No. 90-148 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

PAT M. GOODOVER, Plaintiff and Respondent,

LINDEYIS,INC., and the ESTATE OF WILLIAM C. FOREST, deceased, and the unknown heirs and unknown devisees of any Defendant, above-named,who may be deceased, et al., Defendants and Appellants.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD: For Appellant: Paul Neal Cooley, Skelton & Cooley, Missoula, Montana (Lindey s); Jerome T. Loendorf

### , Harrison, Loendorf & Posten,Helena, Montana (Estateof Forest) For Respondent: John W. Larson, Missoula, Montana

Submitted on Briefs: August 9, 1990
Filed: ~ecided:December 18, 1990s I r I JusticeWilliam E. Hunt, Sr. delivered the Opinion of the Court.

Defendantand appellant,Lindeyts,Inc., appeals froman order of the Fourth Judicial District Court, Missoula County, requiring it to undertake efforts to locate underground fuel storage tanks and to remove a restroom facility encroaching upon property owned by plaintiff and respondent, Pat M. Goodover. We affirm. We will address the following issue: Did the District Court err in fashioning a remedy to enforce its earlier declaratory judgment that established the location of the north-south boundary line dividing the partiestproperty? Plaintiffand respondent,PatM. Goodover, is the owner of Lot 2 and defendant and appellant, Lindeyts,Inc., is the owner of Lot 1 of the Seeley Lake Shores Sites in Missoula County. In order to resolvea boundary disputebetween theparties, Goodover,onAugust 21, 1984, filed an action fordeclaratory judgmentand quiet title. After a trial held on April 7, 1987, the District Court issued findings of fact, conclusions of law and judgment in favor of Goodover, establishing the north-south boundary between the lots. The court specifically reserved the issue of damages for a later hearing. Lindeytsappealed to this Court, arguing that substantial credible evidence did not support theboundary line established by the District Court. InGoodoverv. Lindeyts,Inc., 232 Mont. 302, 757 P.2d 1290 (1988), we affirmed the judgment of the District Court.After the complaint was filed but prior to trial, Lindeyls constructed a restroom facility and installed twounderground fuel storage tanks in the area of the disputed boundary. Once the boundary was established by the District Court, it was apparent that the restroomencroached upon Goodoverls property. Itwas also possible that the fuel storage tanks encroached upon theproperty; however, it was impossible to determine the exact location of the tanks because they were buried. Following this Courtlsaffirmance of theboundary-line issue, Goodover petitioned the District Court to issue an order requiring Lindeylsto show causewhy it should not be required to remove the restroom facility from its encroachment and why it should not be required to determine the exact site of the underground fuel storage tanks. A hearing on the matter was held on November 13, 1989, after which the District Court entered an order requiring Lindeylsto remove the encroaching restroom facility and to locate the buried fuel storage tanks. Lindeytsappeals. Lindeylsraises amyriad of issues in an attempt to relitigate theboundary-line question. We refuse to examine these arguments, however, because the boundary-line issue was reviewed and finally decided during the first appeal to this Court. The District Courtls determinationof theboundary line is thus res judicata and cannot be reconsidered on this appeal. The issuewewill consider iswhether the District Court erred in fashioning a remedy to enforce its declaratory judgment that established the north-south boundary dividing the parties1property. Lindeylsargues that the ~istrict Court exceeded its jurisdiction by requiring it to move the restroom and locate the fuel storage tanks when Goodoverlscomplaint did not request such

measures in its prayer for relief. We do not agree. Goodover brought this action as one for quiet title and declaratory judgment. The Uniform Declaratory Judgments Act, §fj 27-8-201 through -313, MCA, authorizes the District Court to provide supplemental reliefwhen petitioned to do so. Section 27- 8-313, MCA, states: Further reliefbased on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefore shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, requireany adverse partywhose rights havebeen adjudicatedby adeclaratory judgmentordecree to show cause why further relief should not be granted forthwith. The statute enables the District Court to retain jurisdiction togrant further relief as it deems necessary and proper to enforce the declaratory judgment. The supplemental relief should be designed to provide complete relief to the parties, which may include a monetary judgment or coercive relief or both. See Lowe

v. Harmon, 115 P.2d 297, 300 (Or.1941). In fashioningthe remedy, the court isnot bound by the relief requested in the complaintbut may order any reliefneeded to effectuate the judgment. Dry Canyon Farms, Inc. v. United States NatllBank, 772 P.2d 1343, 1345 (Or. Ct. App. 1989). In Dry Canyon Farms, 772 P.2d at 1345, the Oregon Court of Appeals interpreted the scope of Oregon's supplemental relief6 u statute, which is identical to ours, as follows: [Tlhe scope of relief under ORS 28.080 [the Oregon supplemental relief statute] is controlled by the underlying declaratory judgment and not by the claims raised intheoriginalproceedings. Accordingly, aparty is not precluded from seeking supplemental relief in the form of damages by its failure to claim such damages in the original declaratory proceeding. Likewise,Goodoverwas notprecluded from asking the District Court to order Lindeylsto remove the restroom facility and to locate the underground fuel storage tanks. The remedies were needed to give complete and effectual relief to the declaratory judgment

# . The full resolution of the boundary-line dispute required Lindeyls to remove the encroachments from Goodoverls property. The District Court did not err in granting the supplemental relief. Affirmed.

We Concur: