No. 79-14 INTHE 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,JudicialDistrict, 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: 

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# 1mMr. Chief JusticeFrank I. Haswell delivered the Opinion of the Court. This actionwas commenced in the Cascade County District Court by plaintiff-respondentMary Toeckes. She sought actual and punitive damages for an alleged malicious removal of a gate and approach to stateproperty 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 defendantRonald 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 thatMary Toeckes and Ronald Baker have not been able to get along since 1969. Mrs. Toeckes testified at trial thatMr. 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 farmwork 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 drivepast 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 inorder to have an approach constructed to give her direct access to theproperty. Shedid not communicate with her cotenant, Andrea Baker, concerning the installation. The approachwas constructedby Cascade County and Dan Engelmeier installed a gate on behalf of Mary Toeckes in May, 1977. Ronald Baker saw the trucks andmen 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 statusor 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 approachwith a tractor and loader. This actprompted Mrs. Toeckes to commence this litigation. The District Court found that: (1)Defendant's threats to shootMary Toeckes, Dan Engelmeier,and any livestockplaced on the property put theplaintiff 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) theplaintiff was entitled to actual damages of $230as a result of defendant's conduct. The District Court also awarded $1,000punitive damages. The issue on appeal iswhether there is substantial evidence to support the findingsof fact and conclusionsof law of a willful and malicious deprivation of the use of theproperty aswell

as the amount of damages awarded. With regard to the standard of review, this Court has repeatedly stated itwill not overturn findingsof factand conclusions of law if supported by substantial evidence and by the law. Evidencewill be viewed in the lightmost favorable to the prevailingparty. Rule 52,M,R.Civ.P.; Luppold v. Lewis (1977),172Mont. 280, 563 P.2d 538; Morgen & Oswood Const. Co. v. Big Sky of Montana (1976),171Mont. 268, 557 P.2d 1017. The judgmentof the District Court ispresumed to be correct and will be upheld unless clearly shown to be erroneous; the burden of such showing isupon the appellant. Kamp v. FirstNational Bank and Trust Co. (1973), 161Mont. 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 clearpreponderance 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 findingsof fact. Thus, the appellantmust demonstrate amisapplication of law toprevail

on appeal. Appellant contendson appeal thatMary Toeckes was not authorized to have the approach and gate installed,and thereforehe

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

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..Thus, it is obvious that a tenant in comnon has no right to a.lteror change the property to the injury of his cotenantwithout his assent or to obstruct,ordeny to his cotenant, the latter's equal right to its use

# ..." 20Am Jur 2d Cotenancy and Joint Ownership S37. However,we find that thisprovision does not apply to the facts of this case since appellant's only contentionof injury from the installation is that he cannot see the access to the property.Cotenantshave the right to equal access and use ofproperty 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 cotenantmay have access to the property by any reasonable means which does not createwaste. 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 shallprevent one cotenant or joint tenant or any number of cotenants or joint tenants acting together less than all from entering on the commonproperty 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. 

# .." (Emphasisadded.) On the basis of this common law and statutory authority and the factsof this casewe 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 calculationof the actual damages award. However,we find substantial evidence in the record to support this amount. The amount isnot excessive. The record reveals that Mrs. Toeckeswas 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 unitsper year. The testimony also conflicts concerning the cost of constructing the gates withthe rangebeing $10 to $50 for each gate. There was also conflict as to whether or not the statement from the countywas actually a bill. Although the evidence on damages is conflicting,we find that $230 in actual damages isnot excessive, since combinations of these amounts could total a much higher figure depending on theweight the District Court gives the testimony. Next appellant contends thatpunitive damages should not have been awarded. The basis of this contention is that although Ronald Baker admits removing the gate and approach without consultingMary Toeckes,his trip to Helena and his discussion with the Department of State Lands negates anymalicious 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 obligationnot arising from contractwhere the defendant has been guilty of oppression, fraud,ormalice, 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 respondentthrough 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 conversationmay 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 ofmalice. See Perkinsv. Stevens (1957), 131Mont. 138, 308 P.2d 620. There is substantial evidence to support a finding ofmalice by reason of appellant's conduct in destroying the gate and approach aswell as the intimidationexerted upon the respondent. With regard to the amount of punitive damages, there is

no established rule tobe followed for ascertainingwhether suchan award is excessive. Johnsonv. 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 isnot 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