No. 86-578 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

HUGH W. FRAME and AMERICAN ASPHALT, 

INC., a Montana corporation, 

Plaintiffs and Respondent, 

-VSDAVID E. FRAME and MULLAN PROPERTIES, 

a Montana general partnership, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Garlington, Lohn & Robinson; 'Gary Chumrau & Clay D. 

Creps, Missoula, Montana 

For Respondents: 

Snavely & Phillips; Robert J. Phillips, Missoula, 

Montana 

Submitted on Briefs: April 23, 1987 

Decided: July 21, 1987 ;HIL 2 1 j-$37 

Filed: 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appellants David Frame and Mullan properties appeal an 

order of the Fourth Judicial District Court, Missoula County, 

granting an injunction to respondents Hugh Frame and American 

Asphalt, Inc. pending suit on their action for partition of 

real property owned by Mullan Properties. 

The single issue raised on appeal is whether the 

District Court erred in granting an injunction prohibiting 

termination of respondent's lease pending partition of Mullan 

Properties' real property. 

Plaintiffs/respondents Hugh W. Frame (Hugh) and American 

Asphalt, Inc. are involved in a sand and gravel and asphalt 

paving business in western Montana. Defendant/appellant 

David Frame (David) is a resident of Washington state. 

Defendant/appellant Mullan Properties is a Montana general 

partnership between Hugh and David. David has a two-thirds 

controlling interest in the partnership. 

A brief history of this partnership is necessary. In 

September, 1981, there were three equal partners in Mullan 

Properties: David, Hugh and Arnold Mohl. These three men 

were also the principal shareholders of American Companies, 

Inc., the parent corporation of American Asphalt, Inc., 

American Line Builders and American Excavating. When 

American Asphalt needed a new gravel source in the Missoula 

area, the three men were advised to form a partnership which 

could purchase the real estate and lease it to American 

Asphalt. The resulting partnership was Mullan Properties 

which had, as its purpose, the acquisition of real estate 

that would constitute a long term gravel source for American 

Asphalt. As was intended, the partnership acquired, by 
contract for deed, approximately 100 acres west of Missoula 

for a source of gravel. The property was purchased September 

18, 1981. On September 30, 1981, the property was leased to 

American Asphalt. 

The written lease agreement provided for a term of one 

year from the date of execution and granted American Asphalt 

the option to extend the term of the lease for four periods 

of one year each. American Asphalt exercised its option in 

each of the four succeeding years. The lease, by its terms, 

was to terminate on September 30, 1986. 

In January, 1986, the three principals of American 

Companies decided to split up their operations. As a result 

of this split, David took as his own business American Line 

Builders, Inc., Arnold Mohl took American Excavating and Hugh 

took American Asphalt. There was no action to dissolve the 

Mullan Properties partnership. However, at that time and 

unbeknownst to Hugh, Arnold Mohl agreed to convey Mohl's 

partnership interest to David, giving David a two-thirds 

interest in Mullan Properties. Hugh received no notice of 

this transaction, though it involved amendment of the 

original partnership agreement. Hugh learned of the 

transaction in June 1986 when David's attorney wrote Hugh's 

attorney that there had been a transfer of interest from 

Arnold to David and that David, as owner of a two-thirds 

interest in Mullan Properties, did not intend to renew 

American Asphalt's gravel lease. 

Because American Asphalt depended on the Mullan 

Properties gravel pit, had no other source for gravel and had 

entered roadwork contracts assuming the source would 

continue, American Asphalt and Hugh Frame sued for partition 

of the gravel property and for an injunction preventing 

termination of the lease until partition could be had. The 

District Court issued a preliminary injunction, with 
subsequent modifications, restraining David and Mullan 

Properties from removing Hugh and his business from the 

portion of the gravel property used by Hugh under the terms 

of the lease. The District Court explained that the 

partition action would be ineffective if an injunction was 

not imposed to protect the property for an equitable 

division. It also ruled that Hugh had no adequate remedy at 

law, explaining that the potential for damage to his company 

was incalculable and arguably compensable while David would 

suffer little harm since a condition of the injunction was 

continuation of the lease payments. 

One of the more significant conclusions drawn by the 

District Court was that it need not make a determination of 

ownership of title, as there was no dispute regarding 

ownership. The court explained that the parties conceded 

Hugh owned a one-third interest while David owned a 

two-thirds interest in Mullan Properties. This concession is 

central to the conclusion we draw in this case. 

David argues that an injunction is not available as a 

remedy when litigation involves title to, or possession or 

use of real property. Davis v. Burton (1952), 126 Mont. 137, 

246 P.2d 236. David asserts that the original action brought 

by Hugh was for an injunction and that the District Court. 

tacitly and wrongfully litigated the right to possession of 

the real property under the guise of granting an injunction. 

David argues the law stated in Jeppeson v. State Department 

of State Lands (1983), 667 P.2d 428, 431, 40 St.Rep. 1272, 

1275 applies here: 

Even though an injunction in this case would not 

automatically vest title to the leasehold interest 

in the appellant, it would have the practical 

effect of doing so. And, where the practical 

effect of an injunction is to oust one party from 
possession of a real property interest and vest it 

in another, the remedy is still not available. 

(Citations omitted.) 

David explains that, but for the injunction, the lease term 

would have expired and Hugh would be off the property. 

Therefore, the injunction effectively litigated the right of 

possession of the partnership's property, in violation of "an 

old rule in Montana that title to, or possession of, a real 

estate interest may not be litigated in a suit for 

injunction." - Id. at 430, citing Davis v. Burton, 126 Mont. 

at 139, 246 P.2d at 237. 

We accept David's argument insofar as it applies to 

title for real property. However, title to the real property 

owned by the partnership is not at issue here. As the 

District Court explained, there is no dispute between the 

parties as to ownership. The parties agree that Hugh 

maintains a one-third ownership in the real property and that 

David maintains a two-thirds interest. This concession 

renders inapplicable the rule established in Jeppeson and 

Davis, supra, because those cases involve ousting 

leaseholders from possessory interests where they have no 

right or title. The leaseholder in our case is a partner 

with right to title in the property. 

David's argument focuses all attention on the language 

in the complaint requesting an injunction, though he tacitly 

concedes that the complaint also requested partition. The 

complaint read: 

This is a complaint for partition of real property 

under Chapter 29 of Title 70 of the Montana Codes 

Annotated as well as an action for an injunction, 

both permanent and pending litigation. 

Partition is an equitable action in which the court has 

great flexibility in fashioning appropriate relief for the 

parties. Cumrnings v. Anderson (Wash. App. 1979), 590 P.2d 
1297; Chesmore v. Chesmore (Okla. 1971), 484 ~.2d 516; ~e~ik 

v. Cargill (Okla. 1971), 485 P.2d 229; 68 C.J.S. S 62(b) 

(1950). The fundamental objective in a partition action is 

to divide the property so as to be fair and equitable and 

confer no unfair advantage on any of the cotenants. 

Blonquist v. Frandsen (Utah 19841, 694 P.2d 595. 

An injunction is an equitable remedy. Section 

27-19-101, MCA. Preliminary injunctive relief is proper when 

it appears that "the commission or continuance of some act 

during litigation" will produce irreparable injury to the 

applicant. Section 27-19-201(2), MCA. A court of equity 

may, in a partition proceeding, grant an injunction to 

preserve the property pending the proceeding. Rainey v. H. 

C. Frick Coke Co. (W.D. Penn. 1896), 73 F. 389. 

. . . if mining were allowed the court would be 

confronted by a shifting state of facts and values, 

which, in its confused and confusing nature, could 

afford no stable ground on which to base an 

intelligent, equitable and just decree. 

The prompt use of its plenary powers to prevent 

these mischiefs at the outset of the case, rather 

than to cure them at the close, is a course which 

better commends itself to the sound discretion of a 

court of chancery. By preserving the status in 

quo--one of the most beneficial branches of equity 

jurisdiction--we avoid confusion and all danger of 

injustice, and insure a speedy, plain, and 

practical method of arriving at a proper decree. 

- Id. at 392. 

In addition to the reasons given by the District Court 

to sustain the injunction, it is plain that Hugh as a partner 

has an equal right with David to possess the partnership 

property for partnership purposes. Section 35-10-502, MCA. 

One of the partnership purposes in executing the lease to 

American Asphalt, Inc., was to provide monies sufficient to 
enable the partnership to make payments to the seller of the 

gravel property under the contract for deed. By the 

injunction, the District Court preserved the real property 

for the partnership by ensuring that the underlying contract 

for deed should not be terminated for default in payments. 

The District Court found that Hugh and American Asphalt 

had no adequate remedies at law pending outcome of the action 

for partition. In the court's opinion, an injunction was 

necessary to preserve and protect the status quo. It found 

that money damages would not be sufficient to replenish what 

could be lost if injunctive relief were not granted. The 

District Court also found no evidence of harm to David or 

Mullan Properties in allowing Hugh and American Asphalt to 

maintain continued possession under the terms of the 

then-expiring lease. 

The granting of a preliminary injunction is in the 

discretion of the trial court, and we will not interfere with 

the exercise of this discretion unless manifest abuse is 

shown. Smith v. Ravalli County Board of Health (Mont. 1984), 

679 P.2d 1249, 41 St-Rep. 716. We find no manifest abuse of 

discretion in the District Court's ruling. 

Affirmed. 

We Concur: A 
/ 

Justices