NO. 89-303 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

JOHN DUNCAN, 

Plaintiff and Appellant, 

-vsCITY OF MISSOULA, 

Defendant and Respondent. 

, , 

APPEAL FROM: ~istrict Court of the Fourth ~udicial District, ' 

In and for the County of Missoula, c ,- - -- The Honorable Ed McLean, Judge presiding. ' 

COUNSEL OF RECORD: 

For Appellant: 

Arthur D. ~gnellino; Due Process Legal clinic, is sou la, 

Montana 

For Respondent: 

Jim Nugent, City Attorney, 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 

of Missoula to prevent the planting 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 of his building at 227-235 West 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 sidewalks were repaired. 

Duncan expressed opposition to the planting at a City 

Council Public Works Committee meeting on April 26, 1988. 

Duncan's impression from that meeting was that no trees would 

be planted at Duncan'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. Duncan was informed of the decision, and 

he proceeded to file a motion 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 order 
and to dismiss the proceeding. On December 2, 1988, the 

order was dissolved and the proceedings dismissed. 

On December 15, 1988, Duncan filed a complaint in the 

~istrict Court 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 ~istrict Court 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 

lacks merit. ~ain Street here is a dedicated public 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: 
Ip I 

~h/ieF Justice