No. 93-297 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

RALPH HAMMER, 

Plaintiff and Appellant, 

v. 

MARY JO HAMMER and HAMMER FARMS, 

INC., a Montana corporation, 

Defendants and Respondents. DEC 14 1993 

CLERK OF SUPftLr,: 1 *12LRT 

STATE OF MUfi TAW% J 

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CLERK OF SUPftLr,: 1 *12LRT 

STATE OF MUfi TAW% J 

APPEAL FROM: District Court of the Fifteenth Judicial District, 

In and for the County of Daniels, 

The Honorable James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Loren J. OgToole, OgToole & OgToole, Plentywood, 

Montana 

For Respondent: 

Ken W. Hoversland, Scobey, Montana 

Filed: 

Submitted on Briefs: November 11, 1993 

Decided: December 14, 1993 
Justice Karla M. Gray delivered the Opinion of the Court. 

Ralph Hammer (Ralph) appeals from portions of a judgment 

entered by the Fifteenth Judicial District Court, Daniels County, 

concerning the ownership of certain buildings; no appeal is taken 

from the judgment insofar as it relates to a grain dryer. We 

affirm. 

The dispositive issue before us is whether the District Court 

erred in concluding that a writing relied on by Ralph is 

insufficient to establish cotenancy. As a result, we need not 

address Ralphls argument that the court erred in also concluding 

that he is estopped from asserting any claim against the buildings, 

because his assertion of error vis-a-vis estoppel is premised on 

his having established the cotenancy. 

The conclusion at issue is based on the District Court's 

findings of fact relating to the evidence presented in support of 

the cotenancy. Thus, we review herein both findings of fact and 

conclusions of law. A district court's findings of fact are 

reviewed to determine if they are clearly erroneous. Steer, Inc. 

v. Deplt of Revenue (1990), 245 Mont. 470, 474-475, 803 P.2d 601, 

603. That standard encompasses a three-part test of substantial 

evidence, misapprehension of the effect of the evidence, and 

whether this Court is left with the definite and firm conviction 

that a mistake has been committed. Interstate Prod. Credit Assln 

v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. 

Ralph claims a one-third ownership interest in a quonset, a 

shop and granaries located on real property presently owned by 

2 
Hammer Farms, Inc. Based on that asserted ownership interest, 

Ralph claims that the defendants ousted him from possession and, as 

a result, that he is entitled to a court sale of the buildings and 

receipt of one-third of the proceeds. 

Co-defendant Mary Jo Hammer (Mary Jo) is the widow of Ralphr s 

deceased brother, Glenn. It is undisputed that Glenn Hammer 

acquired sole title to the real property upon which the buildings 

at issue are located from his parents on October 13, 1967; the 

warranty deed included all buildings and improvements situated on 

the real property. Glenn and Mary Jo lived on the property from 

the date of acquisition until Glenn's death in 1984. Mary Jo 

continues to reside there. Title to the property is held by codefendant Hammer Farms, Inc. 

Ralph's claim of a one-third ownership interest in the 

buildings is based on a writing allegedly executed by Glenn. The 

writing reads as follows: 

This is an agreement that Lloyd Hammer [another brother] 

& Ralph Hammer own each one third interest in the shop, 

quonset and four wood granaries located SW1/4 of 28 35 

50. Also to use location for parking of a trailer house. 

For this they will pay their share of the insurance 

and taxes on the above mentioned property. 

A signature, purportedly that of Glenn A. Hammer, follows. The 

writing is not dated, witnessed or notarized. It was not recorded. 

Ralph testified that Glenn executed the writing; Mary Jo could not 

swear that the signature was Glenn's. Ralph could not testify as 

to the date the writing was made. He testified that "it could bef1 

that he had had possession of the writing for twenty to thirty 

years. Neither Mary Jo nor Lloyd Hammer had ever seen the writing 
prior to late 1989. 

Boiled down to their essence, the District Court s findings of 

fact relating to the writing reflect that the court did not find 

Ralph's presentation in that regard credible. A trial court acting 

as a finder of fact is in the best position to observe the 

witnesses, including their demeanor and credibility. Nave v. State 

Compensation Mut. Ins. Fund (1992), 254 Mont. 54, 58, 835 P.2d 706, 

709. The weight of evidence and credibility of witnesses are 

exclusively the province of the trier of fact. State v. Palmer 

(1991), 247 Mont. 210, 214, 805 P.2d 580, 582. Here, the District 

Court determined credibility, weighed the evidence and entered 

findings based on substantial evidence. The findings do not 

indicate that the court misapprehended the effect of the evidence; 

nor does it appear that a mistake has been made. We hold that the 

District Court's findings of fact relating to the writing are not 

clearly erroneous. 

On the basis of the record and its findings, the District 

Court concluded that lP[t]he writing presented by the Plaintiff is 

insufficient to establish cotenancy." We cannot say that this 

conclusion was error as a matter of law. 

The problems with the writing, insofar as they relate to 

whether it proved Ralph's ownership interest, are too fundamental 

to require extended discussion or citation to legal authority. 

First, the authenticity of the writing is not established here 

because whether Glenn actually executed the writing is 

questionable. Even more important is the lack of a date on the 

writing, or any other evidence fixing such a date in other than the 
vaguest of terms. According to Ralph's own testimony, the writing 

may have been executed as early as 1963. As noted above, Glenn did 

not own the real property and buildings until late in 1967. Thus, 

even assuming Glenn executed the writing, he may have done so while 

the property was still owned by his parents. Moreover, at least 

some of the buildings at issue are, in fact, permanently affixed to 

the real property and, as such, are legally part of the real 

property itself. Under fundamental legal principles, the writing 

does not evidence any of the formalities required to transfer 

ownership of, and title to, real property. The District Court did 

not err in concluding that the writing was insufficient to 

establish a cotenancy in Ralph. 

Affirmed. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

We Concur: 

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