighbors to
remove poles.   He also knew that the Magnusons had entered
into a removal contract with the telephone company and that
they claimed the right pursuant to an easement to come onto
his land to remove the poles.   Clearly, the Magnusons, under
these facts, had the right to claim access to defendant's
land under the telephone company's easement in order to
carry out their own removal contract with the telephone
company.   See, City of Missoula v. Mix (1950), 123 Mont.
365, 373, 214 P.2d 212, 216.
     Because the jury was properly informed by the trial
court that defendant's use of force was not justified,
defendant has no grounds to complain that the trial court
erred in not instructing the jury with relation to his
theory of the use of justifiable force.   As a matter of law,
he was not entitled to use that theory in an attempt to
explain away his actions.   It is fundamental that a party is
                                -5-
not prejudiced by the failure of the trial court to give

requested instructions where the evidence does not support
the giving of such instructions.
     The judgment of the District Court is affirmed.




We Concur:




        C h p f Justice




             Justices      u
