No. 14757 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

MORRISON-MAIERLE, INC., 

a corporation, 

Plaintiff and Respondent, 

SELSCO, a Utah Corporation, 

qualified to do business in 

Montana, 

Defendant and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable FrarkE. Blair, Judge presiding. 

Counsel of Record: 

For Appellant: 

G. Page Wellcome argued, Bozeman, Montana 

For Respondent : 

Berg, Angel, Morgan & Coil, Bozeman, Montana 

Gregory 0. Morgan argued, Bozeman, Montana 

Submitted: November 1, 1979 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Defendant, Selsco Corporation, appeals from a judgment of 

the Gallatin County District Court foreclosing a mechanic's 

lien filed by the plaintiff, Morrison-Maierle, Inc., and denying 

defendant's counterclaim against the plaintiff for alleged 

negligence in relation to the planning and supervising of 

construction of defendant's campground. 

The defendant raises two major issues in this appeal. 

Selsco first contends that the mechanic's lien does not accurately 

describe the attached property and thus cannot be enforced to 

satisfy its judgment. In relation to its counterclaim, Selsco 

asserts that the evidence presented at trial established as a 

matter of law that it was entitled to damages as a result of 

the plaintiff's failure to exercise care in planning and 

inspecting the project. 

The defendant, Selsco, a Utah corporation, (referred to 

herein as the owner), contracted with Morrison-Maierle, Inc. 

a Helena engineering firm, (referred to as engineers), for the 

development of a project called West Yellowstone United Campgrounds. 

Pursuant to their agreement with the owner, the engineers 

developed a plan for facilities to accommodate 500 campers, and 

provided regular inspection of construction to assure that the 

construction was properly performed. All phases of the project 

were completed in July 1972. 

Soon after the campground opened the owner experienced 

difficulties with the newly constructed facilities, and refused 

to complete payments to the engineer. The engineers filed 

suit on August 12, 1974, seeking payment of the amount still 

owed under the contract. The complaint sought collection of 

this debt by enforcement of a mechanic's lien on the campground 

improvements. The owner moved to dismiss the complaint alleging 

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that the mechanic's lien did not properly describe the property 

involved. Later, the owner filed a counterclaim against the 

engineers. This counterclaim was amended to allege additional 

defects in construction of the campground facilities allegedly 

caused by the engineer's negligence. 

After a nonjury trial, the court granted judgment of $22,945 

for the contractual debt, and $7,662.55 for costs and attorney 

fees. The court denied the owner's counterclaim and ordered 

the judgment to be satisfied by foreclosure and sale of 

campground property. The owner appeals this judgment. 

The owner contends that the mechanic's lien should not be 

enforced because it is not in strict compliance with the code's 

requirement that the lien contain a correct description of the 

charged property. See section 71-3-511(1), MCA. The lien 

states that Selsco owns or holds the charged land when in fact, 

Selsco occupies the land under a special use permit issued by 

the United States government. We do not consider this to be 

fatal to the lien. 

Nor does the lien description fail to adequately describe 

the property to which it attaches. Any error or mistake in the 

account or description does not affect the validity of the lien 

if the property can be identified by the description. Section 

71-3-511(1), MCA. Here, the lien gave the correct legal 

description of the land on which the structures were located and 

identified the attached property together with "all improvements, 

structures and fixtures thereunto appertaining or affixed." 

The purpose of the statutory requirements for filing a 

description of the attached property is simply to give notice 

of the existence of the lien to interested third parties. Cole 

v. Hunt (1949), 123 Mont. 256, 211 P.2d 417. This purpose is 

not frustrated here where it is not argued that the attached 
improvements can be confused with any other structures in the 

area. Furthermore, the lien description is made even more 

specific by the accounts filed with the lien which state that 

the engineers' bill is for "engineering services on United 

Campground, West Yellowstone, Montana." A person reading 

the lien should readily conclude that the lien attaches to the 

campground facilities. See Varco-Pruden v. Nelson (1979), 

- Mont. , 593 P.2d 48, 36 St.Rep. 704. We conclude 

therefore that the lien documents taken as a whole adequately 

describe the property to which the lien attaches. 

In its appeal from the trial court's denial of its 

counterclaim, the essence of the owner's contentions is that 

the trial court had a duty, as a matter of law, to find 

that the engineers breached their contractual duties and 

that the owners were injured by this negligence in design 

and inspection. We determine however, that there was substantial 

credible evidence upon which the trial court could deny the 

counterclaim. The thrust of the argument by the owner is 

that the trial court should have believed its own expert 

testimony rather than the expert testimony from the engineers. 

The counterclaim alleged that the engineers failed to 

design and inspect the project in a workmanlike manner, and 

that the breach of this duty caused defects in four items for 

which it seeks damages: the sewage lagoon (estimated damage 

(643,240); valve boxes (estimated damages $4,729); water lines 

(estimated damages $2,943); and loop roads (estimated damage 

$2,000). 

At trial, the owners attempted to prove by expert testimony 

that the engkmeers had a duty of care to test the permeability 

of the lagoon's clay surface before its certification. The 

engineers countered this evidence with the testimony of their 

chief engineer who stated that cracking in the lagoon's surface 

was caused by insufficient flow from campground units during 

the period of 1973 to 1977 when the occupancy rate of the 

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campground was roughly 13 percent of its designed capacity. 

We note in this regard, that it was in 1977 when the campground 

owners first attempted to fill the lagoon with water and then 

discovered that the cracks in the clay liner prevented the 

lagoon from filling. The trial court was not bound by testimony 

of either expert, and it had the right to give greater weight 

to the engineer's testimony. See Erickson v. Perrett (1977), 

Mont . , 572 P.2d 518; Robertson v. Valhi, Inc. (La.App. 

1977), 345 So.2d 149; 32 C.J.S. Evidence 5572(1), at 669. 

Two of the remaining defects alleged in the owner's counterclaim, occurred as a result of time constraints placed on the 

engineers. Water valves installed in the campground began to 

leak and did not meet the specifications of the engineers' plans. 

However, it is not disputed that the specified water valves were 

unavailable at the time the project neared completion, and the 

engineer to complete the project on schedule, purchased the 

best available substitute. 

The owner claims that cracking in the campground's loop 

roads was caused by the engineers' negligence, but uncontradicted 

testimony established that placing a permanent surface on the 

road would have delayed the scheduled opening of the campground. 

The parties did not decide upon a temporary surface until 

the owners had been fully informed that settling would likely 

occur in a temporary surface. 

The last contention concerning the counterclaim is that 

the engineers failed to lay the water lines according to 

design specifications and therefore that the water lines did 

not drain properly. The owners argue that a reasonable 

inspection of the bedding of the water lines would have 

prevented the defect from occurring. 

The record indicates, however, that during the major portion 

of construction the engineers made almost continuous inspections 

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and they forwarded daily progress reports to the owner. West 

Yellowstone United Campgrounds was a very large project and 

it is predictable that some faulty workmanship would go 

undetected by even careful inspection. An engineer is not 

an insurer of a project against defects nor does he guarantee 

that he will complete it to perfection. He is required to 

exercise the care and competence expected of a member of his 

profession. Bloomsburg Mills, Inc. v. Sordoni Construction 

Company (1960), 164 A.2d 201, 401 Pa. 358; Gagne v. Bertran 

(1954), 43Ql.2d 481, 275 P.2d 15, 21; 6 C.J.S. Architects 

827, at 491-92. The trial court heard the evidence and 

determined that the engineers exercised reasonable care. 

There was sufficient evidence to conclude that the engineers 

had not breached their duty of care. 

The remaining issue concerns the cost bill. The owner 

contends that certain deposition expenses and a partial 

transcript of trial are not properly chargeable as costs or 

expenses of litigation. 

The engineers included two depositions as part of 

their costs. Both witnesses later appeared and testified at 

trial. The engineers admit, however, that one of the depositions 

should not have been charged as costs, but contend that the 

costs of taking witness Wetstein's deposition should be 

awarded to them, because they furnished a copy of the deposition 

to the owner who used it as evidence at trial. Since it was 

so used, we conclude that it was properly part of the costs 

of the action. The distinction is that if a deposition is 

taken solely for a party's own convenience, he cannot properly 

charge it to the other party as part of the costs. Lovely v. 

Burroughs Corp. (1974), 165 Mont. 209, 527 P.2d 557, appeal 

after remand 169 Mont. 454, 548 P.2d 610; Johnson v. Furgeson, 

Et Al. (1971), 158 Mont. 170, 489 P.2d 1032. Here the copy 

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was furnished to the owner at the engineers' expenses, and 

used by the owner at trial. It has no ground to complain. 

We hold, however, that the engineers could not properly 

order a partial transcript of the trial for use at the trial 

and charge it to the owner as part of the costs. It was 

not, under section 25-10-201, MCA, a reasonable and necessary 

expense. 

With the exception of the Wetstein deposition which 

should be excluded as an item of costs, the judgment of the 

District Court is affirmed. #&&--A JUS i 

We Concur: 

Chief Justice 

Justices