                               No. 87-398
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1988


JOHN J. D'AGOSTINO and JOANN M.
D'AGOSTINO, husband and wife,
                 Third-Party Plaintiffs and
                 Appellants,


ROBERT I. SCHAAP and VIVIAN J.
        ,
SCHAAP, husband and wife,
                 Third-Party Defendants and
                 Respondents.


APPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and for the County of Gallatin,
                 The Honorable Byron Robb, Judge presiding.
COUNSEL OF RECORD:
       For Appellant:
                 Morrow, Sedivy & Bennett; Edmund P. Sedivy, Jr.,
                 Bozeman, Montana
       For Respondent:
                 Moore, Rice, O'Connell   &   Refling; Perry J. Moore,
                 Bozeman, Montana


                                   Submitted on Briefs:     Oct. 29, 1987
                                     Decided: January 7, 1988

Filed: 14N   - 7,i q @ 8
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

     This is a claim for breach of a contract for sale of
real property. The District Court for the Eighteenth Judi-
cial District, Gallatin County, denied the motion of the
DIAgostinos for summary judgment and granted summary judgment
to the Schaaps. We affirm in part and reverse in part.
     The issue is whether the trial court erred in failing to
grant the DIAgostinosl motion for summary judgment and in
granting the Schaaps' motion for summary judgment.
     In 1977, the Schaaps sold the DIAgostinos property in
West Yellowstone, Montana, consisting of Lots 3, 4, 5, and 6
in Block 26 of the original townsite of West Yellowstone.
The Westwood Motel occupied most of the property. Prior to
the sale, the Schaaps had moved some cabins which were part
of the motel. The Schaaps originally believed they had moved
the cabins to a spot entirely on Lot 4 but surveyors have
later determined that the cabins are partially on Lot 3 and
partially on Lot 4.    There is a dispute as to whether the
DIAgostinos knew of this when they bought the property, but
the Schaap-DIAgostino contract contemplated the separate sale
by the DIAgostinos of Lot 3. The D'Agostinos later sold Lot
3 as a vacant lot to Mr. Swanson and Lots 4, 5, and 6, in-
cluding the motel, to the Markovs.     Some time later, Mr.
Swanson demanded that the cabins which were partially on his
property be moved.   The Markovs brought an action for fraud
and misrepresentation against the DIAgostinos, who filed a
third-party complaint against the Schaaps. They claim that
the Schaaps breached the warranty that Lot 3 was free and
clear of all encumbrances in the contract for sale of the
property.  The matter was bifurcated for purposes of trial,
and a $53,050 judgment has been rendered against the
DIAgostinos in the original action.   That amount represents
the cost of moving the cabins so that they no longer encroach
upon Lot 3.
     Both parties moved for summary judgment as to the
DIAgostinos complaint against the Schaaps.  The District
Court granted the Schaaps' motion for summary iudgment,
explaining,

     I am convinced DIAgostinos had knowledge of the
     cabin encroachment for considerably more time than
     is necessary for the statute of limitation to be
     invoked.    ...This involved litigation and endless
     chain of additional parties being joined who were
     former owners of the realty must cease, and
     DIAgostinos should settle up on the reasonable and
     fair jury verdict. against them and cease trying to
     pass the buck to someone else.
The court certified      its order     for   consideration by       this
Court.

     Did   the   trial   court   err   in    failing   to   grant   the
DIAgostinosl motion for summary judgment and in granting the
Schaaps' motion for summary judgment?
     Rule 56 (c), M. R. Civ. P. , provides that summary iudgment
shall be granted

     if the pleadings, depositions, answers to interrog-
     atories, and admissions on file, together with the
     affidavits, if any, show that there is no genuine
     issue as to any material fact and that the moving
     party is entitled to a judgment as a matter of law.
The party moving for summary judgment has the burden of
showing the complete absence of any genuine issue of material
fact.   Once that is done, the burden shifts to the party
opposing the motion to come forward with substantial evidence
raising a factual issue. Rumph v . Dale Edwards Inc. (19?9),
183 Mont. 359, 365-66, 600 P . 2 d 163, 167.
     The D'Agostinos moved for summary judgment on the basis
that the Schaaps had breached the warranty that Lot 3 was
free and clear of all encumbrances, in that the encroachment
of the cabins onto Lot 3 is an encumbrance. In support of
their motion, the D'Agostinos submitted an affidavit, copies
of documents, and a portion of the transcript of the
Markov-D'Agostino trial. In opposing this motion for summary
judgment, the Schaaps submitted the affidavit of another
former owner of the property, who stated that she told Mr.
D'Agostino in 1979 that the cabins encroached onto Lot 3.
The Schaaps argue that this knowledge on the part of Mr.
D'Agostino constitutes a waiver of the warranty against
encumbrances. We conclude that the District Court correctly
denied the D'Agostinos' motion for summary judgment because
of this material issue of fact. We affirm the denial of the
D'Agostinos' motion for summary judgment.
     On the day of the hearing on the D'Agostinos' motion,
the Schaaps moved for summary judgment. The court considered
both motions at the hearing. Although they filed no affida-
vits or other documents with their motion, the Schaaps re-
ferred to the pleadings and to the facts which the
D'Agostinos had marshalled in support of their motion for
summary judgment.    In their brief before this Court, the
Schaaps argue that as a matter of law the encroachment of the
cabins does not constitute an encumbrance so tha-t, as a
matter of law, no breach of contract has been alleged.
     The District Court stated in granting summary judgment
to the Schaaps that it was convinced the D'Agostinos knew of
the encroachment of the cabins onto Lot 3 "for considerably
more time than is necessary for the statute of limitation to
be invoked." It appears that the court's statement is based
on the evidence heard at the Markov-DIAgostino trial. Nei-
ther party argues or presents authority on whether evidence
from that bifurcated trial may properlv be considered in
deciding   these motions   for   summary judgment, and we   are
doubtful that such evidence may properly be considered here.
     An encumbrance is "any right in a third party which
diminishes the value or limits the use of the land granted."
3 American Law of Property S 12.128 (A.J. Casner ed. 1952) .
An encroachment may or may not be an encumbrance.

     [I]f the encroachment is of an improvement located
     on adjoining land which extends across the line
     onto the land conveyed, there may be a breach of
     either the covenant of seizin or of the covenant
     against encumbrances, depending upon whether title
     to that part of the land purchased has been lost by
     adverse possession, or has become encumbered by an
     easement.
Casner, at    12.128.   We hold that the above rule of law
governs in this case.
     Neither party has submitted proof as to whether the
cabins have a legal right to encroach upon Lot 3. Under the
above rule of law, this fact question is material to the
outcome. We therefore conclude that summary judgment is not
appropriate, and reverse the lower court's grant of summary
judgment to the Schaaps.
     Affirmed in part and reversed in p

We Concur:
