Link v. State By and Through Dept. of Fish and Game, 14086
| Citation | 180 Mont. 469,36 St.Rep. 355,591 P.2d 214 |
| Decision Date | 28 February 1979 |
| Docket Number | No. 14086,14086 |
| Parties | Henry A. LINK et al., Plaintiffs and Respondents, v. The STATE of Montana, acting By and Through the DEPARTMENT OF FISH AND GAME, et al., Defendants and Appellants. |
| Court | Montana Supreme Court |
Frank B. Morrison, Jr. argued and Daniel O. Kemmis argued, Missoula, for defendants and appellants.
Hutton & Cromley, Billings, Brent R. Cromley argued, Billings, for plaintiffs and respondents.
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Plaintiffs brought this action in the District Court of the First Judicial District, Lewis and Clark County, alleging breech of contract and praying for relief in the form of damages and specific performance. Defendants counterclaimed, alleging default on a condition of the contract and praying that the contract be declared terminated. The District Court on November 4, 1976, issued a partial summary judgment declaring defendants to be in breach of the contract, and on October 26, 1977, issued a final summary judgment ordering specific performance of the contract. This is an appeal from the partial summary judgment of November 4, 1976, and the final summary judgment of October 26, 1977.
Since this is an appeal from a summary judgment, there is no transcript. Therefore, the record in this case consists of the District Court file in Cause No. 40212 from the First Judicial District, in and for the County of Lewis and Clark, State of Montana; the District Court file in Cause No. 35029 of the same court, an earlier case involving the same parties and the same subject in which the judgment had become final; the depositions taken in the above-mentioned cases; the answers to interrogatories in the above-mentioned cases; and the affidavits.
The facts are as follows: On June 15, 1946, after extensive negotiations, the Montana State Park Commission entered into an agreement with Henry A. Link, John G. Link, Jr., Elmer F. Link and Louis W. Link, a copartnership doing business as Link Bros. (defendants herein and hereinafter referred to as "concessionaires"). This agreement gave concessionaires the right to operate concessions at Lewis and Clark Caverns State Park in return for payment to the State of 10 percent of the gross receipts from the concessions. The concessionaires also agreed to construct certain permanent improvements on the premises, including buildings, booths and storerooms, a water system, and possibly a mountain railroad. All such improvements were to become the property of the Park Commission upon construction and were to be leased to concessionaires. The agreement had a life of 25 years, and concessionaires had an option to renew.
Concessionaires did construct a system to transport visitors between the concession area and the cavern entrances. This system, which came to be called a "mountain railroad", consisted of two components. Visitors were carried back and forth between the concession area and the lower cavern entrance in a sight-seeing car pulled on railroad tracks by a Jeep. A hoist and tram lifted the visitors approximately 300 feet at a 30 degree incline from the lower to the upper cave entrance. Visitors walked through the cave from the upper to the lower entrance. Concessionaires operated this railroad from 1947 to 1950.
On March 30, 1950, the Park Commission and concessionaires signed a supplemental agreement whereby the Commission agreed to "take over the operation and maintenance of the said mountain railroad", and to "operate and maintain same at its own expense". The "equity of said Concessionaires in the business of said mountain railroad" was to be "recognized" by payments to the concessionaires of a certain percentage of the railroad fare. That fare was to be charged to all visitors "whether or not said mountain railroad was in operation, except when said mountain railroad is shut down for repairs or for other reasons beyond the control of the Commission."
In 1953 the duties of the State Park Commission were transferred to the State Highway Commission and in 1965 the administration of state parks passed to the Fish and Game Commission making that body (hereinafter called the "Commission") the successor to the Park Commission's interest in the agreement as amended. In 1970, the concessionaires exercised their option to renew the amended agreement for an additional 25 years.
In 1973 a large gear broke in the cable car hoist and was not replaced by the Commission. This caused the tramway portion of the system to be closed. The Commission made repairs to the other portions of the railroad from 1973 to 1975, but in 1976 the Commission refused to spend more money on the mountain railroad and discontinued its use. The track was removed, and a gravel pathway was constructed from the concession area to the cavern entrance. Park visitors have used the pathway since that time.
The District Court, after hearing legal arguments and considering all the above-mentioned files, affidavits, interrogatories and other documents, ruled that no material issue of fact existed with respect to the contract and that plaintiffs had fully performed their obligations under the contract. The court, by partial summary judgment, found that defendants had breached the contract. Because the court found the determination of damages a speculative and inadequate remedy, it ordered specific performance of the contract whereby defendants must provide and maintain a workable mountain railroad and tramway system by June 30, 1979, operation of which is to be returned to concessionaires under the terms of the 1946 agreement.
Defendants present essentially four issues for our review:
1. Whether the District Court erred in finding that defendants breached the contract.
2. Whether defendants are obligated by the terms of the contract to replace the mountain railroad.
3. Whether defendants can be compelled to collect fares and remit a percentage to plaintiffs when the railroad is not operational.
4. Whether the District Court erred in ordering specific performance of the contract rather than awarding damages.
Defendants contend that the partial summary judgment should be reversed, first, because the contract was unenforceable for lack of consideration and therefore could not be breached. Second, they argue they had no duty to operate the railroad when the original system could no longer be maintained, that by abandoning the mountain railroad in 1976 and the tram in 1973 they did not breach the contract and that there would be an adequate remedy in damages and therefore no specific performance would be necessary.
We find the contract was fully supported by valuable consideration from the Links, and on this issue we determine there was no material issue of fact and that the summary judgment was proper.
The 1946 contract provided, among other things, that the Links could build the mountain railroad. It further provided that if they did build the railroad, all improvements constructed by the Links were to become the property of the Park Commission upon their completion and were to be leased by the Commission to the concessionaires. This agreement had a life of 25 years, and the concessionaires had an option to renew the contract for an additional 25 years. The concessionaires constructed the mountain railroad at their own expense, and under the terms of the 1946 contract, the concessionaires operated the railroad, collected all of the fares and remitted to the State under the terms of the contract 10 percent of the gross income therefrom.
In 1950 the Commission requested that the 1946 contract be amended as the State wanted to take over the operation of the railroad. Accordingly the supplemental agreement of March 30, 1950, was executed. The new agreement provided "The Commission hereby agrees to take over the operation and maintenance of the said mountain railroad, also known and designated as a hoist and tramway, at Lewis and Clark State Cavern Park, Montana, as of January 1, 1950, and to operate and maintain same at its own expense. The equity of said Concessionaires in the business of said mountain railroad as provided in said agreement of June 15, 1946, shall be recognized by the payments to the Concessionaires by said Commission of the following amounts:
The concessionaires operated the railroad under the conditions set out in the contract of 1950, collected the fares and remitted to the State 10 percent of the gross income therefrom. In lieu of that right, the State took over the operation of the railroad, with the right to collect the total fare, subject only to paying concessionaires the sum of 191/2cents for each adult and 12cents for each child. That kind of consideration is so obvious as to not need further explanation.
Judge W. W. Lessley, in the findings of fact on November 19, 1971, Cause No. 35029, paragraph 5, determined that:
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