No. 85-324 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

RICHARD A. SHORS and ANN C. SHORS, 

Plaintiffs and Respondents, 

JERRY L. BRANCH, d/b/a JERRY L. BRANCH, 

Consulting Geologist and Producer, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hash, Jellison, O'Brien & Bartlett; Kenneth O'Brien, 

Kalispell, Montana 

For Respondent : 

Peterson, Peterson, Burns & Shors; William L. Burns, 

Cut Bank, Montana 

Submitted on Briefs: March 13, 1986 

Decided: June 5, 1986 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant Mr. Branch appeals a judgment of the District 

Court for Flathead County. That court granted a total of 

$52,000 in actual and punitive damages against him, following 

a bench trial on plaintiff's complaint of defamation and 

violation of easement rights. We affirm. 

Mr. Branch raises fifteen separate issues which we 

restate as follows: 

1. Is plaintiffs' claim for damages for interference 

with their easement rights barred by statute of limitation? 

2. Did Mr. Branch's installation and maintenance of the 

gate on the road extinguish the plaintiffs' easement rights 

by adverse possession or establish a prescriptive right to 

the gate? 

3. Did the trial court err in permitting testimony 

concerning: 1) an incident in which Mrs. Shors and her children were "buzzed" by the Branch children on a snowmobile; 

and 2) Mr. Branch's reference to the Shors as 

"trouble-makers" and "hippies" and his suggestion to third 

parties that the Shors cabin be burned down? 

4. Is there substantial evidence to support the court's 

findings that: a) Mr. Branch did not complete construction of 

the access road as required by the Declaration of Restrictions; b) Mr. Branch acted maliciously and with a reckless 

disregard for the plaintiffs' rights in constructing the 

gate; and c) plaintiffs were entitled to $2,000 for the loss 

of use of the vehicle a-ccess road? 

5. Was the communication of the letter to the Flathead 

County Sheriff's Office privileged? 
6. Was there substantial evidence to support the 

court's findings that: a) Mr. Branch was inspired by malice 

and ill-will when he forwarded the alleged defamatory letter; 

b) the statements contained in the letter constitute libel or 

libel per se; and c) the plaintiff Richard Shors was entitled 

to $5,000 in special and general damages in the defamation 

action? 

7. Did the trial judge have authority to award punitive 

damages and did he err in setting the amount of punitive 

damages at $20,000 in the defamation action and $15,000 in 

the action for interference with the easement? 

8. Did the District Court err in admitting plaintiffs' 

statement of attorney fees into evidence and in awarding 

attorney fees? 

Mr. Branch also argues that the punitive damages violated the Eighth and Fourteenth Amendments to the United States 

Constitution. However, he did not raise this argument below 

and we will not consider it now. Rule 2, M.R.App.Civ.P.; 

Dodd v. City of East Helena (1979), 180 Mont. 518, 523, 591 

Jerry Branch and Carl Disel subdivided property near 

Essex, Montana, in Flathead County. The property borders the 

Middle Fork of the Flathead River. The Declaration of F.estrictions governing those tracts provided for access to the 

river for the purchasers of the lots as follows: 

. . . This access is a specific route access, via 

the sixteen foot East-West access road presently in 

existence along the south boundary of Lots 1, 2, 3, 

4 and 5, then east to the top of the hill at the 

south turn of the existing trail-road. From this 

curve, an access trail-road will be constructed by 

the sellers, and will run northeast along the path 

of most practical construction and will reach the 

river beach within 150 feet of survey point number 

seven. Future maintenance of this northeast road 
will be the responsibility of the lot owners of the 

subject lands of H.E.S. 867. 

The access trail-road was understood and intended to be 

suitable for two-wheel-drive vehicles under normal weather 

conditions. The subdividers retained an easement over one of 

the lots for construction of the access road. In 1972, they 

had a trail-road constructed over the easement. At the time 

it was constructed, this road was unobstructed by a gate, 

fence, or other obstacle, and was passable in normal conditions with a two-wheel drive vehicle. 

Mr. Branch also retained a portion of the subdivided 

land for his own use. Access to the river from his land was 

achieved by way of a private logging road. A common road led 

to Mr. Branch1 s road and the lot owners1 road. For several 

years, Mr. Branch kept a cable gate across the road to his 

land., beyond the turn-off for the lot owners~ccess road. 

Plaintiffs constructed a cabin on their lot in 1975. At 

that time, the lot owners1 road had sloughed off and become 

strewn with rocks and trees so that it was no longer passable 

with a vehicle. As a result, and in the absence of extensive 

maintenance, the road to Mr. Branch's land was the only means 

of vehicular access to the river for the lot owners. 

In about 1976, apparently to prevent continued use of 

his road by others, Mr. Branch installed a metal, lock-type 

gate on the road. He installed the gate ahead of the fork in 

the two roads, thereby effectively preventing plaintiffs and 

the other lot owners from using either road beyond the gate. 

Following installation of the metal gate, Mr. Branch discouraged lot owners from attempting to widen and improve their 

access road. In May 1983, Mr. Branch moved the gate and 

bulldozed a "cul-de-sac" road to allow for potential lot 
owner vehicular passage to the river. He left a substantial 

mound of gravel at the site of the old gate. 

Mr. Branch also erected "no trespassing" signs close to 

the river and on the road. Plaintiffs saw these signs as an 

additional indication of Mr. Branch's intention to keep them 

away from their access road, his property, and the river. 

Partly as a result of the above actions, the relationship between the parties deteriorated. On occasion Mr. 

Branch referred to the Shors as "hippies" and "troublemakers", and suggested to third parties that plaintiffs' cabin 

be burned down. Also, in 1982, Mr. Branch intentionally 

blocked the trail to plaintiffsf cabin with logs and other 

debris. 

In July of 1982, Mr. Branch discovered one of his "no 

trespassing" signs in the river, and erroneously concluded 

that plaintiff Mr. Shors had torn out that sign and two 

others. He sent a certified letter to Mr. Shors, and a copy 

of the letter to the Flathead County Sheriff's Department. 

In the letter, he stated that Mr. Shors had been observed 

tearing down three steel signs at the Branch property. He 

accused Mr. Shors and his guests of tearing down signs "in a 

routine manner," and threatened to file charges against Mr. 

Shors if the signs were not repaired or replaced. In fact, 

on the day in question, Mr. Shors and his family were at home 

in Cut Bank, Montana. 

Mr. Shors, an attorney, brought suit against Mr. Branch 

for interference with his access to the river and for defamation. After a bench trial lasting several days, the court 

entered extensive findings and conclusions. The court ordered Mr. Branch to pay plaintiffs $2,000 for lost use and 

enjoyment of the vehicle access road for two years preceding 
the filing of their complaint; to pay $15,000 in punitive 

dama.ges for obstruction of the access road; to pay $10,000 in 

attorney fees incurred in connection with interference with 

plaintiffs' access rights under the contract; and to pay 

court costs. It also awarded plaintiffs $5,000 in special 

and general damages for defamation and $20,000 in punitive 

damages for defamation. It further ordered Mr. Branch not to 

interfere with plaintiffs' right reconstruct, repair, and 

maintain the original lot owners' road, and enjoined Mr. 

Branch from obstructing or interfering with plaintiffs in the 

exercise of their rights under the Declaration of Restrictions and the court's order. 

Is plaintiffs' claim for damages for interference with 

their easement rights barred by statute of limitation? 

Mr. Branch argues that the two-year statute of limitation for interference with real property expired two years 

after the metal gate was constructed, or in 1978. This 

action was not brought until 1982. Mr. Branch argues that it 

is therefore barred by the statute of limitation. 

The District Court concluded that: 

The Defendant has unlawfully and unreasonably 

restricted Plaintiffs ' right of access, in derogation of the Declaration of Restrictions, thereby 

diminishing the value of their property, and their 

use and enjoyment thereof. Specifically, he failed 

to construct a proper or reasonably permanent 

access road, suitable for vehicular use, and prohibited Plaintiffs' and other lot-owners' free 

access thereto by any means in 1976 and thereafter 

until the filing of Plaintiffs' Amended Complaint 

The conclusion that Mr. Branch interfered with plaintiffs' 

easement right is based on both his failure to construct a 

proper or reasonably permanent access road and his 
interference with plaintiffs ' and the other lot owners ' 

access to the river. The failure to construct a proper 

access road sounds in contract, with an 8 year statute of 

limitation under 5 27-2-202, MCA. 

As to Mr. Branch's interference with access to the 

river, this Court has recognized as continuing torts those 

torts in which the tortious act can be readily abated. 

Haugen Trust v. Warner (Mont. 1983), 665 P.2d 1132, 1135, 40 

St.Rep. 1036, 1039. In a continuing tort, recovery may be 

had for damages accruing within the statutory period preceding commencement of the action. Haugen, 665 P.2d at 1135. 

We conclude that blockage of plaintiffs' access to the river 

by the gate was a continuing tort, because it was easily 

abated. The gate was, in fact, moved prior to trial. We 

hold, therefore, that the statute of limitation does not bar 

this action, and that damages accruing within 2 years of 

initiation of the suit were recoverable. 

Did Mr. Branch's installation and maintenance of the 

gate on the road extinguish the plaintiffs' easement rights 

by adverse possession or establish a prescriptive right to 

the gate? 

Neither of these theories were set forth in the pleadings or in the pretrial order. They were raised by motion to 

amend the pleadings at the close of trial. The trial court 

did not make specific findings as to either theory, apparently concluding that neither had been sufficiently proven. 

Both adverse possession and prescriptive easement require proof of open, notorious, exclusive, adverse, and 

continuous possession or use for the statutory period of five 

years. The evidence is insufficient on several of these 
elements. Mr. Branch did not consistently testify that he 

intended to keep plaintiffs from all access to their easement. He stated at one point that he would have given the 

lot owners keys to the gate, if they had wished to improve 

their access road, and testified that access on foot, snowmobile, or motorcycle could be achieved by going around the 

gate. During the entire time involved here, the Declaration 

of Restrictions remained on file with the Clerk and Recorder, 

publicly stating the right to the easement. Sometimes Mr. 

Branch's gate was left open. He did not affirmatively convey 

to the lot owners at any date certain his intention that they 

not go beyond the gate. Mr. Branch did not place his "no 

trespassing" signs near the gate until about 1980 or 1981. 

We conclude that there was insufficient proof of extinguishment of the easement rights by adverse possession or of a 

prescriptive right to the gate. 

111 

Did the trial court err in permitting testimony concerning: 1) an incident in which Mrs. Shors and her children were 

"buzzed" by the Branch children on a snowmobile; and 2) Mr. 

Branch's reference to the Shors as "trouble-makers" and 

"hippies" and his suggestion to third parties that the Shors 

cabin be burned down? 

Mr. Branch objects to the admission of the above testimony on the basis of relevance. Rule 401, M.R.Evid. provides 

that evidence is relevant if it has "any tendency to make the 

existence of any fact that is of consequence to the determination of the action more probable or less probable than it 

would be without the evidence." We hold that the action of 

the Branch children in "buzzing" the Shors on snowmobiles is 

irrelevant to the issue of malice on the part of Mr. Branch, 
but that the testimony's admission into evidence was harmless, given the other independent evidence of malice. We 

hold that the statements by Mr. Branch were relevant as they 

relate to Mr. Branch's malice toward plaintiffs. 

IV 

Is there substantial evidence to support the court's 

findings that: a) Mr. Branch did not complete construction of 

the access road as required by the Declaration of Restrictions; b) Mr. Branch acted maliciously and with a reckless 

disregard for the plaintiffs' rights in constructing the 

gate; and c) plaintiffs were entitled to $2,000 for the loss 

of use of the vehicle access road? 

Mr. Branch argues that these three do not have support 

in the record. Our standard of review is whether substantial 

evidence exists to support the findings and conclusions of 

the District Court. 

Testimony by several parties, including Mr. Branch, that 

the lot owners' access road began sloughing off almost immediately supports the District Court's conclusion that no 

proper or reasonably permanent access road was constructed. 

There was testimony that only a few of the lots had been sold 

at the time the access road was constructed. Only a few lot 

owners had access to a useable road, and only for the short 

time until the road eroded. The fact that Mr. Branch built a 

locked gate in front of the turnoff to the lot owners' access 

road supports a conclusion of reckless disregard for plaintiffs' rights. Additionally, we defer to the trial court's 

opportunity to judge the demeanor of the witnesses, including 

defendant. We conclude that there was substantial evidence 

to support the findings that no proper or reasonably permanent access road was constructed and that Mr. Branch acted 
with malice or a reckless disregard for plaintiffs' rights in 

constructing the gate. 

The award of $2,000 in damages for loss of access to the 

river is supported by plaintiffs' testimony that they purchased their lot partially because it was represented as 

having access to the river, and that their use of their cabin 

and access to the river were curtailed as a result of Mr. 

Branch's actions. We conclude that the award of $2,000 was 

within the court's discretion. 

v 

Was the communication of the letter to the Flathead 

County Sheriff's Office privileged? 

Mr. Branch argues that under S 27-1-804(1), MCA, his 

letter was absolutely privileged as a publication made "in 

the proper discharge of an official duty," because citizens 

have an obligation to communicate their knowledge of the 

commission of crimes to law enforcement officials. The 

statute he cites does not extend to this unsolicited complaint by a private citizen. Any duty Mr. Branch had to 

report the destruction of his "no trespassing" signs was a 

civic duty, not an official duty. We hold that the letter 

was not a privileged communication. 

VI 

Was there substantial evidence to support the court's 

findings that: a) Mr. Branch was inspired by malice and 

ill-will when he forwarded the alleged defamatory letter; b) 

the statements contained in the letter constitute libel or 

libel per se; and c) the plaintiff Richard Shors was entitled 

to $5,000 in special and general damages in the defamation 

action? 
At trial, Mr. Branch testified that he was "only 80% 

sure" that he had identified Mr. Shors on the opposite bank 

of the river, at the time he discovered the pulled up signs. 

Yet he mailed a letter to the sheriff's office, in which he 

stated that "our signs have been consistently torn down over 

the past years by [Mr. Shors] and [his] guests in [the Shors] 

nearby cabin in a routine manner," and threatened to file 

"appropriate" charges and prosecute "to the fullest extent" 

if replacement or repair of the signs was not arranged. His 

characterizations of the Shors as "hippies" and "troublemakers" and his suggestion that their cabin be burned down also 

occurred prior to this time. We conclude that there was 

substantial evidence to support the court's conclusion that 

the letter was mailed with malice. 

In Montana, libel is defined as: 

. . . a false and unprivileged publication by 

writing, printing, picture, effigy, or other fixed 

representation to the eye which exposes any person 

to hatred, contempt, ridicule, or obloquy or which 

causes him to be shunned or avoided or which has a 

tendency to injure him in his occupation. 

Section 27-1-802, MCA. Judge McPhillips testified that Mr. 

Shors' professional reputation was jeopardized by Mr. 

Branch's statements in the letter. Mr. Branch testified in 

his deposition that the damaged signs were worth over $150; 

therefore, he had accused Mr. Shors of a felony. We conclude 

that the District Court's finding that the statements in the 

letter constituted libel has substantial support in the 

evidence. 

The testimony of both Mr. and Mrs. Shors as to the 

mental anguish, worry, and loss of worktime caused to Mr. 

Shors by Mr. Branch's letter supports the award of damages. 
Mental anguish and suffering are actual harm, and determination of the amount of damages is within the fact-finder's 

discretion. Gallagher v. Johnson (Mont. 1980), 611 P.2d 613, 

617, 37 St.Rep. 940, 945. We hold that there was substantial 

support in the record for the court's award of $5,000 in 

actual damages on the libel issue. 

VII 

Did the trial judge have authority to award punitive 

damages, and did he err in setting the amount of punitive 

damages at $20,000 in the defamation action and $15,000 in 

the action for interference with the easement? 

Mr. Branch argues that under S 27-1-221, MCA, only a 

jury may award punitive damages. We have upheld the award of 

punitive damages by a district court sitting as the trier of 

fact. The statute has been construed to mean the trier of 

fact may award punitive damages. Miller v. Fox (1977), 174 

Mont. 504, 510, 571 P.2d 804, 808. 

Mr. Branch also maintains that the punitive damages 

awarded are disproportionate to the harm done and to his 

wealth. This court has rejected mathematical ratios for 

determining punitive damages. Butcher v. Petranek (1979), 

181 Mont. 358, 364, 593 P.2d 743, 746. We will not disturb 

the award of punitive damages, because we conclude that the 

amount awarded is within the trial court's discretion. 

VIII 

Did the District Court err in admitting plaintiffs' 

statement of attorney fees into evidence and in awarding 

attorney fees? 

Mr. Branch objects to the admission into evidence of the 

statement of Mr. Shors' attorney fees, alleging that an 

insufficient foundation was laid. He also argues that a pro 
- se attorney is not entitled to attorney fees, that plaintiff 

was not the prevailing party, and that there was no clear 

allocation of fees between the defamation issue and the 

easement issue. 

Mr. Shors testified to the truth and accuracy of his 

detailed written statement of hourly charges for legal services. He also testified to the reasonableness of his $60 

hourly fee in this matter, as did Judge McPhillips, and to 

the reasonableness of the fees of his co-counsel, Mr Epstein. 

Mr. Branch has cited nothing which would require additional 

foundation, and we conclude that sufficient foundation was 

laid to show that the fees claimed were reasonable. 

This Court has held that a pro - se attorney is entitled 

to be paid for his legal services, in a case in which award 

of attorney fees is proper. Winer v. Jonal Corp. (1976), 169 

Mont. 247, 545 P.2d 1094. 

Paragraph 7 of the Declaration of Restrictions provides 

that costs of suit may be awarded against a person "found 

guilty of a breach of the provisions of this declaration." 

The trial court s conclusion #2 that " [t] he Defendant has 

unlawfully and unreasonably restricted Plaintiff's right of 

access, in derogation of the Declaration of Restrictions," 

means that the plaintiffs were entitled to their attorney 

fees under the contract and were the prevailing party in the 

contract action. They also prevailed in the defamation 

action. Mr. Branch's position that plaintiffs did not prevail because he was not ordered to build them a new road is 

unfounded. We conclude that plaintiffs were properly awarded 

attorney fees. 

Plaintiffs submitted an itemized statement of pretrial 

attorney fees of over $13,000. Additionally, two attorneys 
represented plaintiffs over three days of trial. Mr. Shors 

testified that over half the fees both before and during 

trial were attributable to the easement issue. This Court 

will not disturb an amount set as reasonable attorney fees 

absent abuse of discretion. Talmage v. Gruss (Mont. 19831, 

658 P.2d 419, 420, 40 St.Rep. 176, 177. We conclude that the 

court did not abuse its discretion in determining that 

$10,000 in attorney fees were "reasonably and necessarily 

incurred" by plaintiffs in litigating their easement claim. 

We Concur: