No. 86-122 

IN THE SrJPREME COURT OF THE STATE OF MONTANA 

1986 

LARRY BRANSTETTER and GERAIIDINE 

BRANSTETTER, 

Plaintiffs and Respondents, 

and 

BEAUMONT GREENS, INC., a Montana 

corporation, 

Defendant and Respondent, 

BEAUMONT SUPPER CLUB, INC., 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph B. Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard C. Conover, Bozeman, Montana 

For Respondent: 

Scully, Lilly & Andriolo; ZJichael J. Lilly, 

Rozeman, Montana 

Lyman H. Rennett, 111, Bozeman, Montana 

Submitted on Briefs: August 21, 1986 

Decided: November 6, 1986 

Filed: NOV 6 - 1986 

49 a?? u 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

This is an appeal from a judgment entered by the 

District Court of the Eighteenth Judicial District, Gallatin 

County denying damages to Beaumont Supper Club, Inc. In this 

Opinion we will refer to Beaumont Supper Club, Inc., as 

Supper Club; to Beaumont Greens, Inc., as Developer; and to 

Larry and Geraldine Branstetter, as Branstetters. 

We affirm. 

Appellant Supper Club raises five issues on appeal. 

1. Did the District Court err in finding that the 

respondents/plaintiffs, Branstetters, did not trespass on the 

real property lawfully being used and owned by 

appellant/defendant, Supper Club? 

2. Did the District Court err in denying the appellant 

Supper Club's motion filed prior to trial to dismiss the 

cross-claim of the respondent/defendant Developer? 

3. Did the District Court err in failing to grant 

appellant/defendant Supper Club's motion for attorney's fees 

requested pursuant to Rule 11 of the Montana Rules of Civil 

Procedure? 

4. Did the District Court abuse its discretion by 

finding that the appellant/defendant Supper Club had been 

damaged in the total amount of $1,825.00 rather than the 

$6,785.00 it claimed? 

5. Did the District Court err in failing to permit 

Supper Club to recover its damages as ascertained by the 

District Court? 

In January, 1984, Branstetters were excavating on their 

newly-purchased lot in preparation for building a triplex. 
The excavating contractor severed a sewer septic tank drain 

line which ran under the property and into a drain field. 

Branstetters discovered the sewer drain line belonged to 

Supper Club, which was located nearby. Branstetters 

contacted the owner of the Supper Club who promised to see 

that the septic tank was pumped to eliminate further 

problems. Branstetters consulted with the city building 

inspector and the county sanitation engineer and were told 

that to avoid possible health hazards, they should plug the 

drain line, and remove the contaminated soil and replace it 

with gravel or other material. Branstetters did so. 

Meanwhile, Supper Club was forced to have their septic tank 

pumped until they were able to connect to the city sewer 

system. 

Originally, all the land near Branstetters and Supper 

Club had belonged to Frank Valgenti, Donald Bianchi, Richard 

Embry and William Boyer who sold one parcel to Supper Club 

and another parcel to Developer who sold a lot to the 

Branstetters. However, the warranty deed given to 

Branstetters by Developer showed no easement for the sewer 

line and drain system that ran under Branstetters' land. 

In May, 1984, Branstetters brought suit for the damages 

they incurred. They sued Developer for breach of warranty of 

quiet enjoyment pursuant to the deed. They also claimed 

against Supper Club for trespass caused by construction of a 

septic system without their consent. 

Developer answered and cross-claimed against Supper Club 

for indemnity and/or contribution. Supper Club moved to 

dismiss the cross-claim but that motion was denied. Supper 

Club answered and also cross-claimed against Developer for 

indemnity. In addition, Supper Club counterclaimed against 
Branstetters in trespass for plugging the sewer line. After 

hearing on issues, at which Developer admitted negligence to 

the Branstetters for failing to discover the existence of the 

drain field, the District Court entered its findings of fact 

and conclusions of law. 

The District Court found that because Developer admitted 

liability to Branstetters, the proper level of damages was 

$4,100. The District Court also found that because Developer 

admitted negligence, it owed Supper Club $1,825. The Court 

arrived at this figure by finding that the expenses incurred 

by Supper Club in connecting the sewer system ($6,200) would 

have been necessary in a year or two in any case. Therefore, 

the District Court awarded interest of 10% on the $6,200 for 

two years in the sum of $1,240. In addition, the court 

awarded the cost of pumping the septic tank ($585) for a 

total of $1,825. The court also found that Supper Club was 

not guilty of trespassing on Branstetters' land, and that 

Supper Club was not jointly and severally liable with 

Developer to the Branstetters. 

After a series of motions, the District Court entered an 

order striking the damages awarded to Supper Club against 

Developer because Supper Club had not, at any time, 

cross-claimed in negligence against Developer. Judgment was 

entered in favor of Branstetters and against Developer for 

$4,100. Supper Club filed another motion to amend. The 

District Court entered another order finding that 

Branstetters had not trespassed against Supper Club in 

digging up or plugging the drain field. 

The first issue that Supper Club raises on appeal is 

whether the District Court erred in finding that the 

Branstetters did not trespass on the septic system owned and 
used by the Supper Club. The District Court found that 

trespass involves an intentional intrusion upon the land of 

another. The court stated that Branstetters were rightfully 

excavating the ground they owned pursuant to a warranty deed. 

Since they had no notice of the drain line, the court held 

they were innocent of the charge of trespass. 

The elements of the tort of trespass to real property 

are set out in Restatement (Second) of Torts S 158 (1965) as 

follows: 

158. Liability for Intentional Intrusions - on 

Land. 

One is subject to liability to another for 

trespass, irrespective of whether he thereby causes 

harm to any legally protected interest of the 

other, if he intentionally (a) enters land in 

possession of the other, or causes a thing or third 

person to do so, or (b) remains on the land, 

or (c) fails to remove from the land a thing 

which he is under a duty to remove. 

Intent is defined in Restatement (Second) of Torts S 8A 

(1965) as: 

The word "intent" is used throughout the 

Restatement of this Subject to denote that the 

actor desires to cause consequences [sic] of his 

act, or that he believes that the consequences are 

substantially certain to result from it. 

The District Court found, and we agree, that no 

intentional intrusion upon the land of another has been shown 

in this case. Supper Club argues that even if the initial 

severing of the drain line was unintentional, the later 

plugging of the line and destruction of the drain field by 

removal of the contaminated soil was intentional. Appellant 

relies on the Mountain States Telephone and Telegraph Company 

v. Kelton (Ariz. 1955), 285 P.2d 168 to argue the owners of 

the land should be held liable in trespass. Initially we 

note that Mountain States proceeded under a negligence 

theory, not on a trespass theory. In fact, the court states 
that the contractor could not be held liable under a trespass 

theory for having dug up plaintiff's telephone lines because 

there was no proof of an intentional act. The contractor did 

not know of the line's existence, nor was he charged with 

knowledge for the purpose of determining intent. The owners 

were liable under a negligence theory because they had actual 

notice of a right of away for plaintiff's telephone lines but 

failed to tell the contractor. 

If Mountain States has any application to the case at 

hand it shows that there could be no trespass when there was 

no knowledge or notice of the drain line. Branstetters' 

actions in plugging the drain line and removing the 

contaminated soil from the drain field were required in order 

for them to mitigate their damages and prevent a possible 

health hazard. The District Court was correct in finding 

that Branstetters did not trespass against anyone. 

Next, Supper Club contends the District Court erred in 

denying its motion to dismiss Developer's cross-claim. At 

the same time they filed their answer, Developer filed a 

cross-claim against Supper Club for both indemnity and 

contribution. Supper Club contends this cross-claim should 

have been dismissed by the District Court, pursuant to their 

motion. 

Rule 1, M. R.App.Civ. P. provides: " [a] party aggrieved 

may appeal from a judgment or order . . . " A party is 

aggrieved when it has a "direct, immediate and substantial 

interest in the subject which would be prejudiced by the 

judgment or benefitted by its reversal." Montana Power Co. 

v. Montana Department of Public Service Regulation (Mont. 

1985), 709 P.2d 995, 1001, 42 St.Rep. 1750, 1757. 

Con17ersel.y~ a party who is not aggrieved by a judgment may 
not appeal from it. Carbon County v. Schwend (1979), 182 

Mont. 89, 98, 594 P.2d 1121, 1126; In Re Stoian's Estate 

(1960), 138 Mont. 384, 393, 357 P.2d 41, 46. In this case, 

the District Court held that Supper Club was not jointly and 

severally liable with Developer to the Branstetters. The 

District Court held in favor of appellants on this issue thus 

they are not aggrieved parties within the meaning of Rule 1, 

M.R.App.Civ.P. and are not entitled to appeal. 

The third issue raised by appellants is whether the 

District Court erred in failing to grant them attorney's fees 

pursuant to Rule 11, M.R.Civ.P. Appellant alleges that the 

action against it by the Branstetters and by Developer was 

frivolous and it should be awarded attorney's fees pursuant 

to Foy v. Anderson (1978), 176 Mont. 507, 580 P.2d 114. In 

-1 we awarded attorney's fees to a litigant who was forced 

into a lawsuit despite the fact that she had asserted no 

claim against the plaintiff and had no intention of doing so. 

In the case at hand, the appellant defended itself at the 

District Court level, cross-claimed against Developer, and 

now appeals that it should have been awarded damages and yet 

at the same time maintains this is a frivolous lawsuit. The 

cause of action in question is not frivolous, it is the 

subject of a genuine controversy. 

The fourth issue raised by appellants is whether the 

District Court abused its discretion by finding that the 

Supper Club had been damaged in the amount of $1,825. We 

decline to address this issue since it is rendered moot by 

the fact that the District Court ultimately did not award 

appellants any damages since none were claimed. - See Montana 

Power Company v. Charter (1976), 173 Mont. 429, 568 P.2d 118; 
State ex rel. Adams v. District Court (1970), 155 Mont. 309, 

The last argument raised by appellants is that the 

District Court erred in failing to permit appellant to 

recover its damages. Appellant contends they should at least 

be able to recover $1,825 from Branstetters for trespass. We 

have already held the District Court did not err in refusing 

to find a trespass. The District Court disallowed the 

damages it awarded against Developer since the appellants did 

not plead or prove an action against Developer. The attorney 

for the Supper Club was well. aware that he had not plead 

against Developer: 

THE COURT: That was one of the rules of the Court 

that you hadn't plead Mr. Conover against 

[Developer]. You just plead against Branstetter. 

MR. CONOVER: There was no claim against 

[Developer] . [Developer] had no title which they 

could convey to the Plaintiffs in this matter. 

They gave them a warranty deed, but it's like a 

third party conveying my property which I have no 

knowledge. They did nothing to me. They had no 

property in which they could convey. 

THE COURT: Why didn't you sue them? 

MR. CONOVER: Because there was no damage that was 

caused by their conveying something that they had 

not title to. They are conveying as I said, 

someone conveying my property away from me. They 

cannot convey it. They don't own it to convey it. 

THE COURT: Wasn't that--I don't know if it was a 

compulsive counter-claim or cross-claim or not, but 

I never could figure out why you didn't plead 

against [Developer] . MR CONOVER: This was an actual trespass on the 

Plaintiffs' property. The Plaintiffs were damaged, 

yes, and if the Plaintiffs had to pay us money 

because they trespassed on our property, I think 

there's every reason the Plaintiffs could recover 

that money from the [Developer], but that doesn't 

mean we have been damaged by it. They had no right 

to sell it in the first place. 

THE COURT: Who? 
MR. CONOVER: The [Developer]. They had the title, 

they had already conveyed it to us. 

THE COURT: Why didn't you sue them? 

MR. CONOVER: We sued--we chose to sue the 

Plaintiffs. They trespassed on our property. 

There's no question about it. Your findings find 

that at least, I think, that the findings that you 

entered, support that we owned the equipment 

system, because of the severed drain line by the 

Plaintiffs, the Defendant Supper Club incurred 

pumping expenses of the septic tank. 

THE COURT: I felt that you had a cause of action, 

hut you never pled it against [Developer], and 

that's the reason I ruled like I did. 

The District Court did not err in refusing to allow 

damages against Developer. The judgment of the District 

Court is affirmed. 

/ 

We Concur: