No. 81-424 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

MICHAEL C. PREZEAU, 

Plaintiff and Respondent, 

VS. 

THE CITY OF WHITEFISH, 

Defendant and Appellant. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead 

Honorable James M. Salansky, Judge presiding. 

Counsel of Record: 

For Appellant: 

Fisher and Erickson, Whitefish, Montana 

Leif B. Erickson argued, Whitefish, Montana 

For Respondent: 

Michael C. Prezeau, Pro Se, argued, Kalispell, Montana 

JUN 2 1 1982 

Filed: 

Submitted: March 30, 1982 

Decided : 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The City of Whitefish appeals a judgment entered in the 

Eleventh Judicial District enjoining the City from constructing 

or authorizing the construction of an indoor rifle range in 

Baker Avenue Park until the project is approved by a majority 

of the voters of Whitefish in a special election. 

In 1909, the Whitefish Townsite Company conveyed to the 

City a parcel of land which later became part of Baker 

Avenue Park. The deed conveying the property contains the 

following language: 

". . . Also subject to the condition that the 

said property is to be used exclusively for 

public park purposes, by the said Town, and in 

case the same is not so used, it will revert to 

the grantor hereof. . ." 

The District Court found that the Whitefish Townsite 

Company no longer exists, that its successors in interest 

are unknown, and that there has been no waiver of the 

restrictions contained in the deed. 

Baker Avenue Park is located within the Whitefish city 

limits and is used for outdoor park purposes including 

tennis and a playground for children. 

The Whitefish Rifle and Pistol Club, Junior Division, 

Inc. (hereafter referred to as Rifle Club), is a private, 

non-profit corporation which was established in Whitefish in 

about 1932. 

On March 2, 1981, the Whitefish City Counsel authorized 

construction of an indoor rifle range on a portion of Baker 

Avenue Park. At the same council meeting the City affirmed 

an undated, written lease agreement between the City and the 

Rifle Club. The agreement provides that the City will lease 

the rifle range, upon completion of construction, to the 

Rifle Club for a five year period with an option to renew 
the lease at the end of that period. Under the agreement the 

City is to provide the site for the rifle range and contribute 

$10,000 toward construction of the building. The County of 

Flathead, which is also a party to the agreement, is also to 

contribute $10,000. The agreement provides that "the Rifle 

Club is willing to furnish and pay the balance of the cost 

of construction of such a building if they can lease the 

same for the use of their members and the public." The 

agreement also states "[tlhat all real property used for the 

purpose herein mentioned and the improvements placed thereon 

shall be owned and belong to the City and be public property." 

The Rifle Club is to maintain the premises, pay for utilities, 

and carry insurance on behalf of the City. In order to 

defray these expenses the agreement allows the Rifle Club to 

charge the public and club members a "reasonable use fee." 

Finally, the agreement provides that the Rifle Club shall 

operate the facility "in a manner commensurate with its 

status as a municipal rifle range." 

The District Court found that the range would be used 

primarily during the winter with some summer use possible. 

Use of the range is not predicated upon membership in the 

Rifle Club but a $5 use fee is contemplated for nonmembers. 

The public would be allowed use of the premises possibly one 

night per week with membership leagues having priority. 

Cost of membership is anticipated to be about $20 per year 

plus a small usage fee. 

The dimensions of the proposed building are 50 feet by 

88 feet. A nearby parking lot will measure 60 feet by 72 

feet. 

The City presents two issues: 
1. Whether the City of Whitefish must receive voter 

approval in a special election before leasing Baker Avenue 

Park to the Rifle Club. 

2. Whether an indoor rifle range constitutes a "public 

park purpose. " 

We affirm the District Court's ruling on the first 

issue. We hold that the second issue is not properly before 

this Court. 

Section 7-8-4201(2) (b), MCA, controls the first issue. 

That statute provides in pertinent part: 

"Disposal or --- lease of municipal property . . . If the property is held in trust for 

a specific purpose, the sale or lease thereof 

must be approved by a majority vote of the electors 

of the municipality voting at an election called 

for that purpose. . ." 

The District Court's order enjoining construction of 

the rifle range is based upon this statute. 

The City argues that the District Court's order constitutes a failure to abide by this Court's interpretation 

of the statute in Colwell v. City of Great Falls (1945), 117 

Mont. 126, 157 P.2d 1013. In Colwell, we stated: 

"Sec. 5039.61 [R.C.M. 1935, as amended by Ch. 

35 of Laws of 1937--now section 7-8-4201, 

MCA], supra, was designed to permit the cities 

and towns of this state, with the approval of a 

majority vote of their taxpayers, to sell or lease 

their property which was held in trust for a 

specific purpose, in abrogation of, -- or in 

substantial interference with -_- theuse of the 

property -- for such specific purpose." (Emphasis 

added.) 117 Mont. at 146, 157 P.2d at 1022. 

The District Court did not conclude that the rifle 

range would be in abrogation of or in substantial interference 

with a public park purpose. Instead, it concluded that the 

range "may be incompatible" with a public park purpose. 

The statute, as construed in Colwell, requires a finding that 

the proposed rifle range be in abrogation of or in substantial interference with a public park purpose. The City 
argues, therefore, that because no such finding was made in 

the present case, an election is not necessary. 

Section 7-8-4201 (2) (b) , MCA, is relatively clear. It 

requires an election to approve the sale or lease of municipal 

property that is held in trust for specific purposes. Neither 

party disputes that Baker Avenue Park is "property held in 

trust for a specific purpose." It follows, therefore, that 

before the property is leased to the Rifle Club, a majority 

of the electors of the City of Whitefish must approve the 

lease thereof. 

By our holding in this case we overrule Colwell, 

supra, and Hames v. City of Polson (1950), 123 Mont. 469, 

215 P.2d 950, to the extent that they conflict with this 

opinion and the clear language of section 7-8-4201(2) (b), 

MCA. Our research indicates that these are the only Montana 

cases construing the statute since its enactment in 1921. 

The statute commands that the sale or lease of municipal 

property held in trust for a specific purpose must be approved 

in an election called for that purpose. The statute does 

- not state that an election is required only if the sale or 

lease is in abrogation of or in substantial interference 

with the specific trust purpose. 

The City has asked this Court to decide whether the 

proposed rifle range constitutes a "public park purpose" as 

the phrase is used in the reversion clause of the 1909 

conveyance. Technically, this question will not be ripe for 

decision until the lease is approved in an election. At that 

time, the question must be faced in resolving the ownership 

of the property under the reversion clause. It has no bearing 

on the primary issue in this appeal, that issue being whether 
an election must be held. Furthermore, the District Court 

has not made a final judgment on this issue. It concluded 

only that the leasing and contemplated use of the park "may 

be incompatible" with a public park purpose. 

Af f irmed. 

Q~ Justice 

We Concur: 

dll- 6) i, I* 

Hon. Gordon ~enne'f~t-istrlct 

Judge, Sitting for Mr. Chief 

Justice Frank I. Haswell, who 

deems himself disqualified