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 : tjuf 1 $ 

,jf -: ; , Filed: 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal by defendants Lipinski from a judgment 

of the district court, Flathead County, for plaintiffs 0'~eil 

granting specific performance of an agreement to repair an 

irrigation dam and to replace certain pipe. 

Lipinski presents three issues on appeal: 

I. bfiether specific performance of a contract should be 

granted where 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 at law? 

3. Whether specific performance is an adequate remedy to 

compel performance of a construction contract? 

Plaintiff 0 'Neil owns agricultural land in Flathead County 

irrigated by 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 is diverted 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 OINeil access to 

the dam and alleged O'Neil did not own either the water right 

or the ditch right. O'Neil filed suit in 1968 against Lipinski 

seeking to establish his water 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 all parties and a judgment entered. 

At the same time, June 16, 1969, the memorandum agreement involved 

in the instant case was entered into between the parties. 
That agreement, among other things, settled O'Neil's 

claim for damages against Lipinski and set up the method and 

manner of repairing the dam and the distribution lines. It 

provided OfNeil was to see and approve the plans and specifications, and the project was to be completed by December 10, 

1969. On November 21, 1969, Lipinski discharged his counsel 

and obtained new counsel who advised O'Neil that Lipinski refused 

to comply with the agreement. 

The court found according to the agreement that (1) Lipinski 

desired to have all of the pipeline underground, (2) Lipinski 

was to have full control and supervision of the repair project, 

subject to O'Neilt s 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 engineer was employed who submitted plans and 

specifications to O'Neil's attorney on 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 the plans by Lipinski's 

engineer and resubmitted to O'Neil who requested nine further 

changes. On November 21, 1969, Lipinski discharged his attorney 

and engineer and terminated the agreement.' 

The court further found the nine changes were all in 

accord with accepted engineering practices, 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 to be substantial 

and unreasonable but the other 7 were reasonable. In addition, 

the court found that had the work been done in 1969, the cost would 

have been approximately $9,000 and at the time of this trial in 
1975, the cost had increased to $19,710.00. The trial court 

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 that judgment. 

During the period from December 1969 to the trial on 

December 26, 1975, certain negotiations took place between 

counsel and on September 20, 1974, by agreement of the parties, 

the court appointed Douglas Daniels as a special master and he 

submitted a report to the court and testified at the 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 

engineer was hired by appellant until August 15; the revised 

plan of appellant's engineer Marquardt was not given to respondent 

until October 15 and that plan was not in accord with accepted 

engineering practices. Respondent's engineer Wiedenman had 

his revised plan before appellant by October 28, but he did 

not respond until November 21 when his new attorney notified 

respondent the agreement would not be performed. We note 

Marquardt testified if his 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 to cease work on November 6. The record speaks for 

itself. If anyone is to be charged with delay, it is appellant 

not respondent. Lipinski at trial on cross-examination revealed 

his real reason when he said: 'I* * * in hindsight 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 at law 

and therefore is not entitled to equitable relief? Appellant 

argues that respondent's legal remedy is of such a character 

as to preclude relief by way of specific performance. In 

support he cites Philbrick v. American Bank and Trust Co., 58 

Mont. 376, 193 P. 59; Jeffries Coal Co. v. Industrial Acc~Board 

126 Mont. 411, 252 P.2d 1046, but these cases are not 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, as noted in 71 Am.Jur.2dY Specific Performance 59: 

"* * 2k It is clear, however, that the mere fact that a 

party can avail.himself of some relief at law does not 

preclude or defeat the jurisdiction of equity to decree 

specific performance. * * *" 

Such is the case here where the trial court found respondent 

had no plain, speedy or adequate remedy at law. This is the 

second law suit over the water and ditch rights and some 8 

years have passed to the detriment of respondent. The-court 

here :was "eonfronted with a multiplicity of suits, the fact situation is unique,so the court properly exercised its equitable 

powers. In the settlement agreement of 1969 Lipinski insisted 

on having absolute control and management of the repairs and 

installation because it was on his property. In the years leading 

up to 1969, he had threatened to restrain O'Neil from coming onto 

his property to make repairs and had ordered workmen off the 

property. The trial court granted his demands in the 1969 

agreement and in its efforts to avoid continued litigation the 

court had authority to grant the equitable relief here. We find 

no error. 
Issue 3. The final issue questions whether specific 

performance is an available remedy to enforce a construction 

contract. To support his position appellant cites Lubin 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 are not on point and 

can be distinguished. Lubin is a 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 this was not the controlling issue in the case. 

Here, the court did not 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 in the alternative, if he 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 to Lipinski's position, the court could have ordered 

full and 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 in Jones v. Parker, 163 Mass. 564, 40 

N.E. 1044,1045, where Mr. Justice Holmes stated: 

"There is no universal rule that courts of equity 

never will enforce a contract which requires some 

building to be done. They have enforced such contracts from the earliest days to the present time." 

That;view was adopted in a more recent case, Grayson-Robinson 

Stores, Inc. v. Iris Const. Corp., 8 N.Y.2d 133, 202 N.Y.Supp.2d 

303, 168 N.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 to which 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 decree would require 

such constant superintendence as to make judicial 

control a matter of extreme difficulty'. Standard 

Fashion Co. v. Siegel-Cooper Co., 157 N.Y. 60,66, 

51 N.E. 408,409, 43 L.R.A. 854. In some instances 

courts of equity in other States have for some such 

reasons refused to order specific performance of 

building contracts. [Citing cases] Other courts of 

equity have gone the other way (see Jones v. Parker, 

163 Mass. 564, 40 N.E. 1044, which also was a contract 

to build for a lessee). 'There is no universal rule 

that courts of equity never will enforce a contract 

which requires some building to be done. They have 

enforced such contracts from the earliest days to the 

present time' (Jones v. Parker, supra, 163 Mass. at 

page 567, 40 N.E. at page 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 is toward specific performance (5 Corbin, Contracts 

[I951 ed.], 5 1172; 5 Williston, Contracts [rev.ed.], 

p. 3977; Restatement, Contracts, 5 371, comment a). 

Clearly there is no binding rule that deprives equity 

of jurisdiction to order specific performance of a 

building contract. At most there is discretion in the 

court to refuse such a decree. And here we do not 

even have an equity suit but a motion made as of right 

to confirm a completely valid arbitration award conforming in all respects to the express conferral of 

authority on the arbitrators and meeting all statutory 

requirements for confirmation * * *.I1 

While not raised as an issue on appeal the splitting of the 

costs over $9,000 was clearly error in view of the record and 

must be reversed. The trial court in its conclusion of law No. 7 

found Lipinski should pay the first $9,000 and that thereafter the, 

two parties would share all expenses over and above that figure. 

We find the court erred in this holding and direct all costs be 

paid by appellant in the construction and installation of the 

irrigation system as proposed by the Marquardt 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 trial court. To hold ~othenrcSiee would be to penalize respon- 
dent O'Neil who did what he could to get 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 trial court is affirmed and the cause 

remanded to the trial court with directions to correct its 

conclusion of law No. 7 in accordance with this opinion. 

I 

We Concur: 

Chief Justice