NO. 89-303 

### IN THE SUPREME COURTOF THE STATE OF MONTANA 1989

JOHN DUNCAN, Plaintiffand Appellant,-vsCITY OF MISSOULA, Defendantand Respondent.

, , APPEAL FROM: ~istrict Court of the Fourth ~udicial District, ' In and for the County ofMissoula, c,- -

### -- The Honorable Ed McLean, Judgepresiding. ' COUNSELOF RECORD: ForAppellant: Arthur D. ~gnellino; Due Process Legal clinic,

### is sou la, Montana For Respondent: JimNugent, CityAttorney,

### iss sou la, Montana

Submitted on Briefs: Aug. 31, 1989 Decided: September 18, 1989 Filed:Mr. Justice John C. Sheehy delivered the Opinion of the Court.

The plaintiff, John Duncan, filed suit against the City ofMissoula to prevent theplanting of trees in the boulevard area of the sidewalk in front of plaintiff's downtown property. Following submission of motions on briefs, the District Court for the Fourth Judicial District, Missoula County, dismissed plaintiff's complaint for failure to state a cause of action. From that judgment, plaintiff appeals. We dismiss the appeal as frivolous. John Duncan owns various properties in the Missoula downtown central business district. When public sidewalks in front ofhis building at 227-235West Main were replaced,two tree we11 openings were left for the planting of two small-leaved honey-locust trees. Similar plantings were made in the downtown area as sidewalkswere repaired. Duncan expressed opposition to the planting at a City Council Public Works Committee meeting on April 26, 1988. Duncan's impression from thatmeeting was that no treeswould be planted atDuncan's location,and Duncan was notified that his wish would be honored. Tenants in Duncan's building and others shortly thereafter submitted a petition to the city requesting that trees be planted, the committee recommended planting to the Missoula City Council, which then approved such planting on September 12, 1988. Duncanwas informed of thedecision,and he proceeded to file amotion for temporary restraining order in the District Court. The temporary restraining order was granted on September 20, 1988. Defendant City of Missoula moved the court to dissolve the temporary restraining orderand to dismiss the proceeding. On December 2, 1988, the order was dissolved and theproceedings dismissed. On December 15, 1988, Duncan filed a complaint in the ~istrictCourt alleging breach of contract, unreasonable interference with property, and arbitrary action. The city moved to dismiss pursuant to Mont. R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. On March 29, 1989, the ~istrictCourt dismissed Duncan's complaint. The ~istrict Court was correct in its dismissal of the
case. Duncan argues that the commitment of the public Works committee was tantamount to an oral contract. No facts bear this out. The committee's statement that no trees would be planted if he objected does not create a contract binding upon the City. Not only are the elements of a contract missing here, but no action of the city council itself created a contract as required by S 7-5-4121,MCA. Duncan's argument that the planting of trees on the walkway is not a reasonable use of the public easement also lacksmerit. ~ain Streethere is a dedicatedpublic way, and the City Council has broad powers to alter and maintain streets and avenues. section 7-14-4101,MCA. As such, the city has the right to maintain and improve the street, including the planting of trees. 

### ina ally, Duncan's contention that the city acted arbitrarily and capriciously must fail. ~ction taken by a City Council,well within its power to act, cannot constitute arbitrary or capricious action. ~ccordingly, this appeal is dismissed as frivolous.

We Concur:

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I ~h/ieF Justice