IN THE SUPREFILE COURT OF THE STATE OF MONTANA

No. 14481
THE STATE OF MONTANA, Upon the relation of PROFESSIONAL CONSULTANTS, INCORPORATED, Petitionerand Appellant,
VS. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF RAVALLI et al., Respondents and Respondents. .<

ORDER
PER CURIAM: In the above named cause on page on line 8 at the end of the first paragraph, the following sentence is added: "Petitioner qualifies under both tests." DATED this*day of March, 1979.



# L" Justices 

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### No. 14481 IN 

### THE SUPREME COURT OF THE STATE OF MONTANA

THE STATE OF MONTANA, Upon the relation of PROFESSIONAL CONSULTANTS, INCORPORATED, Petitioner and Appellant,

THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF RAVALLI et al., Respondents and Respondents.
Appeal from: District Court of the Fourth Judicial District, Honorable Edward Dussault, Judge presiding. Counsel of Record: For Appellant: James L. 

### Tillotson,Missoula, Montana For Respondents: Douglas 

### G. Harkin, Hamilton,Montana

Submitted on briefs: December 21, 1978 Decided:

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### Filed:

## F.

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### .Mr. Justice John Conway Harrison delivered the Opinion of the Court. Professional Consultants, Inc., petitioned the District Court, Fourth Judicial District, Ravalli County, for a writ of mandate tocompel the county commissioners of Ravalli County toactconcerning fiveminor subdivisions. From the denial of itspetition, Professional Consultants, Inc., appeals. The sole issuebefore thisCourt iswhether the DistrictCourt erred infinding thatpetitioner had no standing tomaintain this action because it lacked sufficient interest toinitiateand maintain the litigation. Petitioner, Professional Consultants, Inc., isan engineering survey group which was hired toplat subdivisions inRavalli County. On February 21, 1978, petitioner submitted fiveminor subdivisions to the Ravalli County planning board forreview and approval by the county commissioners asrequired under section 11-3866(6), R.C.M. 1947,
now section 76-3-609 MCA. The planning board approved the plats and submitted theirrecommendations tothe county commissioners. Respondent commissioners had neither approved, disapproved, orconditionally approved any of the minor subdivisions by May 17, 1978. As a result, this action 

### wasbrought alleging that the commissioners are in violation of their clear legal duty under the above statute. It should be noted that the subdivision questionnaire submittedby each of the fiveminor subdivisions did not contain the signatureof petitioner. Rather, they contained the signatures of the owners of the lands inquestion. Petitioner had no legal interest inany of theminor subdivisions; was not the legal titleowner of any of the fiveminor subdivisions; and was not the purchaser of any of the property involved. Petitioner set forthno legal or equitable interest inany of the land contained inthe five minor subdivisions. The petition did not allege thatpetitioner had been authorized by any of the owners of the property tocommence any legal action regarding the property. It appears that the only interest of petitioner is that itsemployees conducted survey work and engineering work on the property. Section 93-9103, R.C.M. 1947, now sections 27-26-102(2) and 27-26-201 MCA, has long been a part of our statutes. It provides: "Writ--when and upon what toissue. The 

### writ must be issued inallcases where there isnot a plain, speedy, and adequate remedy inthe ordinary course of law. Itmust be issued upon affidavit, on the application of the party beneficially interested." We firstnote thatunder Rule 52, M.R.Civ.P., that

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# . Findings of fact shall not be 

### set asideunless clearly
erroneous 

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# .." This standard forreview has been often repeated by thisCourt and 

### isapplicable inthis case. See Lovely v. Burroughs Corp. (1974), 165Mont. 209, 527 P.2d 557; In

### re Mickich's Estate (1943), 114Mont. 258, 136 P.2d 223. While an action involving a 

### writof mandate isone in equity, numerous cases have held that the findings of the DistrictCourt should not be reversed inan equity action unless the evidence clearly preponderates against them. See Kosel v. Stone (1965), 146Mont. 218, 404 P.2d 894; Larsen Farms v. City of Plentywood (1965), 145Mont. 509, 402 P.2d 410. In a mandamus action thepetitioner faces a heavy burden of proving that it isentitled toa 

### writof mandamus.See Statev. Fire Department Relief Ass'n (1943), 114Mont. 430, 136 P.2d 989, and State ex rel. SlettenConst. Co. v. City of Great Falls (1973), 163Mont. 307, 516 P.2d 1149. Courts have employed the "standing" doctrine torefuse

, todetermine themeritsof legal action, on the ground that even though the claimmay be correct, the litigant advancing it isnot proper. See Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction S3531. See also Data Processing Servicev. Camp (1970), 397 U.S. 150, 90 S.Ct. 827, 25 L Ed 2d 184. Petitioner has stated no legal interest inany of the minor subdivisions subject of this action. It is not the
owner orpurchaser of any of the property involved inthis cause, and admits that it lacks any legal or equitable interestinthe land. Some form of ownership in the land is necessary to embark standing tobring a mandamus action. See People v. Vaglica (1968), 99 111.App.2d 213, 240 N.E.2d 271; Sun

## oilCo. v. Macauley (1946), 72 R.I. 206, 49 A.2d 917; and Boron OilCompany v. City of Southfield (1969), 18 Mich.App. 135, 170N.W.2d 517. The decision of the District Court denying standing to thepetitioner is affirmed.

Weconcur: 

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Chief Justice
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### ',Mr. 

### Chief Justice Haswell dissenting: I would reverse and remand this case to the District Court for determination of the merits of the action. Themajority deny "standing" to petitioner to prosecute
a writ of mandamus because petitioner has no ownership interest in the land, relying onVaglica, Sun Oil and Boron Oil cited in themajority opinion. In my opinion, none of these cases is authority for this holding. Vaglica, a criminal case not involving mandamus, held that defendant had standing to seek suppression of evidence seized in alleged violation of the rights of the owner of the premises where the evidence was seized. Sun Oil involved no issue of "standing"but was decided on the basis of insufficiency of the pleadings. Boron Oil was decided on the basis of whether petitioner for a writ of mandate was "the real party in interest." "Theconcepts of 'standing to sue' and 'real party in interest' are very different." Stewartv. Bd. of Cty. Mont. Cornrn'rs of Big Horn Cty. (19771, 

### , 573 P.2d 184, 188, 34 St.Rep. 1594, 1599; 6 Wright & 

### Miller, Federal Practice and Procedure: Civil S1542. Here I would grant standing to petitioner to prosecute a writ of mandamus. Petitioner is a professional engineering survey corporation hired by the landowners to survey,plot and qualify fiveminor subdivisions in Ravalli County. The corporation claims it cannot complete its contract because of the alleged failure of the county commissioners to act when they have a clear legal duty to do so. Inmy view, petitioner's contract rights are sufficient to invest it with standing to prosecute this action. We have twice previously permitted a surveyor to prosecute a writ of mandamus in similar situations. State ex rel. Swart v. Stucky

(1975), 167 Mont. 171, 536 P.22 762; State ex rel. Swartv. Casne (1977), Mont

# . , 564 P.2d 983, 34 St.Rep. 394. As I see it, the essence of "standing" is twofold: (1)to

### insure that petitioner has such a personal stake in the outcome of the controversy that concrete adverseness and full development of the issues in controversy is assured (cf. Flast

### v. Cohen

(1968), 392 U.S. 83, 88 S.Ct. 1942, 20 L 

### Ed 2d 947) and (2) to conserve the time and judicial resources of the courts by elirninating adjudication of matters purely of academic interest (cf. Association of Data Processing Service Org., Inc. 

### v. Camp (1970), 397 U.S. 

### 150, 90 S.Ct. 827, 25 L 

### Ed 2d 184). Themajority would limit "standing" in a mandamus action to those who possess "some form of ownership in the land." This is indeed a novel position that would exclude lessees, lienholders,mortgagees and others who have legitimate contract and statutory interests to protect short of ownership. For these reasons, I respectfully dissent.

Chief Justice

Mr. Justice Gene B. 

### Daly concurs with the dissent.

Justice I

I/