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 JamesM. Salansky, Judgepresiding. 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



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## 1982 Filed: Submitted: March 30, 1982 Decided:Mr. Justice John C. Sheehy delivered the Opinion of the Court.

The City ofWhitefish appeals a judgment entered in the Eleventh Judicial District enjoining the City from constructing

or authorizing the construction of an indoor rifle range in BakerAvenue Park until the project is approved by a majority of the voters ofWhitefish in a special election. In 1909, theWhitefish Townsite Company conveyed to the City a parcel of landwhich later became part of Baker Avenue Park. The deed conveying the property contains the following language: 

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. .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, itwill revert to the grantor hereof. 

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# ." 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 locatedwithin the Whitefish city limits and is used for outdoor park purposes including tennis and a playground for children. TheWhitefish Rifle and PistolClub, Junior Division, Inc. (hereafterreferred 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 aportion 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 agreementprovides that the City will lease the rifle range, upon completion of construction, to the Rifle Club for a fiveyear period with an option to renewthe lease at the end of that period. Under the agreement the City is toprovide 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 "theRifle Club iswilling 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 improvementsplaced thereon shall be owned and belong to the City and be public property." The Rifle Club is tomaintain 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 "reasonableuse fee." Finally, the agreementprovides that the Rifle Club shall operate the facility "ina manner commensuratewith its status as a municipal rifle range." The District Court found that the rangewould be used primarily during thewinter with some summer use possible. Use of the range isnotpredicated 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 $20per year plus a smallusage fee. The dimensions of the proposed building are 50 feetby 88 feet. A nearby parking lotwill measure 60 feetby 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 DistrictCourt'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: "Disposalor --- 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 themunicipality voting at an election called for thatpurpose. 

# . ." The DistrictCourt's order enjoining construction of the rifle range isbased 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 specificpurpose, in abrogation of, -- or in substantial interferencewith 

## -_- theuse of the property -- for such specificpurpose." (Emphasis added.) 117Mont. 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 interferencewith a public park purpose. The Cityargues, therefore, that because no such findingwas 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 isheld in trust for specificpurposes. Neither party disputes that Baker Avenue Park is "propertyheld in trust for a specificpurpose." 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 casewe overruleColwell, 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 trustpurpose. The City has asked this Court to decidewhether the proposed rifle range constitutes a "publicpark purpose" as the phrase is used in the reversion clause of the 1909 conveyance. Technically, this questionwill 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 whetheran election must be held. Furthermore, the District Court has notmade 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. Affirmed. 

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We Concur:



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Hon. Gordon ~enne'f~t-istrlct Judge, Sitting for Mr. Chief Justice Frank I. Haswell,who deems himself disqualified