No. 79-14 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

MARY TOECKES, 

Plaintiff and Respondent, 

VS. 

RONALD D. BAKER, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth,Judicial District, 

Honorable H. William Coder Judge presiding. 

Counsel of Record: 

For Appellant: 

Alexander & Baucus, Great Falls, Montana 

For Respondent: 

Cure & Borer, Great Falls, Montana 

Submitted on briefs: March 6, 1980 

Decided : MAY 2 1 1m 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

This action was commenced in the Cascade County District 

Court by plaintiff-respondent Mary Toeckes. She sought actual 

and punitive damages for an alleged malicious removal of a gate 

and approach to state property which she holds as a cotenant 

with her sister, Andrea Baker, and for a deprivation of the use 

of the property through intimidation. The District Court entered 

judgment against defendant Ronald Baker, Mrs. Toeckes' brotherin-law, and awarded actual damages of $230 and punitive damages 

of $1,000. Ronald Baker appeals. 

Mary Toeckes and Andrea Baker inherited a leasehold interest 

in 80 acres of state grazing land as tenants in common upon the 

death of their mother in 1969. The land was subleased to Dan 

Engelmeier until October 15, 1975. The parties could not reach an 

agreement concerning the use of the leasehold interest after the 

sublease terminated. 

Appellant's counsel aptly describes this action as a "HatfieldMcCoy dispute." It is apparent from the record that Mary Toeckes 

and Ronald Baker have not been able to get along since 1969. Mrs. 

Toeckes testified at trial that Mr. Baker had threatened bodily 

harm to herself and Dan Engelmeier. This testimony was corroborated by Mr. Engelmeier, who also testified as did Mrs. Toeckes, 

that Ronald Baker had threatened to shoot any livestock placed 

on the leased land. Mr. Engelmeier leases other farmland from 

Mrs. Toeckes and has at times, assisted her in farm work since 

her husband's death in 1975. 

Prior to May, 1977, there was no direct access to the property from the adjacent county road, and in order to enter the 

property one was required to drive past Mr. Baker's home or across 

Mr. Engelmeier's land. Because of the strained relations between 

Mrs. Toeckes and Ronald Baker, she contacted Cascade County in 
order to have an approach constructed to give her direct access 

to the property. She did not communicate with her cotenant, 

Andrea Baker, concerning the installation. 

The approach was constructed by Cascade County and Dan 

Engelmeier installed a gate on behalf of Mary Toeckes in May, 

1977. Ronald Baker saw the trucks and men installing the approach. 

He and his wife then went to Helena to discuss the installation 

with the State Department of Lands. Mrs. Baker testified that 

she and her husband were told by a person of unknown professional 

status or authority that a cotenant has no authority to install 

an approach unless the other tenant consents. Allegedly on the 

basis of this conversation, Mr. Baker, acting on behalf of his 

wife, proceeded to tear our the gate and remove the approach with 

a tractor and loader. This act prompted Mrs. Toeckes to commence 

this litigation. 

The District Court found that: (1) Defendant's threats to 

shoot Mary Toeckes, Dan Engelmeier, and any livestock placed on 

the property put the plaintiff in fear and prevented her from using her interest in the land; (2) Ronald Baker's action in removing the gate and approach was willful and malicious and was prompted by an intent to deprive the plaintiff of the use and enjoyment of the leasehold; and (3) the plaintiff was entitled to actual 

damages of $230 as a result of defendant's conduct. The District 

Court also awarded $1,000 punitive damages. 

The issue on appeal is whether there is substantial evidence 

to support the findings of fact and conclusions of law of a willful and malicious deprivation of the use of the property as well 

as the amount of damages awarded. 

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. Evidence will be viewed in the light most favorable to the prevailing 
party. Rule 52, M,R.Civ.P.; Luppold v. Lewis (1977), 172 Mont. 

280, 563 P.2d 538; Morgen & Oswood Const. Co. v. Big Sky of 

Montana (1976), 171 Mont. 268, 557 P.2d 1017. The judgment of 

the District Court is presumed to be correct and will be upheld 

unless clearly shown to be erroneous; the burden of such showing 

is upon the appellant. Kamp v. First National Bank and Trust 

Co. (1973), 161 Mont. 103, 504 P.2d 987. Where a trial court 

judge's findings are based upon substantial though conflicting 

evidence they will not be disturbed on appeal unless there is 

a clear preponderance of evidence against such findings. Cameron 

v. Cameron (1978), Mont . , 587 P.2d 939, 35 St-Rep. 1723. 

The record in the instant case reveals substantial evidence 

of intimidating actions toward Mary Toeckes' use of the property 

in question, including the previously mentioned threats and culminating in Ronald Baker's willful removal of the gate and approach. 

Although the Bakers have denied the threats and other incidents 

of intimidation, those denials are not sufficient to rebut the 

presumption of validity of the trial court judge's findings. We 

find substantial evidence to support the findings of fact. Thus, 

the appellant must demonstrate a misapplication of law to prevail 

on appeal. 

Appellant contends on appeal that Mary Toeckes was not authorized to have the approach and gate installed, and therefore he 

was entitled to remove it. He cites the following passage as 

authority for this proposition. 

". . . Thus, it is obvious that a tenant in comnon 

has no right to a.lter or change the property to 

the injury of his cotenant without his assent or 

to obstruct, or deny to his cotenant, the latter's 

equal right to its use . . ." 20 Am Jur 2d Cotenancy 

and Joint Ownership S37. 

However, we find that this provision does not apply to the facts of 

this case since appellant's only contention of injury from the installation is that he cannot see the access to the property. 
Cotenants have the right to equal access and use of property 

held in common and one tenant cannot deprive the other of the use 

of the property. It is also well-established that if one cotenant 

attempts to use the property to the exclusion of the other, the 

excluded cotenant may have access to the property by any reasonable means which does not create waste. This common law rule has 

been partially codified in section 70-1-311, MCA, which provides: 

"If any person shall assume and exercise exclusive 

ownership over or take away, destroy, lessen in value, 

or otherwise injure or abuse any property held in 

joint tenancy or tenancy in common, the party aggrieved 

shall have his action for the injury in the same manner 

as he would have if such joint tenancy or tenancy in 

common did not exist; provided that nothing herein contained shall prevent one cotenant or joint tenant or 

any number of cotenants or joint tenants acting together 

less than all from entering on the common property at 

any point or points not then in the actual occupancy 

of the nonjoining cotenants or joint tenants and enjoying all rights of occupancy of the property, without 

waste. . ." (Emphasis added.) 

On the basis of this common law and statutory authority and 

the facts of this case we find that the installation of the access 

to the property was authorized by law and appellant's actions were 

not justified. 

Appellant further contends that the actual damages of $230 

was not supported by the evidence. The District Court does not 

provide a basis for its calculation of the actual damages award. 

However, we find substantial evidence in the record to support this 

amount. The amount is not excessive. The record reveals that 

Mrs. Toeckes was deprived of the use of the leasehold in 1976 and 

a portion of 1977, that she incurred costs in constructing the gate 

and reconstructing the gate after Mr. Baker removed it, and that 

she received an itemized statement from Cascade County for $249.28. 

The testimony of the value of the land for grazing purposes varied 

from $7.50 to $10.00 per animal unit month and the state lease 

specified a carrying capacity of 27 units per year. The testimony 

also conflicts concerning the cost of constructing the gates with 
the range being $10 to $50 for each gate. There was also conflict as to whether or not the statement from the county was 

actually a bill. Although the evidence on damages is conflicting, we find that $230 in actual damages is not excessive, since 

combinations of these amounts could total a much higher figure 

depending on the weight the District Court gives the testimony. 

Next appellant contends that punitive damages should 

not have been awarded. The basis of this contention is that 

although Ronald Baker admits removing the gate and approach without consulting Mary Toeckes, his trip to Helena and his discussion 

with the Department of State Lands negates any malicious intent. 

Section 27-1-221, MCA, provides the guidelines for an 

award of punitive damages. 

"27-1-221. When exemplary damages allowed. 

In any action for a breach of an obligation not 

arising from contract where the defendant has been 

guilty of oppression, fraud, or malice, actual or 

presumed, the jury, in addition to the actual 

damages, may give damages for the sake of example 

and by way of punishing the defendant." 

The District Court, as the trier of fact, found that Ronald 

Baker's actions of removing the gate and approach and intimidating 

the respondent through threats of bodily harm were malicious. 

Judge Coder properly admitted testimony concerning Ronald Baker's 

conversation with an employee of the Department of State Lands for 

the purpose of determining Ronald Baker's state of mind. This 

conversation may be considered as a factor in determining the 

propriety of an award of exemplary damages; the fact that the conversation actually took place does not preclude a finding of malice. 

See Perkins v. Stevens (1957), 131 Mont. 138, 308 P.2d 620. There 

is substantial evidence to support a finding of malice by reason 

of appellant's conduct in destroying the gate and approach as well 

as the intimidation exerted upon the respondent. 

With regard to the amount of punitive damages, there is 

no established rule to be followed for ascertaining whether such 
an award is excessive. Johnson v. Horn (1929), 86 Mont. 314, 

283 P. 427. The District Court is in a better position to determine the amount and this Court is unwilling to disturb the award 

since it is not disproportionate under the circumstances of this 

case. 

We have deemed it unnecessary to discuss several incidents 

of alleged misconduct which are contained in the record as they 

would not change the result in this case. 

The judgment is affirmed. 

Chief Justice