IN THE SUPREME COURT OF THE STATE OF MONTANA 

STANLEY GILMAN and JEANNETTE GILMAN, 

plaintiffs and Appellants, 

-vSTEPHEN R. BECK and CHARLENE BECK, 

Defendants and Respondents, 

and 

Defendants and Respondents. 

APPEAL FROM: ~istrict Court of the Third ~udicial ~istrict, 

In and for the County of Powell, 

The Honorable Mark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John L. McKeon, Anaconda, Montana 

For Respondent: 

Karl Knuchel, ~ivingston, Montana 

Filed: 

Submitted on Briefs: April 21, 1994 

Decided: July 6, 1994 
Justice James C. Nelson delivered the Opinion of the Court. 

This is an appeal from a Third Judicial ~istrict Court, Powell 

County bench trial finding for the defendant/respondent on the 

issue of the boundary dispute, and finding for the 

plaintiffs/appellants on the nuisance issue. We affirm. 

The following are issues on appeal: 

1. Did the District Court err by admitting hearsay evidence? 

2. Were the District Court's findings of fact, conclusions of 

law and judgment based on substantial credible evidence? 

3. Did the District Court err in not awarding damages to the 

Gilmans on the nuisance claim? 

The Gilmans bought Lots 1 and 2 of the Larabie Addition in 

Deer Lodge in 1976. In 1984, Stephen and Charlene Beck bought Lots 

3 and 4 in the Larabie Addition, making them the neighbors directly 

to the south of the Gilmans. Stephen Beck is presently the sole 

owner of the two lots. At some point after the two parties became 

neighbors, friction developed between the them which resulted in 

the present action. 

The Gilmans filed a complaint against Beck on May 15, 1987. 

They then filed an amended complaint on July 1, 1987, contending 

that Beck was encroaching on the Gilmans' property, and praying 

that the item of encroachment, the garage, would be removed from 

the Gilmansl property and that Beck be assessed general and 

punitive damages. Moreover, on March 27, 1989, the Gilmans filed 

a complaint against the Becks, alleging that the Becks had 

constructed a wood burning stove in such a manner as to cause the 

2 
Gilmans' house to become smoke-filled and their air to be 

contaminated, thereby injuring the Gilmans' health and interfering 

with the comfort and enjoyment of their home. The two actions were 

consolidated on February 22, 1993. On July 13, 1993, this action 

was tried before the bench. Other facts will be presented as 

necessary for the resolution of the issues. 

1. HEARSAY EVIDENCE 

The Gilmans contend that the District Court erroneously 

admitted hearsay evidence and relied on the hearsay as the sole 

basis for the judgment. Beck asserts that the testimony provided 

at trial came from former neighbors and property owners of the lots 

in question and was not hearsay. Hearsay is defined at Rule 

801(c), M.R. Evid., and provides: 

(c) Hearsay. Hearsay is a statement, other than one 

made by the declarant while testifying at the trial or 

hearing, offered in evidence to prove the truth of the 

matter asserted. 

The document referred to as "hearsay" by the Gilmans is a lot 

sketch produced by Robert Burgess which was given to Beck as part 

of a package by the bank from which he obtained his loan to 

purchase his property. According to the lot sketch, the Beck 

garage lies entirely within the Beck property. When the document 

was offered by Beck's attorney, he stated that " [w] e'd move for the 

admission of Exhibit A illustrative as one of the documents that 

Mr. Beck received prior [to] buying his property." The document. 

was not inadmissible hearsay, it was admitted purely as an 

illustrative exhibit. It portrayed Beck's understandinq of the lot 

lines. 

3 
Gilmans argue that the lot sketch provided the sole basis for 

the District Court to determine the boundary lines between the two 

properties. However, there was testimony provided by former owners 

of the lots as to the historical understanding of the boundary 

lines between the properties. 

William Browne owned Lots 3 and 4 prior to Beck's purchase of 

the property. Browne testified that when he bought the property, 

he physically inspected the property with the former owner and he 

found a round circle stamped and branded onto the sidewalk with a 

line through it, marking the boundary between Lots 2 and 3. Brown€ 

testified that the mark was on the line "right between Lots 2 and 

3." Browne further related that when he called a contractor to 

pour the foundation for his house, he showed the contractor the 

location of the mark. He also stated that when he built his 

garage, he built it on his own property. Finally, he testified 

that when the City dug up the sidewalk to provide water service for 

the Brownes, he marked the place where the original marker had been 

and when the new sidewalk was put in, he marked the area of the old 

marker onto the new sidewalk. 

Juanita Browne also testified that when they decided to build 

the garage, the Springers, then owners of Lots 1 and 2, came out to 

see where the Brownes wanted to build the garage and they requested 

that the Brownes move the garage (to its present location) because 

they felt it was too close to their fence which they had 

constructed, with Browne's assistance, between Lots 2 and 3. 

Additionally, Juanita Browne was with William Browne when the 
former owner, Mrs. Breeding, showed the marking on the sidewalk and 

stated, "1 sold you this part, this land." 

David Streufert, who purchased Lots 3 and 4 from the Brownes, 

testified that it was his understanding that the garden fence line 

on the Gilman property, north of the Beck garage, was the correct 

property line. He stated that they "maintained property along that 

line all the way over to where the sidewalk was." They were using 

an additional "three feet or so north of the garage. . . . 11 

Beck testified that the Gilman house was just to the north of 

his property line and that the northern section of Beck's garage. 

was three feet from the property line as indicated by the lot 

sketch. He had been maintaining Lot 3 up to the chain link fence 

that Gilmans have for their garden. Beck also stated that he told 

Gilmans that he would maintain the sixty feet he felt he had 

purchased until it was proved otherwise. 

The District Court considered evidence presented by a numbel. 

of people in determining the location of the boundary lines between 

the two parcels of land. The lot sketch, which was not 

inadmissible because it was not hearsay, was just one piece of 

evidence used by the District Court to determine that the Gilmans 

did not carry their burden to prove that the lot lines were those 

established by the survey conducted by Hendricks, a surveyor hired 

by Gilmans to determine the proper boundaries of the lots in 

question. 

2. SUFFICIENCY OF THE EVIDENCE 

The Gilmans contend that the District Court's Findings of 
Fact, Conclusions of Law, and Judgment was not based on substantial 

credible evidence. Beck asserts that the only evidence provided by 

the Gilmans to demonstrate that there was an encroachment on their 

property was the improper survey by Hendricks while Beck provided 

testimony from former owners as to the historical property lines. 

[W]e note that this case was decided by the trial 

judge sitting without a jury. The trial judge observed 

the demeanor of the witnesses and is in a better position 

to judge their credibility than a reviewing court, thus 

ll[w]e will not substitute our judgment for that of the 

trier of fact, but rather will only consider whether 

substantial credible evidence supports the findings and 

conclusions" "Findings of fact shall not be set aside 

unless clearly erroneous, and due regard shall be given 

to the opportunity of the trial court to judge of the 

credibility of the witnesses." 

Emcasco Ins. Co. v. Waymire (1990), 242 Mont. 131, 135, 788 P.22. 

1357, 1360. (Citations omitted.) 

At trial, Gilmans offered the testimony of Donald Hendricks, 

a surveyor, who conducted a survey of the property involved in the 

action, and testified that "the south line of Lot 2 [passes! 

through the garage of Mr. Beck." He stated that Beck1 s garage 

encroaches about three feet onto Gilmansl property according to his 

survey. He also testified that Gilmansl garage encroached into 

Higgins Avenue and into the alley and all the lots in the area were 

"out of kilter," and about six and eitht tenths feet too far north. 

However, Hendricks did not record the survey with the Poweli 

County Clerk and Recorder Is office as required by § 70-22-104, MCA. 

He also stated that he did not speak with any of the former owners 

of the properties at issue to determine whether they had any 

history which might assist in the survey. The District Court 
allowed the admission of the survey as the surveyor's opinion of 

the location of the lot lines. 

On the other hand, Beck provided the testimony discussed above 

in Issue 1; former owners who stated that according to the 

historical boundaries ofthe lots, Beck's garage is entirely within 

his own property. Both of the Brownes testified that when they 

purchased Lots 3 and 4, the then current owner, Mrs. Breeding, 

showed them a sidewalk marker, marking the lot line for the 

property they were to purchase. According to that marker, Beck's 

garage would be entirely within his own property. 

Juanita Browne also stated that when they decided to build the 

garage Beck currently owns, they invited their neighbors, the 

Springers, over to obtain their opinion about the location of the 

proposed garage. The Springers wanted the garage moved a little 

farther from the fence line, and the Brownes accommodated them, 

building the garage at its present location. David Streufert also 

testified and reported that it was his understanding that the 

Gilmans' garden fence line was the proper lot line for the 

property. 

Beck offered a lot sketch which he received from the bank from 

which he obtained his loan to purchase his property. The lot 

sketch was provided to Beck from the bank, and was purported to 

represent the proper lot lines of the property. Beck testified 

that his garage was three feet from the lot line according to the 

lot sketch. He stated that he had been maintaining Lot 3 up to 

Gilmans' fence line. 
We hold that there was substantial credible evidence upon 

which the District Court could base its in dings of Fact, 

Conclusions of Law, and Judgment, concluding that: Beck's garage was 

built entirely on his own property and did not encroach ontc' 

Gilmans' property. 

3. NUISANCE DAMAGES 

Gilmans insist that the District Court erred in not assessing 

damages to the Gilmans for the nuisance created by Beck from the 

wood stove. Beck counters that Gilmans did not "produce any expert 

or other testimony to support any contentions that they were 

damaged in any way by the smoke from Mr. Beck's chimney." We agree 

with Beck. 

Gilmans offered no testimony, expert or otherwise, to prove 

that they have suffered damages. The only evidence presented. 

concerning monetary amounts was Stan Gilman's testimony that he 

would rent the upstairs apartment for $300 per month but he did not 

feel he could rent it because of the problem with smoke from Beck's 

wood stoves. 

Although the Gilmans testified to medical problems associated 

with the smoke from the wood stoves, no expert medical testimony 

was presented nor were any medical bills or pertinent documents 

admitted by the Gilmans to prove damages to their health. 

"Plaintiffs have the burden of proving, by competent evidence, the 

amount of damages which they suffered. . ." Smith v. Zepp (1977), 

173 Mont. 358, 370, 567 P.2d 923, 930. Here, the Gilmans have not 

offered any competent evidence to demonstrate that they have 
suffered damages and the amount of damages suffered. The District 

Court did not err when it did not assess damages against Beck due 

to the smoke from his wood stoves. 

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 this Court and by a report of its result to the 

West Publishing Company. 

AFFIRMED. 

We Concur: ,.A 
July 6, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

John L. McKeon 

Attorney at Law 

124 Oak Street-P.O. Box 879 

Anaconda, MT 5971 1 

Karl Knuchel 

Attorney at Law 

P. 0. Box 953 

Livingston, MT 59047 

ED SMITH 

CLERKOFTHE 

SUPREME COURT 

STATE OF 

MONTANA