No. 13313 IN TEE SUPREME COURT OF THE STATE OF MONTANA 1977

LAWRENCE E. O'NEIL, CHARLES H. O'NEIL and WYNONA M. O'NEIL, Plaintiffs and Respondents,

JOHN 2. LIPINSKI and ANN LIPINSKI, Defendants and Appellants.

Appeal from: District Court of the Eleventh Judicial District, Honorable Robert C. Sykes, Judge presiding. Counsel of Record: For Appellants: Hash, Jellison and O'Brien, Kalispell,Montana M. Dean Jellison argued, Kalispell,Montana For Respondents: Warden, Walterskirchen and Christiansen, Kalispell,

Montana William C. Walterskirchen argued, Kalispell,

Montana

Submitted: May 4, 1977 Decided:

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ClerkMr. JusticeJohn Conway Harrison delivered the Opinion of the Court. This 

### is an appeal by defendants Lipinski from a judgment of the district court, Flathead County, forplaintiffs0'~eil granting specific performance of an agreement torepair an irrigation dam and to replace certainpipe. Lipinski presents three issues on appeal: 

### I. bfiether specific performance of a contract should be grantedwhere alleged unreasonable delay by plaintiff renders timely performance of this contract impossible and defeats the primary consideration for the contract? 2. Whether plaintiff had an adequate remedy atlaw? 

### 3. Whether specificperformance isan adequate remedy to compel performance of 

### a construction contract? Plaintiff 0'Neil owns agricultural land inFlathead County irrigatedby the waters of Ashley Creek. In addition, he owns
a water right and a ditch right over and across lands purchased by defendant Lipinski. O'Neil's water isdiverted by a concrete dam and concrete pipes over land Lipinski purchased. Following the purchase of the property by Lipinski a dispute

arose between the parties and Lipinski denied OINeilaccess to the dam and alleged O'Neil did not own either the water right

or the ditchright. O'Neil filed suit in 1968 against Lipinski seeking toestablishhiswater right, ditch right and to recover $7,415.05 for damages caused by Lipinski's denial of water and $5,000.00 punative damages. That case was settled on the> day set, for trial. Stipulated findings of facts and conclusions of law were entered and signed by allparties and a judgment entered. Atthe same time, June 16, 1969, the memorandum agreement involved inthe instant casewas entered intobetween the parties.That agreement, among other things, settled O'Neil's claim for damages against Lipinski and setup the method and

manner of repairing the dam and the distribution lines. It provided OfNeilwas to see and approve the plans and specifications, and the project was tobe completed by December 10, 1969. On November 21, 1969, Lipinski discharged his counsel and obtained new counsel who advised O'Neil thatLipinski refused to comply with the agreement. The court found according to the agreement that (1) Lipinski desired tohave allof the pipeline underground, (2) Lipinski

was tohave fullcontrol and supervision of the repair project, subject toO'Neilts approval of the plans and specifications, (3) on June 16, 1969 LZpinski employed an engineering firm to draw up such plans but the firm failed to do so, 

### (4) on August 15, 1969 another engineerwas employed who submitted plans and specifications toO'Neil's attorneyon August 26, 1969, 

### (5) these

were submitted to O'Neilts engineer on or about September 19, 1969, and after a conference certain changes were proposed, and 

### (6) that these changes were incorporated into theplans by Lipinski's engineer and resubmitted toO'Neil who requested nine further changes. On November 21, 1969, Lipinski discharged his attorney and engineer and terminated the agreement.' The court further found thenine changes were allin accord with accepted engineeringpractices, save and except the requiring of a lowering of the intake entry 12 inches below the spillway slab and the requirement of 12 rather than 6 inches of fill. These latter two requirements were found tobe substantial and unreasonable but the other 

### 7 were reasonable. In addition, the court found thathad thework been done in 1969, the cost would have been approximately $9,000 and atthe time of this trial in1975, the cost had increased to $19,710.00. The trialcourt found a breach of the agreement by Lipinski and ordered the repairs be made, excepting the two above referred to exceptions by December 

### 1, 1976. Lipinski appeals from thatjudgment. During the period from December 1969 to the trialon December 26, 1975, certainnegotiations took place between counsel and on September 20, 1974, by agreement of theparties, the court appointed Douglas Daniels as a specialmaster and he submitted a report to the court and testified atthe trial. Issue 1. We note appellant argues that he was excused from performing because delays by respondent prevented work completion by December 10, 1969. We find no merit to this argument. The settlement agreement was signed on June 16, no engineerwas hired by appellant untilAugust 15; the revised plan of appellant's engineer Marquardt was not given to respondent untilOctober 15 and that plan was not inaccord with accepted engineering practices. Respondent's engineerWiedenman had his revised plan before appellant by October 28, but he did not respond untilNovember 21when hisnew attorneynotified respondent the agreement would not be performed. We note Marquardt testified ifhis Plan B, dated October 15, had been immediately approved he could not have met the December 10 deadline. Obviously, the recommended changes of Wiedenman would have extended that date. Marquardt was notified by appellant toceasework on November 6. The record speaks for itself. If anyone is tobe charged with delay, it 

### is appellant not respondent. Lipinski attrialon cross-examination revealed his real reason when he said: 'I* 

# ** inhindsight that was a poor decision because I wouldn't do it today, make that agreement

# * Jc Jc."Issue 2. Did respondent have an adequate remedy atlaw and therefore 

### is not entitled to equitable relief? Appellant argues that respondent's legal remedy 

### is of such a character

as topreclude relief by way of specific performance. In support he citesPhilbrick v. American Bank and Trust Co., 58 Mont. 376, 193P. 59; Jeffries Coal Co. v. IndustrialAcc~Board 126 Mont. 411, 252 P.2d 1046, but these cases arenot applicable factually. He argues he wrote respondent a letter authorizing the him to proceed with the work and thatthe costs of doing/work would be the same if one or the other did it. However, asnoted in

### 71Am.Jur.2dY SpecificPerformance 59: 

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# * 2k It isclear, however, that the mere fact that a party can avail.himself of some relief atlaw does not preclude or defeat thejurisdiction of equity to decree specific performance. 

# ***" Such 

### is the case here where the trialcourt found respondent had no plain, speedy or adequate remedy atlaw. This 

### is the second law suit over the water and ditch rights and some 

### 8 years have passed tothe detriment of respondent. The-court here:was"eonfrontedwith a multiplicity of suits, the fact situation 

### isunique,so the court properly exercised 

### its equitable powers. In the settlement agreement of 1969Lipinski insisted

on having absolute control and management of the repairs and installationbecause itwas on his property. Inthe years leading up to 1969, he had threatened to restrain O'Neil from coming onto hisproperty to make repairs and had ordered workmen off the property. The trialcourt granted his demands in the 1969 agreement and in its efforts to avoid continued litigation the court had authorityto grant the equitable relief here. We find

no error.Issue 3. The final issue questionswhether specific performance isan available remedy toenforce a construction contract. To support his position appellant citesLubin v. Lubin, 

### 144 C.A.'2d'781, 302 P.2d 49 and Moklofsky v. Moklofsky, 79 C.A.2d 259, 179 P.2d 628. These cases arenot on point and

can be distinguished. Lubin isa property settlement in a divorce action and has nothing to do with a construction contract. Moklofsky deals with an agreement to construct an outside staircase, but thiswas not the controlling issue inthe case. Here, the court didnot grant specific performance nor did the complaint,ask for it. The court ordered Lipinski to repair and replace the dam and pipeline in accord with the plans

or inthe alternative, ifhe failed to do so within a specific time, 0'~eil could do the work under the supervision 6f an engineer appointed by the court and he would have judgment for the costs. Contrary toLipinski's position, the court could have ordered fulland complete specific performance of the construction contract. While there are diverse views on the specific performance of construction contracts, we find and adopt the position taken by the Massachusetts Court inJones v. Parker, 163Mass. 564, 40 N.E. 1044,1045, where Mr. JusticeHolmes stated: "There isno universal rule that courts of equity never willenforce a contract which requires some building tobe done. They have enforced such contracts from the earliest days to the present time." That;view was adopted ina more recent case, Grayson-Robinson Stores, Inc. v. IrisConst. Corp., 

### 8 N.Y.2d 133, 202 N.Y.Supp.2d 303, 168N.E.2d 377,379. There the court in reviewing the problem of specific performance of construction contracts said:"Tbere is of course, an old tradition or approach according towhich courts have been reluctant to enforce 'Contracts which require the performance of varied and continuous acts, or the exercise of special skill, taste, and judgment' 1 because the execution of the decreewould require such constant superintendence as tomake judicial control a matter of extreme difficulty'. Standard Fashion Co. v. Siegel-Cooper Co., 157 N.Y. 60,66, 51N.E. 408,409, 43 L.R.A. 854. In some instances courts of equity inother Stateshave for some such reasons refused toorder specificperformance of building contracts. [Citing cases] Other courts of equity have gone the otherway (see Jones v. Parker, 163Mass. 564, 40 N.E. 1044, which alsowas a contract tobuild for a lessee). 'There 

### is no universal rule that courts of equitynever 

### willenforce a contract which requires some building tobe done. They have enforced such contracts from the earliest days to the present time' (Jones v. Parker, supra, 163Mass. at page 567, 40 N.E. atpage 1045). On varying facts our New York decisions take one or the other position. [Citing cases]. Modern writers think that the 'difficulty of enforcement' idea 

### is exaggerated and that the trend istoward specific performance (5 Corbin, Contracts [I951ed.], 

### 5 1172; 5Williston, Contracts [rev.ed.], p. 3977; Restatement, Contracts, 

### 5 371, comment a). Clearly there 

### isno binding rule that deprives equity of jurisdiction to order specific performance of a building contract. Atmost there is discretion in the court to refuse such a decree. And here we do not even have an equity suitbut a motion made as of right to confirm a completely valid arbitration award conforming in allrespects tothe express conferral of authority on the arbitrators and meeting allstatutory requirements for confirmation

# ** *.I1 While not raised as an issue on appeal the splittingof the costs over $9,000 was clearly error inview of the record and must be reversed. The trialcourt in itsconclusion of law No. 7 found Lipinski should pay the first $9,000 and that thereafter the, two parties would share allexpenses over and above that figure. We find the court erred inthisholding and direct allcosts be paid by appellant in the construction and installation of the irrigation system asproposed by theMarquardt plans and specifications, incorporating in same the recommended changes of Wiedenman

as referred to in the findings of fact and conclusions of law of the trialcourt. To hold ~othenrcSieewould be topenalize respon-dent O'Neil who did what he could toget the 1969 agreement carried out in 1969. He has been deprived of the use of his water for over 

### 8 years, due to litigation and obstinance of appellant Lipinski. The judgment of the trialcourt 

### is affirmed and the cause remanded tothe trialcourt with directions to correct 

### its conclusion of law No. 

### 7 in accordance with this opinion.

I

We Concur:

Chief Justice