IN THE 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, to be taxed by the district court." 

The petition for rehearing is denied, 

DATED this %st day of February, 3.972. 
No. 12074 

IN THE 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 : JAR 10 g#g 

Filed : 3PtN I 0 I9R 
Mr. Justice Frank I. Haswell delivered the Opinion of the 

Court. 

In a suit between plaintiff who owns two lots and defendant who owns an office building situate thereon, the district 

court of Valley County entered judgment requiring sale of the 

lots and building as an entity, with apportionment of the sale 

proceeds between the parties. Plaintiff appeals from this judgment and denial of his motion for a new trial. 

The salient facts here are unique. The two lots in 

question are located in the City 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 sale at public auction 

of the lots on the one hand and a separate sale of the building 

on the other hand. Presumably this was done to establish the proper 

lien rights and priorities among the various lienholders, as to 

the land and building respectively. Pursuant to this foreclosure 

decree, the sale was held by the United States Marshal on October 

10, 1961, in Glasgow. 

The office building 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 the 
building, each bid on the building. Defendant eventually was the 

successful bidder at a price of $14,000. 

The two lots were then offered for sale and purchased 

by plaintiff's decedent for a price of $20,000. Defendant testified that he intended to bid on the lots, but did not do so because 

the opening bid was too high. 

Both sales were subsequently confirmed by the United States 

District Court and separate certificates of sale were 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 

the building on the other. Defendant's testimony summarizes'the 

situation: 

"Q. And during the first year or two after this 

Marshall (sic) sale was made you [defendant] and 

myself [defendant 's attorney] and Mr. Kottas [plaintiff's attorney] and Mr. Allman [plaintiff] have 

negotiated together may times trying to work out a 

solution to this problem of divided ownership haven't 

we? (Bracketed ma teria 1 supplied) 

"A. That is correct. I? 

During this period the condition of the building differed 

materially from its condition at the 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 in not too good shape 

and it wouldn't have been too hard to move? 

"A. The walls were cracked and it was only about a 

third rented and the paint and everything from settlement and stuff.. . the walls were cracked and it could 

have been moved without doing too much damage outside 

of maybe losing the masonry on the outside of it which 

at the time cost around $3,100.00 something like that, 

to replace the masonry. 
"Q. And actually over the years since you bought the 

building you've put in approxima tely $12,000.00 worth 

of improvements have you not? 

"A. Yes. The building is real good shape and fully 

rented at the present. 

"Q. And these improvements in these cases were required by your renters in order to rent space to them? 

"A. Well it couldn't be rented without: doing it, no. 

"Q. And isn't it also true that about $1,000.00 of 

those improvements have been to grade and gravel the 

land around the building? 

"A. Yes the water. . . it stood around there like a 

lake and yo!^. ..besides not being able to park the 

seepage underneath was what was making it settle and 

cracked all the walls. 

"Q. Is it practical to move the building at the present 

time? 

"A. Well it isn't practical. It would, it could be 

moved but its costs would be pretty prohibitive. It 

would undo all the remodeling and it would be a real 

expensive proposition. 

"Q. And this has been attached to the ground with a 

permanent concrete foundation, has it not? 

A. That is correct. 

"Q. And there are water and sewer and gas lines 

that go underground to the building? 

A. Uh huh. 

"Q. And it has sidewalks and steps that are attached 

to the groufid? 

"A. I put in new sidewalks on the south side 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 at the present time? 

"A. Around $22,000.00. " 

The negotiations between plaintiff and defendant concerning 

the building problem continued through at least 1965, according to 

defendant. As early as 1963 defendant was notified by plaintiff, 

in writing, to move the building off the lots; defendant was 
notified in writing 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 recall having a conversation with Mr. 

Stuart at his home, you and I, after talking to 

Mr. Hurly [defendant's attorney], and Mr. Hurly 

told us that we could go and talk to Mr. Stuart? 

Do you recall the year that was? (Bracketed material 

added) 

"A. I think it would have been in 65. 

'p. And did we contact Mr. Stuart at that time? 

"A. Yes. 

"Q. And where did we contact him? 

"A. At his house. 

"Q. Who was present? 

A. You and Mr. Stuart and myself. 

Q. And what.. . Did you talk to him about anything 

at that time? 

"A. Yes . 

Q. What was it? 

"A. About removing the building. 

Q And what, what was the gist of the conversation that you had in my presence there with Mr. Stuart? 

"A. Well he was going to get around to it and we 

talked about if we 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 to submit a figure and 1'd take it 

up with the heirs and ... 

"Q. Did you receive such a figure from him? 

llA. No."' 

State and local taxes were separately billed to the owner 

of the lots and to the owner of the building respectively, following 

the recording of the foreclosure decree. 
Defendant has paid nothing to plaintiff for the use of 

the land on which the building is situated, nor has he made an 

accounting of income from the building. 

On January 11, 1966, plaintiff filed the instant suit 

against defendant in the district court of Valley County seeking 

a mandatory injunction requiring defendant to remove his building 

from plaintiff's two lots, an accounting of rents and profits 

from the building, 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 the building 

located thereon by himself; his collection of all rentals for 

space in the building; generally denied all else including any 

right in plaintiff to relief; and set forth two affirmative defenses: (1) The rentals collected are for space in the building 

and are no concern of plaintiff; (2) The entire situation was 

created by plaintiff's decedent in causing the land and building 

to be sold separately in his foreclosure action. 

On September 11, 1967, Judge Loucks sustained plaintiff's 

motion to dismiss 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 city of Glasgow and Valley County 

as additional parties defendant, so that tax liability on the lots 

could be determined. Defendant Stuart filed an answer and counterclaim to the amended complaint substantially similar to his original 

pleading. 

Trial was held before the court sitting without a jury. 

On March 11, 1971, the district court entered its findings of fact, 
conclusions of law and judgment. Its substance was: 

"The only equitable solution to this controversy 

is to sell the lot and building together and 

thereafter apportion the proceeds among the 

parties". 

Judgment was entered accordingly. 

Following the district court Is denial of plaintiff's 

motion to amend the findings of fact, conclusions of law, and 

judgment or in the alternative to grant plaintiff a new trial, 

plaintiff appeals from the final judgment 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 to a mandatory injunction 

requiring removal of the building from his lots? 

2. Is defendant entitled to require that the land and 

building be sold together and the proceeds apportioned among 

the parties? 

3. Is plaintiff entitled to an accounting or reasonable 

rental for the use of his land? 

The first issue for review requires no extended discussion. Plaintiff is the sole and exclusive owner of the two lots 

by virtue of his purchase of the land at the foreclosure sale. 

Defendant acquired no interest in the land by virtue of his purchase of the building thereon, under the separate foreclosure 

sale of the building. Defendant testified that at the time of 

the foreclosure sale he knew he was buying just the building; 

that plaintiff's decedent bought the land; and that water, sewer, 

and electrical connections were in place. Defendant admitted 

negotiations were had following their respective purchases at the 
foreclosure sales in an attempt to work out a solution to the 

problem of divided ownership. The evidence is equally clear 

that despite their failure to resolve this question, defendant 

went ahead and made extensive improvements to the building to 

the tune of some $12,000, which rendered it impractical to remove 

the building from plaintiff's land. 

There is no evidence plaintiff misled defendant into 

taking this course of action or had anything to do with it; on 

the contrary, all the 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 to plaintiff for the use of his land occupied by defendant's building for several years following the foreclosure 

sales. Plaintiff has repeatedly demanded that defendant remove 

the building; defendant has neglected to do so without any right 

whatever to occupy plaintiff's land; and, plaintiff is entitled 

to a mandatory injunction requiring defendant to remove the 

building from plaintiff's land within such reasonable time and 

under such reasonable procedures as the district court may require. 

Directing our attention to the 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 

entity with the proceeds of the sale apportioned between the 

parties in the absence of a primary right in defendant to such 

relief. Here, there is no such primary right in defendant either 

under Montana's partition statutes or by 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 property 
to be partitioned. Section 93-6301, R.C.M. 1947, provides in 

material part: 

11 When several cotenants hold and are in possession 

of real property as joint tenants or tenants in 

common * * * an action may be brought by one or more 

of such persons for a partition thereof * * * and 

for a sale of 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 in partition actions of personal property. Here, there 

is no cotenancy of an undivided interest as joint tenants, tenants 

is 

in common, or otherwise; on the contrary, plaintiff/the sole and 

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 to bring 

a partition action on the entire property, I.@. the land and the 

building, as he is not a cotenant therein. In effect, the forec losure 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 in himself to have the building and 

land merged for sale, sold as an entity, and the sale proceeds 

apportioned between the respective owners. Both parties purchased 

their respective properties with their eyes open; under no misrepresentation, mistake, or misunders tanding; and, with full 

knowledge of the problems inherent in divided 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. All these improvements were made without any agreement or payment to plaintiff of 

a reasonable rental for the use of his land, and at least some of 
the 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 at his peril with 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 the building would 

not have to be removed from Lhe land. No agreement has been 

reached and now defendant seeks to compel plaintiff to sell his 

land at public auction. 

Defendant has no primary right to compel plaintiff to 

do this. The land belongs to plaintiff who has the right to 

sell it on such terms and conditions as he sees fit; or plaintiff can refuse to sell it at all. These rights are unquesttoned 

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, are immaterial. 

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 for which plaintiff is in no 

my chargeable nor responsible. Although defendant argues that 

this situation was created by plaintiff's decedent in bringing 

about the divided ownership as a result of his foreclosure suit, 

there is neither evidence that the separate sales under the foreclosure decree were 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 equitable principle 

compels the owner of land to sell it at public auction against 

his wishes to prevent a loss to a continuing trespasser with 

notice? The question provides its own answer and demonstrates 

the fallacy of defendant's position on this issue. 

Proceeding to the final issue, we hold that although 

plaintiff is not entitled to an accounting of defendant's rentals 

on his office building, plaintiff is nevertheless entitled to a 

reasonable rental for the use of his land occupied by defendant's 

building. Plaintiff is not entitled to an accounting simply 

because defendant is the sole and exclusive owner and landlord of 

the building and plaintiff has no interest in the building or 

rentals derived from its tenants. On the other hand, plaintiff 

as sole and exclusive owner of the land on which the building is 

situate is entitled to the reasonable rental value of his land 

for the period of time it was and is occupied 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 that he 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 to the district court 

with directions to vacate the findings of fact, conclusions of 

law, and judgment heretofore entered; to hold a further hearing 

to determine the reasonable rental value to be paid plaintiff 

for the use of his land by defendant; and, for the entry of 

appropriate findings ot tact, conclusions of law, and final 

judgment in conformity with this opinion. 

Associate Justice 

ef Justice