Shors v. Branch
| Decision Date | 05 June 1986 |
| Docket Number | No. 85-324,85-324 |
| Citation | 720 P.2d 239,221 Mont. 390,43 St.Rep. 919 |
| Parties | Richard A. SHORS and Ann C. Shors, Plaintiffs and Respondents, v. Jerry L. BRANCH, d/b/a Jerry L. Branch, Consulting Geologist and Producer, Defendant and Appellant. |
| Court | Montana Supreme Court |
Hash, Jellison, O'Brien & Bartlett, Kenneth O'Brien, Kalispell, for defendant and appellant.
Peterson, Peterson, Burns & Shors, William L. Burns, Cut Bank, for plaintiffs and respondents.
Defendant Mr. Branch appeals a judgment of the District Court for Flathead County. That court granted a total of $52,000 in actual and punitive damages against him, following a bench trial on plaintiff's complaint of defamation and violation of easement rights. We affirm.
Mr. Branch raises fifteen separate issues which we restate as follows:
1. Is plaintiffs' claim for damages for interference with their easement rights barred by statute of limitation?
2. Did Mr. Branch's installation and maintenance of the gate on the road extinguish the plaintiffs' easement rights by adverse possession or establish a prescriptive right to the gate?
3. Did the trial court err in permitting testimony concerning: 1) an incident in which Mrs. Shors and her children were "buzzed" by the Branch children on a snowmobile; and 2) Mr. Branch's reference to the Shors as "trouble-makers" and "hippies" and his suggestion to third parties that the Shors cabin be burned down?
4. Is there substantial evidence to support the court's findings that: a) Mr. Branch did not complete construction of the access road as required by the Declaration of Restrictions; b) Mr. Branch acted maliciously and with a reckless disregard for the plaintiffs' rights in constructing the gate; and c) plaintiffs were entitled to $2,000 for the loss of use of the vehicle access road?
5. Was the communication of the letter to the Flathead County Sheriff's Office privileged?
6. Was there substantial evidence to support the court's findings that: a) Mr. Branch was inspired by malice and ill-will when he forwarded the alleged defamatory letter; b) the statements contained in the letter constitute libel or libel per se; and c) the plaintiff Richard Shors was entitled to $5,000 in special and general damages in the defamation action?
7. Did the trial judge have authority to award punitive damages and did he err in setting the amount of punitive damages at $20,000 in the defamation action and $15,000 in the action for interference with the easement?
8. Did the District Court err in admitting plaintiffs' statement of attorney fees into evidence and in awarding attorney fees?
Mr. Branch also argues that the punitive damages violated the Eighth and Fourteenth Amendments to the United States Constitution. However, he did not raise this argument below and we will not consider it now. Rule 2, M.R.App.Civ.P.; Dodd v. City of East Helena (1979), 180 Mont. 518, 523, 591 P.2d 241, 244.
Jerry Branch and Carl Disel subdivided property near Essex, Montana, in Flathead County. The property borders the Middle Fork of the Flathead River. The Declaration of Restrictions governing those tracts provided for access to the river for the purchasers of the lots as follows:
... This access is a specific route access, via the sixteen foot East-West access road presently in existence along the south boundary of Lots 1, 2, 3, 4 and 5, then east to the top of the hill at the south turn of the existing trail-road. From this curve, an access trail-road will be constructed by the sellers, and will run northeast along the path of most practical construction and will reach the river beach within 150 feet of survey point number seven. Future maintenance of this northeast road will be the responsibility of the lot owners of the subject lands of H.E.S. 867.
The access trail-road was understood and intended to be suitable for two-wheel-drive vehicles under normal weather conditions. The subdividers retained an easement over one of the lots for construction of the access road. In 1972, they had a trail-road constructed over the easement. At the time it was constructed, this road was unobstructed by a gate, fence, or other obstacle, and was passable in normal conditions with a two-wheel drive vehicle.
Mr. Branch also retained a portion of the subdivided land for his own use. Access to the river from his land was achieved by way of a private logging road. A common road led to Mr. Branch's road and the lot owners' road. For several years, Mr. Branch kept a cable gate across the road to his land, beyond the turn-off for the lot owners' access road.
Plaintiffs constructed a cabin on their lot in 1975. At that time, the lot owners' road had sloughed off and become strewn with rocks and trees so that it was no longer passable with a vehicle. As a result, and in the absence of extensive maintenance, the road to Mr. Branch's land was the only means of vehicular access to the river for the lot owners.
In about 1976, apparently to prevent continued use of his road by others, Mr. Branch installed a metal, lock-type gate on the road. He installed the gate ahead of the fork in the two roads, thereby effectively preventing plaintiffs and the other lot owners from using either road beyond the gate. Following installation of the metal gate, Mr. Branch discouraged lot owners from attempting to widen and improve their access road. In May 1983, Mr. Branch moved the gate and bulldozed a "cul-de-sac" road to allow for potential lot owner vehicular passage to the river. He left a substantial mound of gravel at the site of the old gate.
Mr. Branch also erected "no trespassing" signs close to the river and on the road. Plaintiffs saw these signs as an additional indication of Mr. Branch's intention to keep them away from their access road, his property, and the river.
Partly as a result of the above actions, the relationship between the parties deteriorated. On occasion Mr. Branch referred to the Shors as "hippies" and "troublemakers", and suggested to third parties that plaintiffs' cabin be burned down. Also, in 1982, Mr. Branch intentionally blocked the trail to plaintiffs' cabin with logs and other debris.
In July of 1982, Mr. Branch discovered one of his "no trespassing" signs in the river, and erroneously concluded that plaintiff Mr. Shors had torn out that sign and two others. He sent a certified letter to Mr. Shors, and a copy of the letter to the Flathead County Sheriff's Department. In the letter, he stated that Mr. Shors had been observed tearing down three steel signs at the Branch property. He accused Mr. Shors and his guests of tearing down signs "in a routine manner," and threatened to file charges against Mr. Shors if the signs were not repaired or replaced. In fact, on the day in question, Mr. Shors and his family were at home in Cut Bank, Montana.
Mr. Shors, an attorney, brought suit against Mr. Branch for interference with his access to the river and for defamation. After a bench trial lasting several days, the court entered extensive findings and conclusions. The court ordered Mr. Branch to pay plaintiffs $2,000 for lost use and enjoyment of the vehicle access road for two years preceding the filing of their complaint; to pay $15,000 in punitive damages for obstruction of the access road; to pay $10,000 in attorney fees incurred in connection with interference with plaintiffs' access rights under the contract; and to pay court costs. It also awarded plaintiffs $5,000 in special and general damages for defamation and $20,000 in punitive damages for defamation. It further ordered Mr. Branch not to interfere with plaintiffs' right to reconstruct, repair, and maintain the original lot owners' road, and enjoined Mr. Branch from obstructing or interfering with plaintiffs in the exercise of their rights under the Declaration of Restrictions and the court's order.
Is plaintiffs' claim for damages for interference with their easement rights barred by statute of limitation?
Mr. Branch argues that the two-year statute of limitation for interference with real property expired two years after the metal gate was constructed, or in 1978. This action was not brought until 1982. Mr. Branch argues that it is therefore barred by the statute of limitation.
The District Court concluded that:
The Defendant has unlawfully and unreasonably restricted Plaintiffs' right of access, in derogation of the Declaration of Restrictions, thereby diminishing the value of their property, and their use and enjoyment thereof. Specifically, he failed to construct a proper or reasonably permanent access road, suitable for vehicular use, and prohibited Plaintiffs' and other lot-owners' free access thereto by any means in 1976 and thereafter until the filing of Plaintiffs' Amended Complaint ...
The conclusion that Mr. Branch interfered with plaintiffs' easement right is based on both his failure to construct a proper or reasonably permanent access road and his interference with plaintiffs' and the other lot owners' access to the river. The failure to construct a proper access road sounds in contract, with an 8 year statute of limitation under Sec. 27-2-202, MCA.
As to Mr. Branch's interference with access to the river, this Court has recognized as continuing torts those torts in which the tortious act can be readily abated. Haugen Trust v. Warner (Mont.1983), 665 P.2d 1132, 1135, 40 St.Rep. 1036, 1039. In a continuing tort, recovery may be had for damages accruing within the statutory period preceding commencement of the action. Haugen, 665 P.2d at 1135. We conclude that blockage of plaintiffs' access to the river by the gate was a continuing tort, because it was easily abated. The gate was, in fact, moved prior to trial. We hold, therefore, that the statute of limitation does not bar this action, and that damages accruing within 2 years of initiation of the suit were recoverable.
Did Mr. Branch's installation and...
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