Stokes loses 3 court battles

Radio station owner John Stokes has ended up on the losing side of three recent Montana Supreme Court decisions - mostly relating to a disputed easement on the land holding KGEZ's two towers.

Overall, the court's decisions - two of which were filed this week - upheld district court rulings that said:

. KGEZ's easement covers only the 32 acres that contain the towers - and not 160 acres as Stokes has unsuccessfully argued.

. Stokes must bury power lines leading from the KGEZ station building to the two towers. The owners of the land containing the towers and cables have been trying to legally force Stokes to bury those lines.

. Flathead County District Judge Stewart Stadler - who made the original ruling that KGEZ's easement covers only 32 acres - did not show bias in favor of one set of landowners in 2001 when the litigation began. Stokes filed that accusation in 2006, which then worked its way up to the state Supreme Court.

. Montana's Department of Transportation did nothing improper in 2001 when discussing KGEZ's easement with a landowner when the state was buying right-of-ways to widen U.S. 93. Stokes alleged the state was trying to bribe the landowner.

On Thursday, Stokes - who is representing himself in these cases and appeals - said he would ask the Supreme Court to reconsider its decisions.

In interviews several weeks ago, legal observers and participants said the easement case is an important factor in Stokes' long-running contention that KGEZ's 6.65-acre site is worth $10.9 million to any prospective buyer.

That $10.9 million figure was a factor in his earlier litigation with Montana's Department of Transportation when the state tried to buy a 7-foot-wide right-of-way along the KGEZ site to widen U.S. 93. In 2005, Stokes wanted the state to buy the entire 6.65 acres for $4.7 million, and ended up receiving $400,000 just for the right-of-way.

Since then, Stokes increased the asking price for the entire 6.65 acres to $10.9 million.

Legal observers earlier said Stokes' contention that he has control over the entire 160 acres that surround the radio station is a major factor in the $10.9 million price tag.

What is fuzzy at this time is whether the $10.9 million price or the cable-burial dispute will eventually become factors in the city of Kalispell's current attempt to get Stokes to lower or move his two 325-foot-tall towers - at federal and city expense - to clear a flight path to allow Kalispell's airport to extend its runway.

The city has hired a consultant to see if lowering or moving the towers can be done without hurting KGEZ's broadcasting capabilities. Stokes has strongly opposed the city government's efforts, contending that the towers cannot be moved nor lowered without damaging his business.

The easement litigation dates back to 2001 - with the actual contract signed in 1949.

in 1949, the then-owners of KGEZ signed an easement contract with Ruth Anderson, owner of 160 acres that surround the radio station on three sides, with U.S. 93 on the fourth side.

The easement contract has a clause requiring that the power-and-transmission lines linking the towers with the radio station be buried at least one foot deep. In the 1970s, those lines ended up sitting above ground with neither KGEZ nor the landowner trying hard to get them buried.

Then Stokes bought KGEZ from its previous owners in 2000.

In another wrinkle, Davar Gardner and his son Todd - who own Gardner RV on the other side of U.S. 93 - bought 65 acres of the Andersons' 160 acres between 2000 and 2006, including the site of KGEZ's southwestern tower.

They hope to eventually develop that land, but are currently baling hay there.

Starting in 2001, Stokes began arguing that KGEZ's easement contract entitles him to put radio towers anywhere on the 160 acres.

At that time, Stokes told Doug Anderson - Ruth's son and the current landowner - that KGEZ "could put a radio tower on top of my mother's home if he wanted to," Anderson wrote in a court filing.

That's why Anderson and the Gardners filed a lawsuit in 2001 against Stokes to determine whether KGEZ's easement covered the entire 160 acres or just the 32 acres currently occupied by the towers and power-and-transmission lines.

And since the power cables were not buried, they wanted to nullify the easement.

In 2005, Stadler ruled that the 1949 easement covers only the 32 acres. He also ruled that the cables must be buried no later than Sept. 30, 2006. Stokes appealed the easement and cable-burial rulings to the state Supreme Court.

Then the conflict kicked up a notch.

In 2006, Stokes filed legal paperwork charging that the Gardners had Stadler in their pocket.

In his 2006 Flathead County District Court filing, Stokes claimed he overheard a conversation in Scotty's Bar in October 2001 between Stadler and another man in which Stadler allegedly said: "Davar is a smart businessman. He wouldn't have bought that property [from Anderson] unless he could develop it."

Stokes' paperwork claimed that Stadler assured the Gardners of a successful outcome prior to filing their lawsuit.

That charge was referred to Judge Robert Deschamps III of Missoula County District Court.

At a Feb. 22, 2007, hearing, Stokes declined to present any evidence of any improper conduct by Stadler beyond his initial affidavit, court records said.

Todd and Davar Gardner denied under oath that they talked to Stadler about the case. Stokes did not cross-examine them nor offer any rebuttal evidence, court records said.

On March 21, Deschamps ruled against Stokes on the Stadler matter.

Stokes appealed that decision to the state Supreme Court. On May 16, the court ruled against Stokes, agreeing with Deschamps' decision that the station owner did not back up his accusations.

Meanwhile, Stokes did not bury the cables by the Sept. 30, 2006 deadline. The cables' conduits were still in disrepair on concrete blocks above ground this week.

Then on Wednesday, the Supreme Court ruled that Stadler correctly decided the disputed easement is 32 acres and that Stokes must bury the cables.

"Davar and I are very happy," Todd Gardner said Thursday. "We were confident that the Supreme Court would rule our way. It just took a long way coming."

Anderson could not be reached Thursday for comment.

On Thursday, Stokes contended he is still not required to bury the cables because the 160 acres now has more owners than the Gardners and Anderson - and those owners were not parties to the lawsuit. He argued that invalidates the Anderson-Gardner lawsuit - an argument that Gardner disagrees with.

Stokes also contended Thursday that the cables only have to be buried so they don't impede agricultural work. He contended that the easement site is not agricultural land.

While a couple of pieces of the 160 acres have been sold to other parties, Gardner said the 32-acre easement site is owned only by Anderson and the Gardners.

He also said most of the Anderson and Gardner property in the overall 160 acres - including much of the 32-acre easement site - is being used for baling hay.

Wednesday's Supreme Court ruling said: "[Stadler correctly ordered] Stokes to perform the necessary repairs to the improvements located on the easement so as to be in compliance with the terms of the grant, including burying all wires, ground radial antennas, conduits and transmission lines to a minimum depth of 12 inches so as not to interfere with the [Andersons' and Gardners'] agricultural activities."

Gardner expects the burial-compliance issue to go to a Flathead County District Court hearing later this month.

Another Montana Supreme Court decision filed on Thursday addressed a 2004 lawsuit that Stokes filed against the Montana Department of Transportation.

A tiny piece of Anderson's land next to KGEZ was involved in the right-of-way negotiations to widen U.S. 93. The state assessed the value of the tiny piece of Anderson's land at $2,056 if KGEZ's easement was in place, or $78,888 without the easement.

Stokes' lawsuit alleged that the $76,832 difference was essentially the state bribing Anderson to get rid of the easement that allows KGEZ's towers on the land.

In 2006, Lewis and Clark County District Court Judge Thomas Honzel ruled against Stokes on this charge. Stokes filed an appeal, which he lost Thursday.

Reporter John Stang may be reached at 758-4429 or by e-mail at jstang@dailyinterlake.com