INTHE SUPREME COURT OF 

### THE STATE OF MONTANA

No. 12074

GLENN H. ALLMAN, Administrator of the Estate of Pvan B. APErnan, Deceased



### J. M. STUART, 

### the CPTY OF GLASGOW and the COUNTY OF VALLEY, Defendants and Cross Plaintiffs.

ORDER



### -- PER CURPAM: The opinion of this Court dated January 10, 1972 is ordered amended as fol1sws: Another paragraph shall be added 

### on page 

### 12, 

### at the end of the present opinion and reading: "Plaintiff-appellant to have 

### his 

### costs on ehis appeal, 

### tobe taxed by the district

### court." The petition for rehearing is denied, DATED this %st day of February, 3.972.No. 12074 INTHE SUPREME COURT OF THE STATE OF MONTANA 1971

GLENN H. ALLMAN, Administrator of the Estate of IVAN B. ALLMAN, Deceased, Plaintiff and Appellant,

J. M. STUART, the CITY OF GTASGOW, and the COUNTY OF VALLEY, Defendants and Cross-Plaintiffs.

Appeal from: 

### District Court of the Seventeenth Judicial District, Honorable M. James Sorte, Judge presiding. Counsel of Record

### : For Appellant

### : Leo J. Kottas, Sr. argued, Helena, Montana. For Defendants

### : Robert Hurly argued, Glasgow, Montana.

Submitted: December 2, 1971 Decided :

## JAR10

## g#g Filed

### :

# 3PtNI0

## I9RMr. Justice Frank I. Haswell delivered the Opinion of the Court. In a suitbetween plaintiff who owns two lots and defendant who owns an officebuilding situate thereon, the district court of Valley County entered judgment requiring saleof the lots and building as an entity, with apportionment of the sale proceeds between the parties. Plaintiff appeals from thisjudgment and denial of his motion for a new trial. The salient facts here areunique. The two lots in question are located in theCity of Glasgow, Montana. An office building had been constructed on the lots by persons other than the parties in the instant case. Financial problems ensued culminating in a mortgage foreclosure action filed in the United States District Court in Glasgow by plaintiff's decedent, who

was the owner and holder of two $10,000 promissory notes and mortgages. Several lienholders, including defendant here, were named as parties defendant in the foreclosure action. On June 19, 1961, the United States District Court entered 

### its foreclosure decree requiring a separate saleatpublic auction of the lots on the one hand and a separate sale of thebuilding

on the other hand. Presumably this was done toestablish the proper lien rights and priorities among the various lienholders, as to the land and building respectively. Pursuant tothis foreclosure decree, the salewas held by the United States Marshal on October 10, 1961, in Glasgow. The officebuilding was offered for sale first. Plaintiff's decedent, who was the mortgage holder, and defendant, who held a mechanic's lien for electrical equipment installed in thebuilding, each bid on the building. Defendant eventuallywas the successfulbidder ata price of $14,000. The two lotswere then offered for saleand purchased by plaintiff's decedent for a price of $20,000. Defendant testified that he intended tobid on the lots, but did not do sobecause the opening bid was toohigh. Both saleswere subsequently confirmed by the United States District Court and separate certificates of salewere issued to the respective purchasers. No appeal has ever been taken by anyone in the foreclosure proceedings. Following the foreclosure sale, negotiations were had between the respective owners of the lots on the one hand, and of thebuilding on the other. Defendant's testimony summarizes'the situation: "Q. And during the firstyear or two after this Marshall (sic) salewas made you [defendant] and myself [defendant

### 's attorney] and Mr. Kottas [plaintiff's attorney] and 

### Mr. Allman [plaintiff]have negotiated together may times trying towork out a solution tothis problem 

### of divided ownership haven't we? (Bracketed materia

### 1supplied) "A. That is correct.I? During this period the condition of the building differed materially from 

### its condition atthe time of trial. The following excerpt from defendant's testimony portrays this situation: "Q. And during that first period also isn't it true that your building was innot too good shape and itwouldn't have been too hard tomove? "A. The walls were cracked and it was only about a third rented and the paint and everything from settlement and stuff..

# .thewalls were cracked and it could have been moved without doing toomuch damage outside of maybe losing the masonry on the outside of itwhich atthe time cost around $3,100.00 something like that, toreplace the masonry."Q. And actually over the years sinceyou bought the building you've put inapproximately $12,000.00 worth of improvements have you not? "A. Yes. The building 

### is realgood shape and fully rented atthe present. "Q. And these improvements in these cases were required by your renters in order torent space to them? "A. Well it couldn't be rented without: doing it,no. "Q. And isn't italso true that about $1,000.00 of those improvements have been tograde and gravel the land around the building? "A. Yes thewater.

# .

# .it stood around there likea lake and yo!^...besides not being able topark the seepage underneath was what was making it settleand cracked allthewalls. "Q. 

### Is it practical tomove thebuilding atthe present time? "A. Well it isn't practical. It would, it could be moved but 

### its costs would be pretty prohibitive. It would undo allthe remodeling and itwould be a real expensive proposition. "Q. And this has been attached tothe ground with a permanent concrete foundation, has it not? A. That 

### is correct. "Q. And there arewater and sewer and gas lines thatgo underground to thebuilding? A. Uh huh. "Q. And it has sidewalks and steps that areattached to the groufid? "A. I put innew sidewalks on the southside towards the Elks this summer. There was running water settled way down and was running water under the footing so--- "Q. Approximately how much money do you have invested in the building atthe present time? "A. Around $22,000.00. " The negotiations between plaintiff and defendant concerning the building problem continued through atleast 1965, according to defendant. As early as 1963 defendant was notified by plaintiff, inwriting, tomove thebuilding off the lots; defendant wasnotified inwriting again in 1964. Oral notification was also made in 1965. plaintiff's testimony concerning this notice 

### is summarized in the following excerpt: Q. Do you recallhaving a conversationwithMr. Stuart athis home, you and I, after talking to 

### Mr. Hurly [defendant's attorney], and Mr. Hurly told us that we could go and talk toMr. Stuart? Do you recall the year thatwas? (Bracketed material added) "A. 

### I think it would have been in65. 

## 'p. And did we contact

### Mr. Stuart atthat time? "A. Yes. "Q. And where didwe contact him? "A. Athis house. "Q. Who was present? A. You and Mr. Stuart and myself. 

### Q. And what..

# . Did you talk tohim about anything atthat time? "A. Yes

# . Q. What was it? "A. About removing thebuilding. Q And what, what was the gistof the conversation that you had inmy presence there with Mr. Stuart? "A. Well he was going toget around to it and we talked about ifwe shouldn't be getting some rent off for the time that he had used it, and he agreed that we should and I think, I think he asked how much we wanted and I told him tosubmit a figureand 1'd take it up with the heirs and 

# ... "Q. Did you receive such a figure from him? llA. No."' Stateand local taxes were separately billed tothe owner of the lots and to the owner of thebuilding respectively, following the recording of the foreclosure decree.Defendant has paid nothing toplaintiff for the use of the land on which the building is situated, nor has he made an accounting of income from thebuilding. On January 

### 11, 1966, plaintiff filed the instant suit against defendant in the district court of Valley County seeking

a mandatory injunction requiring defendant toremove hisbuilding from plaintiff's two lots, an accounting of rents and profits from thebuilding, damages, and attorney fees. Defendant answered and filed a counterclaim, mistakenly designated a cross complaint

# . His answer admitted the purchase of the the land by plaintiff and the purchase of thebuilding located thereon by himself; his collection of allrentals for space in the building; generally denied allelse including any right inplaintiff torelief; 

### and set forthtwo affirmative defenses: (1) The rentals collected are for space in thebuilding and areno concern of plaintiff; (2) The entire situationwas created by plaintiff's decedent incausing the land and building tobe sold separately inhis foreclosure action. On September 

### 11, 1967, Judge Loucks sustained plaintiff's motion todismiss defendant's answer and counterclaim (erroneously designated a cross claim). Subsequently Judge Loucks died and Judge Sorte, his successor, assumed jurisdiction. Plaintiff filed

an amended complaint naming the cityof Glasgow and Valley County

as additional parties defendant, sothat tax liability on the lots could be determined. Defendant Stuart filed an answer and counterclaim tothe amended complaint substantially similar tohis original pleading. Trialwas held before the court sittingwithout a jury. On March 

### 11, 1971, the district court entered 

### its findings of fact,conclusions of law and judgment. Its substancewas: "The only equitable solution tothis controversy is to sellthe lotand building together and thereafter apportion the proceeds among the parties". Judgment was entered accordingly. Following the district courtIsdenial of plaintiff's motion toamend the findings of fact, conclusions of law, and judgment or in the alternativetogrant plaintiff a new trial, plaintiff appeals from the finaljudgment and denial of his motion for new trial. Plaintiff 

### lists six issues for review upon appeal. We summarize the controlling issues in this fashion: 1. 

### Is plaintiff entitled toa mandatory injunction requiring removal of the building from his lots? 

### 2. Is defendant entitled torequire that the land and building be sold together and the proceeds apportioned among the parties? 

### 3. Is plaintiff entitled toan accounting orreasonable rental for theuse of his land? The first issue for review requires no extended discussion. Plaintiff 

### is the soleand exclusive owner of the two lots by virtue of his purchase of the land atthe foreclosure sale. Defendant acquired no interest in the land by virtue of his purchase of the building thereon, under the separate foreclosure saleof thebuilding. Defendant testified that atthe time of the foreclosure salehe knew he was buying just thebuilding; that plaintiff's decedent bought the land; and that water, sewer, and electricalconnections were inplace. Defendant admitted negotiations were had following their respective purchases attheforeclosure sales inan attempt towork out a solution tothe problem of divided ownership. The evidence 

### is equally clear that despite their failure toresolve this question, defendant went ahead and made extensive improvements tothe building to the tune of some $12,000, which rendered it impractical toremove thebuilding from plaintiff's land. There 

### is no evidence plaintiff misled defendant into taking this course of action orhad anything todo with it; on the contrary, allthe evidence indicates repeated demands by plaintiff that defendant remove the building from plaintiff's lots. It 

### is admitted by both parties that defendant has paid nothing toplaintiff for the use of his land occupied by defendant's building for severalyears following the foreclosure sales. Plaintiff has repeatedly demanded that defendant remove thebuilding; defendant has neglected todo sowithout any right whatever tooccupy plaintiff's land; and, plaintiff 

### is entitled toa mandatory injunction requiring defendant toremove the building from plaintiff's land within such reasonable time and under such reasonable procedures as the district court may require. Directing our attention tothe second issue for review, the rights of the parties are equally clear. The district court cannot order that the lots and building be sold as an indivisible entitywith the proceeds of the saleapportioned between the parties in theabsence of a primary right in defendant to such relief. Here, there is no such primary right indefendant either under Montana's partition statutes orby application of any recognized equity principle. Defendant has no right to such relief under our partition statutes as they require an individed co-ownership of the propertytobe partitioned. Section 93-6301, R.C.M. 1947, provides in material part:

11

When several cotenants hold and are in possession of real property asjoint tenants or tenants in common

# ** * an actionmay be brought by one or more of such persons for a partition thereof

# **

# * and for a saleof such property, or a part thereof, if it appears that a partition cannot be made without a great prejudice to the owners. 11 Section 93-6301.1, R.C.M. 1947, requires the same cotenancy inpartition actions of personal property. Here, there 

### is no cotenancy of an undivided interest asjoint tenants, tenants 

### is incommon, or otherwise; on the contrary, plaintiff/the soleand exclusive owner of the real estate, i.e. the land, while defendant 

### is the sole and exclusive owner of the personal property, i.e. the building. Accordingly, defendant has no standing tobring

a partition action on the entire property, 

### I.@. the land and the building, as he 

### is not a cotenant therein. In effect, the foreclosure decree and separate sales partitioned the property into twoseparate parts, each owned exclusively by the respective parties to this action. Nor has defendant, under any recognized equitable principle, established any primary right inhimself tohave the building and land merged for sale, sold as an entity, and the saleproceeds apportioned between the respective owners. Both parties purchased their respective properties with their eyes open; under no misrepresentation, mistake, or misunderstanding; and, with full knowledge of the problems inherent individed ownership. Defendant unilaterally proceeded to expend a substantial

sum of money in improvements on his building, rendering it impractical to remove it from plaintiff's land. Allthese improvements were made without any agreement or payment to plaintiff of

a reasonable rental for the use of his land, and atleast some ofthe improvements were made in the face of repeated demands by plaintiff that defendant remove his building from plaintiff's land. Defendant 

### is nothing more than a naked trespasser on plaintiff's land who proceeded athis perilwith substantial improvements to his building in the hope that some agreement could be reached whereby he could purchase the land, plaintiff would purchase his building, or a rental agreement or some other arrangement could be consummated so that thebuilding would not have tobe removed from Lhe land. No agreement has been reached and now defendant seeks tocompel plaintiff tosellhis land atpublic auction. Defendant has no primary right to compel plaintiff to do this. The land belongs toplaintiff who has the right to sell it on such terms and conditions as he sees fit; or plaintiff can refuse to sell it atall. These rights areunquesttoned incidents of legal ownership 

### of private property. 

### lai in tiff's motives or reasons for sale or refusal to sell, or his terms and conditions of sale, areimmaterial. Unquestionably defendant now finds himself in a difficult position with a likelihood of sustaining a substantial loss, but it 

### is a situation of his own making forwhich plaintiff 

### is in no my chargeablenor responsible. Although defendant argues that this situationwas created by plaintiff's decedent inbringing about the divided ownership as a result of his foreclosure suit, there isneither evidence that the separate sales under the foreclosure decreewere his doing, nor that defendant misunderstood

or was misled in any way about what he was purchasing or of his rights thereunder.Under such circumstances

## ,what equitableprinciple compels the owner of land to sell it atpublic auction against his wishes toprevent a loss toa continuing trespasser with notice? The question provides 

### its own answer and demonstrates the fallacy of defendant's position on this issue. Proceeding tothe final issue, we hold that although plaintiff 

### is not entitled toan accounting of defendant's rentals

on his officebuilding, plaintiff is nevertheless entitled toa reasonable rental for the use of his land occupied by defendant's building. Plaintiff isnot entitled toan accounting simply because defendant 

### is the soleand exclusive owner and landlord of the building and plaintiff has no interest in thebuilding or rentals derived from 

### its tenants. On the other hand, plaintiff as soleand exclusive owner of the land on which the building 

### is situate 

### is entitled tothe reasonable rental value of his land for the period of time itwas and isoccupied by defendant's building. The record of the trial

### is devoid of any substantial credible evidence concerning the reasonable rental value of plaintiff's land. The only evidence offered on this point is the bald assertion by plaintiff that "we figured it could easily bring in $75.00 to $80.00 a month'' just for parking. Plaintiff gave no basis for this opinion and admitted thathe did not look into the actual expense of creating a parking lot on his land. Plaintiff also testified there were two vacant lots immediately west of his land which were used as parking space for patrons of the Elks Club and defendant's building and that he did not know of anyone who was paying any sort of rent for this parking.Accordingly, this cause is remanded tothe district court with directions tovacate the findings of fact, conclusions of law, and judgment heretofore entered; tohold a further hearing todetermine the reasonable rental value to be paid plaintiff for the use of his land by defendant; and, for the entry of appropriate findings ottact, conclusions of law, and final judgment in conformity with this opinion.

Associate Justice

ef Justice