Archive | Baker, J. (concurring)

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State v. Kline

State v. Kline, 2016 MT 177 (July 19, 2016) (McKinnon, J.; Baker, J., concurring) (5-0, aff’d)

Issue: (1) Whether the district court erred in concluding SK was not legally accountable for Kline’s incest, and (2) whether sufficient evidence corroborated SK’s testimony.

Short Answer: (1) No, and (2) yes.

Affirmed

Facts: The state charged Kline with criminal distribution of drugs, endangering the welfare of children, and incest, all felonies, in December 2013. According to the information, Kline committed these offenses by giving methamphetamine to SK, his daughter, allowing SK to ingest meth while in his care, and having sexual intercourse or sexual contact with SK.…

Montana Immigrant Justice Alliance v. Bullock

Montana Immigrant Justice Alliance v. Bullock, 2016 MT 104 (May 10, 2016) (Cotter, J.; Baker, J., concurring) (7-0, aff’d & rev’d)

Issue: (1) Whether the district court erred in holding that MIJA has standing to challenge LR 121; (2) whether the district court erred in concluding that LR 121 is preempted by federal law; and (3) whether the district court erred in awarding attorney’s fees to MIJA.

Short Answer: (1) No; (2) no, except for its holding that one section of the law was not preempted; and (3) yes.

Affirmed in part and reversed in part

Facts: During the 2011 legislative session, the Montana Legislature passed House Bill 638, denying certain state-funded services to “illegal aliens,” and submitted the act to Montana voters as a legislative referendum.…

Curry v. Pondera County Canal & Reservoir Co.

Curry v. Pondera County Canal & Reservoir Co., 2016 MT 77 (March 29, 2016) (Wheat, J.; Baker, J. concurring; McKinnon, J., dissenting) (6-1, aff’d & rev’d)

Issue: (1) Whether the water court erred in holding that the water rights of an entity developed under the Carey Land Act for the purpose of sale or rental are not limited by the stockholders’ actual historic water use; (2) whether the water court erred in granting Pondera a “service area” rather than a place of use based on historically irrigated land; (3) whether the water court erred by ruling Pondera’s storage rights were beneficially used on the Birch Creek Flats before 1973; (4) whether the water court improperly increased the flow rate for the Gray right and improperly reversed the water master’s dismissal of a claim it found was duplicative; and (5) whether the water court’s tabulation for the Curry claim and the Pondera claim without volume measurements was an abuse of discretion.…

Bergum v. Musselshell County

Bergum v. Musselshell County, 2016 MT 47 (March 1, 2016) (McKinnon, J.; Baker, J., concurring) (5-0, aff’d)

Issue: (1) Whether the district court erred in concluding the statute of limitations in § 2214, RCM (1935) barred Bergum’s quiet title action, and (2) whether the district court erred in denying Musselshell County its attorney fees under § 25-7-105, MCA.

Short Answer: (1) No, and (2) no.

Affirmed

Facts: This case involves the disputed ownership of subsurface mineral rights to 320.58 acres of coal-rich land in Musselshell County. In 1908, Lincoln and Annie Westcott received patents for adjacent parcels of 160 and 160.58 acres, for which they paid $1,600 and $1,605.80 respectively. Lincoln then conveyed his patented 160 acres to Annie.…

Christian v. Atlantic Richfield Co.

Christian v. Atlantic Richfield Co., 2015 MT 255 (Sept. 1, 2015) (McKinnon, J.; Baker, J., concurring (2, 3, 4); Wheat, J., concurring (1, 2, 3) & dissenting (4); Rice, J., concurring (4) & dissenting (1)) (aff’d & rev’d)

Issue: (1) Whether the continuing tort doctrine requires evidence of the continued migration of contaminants; (2) whether genuine issues of material fact exist regarding the reasonableness of abating the contamination on Landowners’ properties; (3) whether the continuing tort doctrine applies to Landowners’ claims other than nuisance and trespass; and (4) whether the facts constituting Landowners’ claims were concealed or self-concealing, or whether ARCO took action to prevent Landowners from learning those facts.

Short Answer: (1) No, migration is not the dispositive factor; the key to whether an injury is temporary or permanent is whether further abatement is reasonable (McKinnon, Cotter, Wheat, Shea, Manley) (Rice dissents) (5-1); (2) yes, reasonable abatability must be decided by the trier of fact (McKinnon, Cotter, Baker concurs in the judgment, Wheat, Shea, Manley) (6-0); (3) yes for continuing injuries caused by strict liability, negligence, and wrongful occupation, but not for unjust enrichment (McKinnon, Cotter, Baker, Wheat, Shea, Manley) (6-0); (4) no, and Landowners’ claims for unjust enrichment and constructive fraud are therefore time-barred (McKinnon, Cotter, Baker, Rice) (Wheat dissents, Shea & Manley join) (4-3).…

Sharbono v. Cole

Sharbono v. Cole, 2015 MT 257 (Sept. 1, 2015) (McGrath, C.J.; Baker, J., concurring) (5-0, rev’d)

Issue: (1) Whether the district court properly granted Coles’ motion in limine to exclude Sharbonos’ expert witnesses; and (2) whether the district court properly granted judgment to Coles and awarded them attorney fees.

Short Answer: (1) No; and (2) no.

Reversed and remanded

Facts: Sharbonos and Coles own adjoining parcels of land adjacent to Rock Creek in Carbon County. Sharbonos have a senior right to use water that arises on Coles’ property and flows or seeps into a pond on Sharbonos’ property. In 1994, Coles obtained a water use permit for a pond on their property, and in subsequent years engaged in development and construction activities, which Sharbonos contend greatly reduced or eliminated the flow of water onto their land.…