                                    No. 8 2 - 4 7 8

                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          1983




RICHARD S. MARTINSOPJ      &   BETTY L.
ilrnRTINSON f




                           Plaintiffs and Appellants,
          -vs-

ROBERT THOMPSON     &   BEVERLY TIIOMPSON,
                           Defendants and Respondents.




APPEAL FROM:      District Court of the Sixteenth Judicial District,
                  In and for the County of Rosebud,
                  The Eonorable Alfred R . Coate, Judge presiding.

COUNSEL OF RECORD:
         For Appellant:
                  Gary L. Beiswanger, Billings, Montana
                  S. Charles Sprinkle, co-counsel, Forsyth,
                  Montana
         For Respondent:

                 William F. Meisburger, Forsyth, Montana



                                     Submitted on Briefs:        May 19, 1983

                                                      Decided:   August 4, 1983


Filed:     A L E 4 1983
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
       Judgment was entered July 27, 1982, in the District
Court of the Sixteenth Judicial District, Rosebud County,
denying Richard and Betty Martinson's                 action to terminate
Robert and Beverly Thompson's lease of the Oak Room Bar and
Lounge.      Martinsons are appealing that judgment.            We affirm.
       In    1977,      Richard   and    Betty     Martinson   (Martinsons)
purchased        the Choisser Building         in Forsyth, Montana.          A
portion of the street level of the building was then being
operated by Lewellyn Dalby and Dom DeSocio as the Oak Room
Bar and Lounge.          On January 23, 1978, Martinsons leased the
Oak Room Bar to Keith and Roxane Gilje.               The lease was to run
for six years:          March 1, 1978 to February 29, 1984.                The
Giljes assigned their lease of the bar to Robert and Beverly
Thompson on September 10, 1979.
       The second and third floors of the Choisser Building are
used    as   a    hotel.       After    remodeling one of      the hotel's
apartments for their own use, the Martinsons moved                         from
Billings to their hotel in June of 1980.
       The noise and music from the Oak Room Bar allegedly kept
the Martinsons and some of the guests at the hotel from
sleeping.         The    Martinsons     sent   a   demand   letter    to   the
Thompsons on February 27, 1981, requesting that they reduce
the level of noise emanating from their bar or face legal
action.      The noise allegedly continued, so on June 17, 1981,
the    Martinsons       sent   the     Thompsons a    notice   of    eviction
stating that the lease would terminate on July 20, 1981.
       The Thompsons refused to surrender possession of the
bar.    Therefore, the Martinsons filed a complaint August 5,
1981, requesting that:
         1.     The lease be terminated as of July 20, 1981;
         2.     Possession of the premises be awarded Martinsons;
         3.     Thompsons be required to pay to Martinsons $45.00
                per dav as treble rent for each day after July 20,
                1981, that Thompsons retain possession of the bar;
                and
         4.    Martinsons     be    awarded    reasonable attorney's               fees
               and costs.
         Thompson's      motion    to dismiss was denied October 21,
1981.         Thereafter, Thompsons filed an answer and counterclaim
November 9, 1981, denying that the noise from the bar was of
a    level which         would     constitute       a    nuisance     and     alleging
damages for Martinsons' failure to supply reasonable heat to
the bar in an effort to "freeze-out" Thompsons.                         The actions
were consolidated and a bench trial was held June 24 and 25,
1982.
      Martinsons'         theory     was     that       they    had   the    right    to
terminate        Thompsons'      lease because           Thompsons violated           an
implied covenant not to operate their bar in such a manner as
to create a nuisance.              The Martinsons presented evidence at
trial in an effort to prove that the bar was being operated
as   a    nuisance.         Since    Thompsons          refused to      acknowledge
termination of the lease and to surrender possession of the
premises,         Martinsons       contend      that       on    July       20,   1981,
Thompsons         were   in      violation     of       the     unlawful      detainer
statutes, Chapter 27, Title 70 of the MCA.
      The Thompsons presented substantial evidence to prove
that the bar was not being operated as a nuisance and that
the Martinsons were not providing reasonable heat to the bar.
Thompsons also presented evidence of the economic damages
they suffered because of Jlartinsons' actions.
      Findings of fact and conclusions of law were issued July
15, 1982, and a judgment was rendered July 27, 1982.                                 The
trial judge held that Martinsons could not terminate their
lease       with    Thompsons     because     Thompsons      had    violated    no
covenant contained within the lease.                    Further, the trial
judge stated that the lease could not be cancelled under any
theory of nuisance because the Thompsons were simply doing
what they had a right, under the lease, to do - operate a
bar.        Finally, the trial judge concluded that, although
Thompsons were entitled to damages for a breach of their
lease,       no    damages      would   be    awarded   because       Thompsons'
evidence of damages was too speculative.
       Martinsons raise a number of issues in their appeal of
the     findings,       conclusions     and    judgment.           They   can   be
summarized as follows:
       1.         Can   a    lease be   terminated, under          the unlawful
detainer       statutes,       for   violation    of    an    alleged     implied
covenant not to operate the leased premises so as to create a
nuisance?
       2.     Is there substantial credible evidence to support
the trial court's finding that there was no nuisance?
       We find issue two to be dispositive.
       Martinsons           filed an unlawful detainer action at the
trial court level.               Section     70-27-108, MCA,        states that
unlawful detainer occurs when a tenant of real property for a
term less than life 1) holds over after the expiration of the
term; 2) continues in possession after defaulting in the
payment of rent and after three days written notice demanding
payment; or 3) continues in possession after neglecting or
failing to perform conditions or covenants of the lease and
after three days written notice demanding performance of the
conditions or covenants.
       The Eighth Circuit Court of Appeals stated in Mosby v.
Manhattan Oil Co. (8th Cir. 1931), 52 F.2d 364 at 369:
     "One of the implied obligations of a lessee is that
     he shall so use the leased premises as not to
     injure his lessor by a nuisance thereon."
Citing   Mosby,   Martinsons   allege   that   their   lease   with
Thompsons should be terminated because Thompsons violated an
implied-in-law obligation to use their leased property in
such a manner as not to create a nuisance.             We need not
decide this question because there is substantial credible
evidence to support the District Court's finding that the bar
was not being operated as a nuisance.
     Numerous individuals testified at trial that the bar was
no noisier than any other bar they had          frequented.     The
Thompsons testified that they had greatly reduced the number
of live bands playing at the bar.       Thompsons hired bands to
play on seventeen occasions from January to June, 1980; on
eight occasions from July to December, 1980; and on four
occasions during the entire 1981 year.      As of June 25, 1982,
no bands had played at the Oak Room Bar in 1982.         The trial
judge held   that the lease could not be cancelled on any
theory of nuisance because the Thompsons were doing only that
which their lease entitled them to do - operate a bar.          The
finding that this operation was not a nuisance is supported
by the record.
     The judgment of the Distri



We concur:


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Chief Justice
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