Survey lines, definite and fixed, marked upon the ground and accurately represented on the plat by Washington J. McCormick, the original patentee, constitute the boundaries and show the limits of each and every lot in block 56 of patentee's addition to the city of Missoula. None of the lands here claimed by the city falls within such survey lines so bounding the lots nor do any of the lands fall within the lines constituting the boundaries and defining the limits of said addition. All the land which the city here claims lies wholly without and beyond the boundary lines fixed by the patentee and marked on his official plat to indicate the limits and extent of the area included in and comprising his said addition.
By deed dated January 20, 1944, Fred C. Follman and Louise Follman, his wife, conveyed to the defendant W.G. Bakke certain land described as "lots 9, 10, 11, 12, 13 and 14 in block 56 of McCormick's Addition to the City of Missoula, Montana, accordingto the official map or plat thereof, now on file and of record in the office of the county clerk and recorder of Missoula County, Montana." (Emphasis supplied.)
The only lands to which the defendant Bakke can or does show title are the above six lots as they are marked and shown on and "according to the official map or plat" of the addition.
"A plat is a subdivision of land into lots, streets, and alleys, marked upon the earth, and represented on paper; and hence the making and platting of it implies that the land has been surveyed, and that such survey was marked on the ground, so that the streets, blocks, and lots could be identified." 32 Words and Phrases, Perm. Ed., page 630, citing McDaniel v. Mace, *Page 543 47 Iowa 509, 510; Burke v. McCowen, 115 Cal. 481, 47 P. 367, 368. See also Gaddy v. Pendleton, 171 Ark. 878, 286 S.W. 1025. 3 Bouvier's Law Dictionary, Rawle's 3rd Ed., page 2597, defines the word "plat" as: "A map of a piece of land, on which are marked the courses and distances of the different lines, and the quantity of land it contains." (Emphasis supplied.) Black's Law Dictionary defines a "plat" as: "A map, or representation on paper, of a piece of land subdivided into lots, with streets, alleys, etc. usually drawn to a scale."
The official map or plat of "W.J. McCormick's Addition" also known as "McCormick's Addition," drawn to scale, was made September 5, 1882, and filed in the office of the county clerk and recorder of Missoula county, Montana, on January 3, 1883.
The making and filing of the plat or map of "McCormick's Addition" implies that said addition had been surveyed, and that the map or plat thereof filed was based upon said survey, and that such survey was marked upon the ground, so that the streets, blocks, and lots could be identified; for, without such survey and marking being resorted to, neither block 56, nor the "lots 9, 10, 11, 12, 13 and 14" thereof claimed by the defendant and cross-complainant Bakke, could be identified, and his deed would be held void for that reason, and that would defeat the action pleaded in his cross-complaint. Burke v. McCowen, supra.
To operate as a legal conveyance it is essential that the lands intended to be conveyed be described with sufficient definiteness and certainty to locate and distinguish them from other lands of the same kind. "If the land intended to be conveyed is not identifiable from the words of the deed, aided by extrinsic evidence explanatory of the terms used or by reference to another instrument, the deed is inoperative." 16 Am. Jur., Deeds, p. 584, sec. 260. See also Kenyon v. Knipe, 2 Wash. 394,27 P. 227, 13 L.R.A. 142 at page 145 and Gaddy v. Pendleton, supra.
According to the Official Map or Plat. Plaintiff's exhibit 4 *Page 544 purports to be a tracing made of a segment or portion of the official plat made September 5, 1882, and filed January 3, 1883, showing "lots 9, 10, 11, 12, 13 and 14 in block 56 of McCormick's Addition." The exhibit has lines drawn thereon indicating each and all the boundaries and limits of said lots. The exhibit shows: That the north boundary line of each of the lots is the south boundary line of Front street; that each lot is 30 feet in width; that each lot fronts on Front street; that the lateral boundary lines of each of said lots are straight lines run at right angles to the south boundary line of Front street and extending southerly therefrom; that when scaled the longest lateral boundary line of any of the lots is the west lateral boundary line of lot 14 which measures 90 feet in length; that the shortest lateral boundary line of any of the lots is the east lateral boundary line of lot 9 which measures 80 feet while the lateral boundary lines of each of the other lots are all less than 90 feet and more than 80 feet in length, the east lateral boundary lines of lots 13 and 12 measuring 86 feet and 84 feet respectively. Thus according to the plat, exhibit 4, none of the lots has a greater depth or length than 90 feet.
The exhibit also shows the south boundary line of each of the lots to be a line which connects the south termini of said lateral boundary lines of the lots. This line not only constitutes the south boundary line of the six numbered lots mentioned in defendant's deed but it is also the south boundaryline of W.J. McCormick's Addition, there being no streets, alleys or lots surveyed, platted or shown to the south of the aforesaid boundary line of the lots.
Notwithstanding that the above deed calls for the six numbered lots "according to the official map or plat thereof" the majority opinion herein declines to recognize as the south boundary of the lots, the line drawn on the plat, exhibit 4, which definitely closes the south ends of the lots and such opinion moves the south boundary of the lots south thereof to the variable water's edge (which in 1946 at the time of the trial was then 413 feet south of Front street) and then extends *Page 545 such boundary further south another unmeasured and unknown distance to the variable center or thread of the ever changing north channel of the river thus rendering most indefinite and uncertain the south boundary of the lots and the area thereof which Washington J. McCormick, the original patentee, intended to and did, at the very outset, make definite and certain in his carefully prepared plat of his addition.
The patentee made accurately measured, fixed survey lines marked upon the earth and thereafter represented and drawn to scale on paper, the boundary lines marking the extent and limits of his addition and of the lots therein and no court should ignore the intent so made manifest, disregard such definite lines so fixed and intended to be the boundaries of the lots in question and substitute therefor the indefinite and uncertain thread of an ever-changing river channel.
Because many important features have been overlooked in the majority opinion, I feel impelled to here rather fully canvass the facts as well as the law applicable thereto.
The Facts. This is a suit in equity brought by the city of Missoula, plaintiff, against the defendant, W.G. Bakke, to quiet the city's title to a strip of land situate along the north bank of the present north channel of the river in Missoula county, Montana, variously known as the Hell Gate or the Missoula river.
The north boundary line of the strip is an east-west surveyed line 130 feet south of and paralleling for a distance of 578.1 feet the south boundary line of Front street in the city of Missoula. The strip extends south from its north boundary line to the more or less irregular bank of the north channel of said river. The particular portion of the strip here in question measured from its north boundary line south to the bank of the river varies from a minimum of 225 feet to a maximum of 310 feet.
All the lands involved in this action are situate wholly within the boundaries of the northeast quarter of section 21, township 13 north of range 19 west of the Montana principal meridian, Missoula county, according to the official plat of the government *Page 546 survey of said land returned to the General Land Office by the surveyor general. Such plat, being defendant's exhibit A, shows said section 21 to be a regular section containing 640 acres and the northeast quarter thereof to be a regular and full quarter section containing 160 acres.
The above plat is conformable to the field notes of the original survey of such lands made in 1870 by the government surveyor, William H. Baker, a certified copy of which field notes was introduced in evidence as defendant's exhibit B.
The river enters the northeast quarter of section 21 near the southeast corner of said quarter section and, pursuing a general northwesterly course, it flows diagonally across and through said quarter section. According to the government field notes the width of the river at the place where it crossed the east boundary line of section 21 was 3.66 chains and its width where it left the section and crossed the west boundary line thereof was 3.16 chains. At 4.34 chains south of the south bank of the river there was a bench 20 feet high. In surveying east on a random line along the north line of section 21, the field notes indicate a bench 20 feet high two chains west of the northwest corner of the northeast quarter of said section 21, and the general character of the land to the east thereof as "nearly level."
It is stipulated that the river as it crosses said northeast quarter of section 21 is non-navigable and that its shores have not been meandered.
By patent dated May 13, 1878, the United States granted all of said northeast quarter of section 21 to Washington J. McCormick. By such patent the patentee acquired the fee simple title to all the lands lying within the boundaries of the described quarter section according to the official government plat of the survey of such land.
In 1882 the patentee, Washington J. McCormick, caused a portion of said northeast quarter of section 21 lying to the north of the river to be surveyed and platted into blocks, town lots, streets and alleys, a plat whereof drawn to scale was made under date of September 5, 1882. *Page 547
On January 3, 1883, the aforesaid plat was filed in the office of the county recorder of Missoula county and duly approved by the proper authorities, creating and establishing W.J. McCormick's Addition to the town of Missoula.
There is no evidence in the record that any part of the river was surveyed, platted or included within the boundaries of said addition nor is there any evidence that when said plat was made in 1882 or when it was approved and accepted in 1883 that the river anywhere crossed the exterior boundaries of said addition or that the addition so surveyed and platted included within its boundaries any part or portion of the river.
By deed dated September 10, 1887, the patentee Washington J. McCormick, conveyed to his wife, Kate H. McCormick, certain particularly described lands including all of block 56 except lot number one of said block 56 situate in the grantor's said addition to the townsite of Missoula, Missoula county, Montana Territory.
On September 10, 1927, Kate H. McCormick died leaving a will which was admitted to probate October 8, 1927, at which time letters testamentary issued to Honora M. Kobes who duly qualified. At the time of her death Kate H. McCormick was still the owner of the fee simple title to lots number 9 to 14, both inclusive, in block 56 of her husband's said addition. There is no evidence that Kate H. McCormick at any time placed any fence, enclosure, structure or other improvement on any of said lots or that she at any time claimed, occupied, used or exercised dominion over any lands without or beyond the exterior boundaries of her husband's addition as shown on the official plat thereof or over any lands located or situate more than 90 feet south of the south boundary line of Front street on which said lots front and which constitutes their north boundary line.
By deed dated August 11, 1930, filed for record January 28, 1931, and recorded in Book 111 of Deeds at page 393 of the records in the office of the county clerk and recorder of Missoula county, 19 named grantors including Honora M. Kobes, as executrix of the estate of Kate H. McCormick, deceased, demised, *Page 548 released and forever quitclaimed to the city of Missoula, as grantee, the following described real estate situate in the city and county of Missoula, to-wit:
"Beginning at the extreme southwesterly end of the concrete retaining wall known as the `West Front Street Retaining Wall.' Thence Northeasterly along the West end line of said wall a distance of twenty-five (25) feet. This latter point being one hundred and seven (107) feet distant from the South line of West Front street measured along the line between lots 3 and 4 of Block 29 of C.P. Higgins Addition to the City of Missoula. Thence N 55° 45' W along the North line of the proposed alley a distance of Ninety-Nine (99) feet to an iron stake. This point being one hundred and thirty (130) feet from the south line of West Front Street, and at right angle to same, and being the intersection of the north line of the proposed alley with the west line of Lot 6, produced, in Block 29 of C.P. Higgins Addition to the City of Missoula. Thence N 41° 30' West along the North line of the proposed alley parallel with the South line of West Front street a distance of five hundred seventy-eight 1/10 (578.1) feet to the East line of the proposed alley. Thence N 48° 30' East at right angles to the North line of the proposed alley a distance of one hundred and thirty (130) feet to the south line of West Front Street. This point marked by an iron stake being Nineteen (19) feet West of the East line of Lot Sixteen (16) of Block Fifty-six (56) of said McCormick Addition. Thence Westerly along the South line of West Front Street a distance of twenty-five (25) feet to the West line of the proposed alley. This point marked by an iron stake fourteen (14) feet West of the West line of Lot Sixteen (16) of said McCormick Addition. Thence South 48° 30' West along the proposed alley at right angles to the South line of West Front Street a distance of one hundred and fifty-five (155) feet to the Southwest corner of the proposed alley. Thence South 41° 30' West along the South line of the proposed alley parallel with the North line of said alley a distance of twenty-five (25) feet to a point marked by an iron stake. *Page 549 Thence continuing on the same course five hundred seventy-eight 1/10 (578.1) feet to an iron stake. Thence 55° 45' East Ninety-nine (99) feet to the place of beginning. Magnetic variation 21° 30' E," together with all the tenements, hereditaments and appurtenances thereunto belonging to have and to hold all and singular the said premises with the appurtenances unto the city and its successors and assigns forever."
The foregoing deed conveyed to the city of Missoula title in fee simple to the particularly described strip of land so situate at from 130 to 155 feet south of and paralleling Front street and separated and cut off from the river lots 9 to 14 in block 56 in W.J. McCormick's Addition so fronting on Front street.
In its finding No. XVIII the trial court found that the above deed "created and conveyed to said city" said strip of land and in its finding No. XIX the trial court found that the city had used such strip of land since the year 1930 "openly and adversely" and without protest from the owners of lands bordering thereon. In its conclusion of law No. II the court holds that such deed "granted, transferred and conveyed in fee simple" to said city said strip or parcel of land. Such findings and conclusions are amply sustained by the facts and the law applicable thereto. See section 6856, Revised Codes of Montana 1935, and 16 Am. Jur., page 624, sections 330 and 331.
In accordance with the aforesaid findings and conclusions the judgment and decree adjudges that the city is the owner in fee simple of the aforesaid particularly described strip of land and the area thereof as shown in the said deed of August 11, 1930, and quiets the city's title thereto in fee simple. From such part and portion of the judgment neither the city nor the defendant has appealed, hence it was and is finally adjudged that the fee simple title to the described strip of land was and is in the city.
By deed dated February 12, 1938, filed for record and recorded August 30, 1939, in Volume 126 of Deeds at page 94, records of Missoula county, eight particularly named grantors, including Washington J. McCormick and R.W. Kemp, as *Page 550 trustees of the estate of Kate H. McCormick, deceased, conveyed to the city of Missoula the fee simple title to all the real property lying, situate and extending south of the north line of the aforesaid strip of land to the bank of the north channel of the Missoula river together with all the tenements and hereditaments and appurtenances thereunto belonging to have and to hold all and singular the said premises with the appurtenances unto said city and its assigns forever.
The plaintiff city claims the fee simple title to the parcel of land described in its complaint all of which lies south of the north boundary line of the strip first conveyed, to which the city admittedly has the fee simple title. The city bases its right and title upon: (1) The aforesaid conveyances of August 11, 1930, and of February 12, 1938, and (2) upon adverse possession of said lands its complaint being clearly sufficient to support its claim of title by adverse possession. See section 9019, Revised Codes of Montana 1935; Violet v. Martin, 62 Mont. 335,205 P. 221; Garbarino v. Noce, 181 Cal. 125, 183 P. 532, 6 A.L.R. 1433; Rogers v. Miller, 13 Wash. 82, 42 P. 525, 52 Am. St. Rep. 20; Allen v. Magill, 96 Or. 610, 189 P. 986,190 P. 726; 44 Am. Jur., sec. 79, p. 64 and cases cited in notes 13 to 14. Compare Pritchard Petroleum Co. v. Farmers Co-Operative Oil Supply Co., No. 8743, 121 Mont. 1, 190 P.2d 55.
By deed dated February 24, 1936, filed for record and recorded March 2, 1936, in Volume 117 of Deeds at page 274, records of Missoula county, Thomas N. Marlowe, as trustee of the estate of Kate H. McCormick, deceased, grantor, conveyed to Fred C. Follman, grantee, "lots 9 to 14, inclusive, in block 56 of McCormick's Addition to the city of Missoula, Montana, according to the official plat thereof."
By deed dated January 20, 1944, Fred C. Follman and Louise Follman, his wife, conveyed the same numbered lots to the defendant W.G. Bakke, "according to the official map or plat thereof, now on file and of record in the office of the county clerk and recorder of Missoula county, Montana."
When lands are thus granted according to an official plat of *Page 551 a survey, the particular plat referred to in the deed with all its notes, lines and descriptions becomes as much a part of the deed by which the lands are conveyed and control so far as the limits are concerned as if such descriptive features were written out upon the face of the deed or grant itself. See Vaught v. McClymond, 116 Mont. 542, 155 P.2d 612; Pittsmont Copper Co. v. Vanina, 71 Mont. 44, 227 P. 46; Phelps v. P. Gas Elec. Co., 84 Cal. App. 2d 243, 190 P.2d 209; 16 Am. Jur., page 593, section 273.
In construing a description of land, the intention of the parties is a controlling factor and such intention must be determined from the deed. Rioux v. Cormier, 75 Wis. 566,44 N.W. 654; Clement v. Bank of Rutland, 61 Vt. 298, 17 A. 717, 4 L.R.A. 425.
"The description in a deed by reference to another instrument can be made certain, however, only by reference to the very map, plat, or deed referred to in the conveyance." 16 Am. Jur., p. 593, sec. 273.
No field notes of the surveyor making the survey of W.J. McCormick's Addition were produced or introduced in evidence. Neither was the official plan or plat of said addition dated September 5, 1882, and filed January 3, 1883, produced or introduced in evidence in this case.
Disappearance of Original Plat. At the outset of the trial of this suit the city's counsel, Mr. Schilling, remarked: "Well, I think the plat, the original plat, I think we could get and bring in." Later in the trial defendant's counsel, Mr. Mulroney, sought to introduce oral testimony pertaining to changes alleged to have been made through the years by dams and other artificial deflections and structures built by man in or along the channel of the river, to which offered testimony Mr. Schilling, the city's counsel, objected, whereupon the following occurred:
"The Court: Do you object to the offer?
"Mr. Schilling: Yes, we object, to all that offer. I believe if we bring that official plat up here that has been described *Page 552 on Lots 9, 10, 11 and so forth, the official plat, that will answer the whole question.
"Mr. Mulroney: Well, I've got a copy of it if the court wants to see it right now?
"The Court: I think we will save time and move more rapidly by letting each party offer what evidence he wants to. You may make your several objections. Make one objection and that objection may go to all this line of testimony."
However, notwithstanding that counsel for both parties expressed an intention to offer in evidence the original plat of the McCormick Addition, being the plat in existence and of record prior to September 10, 1887, and therefore the plat contemplated by the patentee when he conveyed the lots to his wife, yet such original plat was not produced at the trial.
At a still later stage and while defendant was introducing evidence on its case in chief, the following occurred:
"Mr. Schilling: Your Honor, we would like to introduce the original plat of W.J. McCormick Addition. As stated at the outset of this case, the original plat of W.J. McCormick Addition had disappeared from the files of the Clerk and Recorder of Missoula County, but they have in what they call Plat Book No. I, at page 9, a certified copy of the plat; and it has been the custom around Missoula for attorneys and landholders and abstracters and all to accept the plat as appears on page 9 of Plat Book I, records of the Clerk and Recorder, Missoula County, as the official plat of W.J. McCormick's Addition. This book weighs about sixty or seventy pounds, quite a large book, and we would have to call the Clerk and bring the book up here just to have Mr. Babington identify it. We would then ask that this plat be admitted in evidence with the right to substitute a copy of the plat because, being an official record in Missoula County, it has to stay in the office. I talked to Mr. Mulroney about it and he said that is agreeable with him that we may make a copy of this plat and introduce it in evidence in this case.
"The Court: Very well. *Page 553
"Mr. Schilling: With the understanding, of course, the platshows that these lots 9 to 14 abut on the river (it says Missoula River) and that there is no land between Lots 9 and 14 and the bank of the river; in other words, that Lots 9 to 14, inclusive, Block 56 abut on the riverbank.
"Mr. Mulroney: Well, and on the river itself.
"Mr. Schilling: The riverbank and the river itself. That the water actually washes the bank."
Plaintiff's Exhibit 4. Neither plat book No. I nor page 9 thereof were produced or introduced in evidence but instead after all the testimony had been taken the city placed in evidence as plaintiff's exhibit 4 what purports to be a tracing made on April 10, 1946, by W.H. Swearingen, the city's engineer, being almost a month after the trial of this action which occurred on March 15, 1946. Exhibit 4 is here reproduced: *Page 554