                                 No. 87-306
                IN THE SUPREME COURT OF THE STATE OF MONTANA




KIMBLE PROPERTIES, INC.,
a Montana corp., and LLOYD L. KIMBLE,
                  Plaintiffs and Appellants,
         -vs-
STATE OF MONTANA, DEPARTMENT OF STATE
LANDS and CITY OF BILLINGS,
                  Defendants and Respondents.




APPEAL FROM:      District Court of the Thirteenth Judicial District,
                  In and for the County of Yellowstone,
                  The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Moulton, Bellingham, Longo     &   Mather; Ward Swanser,
                 Billings, Montana
         For Respondent:
                  Lyle Manley, Dept. of State Lands, Helena, Montana
                  James L. Tillotson, City Attorney, Billings, Montana



                                    Submitted on Briefs:      Dec. 17, 1987
                                      Decided:       March 8, 1988

Filed:      8   - 1988
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.

     Appellants appeal the motion for summary judgment
granted by the District Court of the Thirteenth Judicial
District of the State of Montana, Yellowstone County.
Appellants initiated this action by petitioning the District
Court for a Writ of Prohibition to prohibit the respondents,
City of Billings (City) and the Department of State Lands
(DSL) from taking any action to approve the final plat of the
Continental Divide Subdivision.     The respondents filed a
motion to quash, strike and dismiss or in the alternative for
summary judgment. The District Court treated the motion as a
motion for summary judgment and granted it holding that the
record did not show that DSL or the City performed acts
outside their authority.   We affirm.   The issues presented
for appeal are:
     1. Was a writ of prohibition the proper remedy?
     2. Are there genuine issues of fact concerning whether
or not
          a) the State obligated itself to unauthorized debt?
          b) the City of Billings approved the preliminary
plat without guarantee that the improvements required for
compliance with the master plan will be funded?
          c) the City of Billings gave preferential treatment
to the State in the approval of the preliminary plat?
     The State of Montana owns the Nt of Section 20, Township
1 North, Range 26 East, Yellowstone County.        The State
decided to subdivide a portion of this tract which is held in
trust for schools, in order to increase the revenue derived
from the property. The DSL filed a preliminary plat of the
proposed   subdivision for the Billings City Council's
consideration.     Certain improvements on the land were
required and the State paid    its share from the resource
development fund. The City Council approved the preliminary
plat and master plan on September 23, 1985.
                           ISSUE I
     Appellants contend that the DSL did not have the
authority to obligate itself to expenditures for improvements
that had not been authorized by the legislature and the City
lacked authority to treat the DSL preferentially over private
developers or to approve a plat based upon a plan that lacked
financial backing. Thus a writ of prohibition was the proper
remedy.
     The District Court held that a writ of prohibition was
not the proper remedy in this case.        Before a writ of
prohibition may be granted the parties seeking the writ must
demonstrate that the acts by public officials are clearly
unlawful. Section 27-27-101, MCA provides:

    The writ of prohibition is the counterpart of the
    writ of mandate. It arrests the proceedings of any
    tribunal, corporation, board, or person exercising
    judicial functions when such proceedings are
    without or in excess of the jurisdiction of such
    tribunal, corporation, board, or person.
The writ is only appropriate when no other remedy is
available.   Section 27-27-102, MCA, State ex re1 Morse v.
Justice Court of Deer Lodge County (Mont. 1981), 626 P.2d
836, 38 St.Rep. 542.
     This Court has expressed its strong disinclination to
grant writs of prohibition. "The writ of prohibition is not
favored by the courts. Necessity alone justifies it." Malta
Irrigation District v.     Montana   Board  of Health and
Environmental Sciences (Mont. 1986), 729 P.2d 1323, 1326, 43
St.Rep. 2264, 2267 quoting Morse, 626 P.2d at 837. In this
case, the District Court held that both the DSL and the City
were acting within their authority.   The landboard and the
DSL have clear authority to subdivide and sell state lands.
Sections 77-1-204, 77-2-301, MCA. The City also has control
over subdivisions. Title 76, Chapter 3, Part 1, MCA, Montana
Wilderness Association v. Board of Health and Environmental
Science (1976), 171 Mont. 477, 559 P.2d 1156. The District
Court found that the DSL had not obligated itself to
unconstitutional   indebtedness   and  the  City's   alleged
preferential treatment of the DSL in approving the
preliminary plat was within its discretion.      The record
supports the District Court's findings. No public officials
acted in excess of their authority, therefore the District
Court was correct when it refused to issue a writ of
prohibition. Affirmed.
                          ISSUE I1
     Issue I1 concerns the propriety of granting the
defendant's motion for summary judgment. Appellants contend
that genuine issues of material fact exist and that summary
judgment was improper.
     The standard for reviewing a grant or denial of summary
judgment is "the same as that utilized by the trial court
initially under Rule 56, M.R.Civ.P. - a summary judgment is
proper when it appears 'that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.'"    Reagan v. Union Oil Co. of
California (Mont. 1984), 675 P.2d 953, 956, 41 St.Rep. 131,
134.
     Appellants allege that three genuine issues of material
fact exist. They contend issues exist concerning whether or
not: a) the State obligated itself to unauthorized debt; b)
the City approved the preliminary plat without guarantee that
the improvements required for compliance with the master plan
will be funded; and c) the City gave preferential treatment
to the State in the approval of the preliminary plat.
     The respondents presented evidence in the form of the
affidavit of Kelly Blake that no factual issues exist. The
affidavit states that the improvements the State was
obligated to pay for were paid for with funds from the
resource development account authorized by S 77-1-604, MCA.
The affidavit also states that the State did not obligate
itself to any debt.     As a result there were no further
obligations and no preferential treatment. "Once the movant
has established that no material issues of fact exist, the
burden shifts to the opposing party to raise an issue of
fact." Krone v. McCann (1982), 196 Mont. 260, 264, 638 P.2d
397, 399. Appellants allege that genuine issues of material
fact exist, but do not substantiate their allegations with
evidence. Mere implications based on appellant's allegations
are not enough to prevent a motion for summary judgment from
being granted.   Cheyenne Western Bank v. Young (1978), 179
Mont. 492, 587 P.2d 401. Affirmed.



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