NO. 94-591

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

CHARLES S. ("CHUCK")

JR., and PATRICIA S.

husband and wife,

BRAGG,

BRAGG,

Plaintiffs and Respondents,

v.

WILLIAM D. MCLAUGHLIN and

SONJA INDRELAND MCLAUGHLIN,

husband and wife,

Defendants and Appellants.

APPEAL FROM: District Court of the Sixth Judicial District,

In and for the County of Park,

The Honorable Byron L. Robb, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William D. McLaughlin and Sonja Indreland

McLaughlin, Pro Se, Wilsall, Montana

For Respondent:

Jeffrey N. Pence, Huppert & Swindlehurst, P.C.,

Livingston, Montana

Submitted on Briefs: August 17, 1995

Decided: September 7, 1995

Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.

William D. and Sonja Indreland McLaughlin appeal from a

preliminary injunction issued by the Sixth Judicial District Court,

Park County. We affirm.

The McLaughlins argue that: (1) the plaintiffs Bragg neither

pled nor proved vested title to or prescriptive rights over the

property, and the court consequently erred in ordering the

McLaughlins to let trespassers in; (2) the status quo was wrongfully altered and the injunction order wrongly transferred property

rights; (3) findings 5, 8, 10, and 12 and therefore conclusions A,

c, D, and E are clearly erroneous; and (4) the court acted

arbitrarily.

The parties own adjoining property in Park County, Montana.

Charles S. ("Chuck") Bragg, Jr., and Patricia S. Bragg maintain

that they have a reserved easement for access to their property

across the land owned by the McLaughlins. The McLaughlins deny the

existence of a reserved easement and have interfered with the

Braggs' access to their land over the McLaughlin property.

The Braggs brought the underlying action in four counts:

interference with easement, quiet title, slander of title, and

interference with contract. At issue is the effect of the

following "special provision," which appeared in the warranty deed

by which the McLaughlins purchased their property:

"Grantees agree to provide an access (roadway) easement

for the benefit of the property being acquired by Chuck

Bragg, his heirs and assigns, over the most direct route,

reasonable and possible for access purposes, which

easement shall not be more than fifteen (15) feet in

width. Grantees may, at their option, designate Bragg's

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said easement to coincide with the roadway to be constructed by the Grantees, when such roadway is completed."

The Braggs moved for a preliminary injunction during the pendency

of their case. After a two-day hearing, the court granted the

preliminary injunction, restraining the McLaughlins from interfering with the Braggs' right of access to their property.

The District Court determined that the Braggs were entitled to

injunctive relief under 5 27-19-201(l) and (21, MCA. Those

subsections provide that a preliminary injunction may be granted:

(1) when it shall appear that the applicant is entitled

to the relief demanded and such relief or any part

thereof consists in restraining the commission or

continuance of the act complained of, either for a

limited period or perpetually;

(2) when it shall appear that the commission or continuance of some act during the litigation would produce a

great or irreparable injury to the applicant.

Our overall standard of review is that this Court will not disturb

a district court's grant of a preliminary injunction except in

cases of manifest abuse of discretion. Porter v. K & S Partnership

(1981), 192 Mont. 175, 181, 627 P.2d 836, 839.

The District Court did not determine, and we do not determine,

the matters alleged in the McLaughlins' first and second arguments.

By its terms, the preliminary injunction will be in effect only

until the underlying action is resolved on its merits. The

injunction does not by its terms transfer any property rights. A

preliminary injunction does not require proof or determination of

the final merits of the case. See Porter, 627 P.2d at 840.

This Court will reverse findings of fact when substantial

evidence does not support the findings, when the district court has

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misapprehended the effect of the evidence, or when a review of the

record leaves us with the definite and firm conviction that a

mistake has been committed. Interstate Production Credit v. DeSaye

(1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. The findings

challenged by the McLaughlins are:

5 . The particular terminology of the special provision

was at the request of defendant Sonja McLaughlin, an

attorney purportedly licensed to practice in the State of

Washington. Ms. McLaughlin testified that the language

of the special provision was taken verbatim from the BuySell Agreement between Clarks and McLaughlins for the

purchase of the subject property, which Buy-Sell Agreement preceded the deeds to both plaintiffs and defendants. Mr. Clark testified that it was his intention to

reserve an easement for access to Tract C-2 by this

special provision when he conveyed the subject property

to McLaughlins, and that McLaughlins were aware of his

intentions. Consequently, defendants had notice of the

provision.

8 . The roadway described above abuts an access road

which traverses property currently owned by Leland E.

Cook, situated in section 18, township 3 north, range 10

east, P.M.M., Park County, Montana. This road across the

Cook property provides access to a county road via a 60-

foot road easement reserved on certificate of survey No.

173 for all of the S'x of section 17, township 3 north,

range 10 east, P.M.M., Park County, Montana.

10. Defendants have refused access over the established

road across their property to Braggs to Tract C-2, and

placed locks on the gates across the access road without

providing keys to plaintiffs. Defendants have also

placed vehicles in the roadway, effectively blocking

access over the road. In addition, defendants have

represented to agents of sales associates of EPA Paradise

Properties of Livingston that no access exists for Tract

c-2. Plaintiffs have a current listing agreement with

EPA Paradise Properties of Livingston for the sale of

Tract C-2, and defendants have interfered with sale of

Braggs' property by threatening and intimidating the real

estate agents.

12. The court finds the testimony of plaintiffs and

their witnesses more credible than that of defendants and

that Braggs are more likely to prevail at a trial on the

merits of the action.

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The record contains substantial credible evidence to support each

of the above findings. It does not appear that the court misapprehended the evidence nor are we left with a definite and firm

conviction that a mistake has been committed. We therefore affirm

the above findings of fact. Because the McLaughlins' arguments

against the above-mentioned conclusions of law were based on their

arguments that the above findings were erroneous, we need not

address the conclusions further.

Finally, the McLaughlins' fourth claim, of arbitrariness, is

based upon their opinion that the District Court was prejudiced

against them. We have reviewed the record. Our review of the

record does not support this claim.

No manifest abuse of discretion has been shown on the part of

the District Court. The decision of that court is therefore

affirmed.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to State Reporter Publishing Company and West Publishing Company.

Chief Justice

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September 7, 1995.

CERTIFICATE? OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

William D. McLaughlin

Sonja Indreland McLaughlin

214 Horse Creek Road North

Wilsall, MT 59086

Jeffrey N. Pence

HUPPERT & SWINDLEHURST, P.C.

P.O. Box 523

Livingston, MT 59047

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA

BV: &-&ti

Deputy