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, andCross-Appellants, and SIGNAL DRILLING CO., et al.,Defendants.

APPEAL FROM: District Court of the SeventhJudicial District, In and for the Countyof Richland, Honorable R. C. McDonough, Judge presiding. COUNSEL OF RECORD: For Appellants: Habedank, Cumming, Best and Maltese, Sidney,

Montana OttoT. 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: 

### 'If32d

## 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.thequestionwhich of two oiland gas leaseswas legallyineffectastoproduction 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 termof the lease a producing wellwas drilled. The working interest in the well was assigned by Batts to Creek OilCompany which operated and produced thewelluntil July 1973. Production wa.s stopped atthat'time by an order of the Montana Oil and Gas Commission because of sa-ltwater seepage from a saltwater deposit pit atthe wel-I site. The trial court, initsfindingsof fact, found that solvingthe 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 OilCompany 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 inthe operations orproduction, that is subjectonlytolimitations set forth inSection 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 'PrimaryTerm' 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 leasedpremises,or (3) there is a well or wells on the leased premises,which,although capable ofproducing oil, gas, or other minerals in paying quantities hereunder is shut in for lack of market or outlet. "Operationsasused herein means alloperations 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. OnMay 2, 1980, Phyllis Edington executed a further oil. and gas lease to Mountain & PlainsCompany which lea.sewas recorded onMay 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-leyPetroleum, Inc.

### , and Flare Energy Corporation, as plaintiffs, filed an action to quiet title, in effect, to the oilproduced from the lands a.fterDecember 1980, and in due course, trial was had in January 1983. On April 6, 1983, the DistrictCourt entered its first findingsof 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 toElliott, Edington had assertedan interest inthe property of record which was adverse tothat 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-resuperior to any claimed interest of Creek Oiland Biby, whose claims are without any right whatever. The court also ruled that the defendants had no right, title, or interest inthe 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 tothe date of his order. Later the District Court amended that determinatior, to entitle d.efendants 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 DistrictCourt ended. The court alsorul-ed, on April 6, 1983, that the casing inthewellistheproperty of Bow Valley Petroleum, Inc. and FlareEnergy Corporation, but that saidBow Valley Petroleum, Inc. and FlareEnergy Corporation must pay toBiby and Creek OilCompany thepresentvalue of saidcasing lessthe costof 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 representsthepresentvalue of thecasing lessthe costof removal. Both parties appeal from the judgment of the District Court. PlaintiffsPhyllisEdingto~ 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 oilproduction of the subjectwell. 2. That Creek OilCompany and Biby arenot entitled to any share of theproduction or costof production because of their bad faith trespass in December 1980, nor are they entitled to credit for expenses incurred or deduction of costsof production. 3. There is insufficient evidence tosupport thetrial court's findings that $5,250 represents thepresentvalue of the casinglessitscostof removal. Creek Oil Company and Louis

### bib^ cross-appeal and raise the followingissues: 1. The District Court failed to give effect to the forcemajeure clauseof the lease. 2. The Eistrict Court failed to give effect to the judicial ascertainment clauseof the lease. 3. The judgment of the District Court unduly enriches BowVal-ley, Inc. 4. There is insufficient evidence to support the essential- findingsof theDistrictCourt. 5. The court should not have permitted the u.se of the discovery depositionof Mrs. Edington atthetrial. FORCE MAJEURE The forcemajeure clauseinthe lease, under which Creek Oiland Biby claimtheirinterests, provid-es: "17. This lease shallnot expire, terminate orbe 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~herewith s hindered, delayed, revented or interrupted 

## 2 force majeure. The :ern 'forcemajeure' asused herein shallmean 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." (Emphasisadded.) 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 coveredby 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 crudeoil at the time. Edington and Bow Valley,on the otherhand, 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.sonablysolve the saltwater problem, that Edington lost royalty payments for over seven years by their suspension of production, and that Creek Oil and Biby suspendedproduction of oil for economic reasons and not for reasons coveredby the forcemajeure 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 forcemaieure clause, if applicable, would have the effect of suspending the clause for terminationby reason of cessation of operations. 4Williams, 

### ---- 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: "uponfailure of production during the secondary term, unless such failurewas due to forcemajeure." 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 existedwhere Creek Gil had located its saltwaterbit and Creek Oil did notmake 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.yingthe 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 Courtproperly applied the law to the forcemajeure clause here. Where the action of the governmental unit to shut in the well, as in this case,is brought aboutand continued in forceby thewrongful

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 (3rdCir. 1894), 61 F. 300. The other contentions of Creek Oil and Biby respecting the force majeure clausearewithoutmerit. THE JlJDICIALASCERTAINMENT CLAUSE The oil and. gas lease held by Creek Oil Company contained a judicialascertainmentclause. Such cl.a.usesvary 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-ledfor 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 suchbreach." Creek Oil Company and Biby contend that the obligation, if any, of lessees under the lease to cure the saltwater seepageproblemwas an implied covenant; that itwas 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 

### suchdetermination tha.tCreek 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 ascertainmentof abreach 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 ascertainmentclause with a notice clause and contend thatwe 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 failureto givenotice. The District Court.determined that the 90 day cessation of production clausewas an express covenant and as such the judicial ascertainment clausedid 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 (whetheror not in paying quantities) from the leasepremises; or (2)operationswere 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 operationsorproduction. 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. Theirduty ofproductionofminerals or the conduct of operations was an express condition for the continuance of the leasehold estate. When, as it clearly appears here, lesseesallowed the production to ceaseand operationsnot to be conducted for aperiod ofmore than 90days, their oiland gas lease terminated and ended by its own terms. McQueen v. Santa Oil Company (6thCir. 1954), 213F.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 courtheld that the lease had terminated under its

own terms (that lease contained a 60 day provision). Thecourt 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 aperiod of 90days, 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 toproduce oil in December 1980. IfiINOCENT

### - V. WILLFUL TRESPASS TheDistrictCourt found t.hatCreek Oil Company and Eiby

were qood faith trespassersuntil the time of trial,January 26, 1983,and thereafterbad faith trespassers. TheDistrict 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 factsupon which the plaintiffs based their claims and consequently, subsequent t.oJanuary 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.scontinuedin 1973 wa.sin a state of disrepair. Louis Biby,onbehalf of the defendants, prior toDecember 1980,made substantial expendituresof time and money including $269,000.00 forpermanent improvementsto 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 thewell throughMarch 1983 as follows: Phyllis Edington (12+%) $ 16,062.98 Creek Oil and Biby 82,207.16 RowValley ~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 fullvalue of the working interest proceeds from the oil, subject to a 5% overriding royalty to Mountain & PlainsOilCompany. 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 oiland 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.sshas been made in bad faith,no deduction is allowed for the cost of production. Thepropermeasure of damages in such a case is the value of thepetroleum 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 

### claimand the facts whjch 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 OilCompany 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 underher,after Creek Oil Compzny ceased production in 1973 and before production was resumed in December 1980. We have recited in the firstpart of this opinion thoseparticular 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 expresslymade 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 leasehad 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 anhonest 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 estateandminerals 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 decreewas filed. Consolidated,upon entry of the decree, went on the leased. lands, removed Reickhoff's oildrilling rig, setup its own rig,and started drilling. Reickhoff appealed the Distrj.ctCourt decision to the Montana Supreme Court and the judgment in favor of Consolidatedwas reversed. Consolidated GasCo. v. Reickhoff

(19441, 116 Mont. 1, 151 P.2d 588. Thereafter Reickhoff sought recovery fromConsolidated for thevalue of the gas it had produced from the well and claimed that Consolidated was

abad faith trespasser. In finding the trespasswil.lfulthis Court said: 

# ".

. . That the company was a trespasser on the leased lands isbeyond 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 casebe sent back for the taking of further evidence or a new trial-. It knewReickhoffhad 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 knowsall of the factswhich constitutehis claim, as well as the claims of his adversary, which facts, when properly construed, give him no title to the land? Such aholdingwouldmake every man a judge of the law in his own case, instead of being bound by the law as interpreted by those chargedwith thatduty. Wemust therefore conclude that the defendants, when they drilled the wells on these lands,werewillful trespassers, justasmuch 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-dbe 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), 1-23Mont. 555, 562, 563, 217 P.2d 1076, 1079, 1080. Reickhoff is applicable to this case. Creek Oil Company and Biby were willful trespasserswhen they entered upon the lands for which their oil. and gas lease had expired to

recommence drilli~g operations. As willful trespa-ssersthey

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 findhagood 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 takenpossession of the funds from the saleof the oil, that such funds have been deposited in court, and that the sa.leof the oil has been commercially reasonable. They also argue that finding thembad faith trespasserswould have the effect of unjustly enriching Bow Valley which has not done anything toproduce the oil. Yet, it isBowValley's right to theworking 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. ofwillful trespass was going upon the land to reproduce the well in the face of theprovisions 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 figureby 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 DistrictCourt is speculative and conjecturaland shouldbe set aside. This Court has approved the concept that in assessing damages, the trier of factmust exercise calm and reasonable Ijuc7tgment and the amount of the award.rests of necessity in the sound discretion of the trier of fact. Johnsonv. 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; Jarussiv. 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 payingnominal damages if there is any reasonable way i.nwhich 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-esof 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 thereforeaffirm 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 itwa.s improper for the District Court to allow the deposition of plaintiff Mrs. Phyllis Edington to he used at trial in her absenceas awitness. Creek Oil and Riby contend that the deposition of Mrs. Edingtonwas taken as a "discoverydeposition," that she is a resident of Sidney, Montana, where the trial was held, and that she was not "unavail.able"for appearamceas awitness 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 spentpart of the time in Arizona and the remainder of the year in Sidney. At the time of the trial shewas inArizona. The District Court permitted the use of her deposition under the terms of Rule 32(a)(3)(R)

# . Tha.trule providest "The d.epositionof 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.erthe record in this case, the District Court was clearlywithin theprovisions of Rule 32(a), allowing the use of the deposition ofMrs. Edington, although shewas 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 Edingtondeposition. DECISION Affirmed 

### in part and reversed in part, and remanded to the District Court for entry of judgment in a-ccordancewith this opinion.

We Concur: 

# a4-.4.ii~/&.,ueea Chief JusticeJustices