## Facts

- Monte R. Davis, Jr. and Wilhelmine S. Davis (the Davises), California residents, owned an undeveloped 10-acre tract of land in Montana.
- Douglas L. Westphal and Kathy L. Wilson (the Westphals) owned an adjoining 10-acre tract.
- The Westphals misunderstood the boundary line between the two parcels and mistakenly treated a portion of the Davises’ land as their own.
- Acting under that mistake, the Westphals cut down several trees located on the Davises’ property.
- The Westphals also constructed a large shop/workshop and installed a septic system that were located, at least in part, on the Davises’ land.
- The Davises sued seeking removal of the encroachments and restoration of their property, along with relief related to the tree cutting.
- At a preliminary-injunction hearing, the Westphals agreed to remove the encroachments and restore the property, and the Davises agreed to drop their request for preliminary injunctive relief.
- Months passed without the Westphals beginning removal of the encroachments.
- The Davises moved for summary judgment seeking (1) a declaration that the shop, septic system, and tree cutting constituted trespass; (2) an order ejecting the encroachments (immediate removal and restoration); and (3) a permanent injunction against construction not compliant with zoning requirements.
- The Westphals sought additional time to remove the encroachments.
- The trial court granted summary judgment declaring trespass as to the shop, septic system, and tree cutting, but denied summary judgment as to immediate removal/restoration and denied the requested permanent injunction, reasoning that the record did not contain enough information to decide whether immediate removal was required.
- The Davises appealed the denial of summary judgment ordering immediate removal and restoration; the Westphals cross-appealed the trespass declaration.

## Issues

1. Whether summary judgment was proper declaring that the Westphals’ shop, septic system, and tree cutting constituted trespass on the Davises’ land.
2. Whether the Davises were entitled, on summary judgment, to an order compelling immediate removal of the encroachments and restoration of the property (and related permanent injunctive relief).

## Decision

- The Montana Supreme Court affirmed summary judgment declaring that the shop, septic system, and tree cutting were trespasses.
- The Court affirmed the denial of summary judgment ordering immediate removal/restoration and the denial of a permanent injunction on the existing record.
- The case was remanded for further proceedings on the appropriate remedy.

## Legal Principles

- Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law; appellate review is de novo.
- A physical invasion of another’s land by a structure or improvement is a trespass; a mistake about the boundary does not eliminate trespass where the encroachment is established on undisputed facts.
- Even when trespass is shown, the choice and scope of relief for an encroaching structure (including mandatory removal) are matters of equity committed to the trial court’s discretion.
- Mandatory injunctive relief compelling removal is not automatic upon proof of trespass; the court may consider facts bearing on whether removal is appropriate and what terms should apply.
- When the record is insufficient to evaluate the facts relevant to equitable relief, a court may declare trespass on summary judgment but reserve the remedy (including timing and form of relief) for later proceedings.

## Conclusion

The Montana Supreme Court held that the Westphals’ mistaken boundary assumption did not prevent a summary-judgment declaration that their tree cutting and their shop and septic system encroached on, and therefore trespassed upon, the Davises’ land. But the Court also held that the Davises were not entitled on the existing summary-judgment record to an immediate order requiring removal and restoration (or related permanent injunctive relief), because the trial court needed more factual development to decide the proper equitable remedy; the case was remanded for further proceedings on relief.


Davis v. Westphal, 405 P.3d 73 (2017)