No. 79-38 

IN THE SUIJREP.:E COURL!' OF THE STATE OE' MONTAI\!A 

1980 

Plaintiff and Respondent., 

-vsL & B LODGE PPOE TIMBER PRODUCTS, 

Defendants anci Appellant-s. 

Appeal from: District Court. of the Eighteentk! Julicial District, 

In and fcr the County of Gal-latin, 

The Honora.ble W. W. Less1 ey , Judge presiding. 

Counscl of Recorl: 

Bolinger, Higgins 6 Andes, Bozeman, Montana 

B. A. Polginger ~rgued, Bozeman, MontanE. 

For Respondent : 

Ber~, Morgan, Coil & Stckes, Bclzemar:, Montena 

Gregory 0. Morgan argued, Bozeman, Montana 

Filed: _ilk& ;* t. I%?'J 

-- -4 -- Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Pl aintiff-respondent Madison Fork Ranch (Ranch) filed a 

complaint against defendants alleging a breach of contract in 

timber cutting operations on the Ranch and seeking rescission of 

the contract and an injunction. The District Court found a 

breach of contract and issued a permanent injunction prohibiting 

defendants from cutting any timber on the Ranch, but its 

findings, conclusions and judgment were silent on the issue of 

rescission of the contract. Defendant L & B Lodge Pole Timber 

Products appeals. 

The Ranch is a dude ranch privately owned by a partnership 

of five nonresident individuals and is located near the town of 

West Yellowstone. The Ranch is operated purely for the leisure 

interests of its owners although it does accommodate some guests. 

It is not operated to return a profit. The partnership was 

formed in the early 1970's. At that time a fictitious name certificate was filed which listed the original partners. However, 

since that time, two original partners, Donald Dodge and John 

Tweedy, have purchased the interest of three of the other original partners. No other partnership ownership changes have 

occurred. A new fictitious name certificate was filed prior to 

trial but after commencement of the action. 

The owners and Roland Bronder, the Ranch foreman, became 

concerned about Mountain Pine Beetle infestation of timber on the 

Ranch in early 1978. Bronder was authorized to hire a logger 

at that time. He contacted L & B Lodge Pole Timber Products 

through Robert H. Smith. L & B Lodge Pole Timber Products is 

owned and operated by Robert Smith and Lucille Smith and will be 

referred to as "Smith." The Ranch and Smith entered into an oral 

contract about June 1, 1978, and executed a written contract to 

log the property in August, 1978. Donald Dodge stated that the 

Ranch's purpose in entering into the oral contract was to 

-2- 
reduce the fire hazard as well as preserve the aesthetic and 

future economic value of the property. Dodge also testified that 

the contract was set at $10 per thousand, well below the market 

price, to allow Smith to profitably selective-cut the property. 

The Ranch's purpose in executing the written contract was to 

accommodate Smith in acquiring financing for logging equipment. 

The logging operation commenced in late May, 1978, and 

continued through the summer with Bronder present most of the 

time. Bronder, in supervising the operation, advised Smith 

not to cut stands of fir or aspen and told him to leave other 

specific sections of trees and individual trees for their aesthetic value. Dodge testified that Smith was satisfactorily 

performing the contract by selective-cutti ng prior to the execution of the written contract. 

In July, 1978, Smith discussed with Bronder the purchase 

of a "harvester" to complete the logging operation. A harvester 

is a large machine which is maneuvered through the woods felling 

individual trees and removing the limbs. Smith testified that 

Bronder thought the harvester was a good idea since he was concerned with the scars left by the caterpillar that Smith was 

using, and this problem would supposedly be eliminated by using 

the rubber-tired harvester. Bronder agreed to present the 

contract to the partners if Smith would have it drafted. Mr. 

Smith had his attorney draft the contract and it was signed by 

Smith and Margaret Grand, a partner in the Ranch, on August 1, 

1978. 

The logging operation changed considerably when Smith 

began using the harvester. The result was that many more trees 

were removed or knocked down after the written contract was 

drafted and signed. This effect is attributed to the character 

and size of the harvester. 

The following contract provision is the center of controversy in this case: 

"That the party of the first part agrees to sell 
to the party of the second part all merchantable 

timber on said lands which has been or now is 

infected by the pine beetle, and the party of 

the second part agrees to cut and remove all of 

said merchantable timber from said lands on or 

before , 19 . . .'I 

Smith testified that he understood the meaning of 

"infected merchantable timber" to mean a1 1 trees susceptible to 

infestation by the beetle since they would die eventually. He 

stated that the verbal agreement which predated the written 

agreement gave him this interpretation. Pursuant to this 

interpretation Smith believed he could take a1 l trees which were 

seven inches in diameter or larger at chest height. Smith also 

testified that Bronder told him that he wanted the fire hazard 

removed entirely and the trees salvaged that could be salvaged. 

Smith said it was agreed that he would take all trees that 

would be hit by the beetles, although Bronder told him on several 

occasions not to take certain trees because of their aesthetic 

val ue. 

As a consequence, Smith testified that he was selectivecutting down to seven inch chest high trees and leaving stands of 

fir and aspen. Bronder did not appear at trial. 

On September 6, 1978, the Ranch notified Smith that they 

considered the contract terminated as a result of his failure to 

perform according to its terms. A complaint was filed September 

11, 1978, and a temporary restraining order was issued on 

October 2, 1978. A show cause hearing was held and on October 

10, 1978, the District Court "released and vacated" the temporary 

restraining order. 

Smith re-entered the property about October 19, 1978, and 

logged 15 to 25 more acres before December 5, 1978. He was prevented from any further logging of the property in the spring of 

1979, by Roland Bronder. 

Smith's motions for dismissal and summary judgment based 

on the Ranch's failure to file a new fictitious name certificate 

were both denied. 

The trial was held June 1, 1979. Several expert witnesses 
testified as to their interpretation of the contract and the 

operation conducted by Smith. One of the experts, Robert 

McKnight, cruised the timber on the Ranch. McKnight has a B.S. 

degree in science and forestry with 131k years experience with 

timber and forestry companies in southwestern Montana and 25 

years experience in cruising timber. He determined that there 

was an average of 153 trees per acre consisting of 75 merchantable trees per acre, 43 were infected. He defined merchantable 

as eight inches in diameter at breast height. He also testified 

that most of the areas logged by Smith on the Ranch were clearcut and that the market price for a clear-cut operation in the 

summer of 1978 was at least $50 per thousand. Dodge had also 

testified that after the execution of the written contract, the 

operation became a clear-cut operation. 

William Driver, the timber sales and disease control specialist for the Gallatin and Custer Forest, testified, as did 

McKnight, that the contract was a selective-cut contract on a per 

tree basis. 

The District Court entered findings of fact and conclusions of law on June 19, 1979. The court found, in pertinent 

part: 

" . . . That the purpose for which the plaintiff 

entered into this agreement was to reduce the 

fire hazard to the plaintiff's buildings and 

lands, along with the personnel residing 

thereon, as well as preserve the aesthetic and 

future economic values of the property from the 

pine beetle; 

"That the defendants have failed and refused to 

perform certain obligations under the contract 

in that they have cut trees which are not 

merchantable and have cut merchantable trees 

which are not infected or were not infected by 

the pine beetle; that the defendants, in their 

logging operations, have wasted and destroyed 

many of the young, green, noninfected trees 

standing on the property and will, unless otherwise restrained by this Court, continue to 

waste and destroy the young, green, uninfected 

trees standing on the property, which trees are 

of value to the plaintiff for aesthetic and economic purposes." 

On the basis of the preceding findings, the District Court 
concluded that Smith had breached the contract, and that since 

the destruction and the threatened future destruction to the 

standing timber could not be remedied by an action at law, an 

injunction was proper. 

The judgment and permanent injunction was entered on June 

28, 1979. The injunction perpetually enjoined Smith from 

entering the Ranch for the purpose of cutting or otherwise 

destroying any standing timber on the Ranch. The court also 

granted the Ranch a lien upon all timber cut but not decked on 

their land. 

The following issues are raised on appeal : 

1. Whether the defendant's acts in cutting uninfected 

merchantable trees and destroying young, green, uninfected 

(unmerchantable) trees constituted a breach of contract? 

2. Whether the injunction is overbroad? 

3. Whether the District Court erred in denying 

defendant's motions for dismissal and summary judgment which were 

based on plaintiff's failure to file a new fictitious name certificate prior to filing its complaint? 

4. Whether the District Court erred in granting plaintiff 

a lien on the cut, undecked logs? 

In addressing the breach of contract issue, we note that 

many legal distinctions have been drawn by courts as to the 

rights of the parties to a contract for the sale of timber. The 

distinctions are drawn depending on whether the instrument is a 

contract for sale or a conveyance of real property, whether the 

contract is oral or written, whether the contract is executed or 

executory, or whether a mere revocable license has been conveyed 

or title to the timber is passed. Depending on the 

circumstances, courts have treated timber agreements as either a 

contract for sale, a lease of the land, an employment contract, 

a license to cut timber or a conveyance passing title to the 

grantee. 54 C.J.S. Logs and Logging 99. To date, this Court 

has declared that an oral or simple contract for the sale of 
timber is a mere license revocable at the will of the vendor. 

Sorensen v. Jacobson (1951), 125 Mont.148, 232 P.2d 332. In 

Gullicksen v. Shadoan (1950), 124 Mont. 56, 218 P.2d 714, we held 

that a written, unrecorded contract for the sale of timber was 

ineffective to bind a subsequent purchaser of the land who did 

not have notice. In dicta, it was stated that the presence or 

absence of notice was irrelevant since the contract was executory 

and would not prevent a unilateral revocation of the license. 

Pegg v. Mid-State Development Corp. (1974), 164 Mont. 525, 529 

P.2d 1399, expressly overruled this dicta in Gullicksen in 

holding that a written contract for the sale of timber is enforceable against a subsequent purchaser with notice of the 

contract. However, the case is di stingui shable from the present 

case in that the contract purported to convey title to all 

merchantable timber and no breach of contract was involved. No 

Montana cases have addressed the issue of breach of contract by 

harvesting timber which is not the proper subject of the 

contract. 

Both parties treat the instrument as a contract for the 

sale of timber rather than a conveyance of an interest in land. 

We agree with this approach and proceed accordingly. 

At trial appellant devoted much effort to showing that the 

best management practice to control the spread of the pine beetle 

is to remove all susceptible trees. He argues that this 

establishes a "usage of trade" which is to be given effect in 

construing the contract under the Uniform Commerci a1 Code, section 30-2-208, MCA. However, section 30-2-107(1), MCA, 

establishes that a contract for the sale of timber is subject to 

the provisions of the UCC only if it is to be "severed by the 

seller". Thus, this contract is not subject to the provisions 

of the UCC and our construction of the agreement is dependent on 

common law construction rules. Any language in Pegg v. Mid-State 

Development Corp., supra, which infers that this contract is 

within the provisions of the UCC is overruled. 
As we stated in Danielson v. Danielson (1977), 172 Mont. 

55, 58, 560 P.2d 893, 894, "It is clear from Montana cases 

that where the language of a written contract is clear and unambiguous there is nothing for the court to construe; the duty of 

the court is simply to apply the language as written to the 

facts of the case, and decide the case accordingly." The 

appellant contends that an ambiguity is created in the contract 

by the use of the adjective "infected" since it can be construed 

to modify the word "lands" or to modify the word "timber." We 

cannot agree. The sentence in question states " . . . agrees to 

sell . . . all merchantable timber on said lands which has been 

or now is infected by the pine beetle. . ." Timber may be 

"infected by the pine beetle," however, the pine beetle does 

not strike and infect land. Thus, we find the language clear 

and unambiguous; respondent contracted to sell "all merchantable 

timber . . . which ----- has been or now is infected b~ the pine 

beetle" and appellant contracted to "cut and remove all of said 

merchantable timber . . ." (Emphasis added.) 

Since the language of the contract is clear and 

unambiguous, the trial court's duty was "simply to apply the 

language as written to the facts of the case, and decide the case 

accordingly." Daniel son, supra. In so doing, the District Court 

found that appellant breached the contract by cutting trees which 

were not "merchantable" and merchantable trees which are not 

infected by the pine beetle. 

With regard to the standard of review, this Court has 

repeatedly stated it will not overturn findings of fact and 

conclusions of law if supported by substantial evidence and by 

the law. When reviewing evidence it will be viewed in the 

1 ight most favorable to the prevailing party. Luppold v. Lewis 

(1977), 172 Mont. 280, 284, 563 P.2d 538, 540-541, and cases cited 

therein. The record in the present case reveals that appellant 

freely admits that he is cutting a1 1 trees 7" or greater in 

diameter at chest height regardless of whether the individual 
tree has been or is infected. There is also substantial testimony and photographic exhibits which establish that the harvester 

has destroyed many of the small, young, green trees which are not 

infected nor susceptible to the pine beetle. Two witnesses, an 

expert and Donald Dodge, also testified that at least 90 acres of 

the Ranch have been clear-cut. On the basis of these facts, when 

viewed in the light most favorable to the prevailing party, we 

find substantial evidence to support the District Court's findings of fact and conclusions of law. 

Appellant also argues that the District Court's failure to 

specifically state that the defendant's cutting of young green 

trees and uninfected merchantable trees was unreasonable supports 

a conclusion of no breach of contract. In light of the evidence 

adduced incl udi ng appel lant' s admissions and expert testimony 

that 90 acres was clear-cut, we find this contention without 

merit. The unreasonableness of appel lant's conduct is 

necessarily implied in the District Court's findings and conclusion and is supported by substantial evidence. The trial court's 

judgment is presumed correct and this Court will draw every legitimate inference to support that presumption. Rule 52, 

M.R.Civ.P.; Havre Irrigation Co. v. Majerus (1957), 132 Mont. 

410, 414, 318 P.2d 1076, 1078. On the record before us there is 

substantial evidence to support "unreasonableness" as well as a 

material breach of contract. 

Appellant contends that the District Court erred in 

enjoining all cutting instead of merely enjoining the cutting of 

timber not included in the contract. It is argued that the 

appellant should be allowed to cut the merchantable infected 

timber on the Ranch even if a breach of contract is found. It is 

contended that this case falls within the rule that an injunction 

should be limited to enjoining the wrong and should not extend to 

preventing lawful activity under the contract. Kasala v. 

Kalispell Pee Wee Baseball League (1968), 151 Mont. 109, 439 P.2d 

65, is cited as authority for this proposition. 
We note two general principles of law related to injunctive relief. "An injunction is a writ framed according to the 

circumstances of the case commanding an act which the court 

regards as essential to justice, or restraining an act which it 

esteems contrary to equity and good conscience." 43 C.J.S. 

Injunctions 92. Ordinarily, injunctive relief is proper only if 

an act has been done or is threatened which will produce irreparable injury to the party asking for such relief, and acts 

which result in a serious change of, or are destructive to, the 

property affected either physical ly or in the character in which 

it has been held or enjoyed, do an irreparable injury. 43 C.J.S. 

Injunctions 928. It is also well-established that the granting 

of an injunction is a matter of discretion resting in the 

District Court and it will be sustained unless an abuse of 

discretion is shown. Erie and Mulvihill v. State Hwy. Comm'n 

(1969), 154 Mont. 150, 461 P.2d 207. 

The District Court concluded that an injunction was proper 

after finding that "the standing timber is part of the real 

property, the destruction of which or the threatened destruction 

of which, cannot be remedied by an action at law." In reaching 

this conclusion the court considered the character and use of the 

property as well as the conduct of the appellant. The District 

Court found instrumental the fact that the property's principal 

value over the last one hundred year period has been "recreational, aesthetic and environmental ." The court a1 so stated that 

"the period necessary to mature lodge pole pine is in excess 

of sixty (60) years." The threatened future harm is demonstrated 

by Smith re-entering the land to cut 15 to 25 additional acres 

after being notified that the Ranch considered him in breach and 

the contract terminated. Under these facts we do not find an 

abuse of discretion. Neither do we find the injunction 

overbroad. On the basis of appellant's conduct in re-entering 

the land after a notification of termination, the District Court 

was warranted in enjoining all future cutting to prevent future 
irreparable injury to the Ranch. 

Appel lant strenuously argues on appeal that resci ssion is 

not appropriate in this case under section 28-2-1711, MCA. 

The trial court concluded that the destruction or threatened 

destruction to the timber cannot be "remedied by an action at 

law." Although courts have found rescission at law (as 

distinguished from rescission in equity) to be an appropriate 

remedy when confronted by a material breach of a timber sales 

contract, see Crofoot Lumber v. Thompson (1958), 163 Cal .App.Zd 

324, 329 P.2d 302, the area is far from well-settled and has not 

been addressed by this Court. However we need not address this 

issue in the present appeal since the District Court will not be 

reversed on appeal for accepting the appealing parties legal 

theories at trial. 

Appellant next contends that the District Court erred in 

denying its motions to dismiss and for summary judgment which 

were based on Montana's fictitious name statutes. Although the 

1979 legislature repealed the fictitious name provisions, the 

fol lowing statutes, appearing in section 63-601, R.C.M. 1947 

through section 63-603, R.C.M., 1947, were in effect throughout 

the lower court proceedings: 

"63-601. Fictitious name. Every partnership, 

other than a limited partnership, transacting 

business in this state under a fictitious name, 

or a designation not showing the names of the 

persons interested as partners in such business, 

must file with the clerk of the county in which 

its principal place of business is situated, a 

certificate, stating the names i n f u l l of all 

the members of such partnership and their places 

of residence, and publi sh the same once a week, 

for four successive weeks, in a newspaper 

published in the county, if there be one, and if 

there be none in such county, then in a 

newspaper pub1 ished in an adjoining county. 

"63-602. Certificate--when -- to be filed. The 

certificate filed with the clerk, as provided in 

the preceding section, must be signed by the 

partners, and acknowledged before some officer 

authorized to take acknowledgment of conveyances 

of real property. Where the partnership is 

hereafter formed, the certificate must be filed 

and the publication designated in that section 

must be made within one month after the formation of the partnership, or within one month 

from the time designated in the agreement of its 
members for the commencement of the p a r t n e r s h i p ; 

where the partnership has been heretofore 

formed, the certificate must be filed and the 

publication made within six months after the 

passage of this code. Persons doing business 

partners contrary -- to the provisions -- of this 

chapter, - orany assigns thereof, shall -- not mai 

tain any action upon -- or on account of any 

contracts ----- made or transactions had in their 

artnership name, in any court of this state, 

{ntil they havefirst filed thecemicate an 

-- made the pub1 ication herein required. (~mphz 

added. ) 

"63-603. Change of membership--filing -- new certificate. On every change of the members of a 

partnership, other than a limited partnership, 

transacting business in this state under a fictitious name, or a designation which does not 

show the names of the persons interested as 

partners in its business, a new certificate must 

be filed with the county clerk, and a new publication made, as required by this chapter, on the 

formation of such partnership." 

The Madison Fork Ranch complied with the provisions of the 

preceding statute in 1973 when the partnership was formed. 

However, prior to the commencement of this action two original 

partners purchased the interests of three other original partners. 

A new certificate was not filed prior to this suit. The 

appellant's motions to dismiss and for summary judgment based on 

noncompliance with these provisions were both denied and the 

respondent was granted a continuance to comply with the 

provisions. The new certificate was filed approximately one 

month prior to trial. 

The critical language in the statutes is " . . . shal 1 not 

maintain any action . . . until they have first filed the certificate and made the publication herein required" in section 

63-602, R.C.M. 1947. The cases construing this language have 

distinguished between "maintain" and "commence." In Reil ly v. 

Hatheway (1912), 46 Mont. 1, 11, 125 P. 417, this Court 

construed this section's predecessor as fol lows: 

"Without deciding whether the statutory provisions heretofore referred to apply to the 

plaintiff, it is sufficient to hold, on the 

authority of Carson-Rand Co. v. Stern, 129 Mo. 

381, 32 L.R.A. 420, 31 S.W. 772, and Nicholson 

v. Auburn Gold Min. & M. Co., 6 Cal .App. 547, 92 

P. 651, ----- that it is not the right to begin an 

action, but the right to maintainit, thatis 

wi thheldx the statutefor fail ureoopfi - 
with its terms; and if, before the defense is 

interEene plaintiff complies with the statutory provisions, the action may be maintained. 

The defense is an affirmative one and is waived 

unless pleaded in the answer. (Vaughan v. 

Kujath, 44 Mont. 484, 120 P. 1121; California S. 

& L. Society v. Harris, 111 Cal. 133, 43 P. 

525.) The appellant alleged that he had 

complied with the statute, and, while this allegation was not necessary in order to state a 

cause of action, it was, nevertheless, denied, 

and we think the denial was sufficient to raise 

the issue. But so long as the statute was 

complied with by the appel lant before the answer 

was interposed, the action should not abate. 

The right to maintain the action simply 

sus ended until the statute - is complied with." P-- Emphasis added.) 

In Croft v. Bain (1914), 49 Mont. 484, 489, 143 P. 960, we said: 

"The disability imposed by section 5505 for 

failure to comply with the requirement of section 5504 cannot be of avail to the defendant 

except upon affirmative a1 legation and proof. 

It is in the nature of matter in abatement. 

(Reilly v. Hatheway, 46 Mont. 1, 125 P. 417; 

California Sav. & L. Soc. v. Harris, 111 Cal. 

133, 43 P. 525.) The inhibition does not 

destroy the right of action upon which recovery 

is sought, but merely imposes a disability to 

maintain the action thereon until - the requiremerit of section 5504 has been complied with." 

(EmphEi s added .)- - 

In construing the same restriction "to maintain" an action 

for noncompliance with the California fictitious name statutes, a 

California Court stated: 

"An objection to the maintenance of an action on 

the ground that plaintiff has not complied with 

the provisions of sections 2466 and 2468 of the 

Civil Code by filing and publishing the certificate required thereby, is a mere matter of 

abatement pending the trial, which has the 

result of suspending the trial until the statute 

is complied with. It is not jurisdictional. 

Bryant v. We1 1 banks, 88 Cal .App. 144, 150, 263 

P. 332; California Savings & Loan Soc. v. 

Harris, 111 Cal. 133, 136, 43 P. 525; Ontario 

State Bank v. Tibbits, 80 Cal. 68, 22 P. 66, 1 

C.J.S., Abatement and Revival, 991, p. 129. In 

the authority last cited it is said: 

"'The failure of an individual or partnership 

plaintiff, doing business under an assumed, 

fictitious, or representative name, to comply 

with an applicable statute requiring the filing 

of a prescribed affidavit or certificate, is 

merely a matter in abatement, until the statute 

is complied with.' 

"In the Bryant case, supra [88 Cal .App. 144, 

150, 263 P. 3351, it is said that it is a sufficient compliance with section 2468 of the 

Civil Code if the certificate is filed and 
published 'at any time before trial.' The statute in question does not prohibit the instituting or commencement of an action for fail ure 

to file the certificate. It mere1 v forbids the 

maintenance of the action 'until tie certificate 

has been filed and the publication has been 

made.' Before an action is finally dismissed on 

that ground, prior to the trial the plaintiff 

should be given an opportunity to comply with 

the statute if it so desires." Kadota Fig Ass'n 

v. Case-Swayne Co. (1946), 73 Cal .App.2d 796, 

167 P.2d 518, 523. 

We agree with the distinction drawn between "maintenance" 

and "commencement" in the previously cited authority. The 

District Court was not in error in allowing plaintiff to comply 

with the fictitious name provisions prior to trial. 

Appellant's final contention is that there is no legal 

authority to support the granting of the lien on the cut undecked 

logs. The respondent contends that the lien granted is an 

equitable lien and is appropriate in this case. 

The factual basis for the lien granted is Smith's alleged 

failure to dispose of slash pursuant to the contract and the economic damage caused to the property as a result of the cutting 

operation. As a result of appellant's allegedly not complying 

with the slash removal provision, the Ranch will incure expense 

in obtaining another to remove the slash. The slash removal 

clause provides that Smith agrees to pile and dispose of the 

slash in such manner as to be satisfactory to the State of 

Montana. Evidence adduced at trial concerning slash di sposal 

included testimony from an inspector for the State Division of 

Forestry, Curtis Tesmer. Tesmer testified that Smith was in 

compliance with the slash reduction agreement with a few exceptions in September, 1978 (prior to Smith's re-entry to cut 15 to 

25 more acres in October, 1978). Dodge also testified that 

the Ranch would incur substantial cost in removing slash not 

disposed of by Smith. No evidence was submitted on the amount of 

economic damage suffered by the Ranch as a result of Smith's 

breach in cutting trees not conveyed in the contract, in the 

alleged failure to dispose of slash or in the value of trees cut 

and not decked. In addition, the respondent's pleadings make no 
mention of a claim for a lien. 

The respondent cites American Equitable Assurance Co. v. 

Newman (1957), 132 Mont. 63, 313 P.2d 1023, and Sorensen v. 

Jacobson, supra, as authority for the granting of this equitable 

lien. We find neither case relevant to the present appeal; 

Newman involved subrogation and Sorensen involved a purchase 

money lien. A lien is merely a charge or encumbrance on property 

which subjects the property to the payment of a claim or debt. 

The issue of damages was never raised, no evidence was adduced on 

the amount of damages and the District Court failed to state 

the amount of the lien granted. Although we recognize that an 

equitable lien may be granted under a great variety of 

circumstances, including breach of contract, there is no basis 

for such a lien where, as here, there is no ascertained debt or 

claim. 

The judgment is modified by vacating the lien provisions 

and, as modified, the judgment is affirmed, costs to respondent. 

Chief Justice 

We concur: 
Mr. Justice John C. Sheehy concurs in part and dissents in 

part. 

I concur with the rest of the foregoing opinion, but I 

dissent from that part vacating the equitable lien created by 

the District Court. 

The majority is in error when it determines that there 

is no claim or debt here to which an equitable lien may reach. 

It is inconsistent to hold on the one hand that Madison 

Fork Ranch is entitled to an injunction because Smith indiscriminately cut logs by clear-cutting irrespective of whether 

the trees were infected by the pine beetle, and on the other 

hand, to deny an equitable lien where the felled logs are 

wrongfully appropriated by Smith. The doctrine of equitable 

liens is not limited merely to property which is subject to 

the payment of a claim or debt. The power of a District 

Court to grant an equitable lien is as broad as the reach of 

equity itself, out of considerations of right and justice, 

to protect for the rightful owner property unlawfully appropriated. 

"An equitable lien may arise independently of any 

express agreement; it may arise by implication from 

the conduct and dealings of the parties. As the 

rule is frequently stated, in the absence of an 

express contract, an equitable lien, based on those 

maxims which lie at the foundation of equity jurisprudence, may arise by implication out of general 

considerations of right and justice, where, as 

applied to the relations of the parties and the 

circumstances of their dealings, there is some 

obligation or duty to be enforced. However, the 

tendency is to limit rather than extend the doctrine 

of constructive liens, and, in order that such a 

lien may be claimed, either the aid of a court of 

equity must be requisite to the owner so that he can 

be compelled to do equity or there must be some element 

of fraud in the matter as a ground of equitable relief. 

Such a lien will not be implied and enforced where the 

facts and circumstances present no grounds for equitable 

relief, and there is an adequate remedy at law, as 

where the parties themselves have stipulated for a 

purely legal liability . . . 
". . . -- If a court of equity can trace money or 

property unlawfullyobtained or appropriatedinto 

-- any other shape, -- it will intervene to secure -- 

it for 

the owner, by holding it to be his or by giving him 

lien on it; but such a lien cannot be enforced on o 

property which has not been enhanced or augmented 

by the unlawful appropriation . . ." 53 C.J.S. 

844, 545, Liens, S4 (1). (Emphasis added. 1 

As to those logs which were rightfully cut by Smith, that 

is those trees which were infested by the mountain pine 

beetle, such trees became the property of Smith under the 

terms of this agreement immediately upon severance thereof. 

As to those trees which were wrongfully felled by Smith, 

those that were not so infected, there was an unlawful 

appropriation. Those lawfully appropriated and those unlawfully 

appropriated now appear to be in a single mass, unidentifiable 

perhaps, and the situation is one ripe for the equitable 

power of the District Court to protect the property of 

Madison Fork Ranch. In Krusen Land & Timber Co. v. Tampa 

Suburban Corp. (Fl. 1935), 158 So. 712, where the lumber company 

received lumber belonging to others and knowingly sawed and 

commingled it with its own in an unidentifiable mass, the 

lumber company was a trustee - ex maleficio and an equitable 

lien could be enforced against the whole mass of lumber. 

The Court in granting injunctive relief was sitting in 

equity. A court sitting in equity has all power requisite 

to render justice between the parties, particularly if the 

intent and disposition of one party is not to perform its 

contractual obligations. Link v. State By & Through Dept. of 

Fish & Game (1979), - Mont. , 591 P.2d 214, 36 St.Rep. 

355. 

The majority has hobbled the equity court unnecessarily 

in preventing it from giving complete equitable relief. 

I would affirm in toto. 

Justice