No. 80-161 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

W. D. MARTIN, a/k/a DON MARTIN 

and ANN MARTIN, his wife, 

Plaintiffs and Respondents, 

GENE RANDONO, CAROL RANDONO, 

his wife and GREAT FALLS FOREST 

PRODUCTS INC. , a lft. corp. 

Defendants and Appellants. 

Appeal from: District Court of the First Judicial District, 

In and for the County of Lewis and Clark. 

Honorable Gordon Bennett, Judge presiding. 

Counsel of Record: 

For Appellants: 

Joseph C. Engel, Butte, Montana 

For Respondents: 

C.F. Mackay, Anaconda, Montana 

Submitted on briefs: January 8, 1981 

Decided: February 17, 1981 

Filed: FEfi 17 156): 

Clerk 
Mr. Justice Frank B. Morrison delivered the Opinion of the 

Court . 

This is an appeal from a judgment of the District Court, 

Lewis & Clark County, decreeing: (1) that no damages be 

awarded defendants for lost rents from premises that were the 

subject of this action; (2) that no damages be awarded defendants for loss of sale of such premises; (3) that defendants not be awarded attorney fees as the prevailing party 

in this action; (4) that W. A. Randono not be compensated for 

time personally spent in recovering the property. Defendants 

were awarded costs totaling $1,524.57 and neither party appeals that part of the judgment. 

The cause was previously before this Court. Martin v. 

Randono (1978), 175 Mont. 321, 573 P.2d 1156, contains a 

detailed discussion of the facts. 

In 1972, the plaintiffs filed an action to quiet title 

on a twenty-two acre tract of land located seven miles east 

of Lincoln, Montana. Title was claimed through adverse 

possession. Defendants, the Randonos and Great Falls Forest 

Products, Inc., (a Randono family owned corporation) counterclaimed contending ownership and sought damages for wrongful 

occupation of property. 

In 1975, the District Court decreed the plaintiffs had 

established title to the tract of land by adverse possession. 

On appeal, Martin v. Randono, supra, this judgment was reversed and remanded for determination of damages on defendants' counterclaim. 

The District Court ordered an evidentiary hearing to 

establish the amount of damages resulting from plaintiffs' 

wrongful occupation. Hearings were held on March 9 and 12, 

1979, and on June 26, 1979. 
After receiving all evidence, the District Court entered 

its judgment from which the defendants appeal. 

The following issues are presented on appeal: 

1. Did the District Court err in not awarding damages 

to defendants for lost rents? 

2. Did the District Court err in not awarding damages 

to defendants for loss of sale? 

3. Did the District Court err in not awarding defendants attorney fees? 

4. Did the District Court err in not awarding W. A. 

Randono damages for time expended as costs of recovering the 

property. 

Plaintiffs conceded liability for damages, if any, for 

wrongful occupation, if their claim of adverse possession was 

not upheld. Since adverse possession was held not to lie, 

Martin v. Randono, supra, plaintiffs became liable for any 

damages proven by defendants. 

Defendants' measure of damage is governed by section 27- 

-1-318, MCA, which states: 

"Wrongful occupation of real property. The detriment caused by the wrongful occupation of real 

property . . . is deemed to be the value of the use 

of the property for the time of such occupation, 

not exceeding five years next preceding the commencement of the action or proceeding to enforce 

the right to damages, and the costs, if any, of 

recovering the possession." 

Defendants claimed for lost rental value. The property 

produced no income during the period in question. In an 

attempt to prove damage, W. A. Randono, testifying on behalf 

of the defendants, gave varying estimates of the rental value. 

In interrogatory answers dated 1975, the lost rental value was 

placed at $1,500 per year; in answers to interrogatories submitted in 1979, the rental value was claimed to be $3,000 per 

month, plus $50 to $100 a month for some cabins; at the time of 
trial, Randono gave estimates ranging from $4,000 per year to 

$10,000 per year. One could only speculate about what damage, 

if any, was suffered. In Cruse v. Clawson (1960), 137 Mont. 

439, 352 P.2d 989, this Court stated: " . . . a. person may - 

recover --- for loss of profits where -- it is shown --- that such loss 

- is the natural and direct result of the act of the defendant 

complained of and that such amount - is certain -- and not speculative. " (Emphasis added. ) 

Defendants contend that proof of damages must be speculative to a degree in this case and that, therefore, the owner 

must be able to establish value. In support, defendants cite 

Pritchard Petroleum Co. v. Farmers Co-op Oil & Sup. Co. (1948), 

121 Mont. 1, 190 P.2d 55, for the proposition that the owner's 

opinion of rental value is controlling. However, Pritchard is 

distinguishable because the court determined only that an 

owner's testimony of the value of the use of property was sufficient to preclude nonsuit by the opposing party. It should 

also be noted that in Pritchard the owner set forth only one 

estimate of the value of the rental, not four, as did W. A. 

Randono in the instant case. The burden of preponderance is 

not necessarily satisfied by offering some admissible evidence. 

Credibility is a necessary ingredient of probative proof. We 

cannot say the trial court was clearly erroneous in finding 

defendants failed to carry their burden. 

Defendants claim they lost a sale of the land as a result 

of plaintiffs' wrongful occupation. W. A. Randono testified 

that a "firm commitment" had been reached between himself and 

a prospective purchaser, regarding a sale of the property but 

the sale failed because of plaintiffs' claim of ownership. 

Randono later testified, however, that they were only "negotiating the deal." The prospective buyer testified that he 
not sure whether the "deal" was to cover ten or twenty acres. 

Some testimony showed Randono and the potential buyer were considering a purchase at $2,000 per acre. However, other testimony showed the land to be worth less than $500 per acre at 

the time negotiations were being conducted. Defendants admitted 

at the evidentiary hearing that the entire twenty-two acre 

tract, which was the subject of this dispute, was later sold 

by defendants to a different buyer for $1,505 per acre. 

Given the evidence presented, defendants failed to prove 

that a sale was lost as the result of wrongful occupation. Had 

a sale been lost, evidence exists to support a finding that 

defendants failed to prove damage. 

We turn now to defendants' claim for attorney fees. The 

general rule is that in absence of statute or contract, attorney 

fees will not be awarded. Bitney v. School Dist. No. 44 (1975), 

167 Mont. 129, 535 P.2d 1273; Nikles v. Barnes (1969), 153 

Mont. 113, 454 P.2d 608. 

Defendants contend that attorney fees should be construed as ". . . costs, if any, of recovering the possession 

[of real property]," pursuant to section 27-1-318, MCA, or 

in the alternative such fees should be awarded pursuant to the 

equitable principle espoused in Foy v. Anderson (1978), 176 

Mont. 507, 580 P.2d 114. We decline to follow either contention in this case. 

The rule is well established in Montana. The statutory 

term "costs" does not include attorney fees. Higgins v. 

Montana Hotel Corp. (1979) , Mont. , 592 P.2d 930, 36 

St.Rep. 531. 

The court's equity power to award attorney fees was discussed in Joseph RusselL Rlty. co. v. Kenneally (1980), 

Mont. , 605 P.2d 1107:, 37 St.Rep. 57. This Court recog- 
nized the lower court'sgeneral equity power to make an injured I 

party whole and that in1some isolated cases, attorney fees 

could properly come within that power. However, the court 

determined that such anlaward was within the lower court's 

discretion (citing Foy V. Anderson, supra) and that absent an 

abuse of discretion, thb lower court's determination would 

stand. 

As in Russell -, Rlty. Co., supra, this Court finds no 

abuse of discretion by the lower court in not awarding attorney 

fees to the defendants. 

Finally, defendants contend that W. A. Randono should be 

compensated for the time he spent in recovering the property 

including time spent in preparing for trial. Defendants rely 

on section 27-1-317, MCA, and section 27-1-320(1), MCA. Defendants' reliance upon these provisions is misplaced. Section 27-1-317, MCA, provides a measure of damages only where 

damages are not expressly provided for elsewhere in the code. 

Section 27-1-318, MCA, governs measure of damages in instances 

of wrongful occupation apd therefore, section 27-1-317, MCA, is 

not applicable. Section 27-1-320(1), MCA, is applicable only 

to conversions of personal property, which is inapplicable to 

the case at bar. 

The personal time invested by W. A. Randono is not a 

"cost" as required by section 27-1-318, MCA, and therefore, 

not recoverable. 

The judgment of the District Court is affirmed. 
We concur: 

Chief Justice