Jones v. Continental Oil Co.

• Decision Date: 16 August 1956
• Docket Number: No. 9670,9670
• Citation: 130 Mont. 267,300 P.2d 518
• Parties: Ward H. JONES and Grace E. Jones, husband and wife, Ralph J. Fremou and Helen L. Fremou, husband and wife, Corbly Lash and Jeanette Lash, husband and wife, and Wallace S. Ross and Betty Jean Ross, husband and wife, Plaintiffs and Appellants, v. The CONTINENTAL OIL COMPANY, a corporation, Defendant and Respondent.
• Court: Montana Supreme Court

Page 518

300 P.2d 518

130 Mont. 267

Ward H. JONES and Grace E. Jones, husband and wife, Ralph J Fremou and Helen L. Fremou, husband and wife, Corbly Lash and Jeanette Lash, husband and wife, and Wallace S. Ross and Betty Jean Ross, husband and wife, Plaintiffs and Appellants, v. The CONTINENTAL OIL COMPANY, a corporation, Defendant and Respondent.

No. 9670.

Supreme Court of Montana.

Submitted June 28, 1956.

Decided Aug. 16, 1956.

Jack L. Green, Missoula, argued orally for appellant.

Smith, Boone & Rimel, Missoula, argued orally for respondent.

DAVIS, Justice.

Appeal from a final judgment, entered by the district court for Missoula County, which denied injunctive relief, dismissed the plaintiffs' (appellants') complaint, and authorized the construction by the defendant (respondent) of a service station in south Missoula, a Class B residential district or zone of the City of Missoula, Montana. The plaintiffs' specifications of error, five in number, present for decision on their appeal the single question whether on the facts the district court correctly concluded that the defendant was authorized under the zoning ordinance of that city to build the service station in question. If so, the judgment entered for the defendant must stand.

No bill of exceptions incorporating the evidence and proceedings had at the trial below appears in the record brought to this court. The judgment roll alone is before us. The rule is then that the facts which we may review are those specifically set out in the findings made by the trial judge, supplemented by such implied findings not inconsistent with the specific findings made as may be necessary to sustain the judgment or decree entered. Colwell v. City of Great Falls, 117 Mont. 126, 129, 157 P.2d 1013; Bohart v. Songer, 110 Mont. 405, 408, 101 P.2d 64; Brubaker v. D'Orazi, 120 Mont. 22, 24, 179 P.2d 538; Park Saddle Horse Co. v. Cook, 89 Mont. 414, 418, 419, 300 P. 242; Ferguson v. Standley, 89 Mont. 489, 495, 300 P. 245; Sherburne Mercantile Co. v. Bonds, 115 Mont. 464, 468, 469, 145 P.2d 827.

A corollary of this rule is that where the evidence before the trial court is not brought here with the judgment roll the presumption will be indulged that that evidence was sufficient to support the court's findings at every point. Gillen v. Gillen, 117 Mont. 496, 501, 159 P.2d 511; Brubaker v. D'Orazi, supra, 120 Mont. at page 29, 179 P.2d at page 542; Tiffany v. Uhde, 123 Mont. 507, 513, 216 P.2d 375; Skillen v. Harris, 90 Mont. 389, 392, 393, 3 P.2d 1054; McBride v. School District No. 2, 88 Mont. 110, 113, 290 P. 252; Park Saddle Horse Co. v. Cook, supra, 89 Mont. at page 418, 300 P. at page 243; Ferguson v. Standley, 89 Mont. 489, 495, 300 P. 245; Sherburne Mercantile Co. v. Bonds, 115 Mont. 464, 468, 469, 145 P.2d 827. These rules which govern our review on this appeal are elementary, and so firmly established as to require no extended citation of authority to support them.

With them in mind we gather from the findings which the trial court made the following controlling facts: The plaintiffs are the owners of real property in south Missoula, a Class B residential zone or district of the City of Missoula, Montana, where they reside, and where upon certain described lots owned by the defendant a filling station used for the sale of gasoline, lubricants and motor vehicle parts and accessories has been maintained for twenty years at least. This real estate, which the defendant purchased some time after February 15, 1953, is presently possessed and operated by it. At the time of this purchase this property was, and now is, improved with an unsightly service station constructed of wood, which constitutes a fire hazard and is not suited to the 'modern dispensing of motor fuels and other automobile supplies and assessories.' Accordingly the defendant proposes to erect on this property a new, modern service station. On April 13, 1955, it received a building permit for this work from the building inspector of the City of Missoula, Montana, issued under Ordinance No. 728 of the City of Missoula, which it is conceded applies to the construction of new buildings in a Class B residential zone of that city. For the purposes of this review we assume, as the plaintiffs' counsel contends, that this ordinance reaches the defendant here, and makes it mandatory for it to have a valid permit issued strictly in accord with the ordinance as an indispensable condition precedent to its right to reconstruct this service station.

The parties are in agreement, and the court found, that the ordinance in issue insofar as it is here material reads in these words, viz.,

'Either a public garage, store building or a filling station may be established or erected in this district, if, when the permit is issued, there is on file with the building inspector the written consent of the owners of the property adjoining, and the written consent of the owners of the property lying directly across the street or alley from the property upon which the public garage, store building, or filling station is sought to be established or erected, together with the written consent of the owners of not less than...