NO. 84-23 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

PHYLLIS EDINGTON and BOW VALLEY 

PETROLEUM, INC., and FLARE ENERGY 

CORPORATION, 

Plaintiffs and Appellants, 

VS. 

CREEK OIL COMPANY, a Wyoming Corp., 

and LOUIS BIBY, 

Defendants, Cross-Complainants, 

and Cross-Appellants, 

and 

SIGNAL DRILLING CO., et al., 

Defendants. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

Honorable R. C. McDonough, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants : 

Habedank, Cumming, Best and Maltese, Sidney, 

Montana 

Otto T. Habedank argued and Robert J. Savage 

argued, Sidney, Montana 

For Defendants-Cross-Appellants: 

James R. Carlson, Jr., argued, Hysham, Montana 

Submitted: June 4, 1984 

Decided: October 29, 1984 

Filed: 

'If3 2 d 884 

'-7 

f?/ 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

In this case the District Court, Seventh Judicial 

District, Ri.chl.and County had. before it. the question which of 

two oil and gas leases was legally in effect as to production 

from an oil well- under the leases from and after December 

On February 2, 1962, Phyllis Edington entered into an 

oil and gas lease with John W. Batts covering mineral 

interests owned by her in Richland County, Montana. During 

the primary term of the lease a producing well was drilled. 

The working interest in the well was assigned by Batts to 

Creek Oil Company which operated and produced the well until 

July 1973. Production wa.s stopped at that 'time by an order 

of the Montana Oil and Gas Commission because of sa-ltwater 

seepage from a saltwater deposit pit at the wel-I site. The 

trial court, in its findings of fact, found that solving the 

problem of saltwater seepage was within the reasonable 

control of Creek Oil. Company. The remedy was sealing the 

leakage with a truckload of mud which was available. Creek 

Oil Company did not resume production of the well within 90 

days after its cessation pursuant to paragraph 8(c) of the 

Edington Lease, to-wit: 

"In the event of cessation of production and 

operations hereunder after the primary term 

thereof, the lessee shall have a period of ninety 

(90) days within which to resume operations or 

production, and if operations or production are 

resumed within such time, then this lease shall 

continue in force as if there had never been any 

interruption in the operations or production, that 

is subject only to limitations set forth in Section 

2 hereof. " 

Section 2: 
"Subject to the further provisions hereof, this 

lease shall remain in force for a term of 5 years 

from this date, called 'Primary Term' and as long 

thereafter as either (1) oil, gas, or other 

minerals are produced (whether or not in paying 

quantities) from the leased premises, or (2) 

operations are conducted on the leased premises, or 

(3) there is a well or wells on the leased 

premises, which, although capable of producing oil, 

gas, or other minerals in paying quantities 

hereunder is shut in for lack of market or 

outlet. 

"Operations as used herein means all operations for 

the drilling of a well for oil or gas, including 

building of roads, preparation of the drill site, 

moving in for drilling, drill.ing, deepening, 

plugging back, reworking or recompleting and also 

secondary recovery operations benefiting the leased 

premises." 

On December 12, 1974, Phyllis Edington executed a second 

oil and ga.s lease to Wendell H. Elliott, which lease was 

recorded in the records of Richland County. On May 2, 1980, 

Phyllis Edington executed a further oil. and gas lease to 

Mountain & Plains Company which lea.se was recorded on May 2, 

1980, in the records of Richland County. Mountain & Plains 

Company assigned its lease to Bow Valley Petroleum, Inc. on 

May 13, 1980, and this assignment was also recorded. in the 

county records. 

In December 1980, Creek Oil Company and Louis Riby 

entered the lands and resumed production of the oil well.. 

On November 18, 1981, Bow Valley assigned one-half of 

its leasehold right, title and interest under its lease to 

Flare Energy Corporation. That assignment was also duly 

recorded. 

Edington, Bow Val-ley Petroleum, Inc. , and Flare Energy 

Corporation, as plaintiffs, filed an action to quiet title, 

in effect, to the oil produced from the lands a.fter December 

1980, and in due course, trial was had in January 1983. On 

April 6, 1983, the District Court entered its first findings 
of fact, conclusions of law, and order. The District Court 

held that the lease had terminated under its express 

provisions in October 1973, and that, by re-leasing her 

property to Elliott, Edington had asserted an interest in the 

property of record which was adverse to that claimed by the 

defendants. The court also held that the mineral ownership 

of Edington and the leasehold interest of Bow Valley 

Petroleum, Inc. and Flare Energy Corporation a-re superior to 

any claimed interest of Creek Oil and Biby, whose claims are 

without any right whatever. The court also ruled that the 

defendants had no right, title, or interest in the minerals 

under the lands. However, the District Court found that 

Creek Oil Company and Biby were entitled to 874% of the 

production from the well- from Decemher 1980 to the date of 

his order. Later the District Court amended that 

determinatior, to entitl e d.ef endants Creek Oil Company and 

Biby to 874% of all production of the well up to and 

including January 26, 1983, the date the trial in the 

District Court ended. 

The court also rul-ed, on April 6, 1983, that the casing 

in the well is the property of Bow Valley Petroleum, Inc. and 

Flare Energy Corporation, but that said Bow Valley Petroleum, 

Inc. and Flare Energy Corporation must pay to Biby and Creek 

Oil Company the present value of said casing less the cost of 

removal. After a further hearing, the District Court ruled 

that Bow Valley and Flare Energy should pay Creek Oil and 

Biby the sum of $5,250, which represents the present value of 

the casing less the cost of removal. 

Both parties appeal from the judgment of the District 

Court. Plaintiffs Phyllis Edingto~ and Bow Valley Petroleum, 

Inc. appeal on the following issues: 
I-. That the defendants, Creek Oil. Company and Biby, 

were bad faith trespassers on December 1980, when they 

resumed oil production of the subject well. 

2. That Creek Oil Company and Biby are not entitled to 

any share of the production or cost of production because of 

their bad faith trespass in December 1980, nor are they 

entitled to credit for expenses incurred or deduction of 

costs of production. 

3. There is insufficient evidence to support the trial 

court's findings that $5,250 represents the present value of 

the casing less its cost of removal. 

Creek Oil Company and Louis bib^ cross-appeal and raise 

the following issues: 

1. The District Court failed to give effect to the 

force majeure clause of the lease. 

2. The Eistrict Court failed to give effect to the 

judicial ascertainment clause of the lease. 

3. The judgment of the District Court unduly enriches 

Bow Val-ley, Inc. 

4. There is insufficient evidence to support the 

essential- findings of the District Court. 

5. The court should not have permitted the u.se of the 

discovery deposition of Mrs. Edington at the trial. 

FORCE MAJEURE 

The force majeure clause in the lease, under which Creek 

Oil and Biby claim their interests, provid-es: 

"17. This lease shall not expire, terminate or be 

forfeited in whole or in part nor shall lessee be 

1iabl.e in damaqe for failure of lessee to comply 

with any expreLs or implied covenants hereunder- so 

long as c~rn~lianc~herewiths hindered, delayed, 

revented or interrupted 2 force majeure. The 

:ern 'forcemajeure' as used herein shall mean and - 

include sta.te and federal statutes, all orders, 

rules and regulations of any governmental body 
(either federal, state or municipal) fire, storm, 

flood, war, rebellion, riots, strikes, differences 

with workmen, acts of God, breakage or failure of 

machinery or equipment, inability to obtain 

material or equipment or the authority to use the 

same (after effort in good faith), failure of pipe 

lines normally used to transport or furnish 

facilities for transportation or any other cause 

(whether similar or dissimilar) beyond the 

reasonable control - of lessee. " (Emphasis added. ) 

Creek Oil and Ei.by maintain that the order of the 

Montana Oil and Gas Commission in July 1973, which suspended 

production of oil under their lease, is covered by the force 

majeure clause and that thereby the lease cannot be 

terminated for their failure to comply with any express or 

implied covenants of the lease. They claim that the force 

majeure clause has the effect of suspending termination 

provisions contained in paragraph 8 (c) , quoted above, and 

that their only responsibility, once the well was shut in, 

was to exercise due diligence in returning the well to 

production. They further contend that eccnomic factors 

material to the question of reasonable diligence shou1.d be 

considered, including the cost of disposing of the saltwater 

and the market price of the crude oil at the time. 

Edington and Bow Valley, on the other hand, contend that 

the underlying reason for the State Oil and Gas Commission 

order to shut in the well was the defendants own wrongdoing 

in permitting saltwater seepage and therefore the force 

majeure clause does not apply. They point out that. 

substantial evidence in the record supported the court's 

findings that. Creek Oil could rea.sonably solve the saltwater 

problem, that Edington lost royalty payments for over seven 

years by their suspension of production, and that Creek Oil 

and Biby suspended production of oil for economic reasons and 

not for reasons covered by the force majeure clause. 
It is obvious that the purpose of the force majeure 

clause in this oil and gas lease was to relieve the lessees 

from harsh termination of the lease due to circumstances 

beyond control of the lessees that would make their 

performance under the lease untenable or impossible. The 

force maieure clause, if applicable, would have the effect of 

suspending the clause for termination by reason of cessation 

of operations. 4 Williams, ---- Oil and Gas Law, S 683.2 at 392, 

suggests that the effect of the force majeure clause in an 

oil and gas lease is to amend a paragraph such as 8 (c) to 

read: "upon failure of production during the secondary term, 

unless such failure was due to force majeure." 

The District Court made findings of fact that the 

Montana Oil and Gas Commission would have allowed further 

production of the subject well if Creek Oil had sealed the 

saltwater pit; that Creek Oil could have corrected the 

problem of leakage with a truckload of mud which was 

available; that a natural saltwater seep existed where Creek 

Gil had located its saltwater bit and Creek Oil did not make 

a request to the Commission for a variance to allow the 

saltwater to seep to the natural. pit; tha.t solving the 

problem was reasonab1.y possible and within the control. of 

Creek Oil. These findings are supported in the record and 

bind this Court unless clearly erroneous. Rule 54 (b) , 

M.R.Civ.P. We do not find the court in error. 

In appl.ying the law, the District Court determined that 

the force majeure clause did not apply because the problem 

which caused the well to be shut in, and its solution, were 

not beyond the control of Creek Oil and Biby. Wilson v. 

Talbert (Ark. 1976), 535 S.W.2d 807. See Hixson v. Parker 

(Ark. 1957), 307 S.W.2d 210. 
Under the findings, the District Court properly applied 

the law to the force majeure clause here. Where the action 

of the governmental unit to shut in the well, as in this 

case, is brought about and continued in force by the wrongful 

or improper action of the lessees, they cannot rely on the 

force majeure clause to escape the other termination 

provisions of the oil and. gas lease. The force majeure 

clause is not an escape way for those interruptions of 

production that could be prevented by the exercise of 

prudence, diligence, care, and the use of those appliances 

that the situation or party renders it reasonable that. he 

should employ. Jutte v. The George Shiras (3rd Cir. 1894), 

61 F. 300. The other contentions of Creek Oil and Biby 

respecting the force majeure clause are without merit. 

THE JlJDICIAL ASCERTAINMENT CLAUSE 

The oil and. gas lease held by Creek Oil Company 

contained a judicial ascertainment clause. Such cl.a.uses vary 

from lease to lease, and from jurisdiction to jurisdiction, 

according to the practice of those in the industry. In this 

case the judicial ascertainment cl-ause was stated in 

paragraph 14: 

"14. This lease shall never be forfeited or 

cancel-led for breach of implied covenant until it 

shall have been finally judicially determined that 

such breach exists and lessees shall ha.ve failed 

within a reasonable time of such final 

determination, to remedy such breach." 

Creek Oil Company and Biby contend that the obligation, 

if any, of lessees under the lease to cure the saltwater 

seepage problem was an implied covenant; that it was the duty 

of the lessors, before the lease could be terminated or 

cancelled, to proceed through court for a determination that 

a breach of covenant actually existed; and after such 
determination tha.t Creek Oil Company and Biby were entitled 

to a reasonable time to remedy such breach. Since the 

lessors did repair to court proceedings in this case, Creek 

Oil Company and. Biby contend that their oil and gas lease is 

stiI.1 in effect because there has been no judicial 

ascertainment of a breach of an implied convenant. 

This particular oil and gas lease does not contain a 

notice provision for termination of the lease by lessors in 

the case of a. breach of an implied covenant under the lease. 

Creek Oil Company and Riby, however, equate the ?udicial 

ascertainment clause with a notice clause and contend that we 

should apply the same rule with respect to the judicial 

ascertainment clause in this case that was applied in 

Christian v. A. A. Oil Company (1973), 161 Mont. 430, 506 

P.2d 1369, relating to a failure to give notice. 

The District Court. determined that the 90 day cessation 

of production clause was an express covenant and as such the 

judicial ascertainment clause did not apply to it. 

It is beycnd cavil, from the plain language of the 

lease, that the judicial ascertainment clause applies only to 

breaches of implied covenants of the lease. See Eitel v. 

Alford (Colo. 1953), 257 P.2d 955. 

For most purposes, courts construe oil and gas ].eases 

under the rules of contract interpretation. 2 Summers, - The 

----- Law of Oil and Ga.s (1959), Ch. 12, 5 371, at 484, et seq. 

This oil and gas lease had extended beyond its primary 

term of 5 years. Because a producing oil well had been 

completed by the lessees under their lease, leasehold rights 

vested in the lessees for a secondary term as long as (1) oil 

and gas or other minerals were produced (whether or not in 

paying quantities) from the lease premises; or (2) operations 
were conducted by lessees on the leased premises; or (3) 

there was a well or wells on the leased premises that, 

although capable of producing oil and gas or other minerals 

in paying quantities thereunder, is or were shut in for lack 

of a market or outlet. 

Paragraph 8(c) of the oil and gas lease provided a 

limitation on that leasehold estate and term, however. In 

the event of "cessation of production and operations" after 

the primary term of the lease, the lessee is given a period 

of 90 days in which to resume operations or production and, 

if resumed within the 90 days, the lease would continue in 

force as if there had never been any interruption in the 

operations or production. 

In their leasehold estate under the oil and gas lease, 

therefore, lessees had the contractual duty not to cease 

either production or operations for a period of more than 90 

days. Their duty of production of minerals or the conduct of 

operations was an express condition for the continuance of 

the leasehold estate. When, as it clearly appears here, 

lessees allowed the production to cease and operations not to 

be conducted for a period of more than 90 days, their oil and 

gas lease terminated and ended by its own terms. McQueen v. 

Santa Oil Company (6th Cir. 1954), 213 F.2d 889. 

In Hall v. McWilliams (Tex. Civ. App. 1966), 404 S.W.2d 

606, where a producing well was shut down because the 

!esseest saltwater permit was suspended by governmental 

action, no production occurred, and no drilling or reworking 

operations were conducted for a period of more than 60 days 

the Texas court held that the lease had terminated under its 

own terms (that lease contained a 60 day provision). The 
court said it could not be held to be a "temporary" stoppage 

where the cessation of production lasted more than 60 days. 

We determine that under the facts of this case, the 

judicial ascertainment clause was not called into effect and 

that, because of the cessation of production and lack of 

conduct of operations hv the lessees on the leased premises 

for a period of 90 days, the Creek Oil Company and Biby lease 

terminated by it.s own provisions. The lessees had no 

leasehold estate upon which to rely when they reentered the 

premises to produce oil in December 1980. 

IfiINOCENT - V. WILLFUL TRESPASS 

The District Court found t.hat Creek Oil Company and Eiby 

were qood faith trespassers until the time of trial, January 

26, 1983, and thereafter bad faith trespassers. The District 

Court found as facts that the Creek Oil Company and Biby 

acted in good faith, their entry and possession were 

peaceful, and they had acted in an honest belief up to and 

inc1ud.i.n.g the trial of the action. The District Court found 

that at the trial, the defendants became aware of all the 

facts that constituted their claims as well as the facts upon 

which the plaintiffs based their claims and consequently, 

subsequent t.o January 26, 1983, in producing said well. have 

acted as a trespassers in bad faith. 

The District Court also found that the equipment on the 

well site when production was di.scontinued in 1973 wa.s in a 

state of disrepair. Louis Biby, on behalf of the defendants, 

prior to December 1980, made substantial expenditures of time 

and money including $269,000.00 for permanent improvements to 

the well. 
Based on its finding of good faith to the time of trial, 

the District Court prorated the gross value of all oil sold 

from the well through March 1983 as follows: 

Phyllis Edington (12+%) $ 16,062.98 

Creek Oil and Biby 82,207.16 

Row Valley ~etroleum 

TOTAL 

Bow Valley appeals from the order of the District Court 

with respect to its share of the production, contending that 

Creek Oil and Biby were bad faith trespassers from and after 

December 1980, and are entitled to no recompense for the cost 

of production nor from the proceeds of the oil. Also, that 

Bow Valley and Flare Energy should be awarded the full value 

of the working interest proceeds from the oil, subject to a 

5% overriding royalty to Mountain & Plains Oil Company. 

The argument of Bow Valley respecting the distribution 

of the proceeds arises from a difference in the measure of 

damages based on whether Creek Oil Company and Biby were in 

good faith or bad faith in trespassing upon the leased 

premises as explained. by Sullivan, Handbook ---- of Oil and Gas 

- Law, at 58 and 59: 

"In the case of good faith trespassers the measure 

of damages that must be paid is the value of the 

oil and gas in place. Because of the difficulty in 

proving such value in place, courts have adopted 

the measure as being the value of the petroleum at 

the surface, whether in tank or pipeline, less the 

reasonable cost of production. The costs of 

~roduction include the cost of drilling and 

equipping the well in addition to the expense of 

brinqing it to the surface . . . "Where the trespa.ss has been made in bad faith, no 

deduction is allowed for the cost of production. 

The proper measure of damages in such a case is the 

value of the petroleum at the surface . . ." 

Important to this discussion is the finding of the 

District Court that the Creek Oil Companv and Biby first 

became aware of all the facts which constitute their claim 
and the facts whj ch constitute the plaintiff's claim at the 

trial of the action. Bow Val-ley disputes this finding, 

claiming that, from the evidence before the District Court, 

Creek Oil Company and Biby ha.d actual and constructive notice 

that their lease had terminated. 

It i.s certain that Creek Oil Company and Biby had 

constructive notice of the recorded instruments, including 

oil and gas leases and assignments, that were given by 

Edington, and those acting under her, after Creek Oil Compzny 

ceased production in 1973 and before production was resumed 

in December 1980. We have recited in the first part of this 

opinion those particular instruments. 

Bow Valley further claims that Creek Oil Company and 

Biby had actual notice of the claims of Bow Valley and its 

subsequent assiqnees. In particular they point to the 

provisions of the agreement between Creek Oil Company and 

Biby, constituting Creek Oil's proposal for resumed 

production on the premises, which was expressly made subject 

to a "favorable resolution of the top lease" given by the 

royalty owner. Creek Oil Company's president was aware on 

December 4, 1976 that Edington had issued the first lease 

which expired after a two year term. On June 7, 1977, 

Edington's attorney wrote to Creek Oil Company their 

contention that the Creek Oil Company lease had expired under 

its own terms. 

Of equal wejght in determining that Creek Oil Company 

and Biby were aware that their lease had terminated is the 

language of their own oil and gas lease, with the specific 

provisions in it for termination upon cessation of production 

for 90 days. It seems impossible that they could have an 
honest and reasonable belief in the superiority of their 

title. Sullivan, Handbook of Oil ----- and Gas Law, at 58. 

The controlling case in this situation is Reickhoff v. 

Conso!.idated Gas Company (1950), 123 Mont. 555, 217 P.2d 

1.076. In that case, Consolidated drilled a gas well on lands 

on which Reickhoff held a valid oil and gas lease. 

Consolidated had commenced an action against Reickhoff and 

others seeking to quiet title to the real estate and minerals 

and. the District Court had entered. its order or decree in 

favor of Consolid.ated. Reickhoff was inducted into the U.S. 

Army the day before the decree was filed. Consolidated, upon 

entry of the decree, went on the leased. lands, removed 

Reickhoff's oil drilling rig, set up its own rig, and started 

drilling. Reickhoff appealed the Distrj.ct Court decision to 

the Montana Supreme Court and the judgment in favor of 

Consolidated was reversed. Consolidated Gas Co. v. Reickhoff 

(19441, 116 Mont. 1, 151 P.2d 588. Thereafter Reickhoff 

sought recovery from Consolidated for the value of the gas it 

had produced from the well and claimed that Consolidated was 

a bad faith trespasser. In finding the trespass wil.lful this 

Court said: 

". . . That the company was a trespasser on the 

leased lands is beyond doubt. But the company says 

it was not a willful trespasser for it entered 

under the district court's decree, assuming to 

annul the lease and to quiet title in it. However, 

it knew the law gave to Reickhoff the right of 

appeal and that on such appeal the decree might be 

either reversed, modified, a-£firmed, or the case be 

sent back for the taking of further evidence or a 

new trial-. It knew Reickhoff had vigorously fought 

the suit and that he was likely to appeal from the 

judgment entered against him. In misjudging the 

law and Reickhoff the gas company acted at its 

peril. It assumed the attendant risk of drilling 

the well on the lands leased to Reickhoff and of 

having the trial court's judgment reversed on 

appeal, but it took the chance and lost. 
" . . . 'Why should one be treated as acting in 

good faith when dealing with property as his own, 

when he knows all of the facts which constitute his 

claim, as well as the claims of his adversary, 

which facts, when properly construed, give him no 

title to the land? Such a holding would make every 

man a judge of the law in his own case, instead of 

being bound by the law as interpreted by those 

charged with that duty. We must therefore conclude 

that the defendants, when they drilled the wells on 

these lands, were willful trespassers, just as much 

so as though there had. been no question but that 

the plaintiffs had the superior right. They could 

not decide the disputed question in their own 

favor, and then proceed with the hope that their 

acts woul-d be characterized by this Court as in 

good faith, even though their judgment upon the law 

of the case should not be approved. '" (Citations 

omitted. ) Reickhoff v. Consolidated Gas Co. 

(1950), 1-23 Mont. 555, 562, 563, 217 P.2d 1076, 

1079, 1080. 

Reickhoff is applicable to this case. Creek Oil Company 

and Biby were willful trespassers when they entered upon the 

lands for which their oil. and gas lease had expired to 

recommence drilli~g operations. As willful trespa-ssers they 

are not entitled to recover either proceeds from the oil 

produced or the cost of producing the oil. The District 

Court was clearly erroneous in findha good faith up to the 

time of trial. Rule 54(b), M.R.Civ.P. 

Creek Oil Company and Biby further argue that in 

determining good faith. we should take into account that they 

have never taken possession of the funds from the sale of the 

oil, that such funds have been deposited in court, and that 

the sa.le of the oil has been commercially reasonable. They 

also argue that finding them bad faith trespassers would have 

the effect of unjustly enriching Bow Valley which has not 

done anything to produce the oil. 

Yet, it is Bow Valley's right to the working interest in 

its lease that Creek Oil Company and Biby usurped, without 

any basis for relying on the superiority of the Creek Oil 

title to the leasehold. interest. Their essential act. of 
willful trespass was going upon the land to reproduce the 

well in the face of the provisions in their own lease that it 

had terminated for cessation of production. Creek Oil 

Company and Biby have continued to usurp Bow Valley's right 

to the working interest throughout the litigation. 

Preserving the proceeds does not ameliorate their bad faith 

trespass. 

VALUE - OF CASING 

The District Court found that Creek Oil Company and Biby 

were entitled to receive from Row Valley $5,250.00 as the 

present value of the casing in place in the oil well, less 

its costs of removal. 

The District Court arrived at its figure by determining 

the present value of the 5,000 feet of casing at $3.75 per 

foot less the cost of removal, $2.70 per foot. In reaching 

this finding, the court admitted the evidence of value of the 

casing was "sketchy," that the casing was 17 years old, and 

the amount of removable pipe is speculative. Accordingly, 

Bow Valley argues that the decision of the District Court is 

speculative and conjectural and should be set aside. 

This Court has approved the concept that in assessing 

damages, the trier of fact must exercise calm and reasonable 

Ijuc7tgment and the amount of the award. rests of necessity in 

the sound discretion of the trier of fact. Johnson v. Murray 

(Mont. 1982), 656 P.2d 170, 1.75, 39 St.Rep. 2257. When there 

is strong evidence of the fact of damage, a defendant should 

not escape liability because the amount of damage cannot be 

proved with precision. Johnson, supra; Jarussi v. Board of 

Trustees of School District No. 28 (Mont. 1983), 664 P.2d 

316, 318, 40 St-Rep. 720, 723. We have adopted the concept 

that. a wrongdoer is not allowed to escape by merely paying 
nominal damages if there is any reasonable way i.n which the 

am0ur.t that he should pa-y in damages can be determined.. 

Therefore, if the damages are measured by a method which is 

reasonably definite, and not likely to give compensation in 

excess of the loss suffered, the damages brill be approved. 

Laas v. Montana State Highway Commission et a].. (1971), 157 

Mont. 121, 131, 483 P.2d 699, 704. Although these rul-es of 

damages apply against wrongdoers, there is no reason why we 

should not apply the same rules here where it is undoubted 

that Creek Oil Company and Biby are entitled to recover for 

the present value of the casing less its costs of removal. 

We hold that in view of the difficulty in ascertaining 

the value of the casing, the Court adopted a reasonable 

method and price for determining the damages based on the 

evidence of experts before it.. We therefore affirm the award 

of the District Court with respect to the value of the 

casing. 

-- USE OF EDINGTON DEPOSITION 

Creek Oil Company and Biby claim on appeal that it wa.s 

improper for the District Court to allow the deposition of 

plaintiff Mrs. Phyllis Edington to he used at trial in her 

absence as a witness. 

Creek Oil and Riby contend that the deposition of Mrs. 

Edington was taken as a "discovery deposition," that she is a 

resident of Sidney, Montana, where the trial was held, and 

that she was not "unavail.able" for appearamce as a witness as 

Rule 804 (c) (15) , M.R.Evid., requires. 

Testimony in the case indicated that at the time of the 

trial Phyllis Edington was residing in Mesa, Arizona, and 

that she spent part of the time in Arizona and the remainder 

of the year in Sidney. At the time of the trial she was in 
Arizona. The District Court permitted the use of her 

deposition under the terms of Rule 32 (a) (3) (R) . Tha.t rule 

provides t 

"The d.eposition of a witness, whether or not a 

party, may be used by any party for any purpose if 

the court finds: 

"(B) That the witness is at a greater distance 

than LOO miles from the place of trial or hearing, 

unless it appears that the absence of the witness 

was procured by the party offering the 

deposition;. . ." 

lJnd.er the record in this case, the District Court was 

clearly within the provisions of Rule 32(a), allowing the use 

of the deposition of Mrs. Edington, although she was a party 

to the action. No other distinction is made in the Montana 

Rules of Civil Procedure between depositions taken in 

d.iscovery, and those intended to be used at trial. The 

provisions of Rule 804, M.R.Evid., are not appl..icable to the 

problem of the use of the Edington deposition. Rule 804 is 

directed to hearsay exceptions. It is Rule 32, M.R.Ci~.P. 

that governs the use of depositions at trial. We find no 

error in the use of the Edington deposition. 

DECISION 

Affirmed in part and reversed in part, and remanded to 

the District Court for entry of judgment in a-ccordance with 

this opinion. 

We Concur: 

a4-.4.ii~/&.,ueea Chief Justice 
Justices