                            No. 81-424
              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                1982


MICHAEL C. PREZEAU,
                            Plaintiff and Respondent,
     VS.

THE CITY OF WHITEFISH,
                            Defendant and Appellant.


Appeal from:   District Court of the Eleventh Judicial District,
               In and for the County of Flathead
               Honorable James M. Salansky, Judge presiding.
Counsel of Record:
     For Appellant:
           Fisher and Erickson, Whitefish, Montana
           Leif B. Erickson argued, Whitefish, Montana
     For Respondent:
           Michael C. Prezeau, Pro Se, argued, Kalispell, Montana


                              Submitted:    March 30, 1982
                                Decided :
    JUN 2 1 1982
Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     The City of Whitefish appeals a judgment entered in the
Eleventh Judicial District enjoining the City from constructing
or authorizing the construction of an indoor rifle range in
Baker Avenue Park until the project is approved by a majority
of the voters of Whitefish in a special election.
     In 1909, the Whitefish Townsite Company conveyed to the
City a parcel of land which later became part of Baker
Avenue Park.   The deed conveying the property contains the
following language:
     ". . . Also subject to the condition that the
     said property is to be used exclusively for
     public park purposes, by the said Town, and in
     case the same is not so used, it will revert to
     the grantor hereof. .   ."
     The District Court found that the Whitefish Townsite
Company no longer exists, that its successors in interest
are unknown, and that there has been no waiver of the
restrictions contained in the deed.
     Baker Avenue Park is located within the Whitefish city
limits and is used for outdoor park purposes including
tennis and a playground for children.
     The Whitefish Rifle and Pistol Club, Junior Division,
Inc. (hereafter referred to as Rifle Club), is a private,
non-profit corporation which was established in Whitefish in
about 1932.
     On March 2, 1981, the Whitefish City Counsel authorized
construction of an indoor rifle range on a portion of Baker
Avenue Park.   At the same council meeting the City affirmed
an undated, written lease agreement between the City and the
Rifle Club.    The agreement provides that the City will lease
the rifle range, upon completion of construction, to the
Rifle Club for a five year period with an option to renew
the lease at the end of that period. Under the agreement the
City is to provide the site for the rifle range and contribute
$10,000 toward construction of the building.    The County of
Flathead, which is also a party to the agreement, is also to
contribute $10,000.    The agreement provides that "the Rifle
Club is willing to furnish and pay the balance of the cost
of construction of such a building if they can lease the
same for the use of their members and the public."    The
agreement also states "[tlhat all real property used for the
purpose herein mentioned and the improvements placed thereon
shall be owned and belong to the City and be public property."
The Rifle Club is to maintain the premises, pay for utilities,
and carry insurance on behalf of the City.     In order to
defray these expenses the agreement allows the Rifle Club to
charge the public and club members a "reasonable use fee."
Finally, the agreement provides that the Rifle Club shall
operate the facility "in a manner commensurate with its
status as a municipal rifle range."
     The District Court found that the range would be used
primarily during the winter with some summer use possible.
Use of the range is not predicated upon membership in the
Rifle Club but a $5 use fee is contemplated for nonmembers.
The public would be allowed use of the premises possibly one
night per week with membership leagues having priority.
Cost of membership is anticipated to be about $20 per year
plus a small usage fee.
     The dimensions of the proposed building are 50 feet by
88 feet.    A nearby parking lot will measure 60 feet by 72
feet.
        The City presents two issues:
     1.    Whether the City of Whitefish must receive voter
approval in a special election before leasing Baker Avenue
Park to the Rifle Club.
     2.    Whether an indoor rifle range constitutes a "public
park purpose. "
     We affirm the District Court's ruling on the first
issue.    We hold that the second issue is not properly before
this Court.
     Section 7-8-4201(2) (b), MCA, controls the first issue.
That statute provides in pertinent part:
     "Disposal or - - of municipal property
               - lease
     . . . If the property is held in trust for
     a specific purpose, the sale or lease thereof
     must be approved by a majority vote of the electors
     of the municipality voting at an election called
     for that purpose.    .
                         ."
     The District Court's order enjoining construction of
the rifle range is based upon this statute.
     The City argues that the District Court's order con-

stitutes a failure to abide by this Court's interpretation
of the statute in Colwell v. City of Great Falls (1945), 117
Mont. 126, 157 P.2d 1013.     In Colwell, we stated:
     "Sec. 5039.61 [R.C.M. 1935, as amended by Ch.
     35 of Laws of 1937--now section 7-8-4201,
     MCA], supra, was designed to permit the cities
     and towns of this state, with the approval of a
     majority vote of their taxpayers, to sell or lease
     their property which was held in trust for a
     specific purpose, in abrogation of, - -
                                         or in
                              -     _      -
     substantial interference with theuse of the
     property - - specific purpose." (Emphasis
              for such
     added.) 117 Mont. at 146, 157 P.2d at 1022.
     The District Court did not conclude that the rifle
range would be in abrogation of or in substantial interference
with a public park purpose.     Instead, it concluded that the
range "may be incompatible" with a public park purpose.
The statute, as construed in Colwell, requires a finding that
the proposed rifle range be in abrogation of or in sub-

stantial interference with a public park purpose.      The City
argues, therefore, that because no such finding was made in
the present case, an election is not necessary.
       Section 7-8-4201 (2)(b), MCA, is relatively clear.   It
requires an election to approve the sale or lease of municipal
property that is held in trust for specific purposes. Neither
party disputes that Baker Avenue Park is "property held in
trust for a specific purpose."     It follows, therefore, that
before the property is leased to the Rifle Club, a majority
of the electors of the City of Whitefish must approve the
lease thereof.
       By our holding in this case we overrule Colwell,
supra, and Hames v. City of Polson (1950), 123 Mont. 469,
215 P.2d 950, to the extent that they conflict with this
opinion and the clear language of section 7-8-4201(2) (b),
MCA.   Our research indicates that these are the only Montana
cases construing the statute since its enactment in 1921.
The statute commands that the sale or lease of municipal
property held in trust for a specific purpose must be approved
in an election called for that purpose.    The statute does

- state that an election is required only if the sale or
not
lease is in abrogation of or in substantial interference
with the specific trust purpose.
       The City has asked this Court to decide whether the
proposed rifle range constitutes a "public park purpose" as
the phrase is used in the reversion clause of the 1909
conveyance.    Technically, this question will not be ripe for
decision until the lease is approved in an election. At that
time, the question must be faced in resolving the ownership
of the property under the reversion clause.     It has no bearing
on the primary issue in this appeal, that issue being whether
 an election must be held.   Furthermore, the District Court
 has not made a final judgment on this issue.     It concluded
 only that the leasing and contemplated use of the park "may
 be incompatible" with a public park purpose.
      Af firmed.



                                   Q~           Justice


 We Concur:




d l 6)* -    l I  i,
 Hon. Gordon ~enne'f~t-istrlct
   Judge, Sitting for Mr. Chief
   Justice Frank I. Haswell, who
   deems himself disqualified
