                                                                                             11/08/2017


                                            DA 17-0003
                                                                                         Case Number: DA 17-0003


              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                            2017 MT 276



MONTE R. DAVIS, JR. and WILHELMINE S. DAVIS,

               Plaintiffs and Appellants,

         v.

DOUGLAS L. WESTPHAL and KATHY L. WILSON,

               Defendants, Appellees, and Cross-Appellants.



APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DV 16-486A
                       Honorable Amy Eddy, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Randall A. Snyder, Snyder Law Office; Bigfork, Montana

                For Appellee:

                       Evan F. Danno, Danno Law Firm, P.C.; Kalispell, Montana



                                                    Submitted on Briefs: June 21, 2017

                                                              Decided: November 8, 2017


Filed:

                       __________________________________________
                                        Clerk
Justice Dirk Sandefur delivered the Opinion of the Court.

¶1     Plaintiffs Monte R. and Wilhelmine S. Davis (Davises) appeal from an order of the

Montana Eleventh Judicial District Court, Flathead County, denying the portion of their

motion for partial summary judgment seeking an order compelling Defendants Douglas L.

Westphal and Kathy L. Wilson (Westphals) to immediately remove trespassing

encroachments on Davises’ property and to restore the property to its prior condition

subject to Davises’ right to do so at Westphals’ expense if they fail to timely act. Westphals

cross-appeal the District Court’s underlying grant of summary judgment declaring their

shop building and underground septic system to be trespassing encroachments on Davises’

property. We affirm and remand for further proceedings.

                                           ISSUE

¶2     The restated issue is:

       Did the District Court erroneously deny summary judgment for immediate removal
       of Westphals’ trespassing encroachments and restoration of Davises’ land?

                                     BACKGROUND

¶3     The parties are owners of adjoining tracts of rural property along Five Deer Lane in

Flathead County near Bigfork, Montana. The Westphals own a 10.01-acre tract to the west

known as Five Deer Lakes Lot 1. The Davises own an 8.562 tract to the east known as

Five Deer Lakes Lot 2. Without verification or inquiry, the Westphals mistakenly assumed

that a line of pink survey flags running across the ground from a corner survey marker

delineated the boundary line between Lots 1 and 2. As a result, Westphals cut down several

trees on Davises’ property in 2013. In 2014-15, Westphals built a 40’x60’ shop building,
                                              2
and installed an accompanying septic system drain field, near their property line, both

which mistakenly encroached on Davises’ property.

¶4     In September 2015, while visiting their undeveloped land from California, Davises

first noticed the Westphals’ progressing improvements and suspected that they encroached

on Davises’ land. By that time, the septic system drain field and concrete foundation for

the shop were in place and Westphals were in the process of erecting the metal shop

building on the foundation. After retaining a licensed surveyor and confirming that the

shop building and drain field encroached across the property line onto their lot, Davises

notified Westphals of the encroachments and requested that they remove them

immediately. Westphals did not immediately respond. After they finished enclosing the

shop in advance of the oncoming winter, Westphals responded, by correspondence dated

November 13, 2015, wherein they acknowledged the encroachments, admitted fault for

their mistake, apologized, and stated their desire to resolve the problem amicably.

¶5     Six months later, with no agreement or abatement effort underway or imminent, the

Davises filed a district court complaint on June 10, 2016, asserting four unspecified causes

of action seeking:    (1) “an order of ejectment, deconstruction and removal of” the

“encroachments, and reasonable restoration of [the] property;” (2) compensatory damages,

trebled by statute, for the wrongfully felled trees; (3) relocation of the non-encroaching

portions of the shop and septic system in compliance with county zoning setback

requirements; and (4) punitive damages. The complaint separately prayed for judgment

declaring the encroachments as trespasses, “ejecting” the encroachments, “ordering [their]

                                             3
immediate deconstruction and removal,” ordering restoration of the property, “enjoining

[Westphals] from constructing any improvements on their own property in violation of . . .

zoning . . . setback requirements;” and for compensatory and punitive damages

“proximately caused by [Westphals’] conduct.” The District Court issued a temporary

restraining order on Davises’ accompanying ex parte motion and set a hearing on their

motion for a preliminary injunction for June 22, 2016. At the hearing, upon notice that the

parties had reached an informal agreement for Westphals to remove the encroachments and

restore the property in return for the Davises dropping their request for a preliminary

injunction, the District Court denied the motion for preliminary injunction as moot.

¶6     On September 12, 2016, with abatement of the encroachments still not underway or

imminent, Davises moved for summary judgment for: (1) declaratory judgment declaring

the encroachments as trespasses on their property; (2) an order “ejecting” the

encroachments and “ordering [their] immediate . . . removal” with restoration of the

property; (3) “a permanent injunction” enjoining “any further trespass” and enjoining

Westphals from “constructing any improvements on their own property in violation of”

county “zoning regulations or setback requirements.” For the first time and without

reference to mandatory injunctive relief, Davises characterized their claims as claims for

declaratory judgment of trespass, common law “ejectment,” and prohibitive injunctive

relief. Westphals opposed the motion on the asserted ground that no legal trespass had

occurred because they had not intentionally encroached on Davises’ property. Westphals

requested an additional year to remove the encroachments and restore the property in the

                                            4
face of the upcoming winter. Westphals filed a supporting affidavit describing the difficulty

and cost of removing the encroachments and restoring the property. The affidavit described

the Westphals’ financial limitations and asserted that Davises’ need for immediate

abatement was not urgent because they lived in California, only occasionally visited the

land, and had no immediate plans to build on the undeveloped property.

¶7        On October 24, 2016, the District Court granted Davises’ summary judgment on the

briefs without a hearing1 declaring that the Westphal encroachments and tree-felling

constituted civil trespasses. However, the court denied Davises’ requests for “immediate

ejection . . . and removal of all encroaching improvements,” site restoration, and a

permanent injunction enjoining any further intrusion on Davises’ property or

noncompliance with county zoning setback requirements. The court reasoned that:

          (1)    the authority cited by Davises did not “order ejection, adopt the remedy of
                 ejection, or otherwise establish standards for an ejection claim;”

          (2)    § 27-1-318, MCA, “generally provides for money damages for wrongful
                 occupation of real property;”

          (3)    though “ejection is a possible remedy” under § 27-8-313, MCA (declaratory
                 judgment supplemental relief provision), and Goodover v. Lindey’s, 246
                 Mont. 80, 802 P.2d 1258 (1980) (affirming discretionary grant of
                 supplemental mandatory injunction for removal of encroachments to afford
                 complete relief to declaratory judgment of trespass), Davises presented
                 “insufficient information to determine whether coercive supplemental relief,
                 i.e., ejection, deconstruction, and restoration,” is necessary “as a matter of
                 law” to remedy the trespasses “in addition to money damages” (emphasis in
                 original); and

          (4)    Davises “offered no factual basis or legal argument that [the requested
                 prohibitive] injunctive relief is necessary at this point in time.”

1
    Neither party requested a hearing, thus waiving a hearing pursuant to M. R. Civ. P. 56(c)(2)(A).
                                                  5
The court noted further that Westphals “informally agreed to remove the encroaching

structures in exchange for dismissal of the action,” a result the court observed to be “the

most expeditious way to resolve the dispute.” The court thus encouraged the parties “to

negotiate a date certain for removal of the structures.”

¶8     Davises subsequently moved the District Court pursuant to M. R. Civ. P. 59(e) and

60(a) to “correct” its summary judgment ruling by granting their request for an order

compelling immediate removal of the encroachments and site restoration on the asserted

ground that the failure to grant such relief was irreconcilably inconsistent with its

declaration of trespass and erroneously failed to provide complete relief. The District Court

denied the motion on the stated ground that its denial of mandatory injunctive relief was

not a final judgment and that Davises “failed to raise any new evidence” or show that the

denial was erroneous as a matter of law. Davises appeal the court’s denial of their request

for an order compelling immediate removal of the encroachments and site restoration.2

Westphals cross-appeal the court’s underlying declaratory judgment of trespass.

                                STANDARDS OF REVIEW

¶9     We review summary judgment rulings de novo for conformance to M. R. Civ. P. 56.

Dick Anderson Constr., Inc. v. Monroe Prop. Co., 2011 MT 138, ¶ 16, 361 Mont. 30, 255

P.3d 1257. Summary judgment is proper only when there is no genuine issue of material



2
  Davises do not challenge the District Court’s denial of their request for prohibitive injunctive
relief enjoining Westphals from any further trespass and from relocating or constructing
improvements on their own property except in compliance with applicable zoning restrictions.
                                                6
fact and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3).

The questions of whether a genuine issue of material fact exists or whether a party is

entitled to judgment as a matter of law are conclusions of law subject to de novo review

for correctness. Ereth v. Cascade County, 2003 MT 328, ¶ 11, 318 Mont. 355, 81 P.3d 463.

¶10    The grant or denial of injunctive relief is a matter within the broad discretion of the

district court based on applicable findings of fact and conclusions of law. Shammel v.

Canyon Resources Corp., 2003 MT 372, ¶ 11, 319 Mont. 132, 82 P.3d 912; Walker v.

Warner, 228 Mont. 162, 166, 740 P.2d 1147, 1149-50 (1987). The standard of review of a

grant or denial of injunctive relief is whether the court manifestly abused its discretion.

Shammel, ¶ 12. A manifest abuse of discretion is an “obvious, evident, or unmistakable”

abuse of discretion. Shammel, ¶ 12. The standard of review of lower court findings of fact

and conclusions of law is whether the findings of fact are clearly erroneous and whether

the conclusions of law are correct. We review district court rulings on motions for

post-judgment relief under M. R. Civ. P. 59 and 60 for an abuse of discretion. Folsom v.

Montana Pub. Employees Ass’n, 2017 MT 204, ¶ 18, 388 Mont. 307, 400 P.3d 706.

                                      DISCUSSION

¶11    At issue on Davises’ appeal and Westphals’ cross-appeal are summary judgment

rulings that are also the predicate for Davises’ related appeal of the court’s subsequent

denial of their Motion to Correct summary judgment rulings. Orders granting or denying

summary judgment are generally interlocutory orders not subject to immediate appeal.

Trombley v. Mann, 2001 MT 154, ¶¶ 6-10, 306 Mont. 80, 30 P.3d 355; M. R. App. P. 6(5)(b).

                                              7
In this case, the District Court has not entered a “final judgment,” as defined by M. R. App.

P. 4(1)(a), or certified its interlocutory summary judgment rulings as suitable for immediate

appeal pursuant to M. R. Civ. P. 54(b) and M. R. App. P. 6(6). However, “provided that

the order is the court’s final decision on the referenced matter,” orders granting or denying

injunctive relief are immediately appealable. M. R. App. P. 6(3)(e). Rule 6(3)(e) thus

allows immediate appeal of an order granting or denying a preliminary injunction.

Montana Cannabis Indus. Ass’n v. State, 2012 MT 201, ¶ 13, 366 Mont. 224, 286 P.3d

1161. Because Davises’ appeal irreconcilably conflates relief available at law on a

common law ejectment claim with preliminary and final injunctive relief available as

supplemental relief on a common law ejectment claim or on a statutory declaratory

judgment, we accept their appeal on the above-restated issue pursuant to M. R. App. P.

6(3)(e) and § 3-2-204(5), MCA (mandatory review of all questions of fact and questions of

law implicated on record in equity cases). However, we decline Westphals’ cross-appeal

without prejudice as a premature appeal of an uncertified interlocutory ruling.

¶12    Summary judgment is proper only when there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). A

genuine issue of material fact is an issue of inconsistent fact, material to the elements of a

claim or defense at issue, and not amenable to judgment as a matter of law. Mountain West

Bank, N.A. v. Mine & Mill Hydraulics, Inc., 2003 MT 35, ¶ 28, 314 Mont. 248, 64 P.3d

1048; see also § 25-7-103, MCA (exclusive domain of finder of fact); Weinberg v. Farmers

State Bank, 231 Mont. 10, 27, 752 P.2d 719, 730 (1988) (exclusive domain of finder of fact

                                              8
to resolve questions of fact upon which reasonable people may differ). The party seeking

summary judgment has the initial burden of showing a complete absence of any genuine

issue of material fact on the Rule 56 record3 and that the party is thus entitled to judgment

as a matter of law. Weber v. Interbel Tel. Coop., Inc., 2003 MT 320, ¶ 5, 318 Mont. 295,

80 P.3d 88; accord, Ereth, ¶ 11. The burden then shifts to the opposing party to show either

the existence of a genuine issue of material fact or that the moving party is not entitled to

judgment as a matter of law on the facts of record not subject to genuine material dispute.

Osterman v. Sears, Roebuck & Co., 2003 MT 327, ¶ 17, 318 Mont. 342, 80 P.3d 435 (citing

Bruner v. Yellowstone Cnty., 272 Mont. 261, 264, 900 P.2d 901, 903 (1995)); Ereth, ¶ 11.

While the court must view the Rule 56 factual record in the light most favorable to the

non-moving party and draw all reasonable inferences against summary judgment, Weber,

¶ 5, the court has “no duty to anticipate or speculate” regarding contrary material facts.

Gamble Robinson Co. v. Carousel Properties, 212 Mont. 305, 312, 688 P.2d 282, 287

(1984).

¶13    Did the District Court erroneously deny summary judgment for immediate removal
       of Westphals’ trespassing encroachments and restoration of Davises’ land?

¶14    Davises assert on appeal that the District Court erroneously refused to order

Westphals to remove the subject encroachments and restore the property within 60 days of

judgment with the proviso that Davises could remove the drain field and shop building at

Westphals’ expense if they failed to timely comply. Apart from their base request for a


3
 The summary judgment record includes “the pleadings, the discovery and disclosure materials
on file, and any affidavits.” M. R. Civ. P. 56(c)(3).
                                             9
declaratory judgment of trespass, the Davises sought summary judgment “ejecting” the

encroachments, “ordering [their] immediate . . . removal” and restoration of the property,

and permanently enjoining “any further trespass” or violation of applicable zoning setback

requirements. Without reference to mandatory injunctive relief in the District Court and in

contrast to their request for prohibitive injunctive relief, Davises sought an order

compelling removal of the encroachments and restoration of the property as forms of relief

available on the common law claim of ejectment. On appeal, Davises now assert that, in

addition to common law ejectment, they are also entitled to mandatory injunctive relief

compelling Westphals to remove the encroachments and restore the property. Davises’

conflation of the torts of common law trespass and ejectment, declaratory judgment of

trespass, and supplemental preliminary and permanent equitable relief requires that we sort

out these causes of action and remedies as a prelude to addressing their assertion of error.

¶15    Modern common law trespass is an intentional tort claim for damages caused by an

unauthorized entry or holdover upon real property of another. Tags Realty, LLC v. Runkle,

2015 MT 166, ¶ 15, 379 Mont. 416, 352 P.3d 616; Tally Bissell Neighbors, Inc. v. Eyrie

Shotgun Ranch, LLC, 2010 MT 63, ¶ 38, 355 Mont. 387, 228 P.3d 1134; Slater v. Shell Oil

Co., 137 P.2d 713, 715 (Cal. App. 1943). The essential elements of a modern common law

trespass claim are: (1) an intentional entry or holdover (2) by the defendant or a thing;

(3) without consent or legal right. Branstetter v. Beaumont Supper Club, Inc., 224 Mont.

20, 24, 727 P.2d 933, 935 (1986); Restatement (Second) of Torts §§ 158 and 163 (1965).

Because the legal harm is the interference with another’s right to exclusive possession of

                                             10
property, an unauthorized tangible presence on the property of another constitutes a

trespass regardless of whether the intrusion caused any other harm. Tally, ¶¶ 37-38

(distinguishing “tangible” invasion of property by person or thing from an “intangible”

invasion, e.g., invasion of sound, light, odor, gas, or electromagnetic field, requiring proof

of actual harm beyond mere infringement of right); Restatement (Second) of Torts § 163

cmt. d. A civil trespass encompasses both the initial unauthorized entry upon the property

of another and the subsequent failure to cease or abate the intrusion. Branstetter, 224

Mont. at 24, 727 P.2d at 935; Restatement (Second) of Torts §§ 158 and 163.

¶16    While civil trespass is an intentional tort, Miller v. Nat’l Broadcasting Co., 232 Cal.

Rptr. 668, 677 (Cal. App. 1986), intentional trespass does not require proof of specific

intent, i.e., that the tortfeasor intended to enter or remain upon property owned or controlled

by another. Restatement (Second) of Torts §§ 163 cmt. b, c and 164 cmt. a. The intent

element of civil trespass only requires proof that the tortfeasor intentionally entered or

remained, or caused a third party or thing to enter or remain, upon the property of another

regardless of the tortfeasor’s knowledge, lack of knowledge, or good faith mistake as to

actual property ownership or right. Luoma v. Donohoe, 179 Mont. 359, 365, 588 P.2d 523,

526 (1978); Miller, 232 Cal. Rptr. at 677; Restatement (Second) of Torts §§ 163, cmt. b, c

and 164 cmt. a; W. Page Keeton and William Prosser, Prosser & Keeton on the Law of




                                              11
Torts § 13, 67-68 and 73-75 (5th ed. 1984) (“interest of the landowner is protected at the

expense of those who make innocent mistakes”).4

¶17    Though related tort claims of common origin for enforcement of an owner’s right

to exclusive possession of real property, common law trespass and common law ejectment

are technically distinct causes of actions providing distinct remedies. Tally, ¶ 38; Slater,

137 P.2d at 715; 28A C.J.S. Ejectment § 1 (2008). In contrast to a common law trespass

claim for damages and a modern statutory claim for judgment declaring a trespass as a

predicate for supplemental legal or equitable relief, common law “ejectment” is an

independent cause of action of ancient origin and greatly evolved purpose and scope. Sofer

v. Beech, 409 A.2d 337, 339-43 (Pa. 1979); Dice v. Reese, 21 A.2d 89, 92 (Pa. 1941);

Caperton v. Schmidt, 26 Cal. 479, 496-512 (Cal. 1864); Cincinnati v. Lessee of White, 31

U.S. 431, 441-43 (1832); Black’s Law Dictionary 630 (10th ed. 2014).5 In modern form,

common law ejectment is an action at law brought against a trespasser in possession of all

or a portion of real property for immediate possession of the property based on proof of

superior title and the right to immediate possession. Sofer, 409 A.2d at 339-40; Heroux v.


4
  See also, Olsen v. Milner, 2012 MT 88, ¶¶ 35-40, 364 Mont. 523, 276 P.3d 935 (applying
Restatement (Second) of Torts § 165 (1979) reckless/negligent trespass theory to boundary line
encroachment); but see Restatement (Second) of Torts § 165 cmt. b, c (in contrast to intentional
trespass under §§ 158-64, reckless/negligent trespass theory narrowly pertains to unintentional
entry upon land distinguished from intentional entry upon land under mistaken belief of ownership
or right and further requires proof of harm beyond mere interference with owner right to exclusive
possession).
5
 Ejectment was originally an action at law in trespass against a landlord to restore a wrongfully
ousted tenant to possession of a leasehold for the remainder of the term. Sofer, 409 A.2d at 339-43;
Dice, 21 A.2d at 92; Caperton, 26 Cal. at 496-512; Cincinnati, 31 U.S. at 441-43; Black’s Law
Dictionary 630 (10th ed. 2014).
                                                12
Katt, 68 A.2d 25, 26-28 (R.I. 1949) (recognizing ejectment as action at law to remedy

encroaching improvements); Slater, 137 P.2d at 715; Butler v. Frontier Telephone Co., 186

N.Y. 486, 488-92 (N.Y. 1906) (recognizing ejectment as an action at law to remedy vertical

encroachment by overhanging wires); Agar v. Winslow, 56 P. 422, 423 (Cal. 1899); 25 Am.

Jur. 2d Ejectment § 19 (2014); 28A C.J.S. Ejectment §§ 1-3 and 5-6; accord, Kootenai

Corp. v. Dayton, 184 Mont. 19, 24, 601 P.2d 47, 49-50 (1979) (distinguishing common law

ejectment from statutory forcible detainer action); Miner v. Cook, 87 Mont. 500, 502-03,

288 P. 1016, 1017 (1930); Baker v. Butte Water Co., 40 Mont. 583, 585; 107 P. 819, 820

(1910); Billings v. Sanderson, 8 Mont. 201, 204, 19 P. 307, 307-08 (Mont. Terr. 1888).6

¶18    Long predating modern declaratory judgment Acts,7 the primary relief available on

an ejectment claim is a judgment declaring that the plaintiff has the right to immediate

possession of the property. 25 Am. Jur. 2d Ejectment §§ 1 and 44; 28A C.J.S. Ejectment

§§ 1-2 and 6.         A successful plaintiff may also recover damages in ejectment

as compensation for the loss of use of the property during the duration of the trespass,

§ 27-1-318, MCA (reasonable rental value as general measure of damages for wrongful

occupation of land); Pritchard Petroleum Co. v. Farmers Coop. Oil & Supply Co., 121


6
 Early Montana ejectment cases reference historical common law requirements for proof that the
plaintiff actually entered upon and possessed the land and that the defendant unlawfully ousted the
plaintiff from possession and remained in unlawful possession. See, e.g., Miner, 87 Mont. at
502-03, 288 P. at 1017; Baker, 40 Mont. at 585, 107 P. at 820; Billings, 8 Mont. at 204, 19 P. at
307-08; compare Sofer, 409 A.2d at 339-40 (abandoning rigid common law requirements for proof
of complete ouster from the property and actual entry or possession by defendant).

7
 Declaratory judgments are a modern statutory remedy unknown at common law or in equity. 26
C.J.S. Declaratory Judgments § 2 (2011).

                                                13
Mont. 1, 7, 190 P.2d 55, 58-59 (1948) (mesne profits).8 Equitable defenses were not

available to counter ejectment claims at common law. 25 Am. Jur. 2d Ejectment § 20.

However, with the modern merger of law and equity, see M. R. Civ. P. 1-2, equitable

defenses, and even affirmative relief, may be available, as equitable, to counter or

ameliorate a common law ejectment claim. Pritchard, 121 Mont. at 15-16; 190 P.2d at

62-63 (good faith trespasser who placed permanent improvements on land may

counterclaim in equity for damages setoff to “recoup the value of the improvements” to the

extent they “enhanced the value of the land” regardless of limitations of § 70-28-110, MCA

(right to damages setoff for improvements made by good faith withholding of land under

color of title)): 25 Am. Jur. 2d Ejectment § 20.

¶19    Due to its limited nature as a mere declaration of right to possession, a judgment of

ejectment is not self-executing. Page v. Luhring, 178 S.E.2d 527, 529 (Va. 1971). The

remedy available at law to effect a judgment of ejectment is execution under a special writ

known at common law as a writ of possession or ejectment, commanding the sheriff or

levying officer to deliver possession of the property to the plaintiff by removing the

defendant and personalty from the property. Sections 25-13-201, -301(1)(d), and -307,

MCA; Page, 178 S.E.2d at 529; Dodd v. Simon, 113 Mont. 536, 541-42, 129 P.2d 224, 228

(1942); Long v. Neville, 291 Cal. 131, 135-36 (Cal. 1865); 9 Am. Jur. Pl. & Pr. Forms


8
  Depending on the facts and relief sought, restoration damages may also be available as an
alternative measure of compensatory damages at law to remedy damage to real property. See
Lampi v. Speed, 2011 MT 231, ¶¶ 22-24, 31, and 37-39, 362 Mont. 122, 261 P.3d 1000; Sunburst
School Dist. No. 2 v. Texaco, Inc., 2007 MT 183, ¶¶ 32-38 and 43-45, 338 Mont 259, 165 P.3d
1079.
                                             14
Ejectment §§ 70-71 (2017); 25 Am. Jur. 2d Ejectment § 48; 28A C.J.S. Ejectment §§ 6 and

216; see also, Fuller v. Gibbs, 122 Mont. 177, 183, 199 P.2d 851, 854 (1948); Baker, 40

Mont. at 585-86; 107 P. at 820-21. Though ejectment technically lies to remedy a real

property encroachment, a writ of possession commanding the sheriff to remove the

defendant and personalty will generally not abate a substantial physical encroachment

affixed to land. While a writ of possession could conceivably command a sheriff or levying

officer to enter onto real property and affirmatively remove a trespassing encroachment,

see Heroux, 68 A.2d at 27-28, and Butler, 186 N.Y. at 492-93, our general execution

statutes govern writs of possession under Montana law. Dodd, 113 Mont. at 542, 129 P.2d

at 228. Davises did not raise the question of whether §§ 25-13-201, -301(1)(d), and -307,

MCA, would permit issuance of such an extraordinary writ of execution before the District

Court and the issue is not properly before us at this time.

¶20    Independent of common law trespass and ejectment claims, a modern declaratory

judgment action is also available to determine the “rights, status, and other legal relations”

of the parties on any matter in dispute. Sections 27-8-201 and -301, MCA. Statutory

declaratory judgment claims merely supplement other claims and remedies independently

available at law or in equity. See M. R. Civ. P. 57; 26 C.J.S. Declaratory Judgments §§ 1-2

(2011). Prohibitive and mandatory injunctive relief are forms of supplemental relief

available where “necessary or proper” to effect or enforce a declaratory judgment. Section

27-8-313, MCA; Lindey’s, 246 Mont. at 82-83, 802 P.2d at 1260. As an alternative or

supplemental remedy to preexisting common law trespass and ejectment claims, a party

                                             15
may seek redress of a trespassing real property encroachment by seeking a declaratory

judgment of trespass, supplemental damages as otherwise provided by law, and

supplemental injunctive relief for abatement of the encroachment as otherwise authorized

in equity. See Lindey’s, 246 Mont. at 82-83, 802 P.2d at 1260.

¶21    Here, Davises obtained summary judgment declaring that Westphals’ tree-felling

and encroaching building and drain field constituted civil trespasses. As far as it goes, that

declaratory judgment was the substantive equivalent of a judgment of ejectment declaring

Davises’ right to exclusive possession of their property to the exclusion of the subject

encroachments. Thus, Davises successfully obtained an interlocutory judgment, prevailing

on their alternatively pled declaratory judgment and common law ejection claims. Except

for as yet undetermined damages not at issue on appeal, and in contrast to any supplemental

injunctive relief otherwise appropriate in equity, no other relief at law is currently available

to Davises on their common law ejectment claim prior to final judgment.

¶22    To the extent that Davises assert that the District Court erred by failing to further

order ejectment of the subject encroachments, their “immediate removal,” and restoration

of the property, they seek forms of relief that are either premature or beyond the scope of

relief available on a common law ejectment claim. The parties and the District Court have

yet to consider whether a writ of possession executed by a sheriff or levying officer is

available or adequate under §§ 25-13-201, -301(1)(d), and -307, MCA, to abate the subject

encroachments and restore possession of the property to Davises. Even if so, a writ of

execution enforcing a judgment of possession still may not issue until the judgment is final.

                                              16
See M. R. Civ. P. 58 and 70(d); §§ 25-13-101, -201, and -307, MCA. Davises do not assert

that the District Court erred by failing to enter final judgment. Except as supplemental

equitable relief, an order compelling a trespasser to remove an encroachment and to restore

the property to its prior condition is not a cognizable form of relief available at law on a

common law ejectment claim. We hold that the District Court did not err in declining to

grant relief at law other than a declaration of trespass on Davises’ common law ejectment

claim.

¶23      As to injunctive relief, it is unclear whether Davises assert that the District Court

erred by failing to grant injunctive relief pursuant to § 27-8-313, MCA (relief supplemental

to declaratory judgment), or as equitable relief supplemental to their common law

ejectment claim. More significantly, it is further unclear from their briefing whether

Davises assert that the court erroneously denied preliminary injunctive relief, permanent

injunctive relief, or both. Regardless of whether requested pursuant to § 27-8-313, MCA,

or as supplemental equitable relief necessary to afford complete relief on a common law

claim, temporary and permanent injunctive relief are equitable remedies governed by

general principles of equity codified in Montana in Title 27, ch. 19, MCA. Talley v.

Flathead Valley Comm. College, 259 Mont. 479, 491, 857 P.2d 701, 708 (1993); State ex

rel. Stewart v. District Ct., 77 Mont. 361, 369, 251 P. 137, 139 (1926); see also, M. R. Civ.

P. 65. Contrary to Davises’ assertion, injunctive relief is an extraordinary remedy not

available as a matter of right. Paradise Rainbows v. Fish & Game Comm’n, 148 Mont.

412, 420, 421 P.2d 717, 721 (1966). The grant or denial of permanent or preliminary

                                              17
injunctive relief is highly discretionary and critically dependent on the particular facts,

circumstances, and equities of each case. Shammel, ¶ 12; Citizens for Balanced Use v.

Maurier, 2013 MT 166, ¶¶ 11 and 28, 370 Mont. 410, 303 P.3d 794; Knudson v. McDunn,

271 Mont. 61, 65, 894 P.2d 295, 297-98 (1995); Montana Tavern Ass’n v. State, 224 Mont.

258, 265, 729 P.2d 1310, 1315 (1986). Where necessary to afford complete relief,

injunctive relief may be available either as an alternative or supplemental remedy to those

ordinarily available by statute or at common law. City of Whitefish v. Troy Town Pump,

2001 MT 58, ¶ 35, 304 Mont. 346, 21 P.3d 1026 (court sitting in equity “empowered to

grant all relief necessary to the entire adjustment of the subject matter”); Restatement

(Second) of Torts § 951 cmt. a (under modern merger of law and equity all forms of legal

and equitable relief are available to provide complete relief as necessary on a case basis).

Thus, where appropriate on balance of the equities, injunctive relief is available as a

supplemental remedy to afford complete relief on a common law ejectment claim. See

Jeppeson v. Montana Dept. of State Lands, 205 Mont. 282, 287, 667 P.2d 428, 431-32

(1983); Blinn v. Hutterische Soc’y of Wolf Creek, 58 Mont. 542, 553, 194 P. 140, 142

(1920); King v. Mullins, 27 Mont. 364, 368, 71 P. 155, 156 (1903); Heinze v. Kleinschmidt,

25 Mont. 89, 105, 63 P. 927, 933 (1901); Williams v. Long, 61 P. 1087, 1088 (Cal. 1900);

Natoma Water & Mining Co. v. Clarkin, 14 Cal. 544, 552 (Cal. 1860).

¶24    District courts have broad discretion to grant preliminary injunctive relief on any of

the five grounds enumerated in § 27-19-201, MCA. Sandrock v. DeTienne, 2010 MT 237,

¶ 16, 358 Mont. 175, 243 P.3d 1123; Sweet Grass Farms, Ltd. v. Bd. of County Comm’rs,

                                             18
2000 MT 147, ¶ 27, 300 Mont. 66, 2 P.3d 825. On evidence or competent affidavit9

considered upon hearing, a court may issue a preliminary injunction at any time before

final judgment. Section 27-19-303, MCA. In considering whether to issue a preliminary

injunction on any of the grounds enumerated in § 27-19-201, MCA, the court must exercise

its discretion only in furtherance of the limited purpose of preliminary injunctions to

preserve the status quo and minimize the harm to all parties pending final resolution on the

merits. Porter v. K & S Partnership, 192 Mont. 175, 183, 627 P.2d 836, 840 (1981). The

“status quo” is generally “the last actual, peaceable, [un]contested condition” preceding the

controversy at issue. Porter, 192 Mont. at 181, 627 P.2d at 839. “If a preliminary

injunction will not accomplish [its limited] purposes, then it should not issue.” Porter, 192

Mont. at 183, 627 P.2d at 840. Thus, even on proof of any grounds enumerated in

§ 27-19-201, MCA, a preliminary injunction should not issue absent an accompanying

prima facie showing, or showing that it is at least uncertain, that the applicant will suffer

irreparable injury prior to final resolution on the merits. Porter, 192 Mont. at 181, 627

P.2d at 839; Rea Bros. Sheep Co. v. Rudi, 46 Mont. 149, 160, 127 P. 85, 87 (1912).

¶25     Inter alia, Davises assert that, upon granting summary judgment declaring the

encroachments as trespasses, the District Court erred by failing to go further and issue a

preliminary injunction for their removal pursuant to § 27-19-201(3), MCA (preliminary

enjoinder of wrongful conduct “tending to render judgment ineffectual”).                      However,


9
 In this context, an affidavit is competent only if “verified” and “the material allegations . . . setting
forth the grounds for the [preliminary injunction] are made positively and not upon information
and belief.” Section 27-19-303(2), MCA.
                                                   19
preliminary injunctions may not issue except upon evidence or affidavit considered at a

duly noticed hearing. Section 27-19-303, MCA. Davises abandoned their initial motion

for a preliminary injunction by stipulation long before they moved for summary judgment,

did not clearly articulate a renewed request for a preliminary injunction in their summary

judgment motion, and in any event failed to request a preliminary injunction hearing on or

incident to their motion for summary judgment. Moreover, though they requested that the

court “order ejectment” of the encroachments, compel Westphals to remove the

encroachments, provide for “forcible” removal if necessary, and conditionally authorize

them to remove them if Westphals failed to act, nowhere in Davises’ conflated summary

judgment motion and briefing was any reference to § 27-19-201(3), MCA, much less a

factual showing that the failure to grant a preliminary mandatory injunction would render

ineffectual any subsequent final judgment that might include, as appropriate, final

injunctive relief. We will not hold a district court in error for failing to address an issue

that parties did not timely raise. McDunn v. Arnold, 2013 MT 138, ¶ 14, 370 Mont. 270,

303 P.3d 1279. We hold that the District Court did not err in declining to issue a preliminary

injunction for removal of the subject encroachments upon granting summary judgment

declaring them as trespasses.

¶26    Permanent injunctive relief, also known as final injunctive relief, see § 27-19-102,

MCA, is available only where necessary to prevent irreparable injury in the absence of a

plain, speedy, and adequate statutory or common law remedy. Ducham v. Tuma, 265 Mont.

436, 442, 877 P.2d 1002, 1006 (1994), overruled on other grounds by Shammel, ¶ 12

                                             20
(clarifying standard of review of grant or denial of injunctions); Jeffries Coal Co. v.

Industrial Acc. Bd., 126 Mont. 411, 413, 252 P.2d 1046, 1047 (1952); Santa Rita Oil &

Gas Co. v. State Bd. of Equalization, 112 Mont. 359, 366-67, 116 P.2d 1012, 1016 (1941);

Bullard v. Zimmerman, 82 Mont. 434, 446-48, 268 P. 512, 517-18 (1928); accord,

§ 27-19-102, MCA. Irreparable injury is a harm or wrong: (1) not fully or effectively

remedied by compensatory damages; (2) in regard to which adequate, non-speculative

compensation is difficult to determine; or (3) of a recurring or continuous nature such that

full and effective redress would otherwise require a multiplicity of successive actions at

law. Wind v. Herbert, 8 Cal. Rptr. 817, 822 (Cal. App. 1960); see also, § 27-19-102, MCA.

A statutory or common law remedy may be inadequate to fully or effectively remedy a

harm or wrong either due to the nature of the cause of action or the form of relief ordinarily

available thereon. Bullard, 82 Mont. at 446-48, 268 P. at 517-18.

¶27    Injunctive relief is generally not available to remedy a trespass where an action at

law for damages or ejectment will provide complete relief. Jeppeson, 205 Mont. at 287,

667 P.2d at 431-32; King, 27 Mont. at 368, 71 P. at 156; Musselshell Cattle Co. v. Woolfolk,

34 Mont. 126, 132-33, 85 P. 874, 875-76 (1906). However, compensatory damages are

generally inadequate to fully remedy a continuous or recurring encroachment on real

property. Ducham, 265 Mont. at 443, 877 P.2d at 1006; Allman v. Stuart, 158 Mont. 402,

409-12, 492 P.2d 909, 913-14 (1972); Gibbons v. Huntsinger, 105 Mont. 562, 574-76, 74

P.2d 443, 449-50 (1937); Musselshell Cattle Co., 34 Mont. at 132-33, 85 P. at 875-76;

Nellie Gail Ranch Owners Ass’n v. McMullin, 209 Cal. Rptr. 3d 658, 675 (Cal. App. 2016);

                                             21
Hoffman v. Bob Law, Inc., 888 N.W.2d 569, ¶¶ 10-11 (S.D. 2016); Amkco, Ltd., Co. v.

Welborn, 130 N.M. 155, ¶¶ 10-11 (N.M. 2001); Warsaw v. Chicago Metallic Ceilings, Inc.,

676 P.2d 584, 588 (Cal. 1984); Arnold v. Melani, 437 P.2d 908, 911 (Wash. 1968); see also,

Jeppeson, 205 Mont. at 287, 667 P.2d at 431-32; King, 27 Mont. at 368, 71 P. at 156.

¶28    Accordingly, Davises cite Ducham and Olsen v. Milner, 2012 MT 88, 364 Mont.

523, 276 P.3d 934, for the proposition that it is reversible error for a court to refuse to grant

a mandatory injunction compelling removal of a continuous or recurring encroachment

upon determining the encroachment as a trespass. In Olsen, upon determining that the

defendant knowingly built a shop building partially on his neighbor’s property, the district

court issued a mandatory injunction compelling the defendant to remove the trespassing

encroachment within 60 days subject to the plaintiff’s right to remove it at the defendant’s

expense if he failed to timely do so. Olsen, ¶ 15. However, the narrow issues on appeal in

Olsen were whether res judicata barred the plaintiff’s trespass claim and whether the court

correctly determined that the encroachment was a trespass, not whether the court properly

granted mandatory injunctive relief. Olsen, ¶¶ 18-38. In Ducham, the district court denied

a request for permanent injunctive relief based on a determination that the defendant’s

recurring discharge of water across the plaintiff’s property did not constitute a trespass.

Ducham, 265 Mont. at 438, 877 P.2d at 1004. On appeal, we held only that the court

erroneously concluded that the water discharges were not a recurring trespass and that the

plaintiff was thus entitled to a permanent injunction enjoining any further discharges across

his property. Ducham, 265 Mont. at 440-43, 877 P.2d at 1005-07. Apart from the threshold

                                               22
issue of trespass, the equities of permanent injunctive relief were not otherwise at issue on

appeal. Ducham, 265 Mont. at 440-43, 877 P.2d at 1005-07. Neither Ducham nor Olsen

support Davises’ assertion that a plaintiff is entitled to a mandatory injunction compelling

abatement of a trespassing encroachment as a matter of right in every case.

¶29     To the contrary, regardless of a determination of a trespass, the grant or denial of

mandatory injunctive relief remains highly discretionary dependent on the unique facts and

circumstances of each case. Tally, ¶ 43 (flexible rules of equity require consideration of

“exigencies” of each “particular case”). Though legal title must generally prevail if the

equities are equally balanced or balance against the trespasser, Bonding Co. v. State Sav.

Bank, 47 Mont. 332, 339, 133 P. 367, 368-69 (1913), the court must carefully weigh and

balance the equities in each case when exercising its broad discretion to grant or deny

injunctive relief. Four Rivers Seed Co. v. Circle K Farms, 2000 MT 360, ¶ 12, 303 Mont.

342, 16 P.3d 342.10 Thus, though often appropriate on a balance of the equities in particular


10
   To that end, other jurisdictions recognize an equitable “relative hardship” doctrine to assess whether,
regardless of a legal trespass, equity may yet preclude issuance of mandatory injunctive relief in favor
of pecuniary damages at law in certain limited circumstances, thereby effecting an equitable easement
in favor of an unintentional, non-negligent trespasser. See, e.g., Minnwest Bank v. RTB, LLC, 873
N.W.2d 135, 145-46 (Minn. App. 2015); Nellie Gail Ranch, 209 Cal. Rptr. 3d at 675-78; Graham v.
Jules Inv., Inc., 356 P.3d 986, ¶¶ 32-41 (Colo. App. 2014); Warsaw, 676 P.2d at 588 (Cal.); Wojahn v.
Johnson, 297 N.W.2d 298, 307 (Minn. 1980); Arnold, 437 P.2d at 914-15 (Wash.); Dundalk Holding
Co. v. Easter, 137 A.2d 667 (Md. App. 1958); Christensen v. Tucker, 250 P.2d 660, 665-67 (Cal. App.
1952); Amkco, Ltd., Co., ¶¶ 12-17 (N.M.);Golden Press, Inc. v. Rylands, 235 P.2d 592, 595 (Colo.
1951); Hoffman, ¶¶ 12-21 (S.D.); Owenson v. Bradley, 197 N.W. 885, 887-89 (N.D. 1924); see also,
Restatement (Second) of Torts § 941 cmt. c, d (1979). We have yet to consider the application and
merits of the equitable doctrine of relative hardships under Montana law and state no view on it here.
See Penland v. Derby, 220 Mont. 257, 260, 714 P.2d 158, 160 (1986) (declining to consider equitable
easement theory first raised on appeal); compare Allman, 158 Mont. at 409-11, 492 P.2d at 913-14
(reversing order in equity compelling joint sale and division of proceeds to separate owners of building
and land severed by separate foreclosure sales in favor of mandatory injunction compelling purchaser
with notice to remove the resulting trespass).
                                                   23
cases, mandatory injunctive relief is not available to remedy a trespassing real property

encroachment as a matter of right in every case.

¶30    Here, unlike in Ducham and Olsen, the District Court has yet to grant or deny

permanent injunctive relief upon entry of final judgment following full consideration of

the equities. The court’s grant of summary judgment declaring the subject encroachments

as trespasses was merely an interlocutory order. Trombley, ¶ 7. Permanent injunctions are

available only upon entry of a final judgment.      Compare § 27-19-102, MCA (final

injunctions), with §§ 27-19-201 and -303, MCA (preliminary injunctions). In its summary

judgment order, the District Court did not make a final determination precluding mandatory

injunctive relief upon further proceedings prior to entry of final judgment. The court

merely concluded that Davises presented “insufficient information” in support of their

motion for summary judgment “to determine whether coercive supplemental relief” is

“necessary or appropriate” in addition to money damages “at this point in time.” In

narrowly concluding that Davises “have provided no evidence upon which” to conclude,

“as a matter of law that money damages” will be “insufficient to remedy the harm,” the

District Court merely concluded that Davises failed to satisfy their initial burden under

M. R. Civ. P. 56 of showing a complete absence of any genuine issue of fact material to

their requested equitable relief.

¶31    The parties fully submitted Davises’ summary judgment motion to the court on their

briefs. In support of the motion, Davises submitted only a one-page map prepared by a

surveyor showing the boundary line encroachments, a copy of Westphals’ November 13,

                                           24
2015 letter accepting responsibility and apologizing for the encroachments, and the

affidavit of Plaintiff Monte R. Davis regarding the nature, discovery, and continued

existence of the encroachments. Though sufficient for the court to adjudicate the existence

of continuing or recurring trespasses as a matter of law, this limited evidentiary record was

insufficient to show a complete absence of any genuine issue of fact material as to whether

the balance of the equities warranted the extraordinary remedy of a mandatory injunction

compelling removal of the encroachments. This deficiency was particularly manifest when

juxtaposed against the affidavit of Defendant Kathy L. Wilson and, as noted by the District

Court, Westphals’ stated willingness to remove the encroachments upon determination or

negotiation of a reasonable deadline for removal. The summary judgment record was

devoid of any evidence sufficient for the District Court to assess the urgency of removal

and restoration, the burden and cost of removal and restoration, Westphals’ means and

ability to effect removal and restoration on the timeline requested, or any other relevant

equitable consideration. Under these circumstances, we hold that, at this stage of the

proceeding, the District Court’s interlocutory denial of preliminary or final mandatory

injunctive relief was neither irreconcilable with its summary judgment declaring a trespass

nor a manifest abuse of discretion.

¶32    Davises failed to make any additional factual showing warranting injunctive relief

in their subsequent M. R. Civ. P. Rule 59(e) or 60 Motion to Correct. Even if they had,

Rule 59 and 60 motions may not serve as a vehicle to raise matters that the party reasonably

could and should have earlier raised. Lee v. USAA Cas. Ins. Co., 2001 MT 59, ¶ 76, 304

                                             25
Mont. 356, 22 P.3d 631 (construing M. R. Civ. P. 59(e)); Orcutt v. Orcutt, 2011 MT 107,

¶ 11, 360 Mont. 353, 253 P.3d 884 (construing M. R. Civ. P. 60). We hold that the District

Court did not abuse its discretion in denying Davises’ subsequent motion to correct its prior

summary judgment ruling.

                                      CONCLUSION

¶33    We hold that the District did not err at this stage in the proceedings in: (1) declining

to grant other relief at law on Davises’ common law ejectment claim; (2) declining to grant

preliminary or final injunctive relief compelling immediate removal of the encroachments

and restoration of the property; or (3) denying Davises’ Motion to Correct those rulings.

We hereby affirm the District Court’s interlocutory rulings and remand for further

proceedings in the ordinary course.



                                                   /S/ DIRK M. SANDEFUR


We concur:

/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE




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