No. 13686 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

HENRY A. LINK et al., 

Plaintiffs and Respondents, 

THE STATE OF MONTANA, Acting by and 

through the DEPARTMENT OF FISH AND 

GAME et al., 

Defendants and Appellants. 

Appeal from: District Court of the First Judicial District, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellants: 

Clayton Herron argued, Helena, Montana 

For Respondents: 

Hutton, Sheehy and Cromley, Billings, Montana 

John C. Sheehy argued, Billings, Montana 

Submitted: May 25, 1977 

~ecided: JUL22 1917 

Filed: JU 22 )gpl- 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from an order granting partial summary 

judgment in an action for specific performance of contract or 

damages filed in the district court, Lewis and Clark County. 

Prior to January 1, 1950 plaintiff had a concession to 

operate a mountain railroad and tram in Lewis and Clark Caverns 

State Park. The tram took visitors from a parking lot up a 

mountainside to the entrance of the Lewis and Clark Caverns. In 

1950 the State Park Commission (appellant Fish and Game Commission 

is the successor agency controlling state parks, formerly under 

the jurisdiction of the State Park commission) entered into an 

agreement with Link Bros., Concessionaires, plaintiff and respondent 

herein, whereby the State Park Commission took over the operation 

and maintenance of the railroad and tram. That agreement provided: 

"The Commission hereby agrees to take over the 

operation and maintenance of' the said mountain 

railroad, also known and designated as a hoist 

and tramway, at Lewis and Clark Caverns State 

Park, Montana, as of January 1, 1950, and to 

operate and maintain same at its own expense. 

The equity of said Concessionaires in the 

business of said mountain railroad as provided 

in said agreement of June 15, 1946, shall be 

recognized by the payments to the concessionaires 

by the said Commission the following amounts* * *.I1 

The agreement also provided: 

"Said Commission further agrees to operate said 

mountain railroad, tram and hoist, and handle the 

visiting public thereon in such a way as to 

encourage said public to use the other facilities 

o$ the Concessionaries at said Lewis and Clark 

Caverns State Park, and to operate said railroad 

in a manner that is beneficial to the business of 

the Concessionaires* * *.I1 

Plaintiff's complaint alleges that the state of Montana, 

through its Fish and Game Commission, has refused to operate 

and maintain said railroad, as it agreed to do under the contract, 

and has disbanded and set aside the equipment and machinery 
relating to the railroad. Based upon affidavits and answers to 

interrogatories, plaintiff concessionaire made a motion for a 

partial summary judgment to the effect that the state of Montana, 

through its Fish and Game Commission, had breached, was now in 

breach, and intended in the future to breach its contractual 

duty to operate and maintain the mountain railroad and tram. 

The district court granted the partial summary judgment 

on November 4, 1976. The operative language of the court's 

order for partial summary judgment is: 

"IT IS HEREBY ORDERED that plaintiffs be and are 

hereby granted partial summary judgment to the 

effect that the defendants breached, do now breach, 

and intend in the future to breach their contractual 

duty to operate and maintain the mountain railroad 

and tram in Uwis and Clark State Caverns; and the 

Court hereby reserves the further decision whether 

the defendants are entitled to any relief by virtue 

of their amended and supplemental answer and 

counterclaim, and, if plaintiffs are entitled to 

relief, whether such relief shall be by specific 

performance or by compensation in damages. " 

Respondent Concessionaire moved to deny the Comrnissionts 

appeal on three grounds: 

1. That the order is non-appealable because it is 

interlocutory in character and not a final judgment. 

2. That the appeal is frivolous and taken for the 

purpose of delay only. 

3. That the notice of appeal was not timely. 

In view of this Court's holding that the order in this 

case granting partial summary judgment is not appealable, we will 

not consider the second and third grounds. 

Rule 56, M.R.Civ.P., grants the district court power to 

enter summary judgment. Subdivisions (c) and (d) thereof provide: 

I' (c ) Motion and Proceedings Thereon. The motion 

shall be served at least 10 days before the time 

fixed for the hearing. The adverse party prior 

to the day of hearing may serve opposing affidavits. 

The judgment sought shall be rendered forthwith if 

the pleadings, depositions, answers to interrogatories, 
and admissions on file, together with the 

affidavits, if any, show that there is no genuine 

issue as to any material fact and that the moving 

party is entitled to a judgment as a matter of 

law. A summary judgment, interlocutory in 

character, may be rendered on the issue of liability alone although there is a genuine issue 

as to the amount of damages. 

"(d) Case Not Fully Adjudicated on Motion. If on 

motion under this rule judgment is not rendered 

upon the whole case or for all the relief asked 

and a trial is necessary, the court at the hearing 

of the motion, by examining the pleadings and the 

evidence before it and by interrogating counsel, 

shall if practicable ascertain what material facts 

exist without substantial controversy and what 

material facts are actually and in good faith 

controverted. It shall thereupon make an order 

specifying the facts that appear without substantial 

controversy, including the extent to which the 

amount of damages or other relief is not in controversy, and directing such further proceedings 

in the action as are just. Upon the trial of the 

action the facts so specified shall be deemed 

established, and the trial shall be conducted 

accordingly. 11 

Under the provisions of Rule 56, M.R.Civ.P., this Court 

has held that a summary judgment may be interlocutory in charac' 

and that the trial court can reserve for future decision or trii 

such other matters as are in controversy and that the court may 

consider such further proceedings as are just. 

In Schultz v. Adams, 161 Mont. 463, 466, 507 P.2d 530, 

this Court noted, citing from Russell v. Barnes Foundation, 136 

F.2d 654, decided on the federal rule identical to Montana's 

Rule 56, M.R.Civ.P.: 

"I* * * The motion must be granted since the order 

appealed from, although it determines the liability 

of the defendant to the plaintiff, will not become 

a final adjudication of the controversy between 

them until the damages to which the plaintiff is 

entitled have been assessed. 

See also: Tye v. Hertz Drivurself Stations, 173 F.2d 3. 

The specific authority for entering a partial summary 

judgment on the issue of liability alone, leaving the issue of 

damages for trial, is contained in Rule 56(c)(d), M.R.Civ.P., 
which designates this type of summary judgment as "interlocutory~ 

in character". The appeal is therefore premature. I 

For the above reasons the motion to dismiss the appeal ~ 

is granted. The appeal is ordered dismissed. I 

We Concur: 

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\-- Ad 4s - 

CHief Justice