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, 1994Justice James C. Nelson delivered the Opinion of the Court. This isanappeal froma 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 DistrictCourt's findings of fact, conclusionsof law and judgmentbased 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, Stephenand Charlene Beck bought Lots 3 and 4 intheLarabieAddition,making them theneighborsdirectly to the south of the Gilmans. Stephen Beck is presently the sole

owner of the two lots. At somepoint 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 theGilmans' health and interfering with the comfortand enjoyment of theirhome. 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 neighborsand property ownersof 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 offeredby 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 illustrativeexhibit. Itportrayed Beck's understandinqof the lot lines. 3Gilmans argue that the lot sketchprovided the solebasis for the District Court to determine the boundary linesbetween the two properties. However, there was testimony providedby formerowners of the lots as to the historical understanding of the boundary lines between the properties. William Browne owned Lots 3 and 4prior to Beck's purchase of the property. Browne testified that when he bought theproperty, 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 theboundary between Lots 2 and 3. Brown€ testified that the mark was on the line "rightbetween 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 toprovide water service for the Brownes,hemarked theplacewhere the originalmarker had been andwhen the new sidewalkwas put in,hemarked 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 1and 2, came out to see where the Browneswanted tobuild thegarage 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 theformerowner,Mrs. Breeding, showed themarking on the sidewalkand stated, "1 sold you this part, this land." David Streufert,who purchased Lots 3 and 4 from the Brownes, testified that itwas 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 "maintainedproperty along that line all the way over towhere the sidewalkwas." Theywere 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 Gilmanshave 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 indetermining the location

### of theboundary linesbetween 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 conductedby Hendricks, a surveyorhired 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 ofFact,Conclusions of Law, and Judgmentwasnot based on substantial credible evidence. Beck asserts that the only evidence providedby the Gilmans to demonstrate that therewas 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 thedemeanor of thewitnesses 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. (Citationsomitted.) 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 encroachesabout three feetonto Gilmanslproperty according tohis survey. He also testified that Gilmansl garage encroached into HigginsAvenue and into the alley and all the lots in the areawere "out of kilter,"and about six and eitht tenths feettoo farnorth. However, Hendricks did not record the survey with the Poweli County Clerk and RecorderIs 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 otherhand, Beck provided the testimony discussed above in Issue 1; 

### former owners who stated that according to the historical boundaries ofthe lots,Beck's garage isentirelywithin 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 garagewould be entirely within his own property. JuanitaBrowne also statedthatwhen they decided tobuild 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 Streufertalso 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 whichhe received from thebank 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,andJudgment, concludingthat: 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 countersthatGilmansdid not "produceany expert

or other testimony to support any contentions that they were damaged in anyway by the smoke fromMr. 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 theupstairs apartment for $300 

### per month but hedid not feelhe could rent itbecause of theproblemwith smoke from Beck's wood stoves. Although theGilmanstestified tomedical 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. "Plaintiffshave theburden of proving,by competentevidence, 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 havesuffered 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: ,.AJuly6, 1994 CERTIFICATEOFSERVICE Ihereby certify that the following certifiedorderwas sentby United States mail, prepaid, to the following named:

JohnL.McKeon Attorney atLaw 124OakStreet-P.O. Box879 Anaconda,MT59711 KarlKnuchel AttorneyatLaw P.0.Box953 Livingston,MT59047

EDSMITH CLERKOFTHE SUPREME COURT STATE OF MONTANA