Ash v. Merlette

12/12/2017
DA 17-0160

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 17-0160

2017 MT 305

BRENDA M. ASH, INDIVIDUALLY and as
Trustee of the Brenda M. Ash Revocable Trust,

Plaintiff and Appellee,

v.

JOHN B. MERLETTE, Individually and as
Trustee of the John B. Merlette, Sr. Living Trust;
GLADYS A. MERLETTE, Individually and as
Trustee of the Gladys A. Merlette Living Trust,

Defendants and Appellants.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV-15-1043B
Honorable Robert B Allison, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Paul A. Sandry, Johnson, Berg, & Saxby, PLLP; Kalispell, Montana

For Appellees:

Renee L. Coppock, Crowley Fleck PLLP; Billings, Montana

Richard W. Casey, Ashley A. Di Lorenzo, Crowley Fleck PLLP;
Kalispell, Montana

Submitted on Briefs: August 2, 2017

Decided: December 12, 2017

Filed:

__________________________________________
Clerk
Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 John B. Merlette and Gladys A. Merlette (Merlette) appeal an order of the Montana

Eleventh Judicial District Court granting summary judgment declaring that Brenda M. Ash

(Ash) owns certain disputed land between the high- and low-water marks of a small lake

located in Flathead County, Montana. We affirm and address the following issue on appeal:

Did the District Court correctly conclude that Ash owns the land bordering her
property between the high- and low-water marks of Parker Lake?

BACKGROUND

¶2 In 1986, Larry and Serena Streeter (Streeters) acquired approximately 43 acres of

property surrounding a small lake in Flathead County known as Parker Lake No. 1.1 In

1991, Streeters subdivided the property by internal boundary line relocation into an

approximately 5.66 acre tract (Parcel A) and a 37.17 acre remainder (Tract 1).2 Both tracts

included lake frontage on Parker Lake. In 1992, Streeters sold the 37.17 acre remainder to

John Bradshaw (Merlette Property)3 but retained the previously created 5.66 acre tract (Ash

Property) for themselves. In 2000, Brenda Ash (formerly Olson) jointly acquired the Ash

Property with her then-husband via a mesne conveyance originating from Streeters.4

1
See Tract 1 and Parcel A, COS 10120, filed March 1991, Flathead County real property records.
2
Certificate of Survey 10404, filed December 5, 1991, Flathead County real property records.
3
Inter alia, the 1992 Bradshaw deed included language expressly reserving “unto” Streeters
“lifetime fishing and boating rights and privileges” to Parker Lake, “including access to exercise
said boating rights and privileges.”
4
In 2001, Merlette sold .66 acres of the original 37.17-acre tract to Olson-Ash to resolve a mistaken
septic system drain field encroachment. COS 14886, Flathead County real property records.
2
¶3 As created and particularly described by Streeters’ 1991 COS 10404, the 5.66 acre

Ash Property included approximately 577 feet of frontage on Parker Lake. COS 10404

described the Ash Property boundary along Parker Lake by a particularized metes and

bounds plot running from a referenced starting point on the high-water mark and then “on

and along” the high-water mark three specified courses marked by pin locations. Streeters’

subsequent 1992 deed to Bradshaw conveyed the Merlette Property by reference to COS

10120 but expressly excluded the retained Ash Property from the conveyance by reference

to COS 10404, which cut the Ash Property out of COS 10120 prior to the Bradshaw

conveyance. The 1992 Bradshaw deed expressly excluded the Ash Property by reference

to COS 10404 and a redundant metes and bounds description lifted verbatim therefrom.

The 2000 Olson-Ash deed (Ash deed) described the Ash Property by reference to COS

10404 and a redundant metes and bounds plot running from a referenced point on the

high-water mark “on and along” the high-water mark three specified courses, “577 feet

more or less.”5

¶4 In 2002, construction workers retained by Merlette excavated fill from Parker Lake

to level a site for a new residence on the Merlette Property. Ash complained to the U.S.

Army Corps of Engineers that Merlette’s fill excavation violated § 404 of the federal Clean

Water Act prohibiting unpermitted dredging in streams, lakes, and wetlands subject to the

5
Special Warranty Deed from Pan American Bank, FSB, to Barry L. Olson and Brenda M. Olson,
Doc. No. 200006-16450, recorded in the official real property records of the Flathead County Clerk
and Recorder on March 6, 2000.

3
Act. 6 After a site visit, the Corps issued correspondence, dated January 21, 2003, declaring

Parker Lake as a non-navigable intrastate body of water beyond the Corps’ jurisdiction

pursuant to Solid Waste Agency v. U.S. Army Corps of Engineers, 531 U.S. 159, 121 S. Ct.

675 (2001) (federal jurisdiction limited to waters susceptible to interstate commerce and

immediately adjacent wetlands).

¶5 Later in 2002, Ash placed a boat dock on the Parker Lake shoreline in front of her

home. Merlette objected, asserting that he owned all of the land below the high-water mark

around the entire lake. He accused Ash of trespass and insisted that she remove the dock

immediately. Ash eventually acquiesced and removed the dock. In 2015, Ash again

installed a dock on the lake in advance of listing her property for sale. Merlette again

protested on the asserted ground that he owned all of the land below the high-water mark

around the lake. The dispute escalated when Merlette pounded metal fence posts along the

high-water mark bordering Ash’s property and Ash removed and stacked them on

Merlette’s driveway.

¶6 After the parties exchanged correspondence through counsel, Ash filed suit on

November 12, 2015, asserting claims for declaratory judgment and in tort based on alleged

trespass and nuisance. Ash further sought a temporary restraining order and preliminary

injunction enjoining Merlette from interfering with her lake access pending final judgment.

Merlette counterclaimed in trespass, asserting ownership of all land between the high- and

low-water marks on the lake. On November 24, 2015, the District Court granted Ash’s

6
33 U.S.C. § 1334.
4
request for a temporary restraining order and, following hearing on December 1, 2015,

issued a preliminary injunction enjoining Merlette from interfering with Ash’s lake access.

On December 28, 2016, Ash filed an amended complaint adding counts of intentional

interference with her contractual relationship with her realtors and slander of title based on

Merlette’s alleged misrepresentations to third parties regarding his asserted ownership of

all lake frontage on Parker Lake.

¶7 In January 2016, the parties filed cross-motions for summary judgment. On the

ground that extrinsic evidence was not necessary or proper to construe the clear and

unambiguous language in Ash’s deed, the District Court denied Merlette’s M. R. Civ. P.

56(f) motion to stay summary judgment and for further discovery. On November 7, 2016,

the District Court granted summary judgment that Ash owned the land between the

high- and low-water marks of Parker Lake bordering Ash’s property. On February 22,

2017, the District Court certified its summary judgment order for immediate appeal

pursuant to M. R. Civ. P. 54(b). We affirm and remand for further proceedings.

STANDARD OF REVIEW

¶8 We review summary judgment rulings de novo for conformance to M. R. Civ. P. 56.

Dick Anderson Constr., Inc. v. Monroe Prop. Co., 2011 MT 138, ¶ 16, 361 Mont. 30, 255

P.3d 1257. 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. M. R. Civ. P. 56(c)(3).

Whether a genuine issue of material fact exists or whether a party is entitled to judgment

5
as a matter of law are conclusions of law subject to de novo review for correctness. Ereth

v. Cascade County, 2003 MT 328, ¶ 11, 318 Mont. 355, 81 P.3d 463.

DISCUSSION

¶9 Did the District Court correctly conclude that Ash owns the land bordering her
property between the high- and low-water marks of Parker Lake?

¶10 As matters of federal and federally-derived state sovereignty over beds and banks

of navigable waters, conveyances of land bordering navigable waters, as defined by federal

law, cannot convey title below the high-water mark unless otherwise authorized by state

law. See PPL Montana, LLC v. Montana, 565 U.S. 576, 589-91, 132 S. Ct. 1215, 1227-28

(2012) (riparian ownership acquired by western states on admission under federal “equal

footing” doctrine); Montana v. United States, 450 U.S. 544, 551, 101 S. Ct. 1245, 1251

(1981) (ownership of land between the high-water marks of navigable waters generally

adhered to the states upon statehood subject only to any retained federal easement and

federal constitutional authority to regulate interstate commerce); United States v. Chicago,

Milwaukee, St. Paul & Pac. R.R. Co., 312 U.S. 592, 597, 61 S. Ct. 772, 775 (1941) (federal

authority to regulate interstate commerce between high-water marks of navigable waters);

§ 70-1-202(1), MCA (state owns “all land below” water of navigable lakes and streams).

Subject to Montana’s limited public trust easement over state waters for fishing

and recreational use between the high-water marks, see Mont. Const. art. IX, § 3;

§§ 23-2-302(1), 70-1-202(1), and 87-2-305, MCA; Galt v. State, 225 Mont. 142, 147-48,

731 P.2d 912, 915-16 (1987), parties other than the state may acquire title to the midline of

non-navigable waters and to the low-water mark of navigable waters. Section 70-16-201,
6
MCA.7 Thus, unless the source instrument of conveyance clearly and unequivocally

provides otherwise, conveyances of land bordering on non-navigable waters convey title

to the underlying land to the midline of the water body, while conveyances of land

bordering on navigable waters convey title to the low-water mark. Section 70-16-201,

MCA. Since Montana’s public trust easement is not at issue here and a conveyance of land

bordering on a water body conveys at least to the low-water mark unless otherwise

provided by the conveyance, we need only address whether the District Court correctly

construed the pertinent instruments of conveyance without consideration of whether Parker

Lake is navigable or non-navigable.

¶11 Other than by operation of law, transfers of real property may occur only by written

conveyance expressing the grantor’s intent to convey particularly described property to

another. Sections 70-1-501, 70-2-101, and -102, MCA. Except as otherwise provided by

law, the language of an instrument of conveyance determines the nature and extent of title

conveyed. Anderson v. Stokes, 2007 MT 166, ¶ 32, 338 Mont. 118, 163 P.3d 1273.

Conveyance of real property by reference to a certificate of survey, as defined by

§§ 76-3-103(1), -302(1), -401, -402, MCA, incorporates the referenced certificate of

survey, including all notes, certifications, lines, descriptions, land marks, and depictions

therein, into the deed as if set forth on the face of the deed. John Alexander Ethen Trust

Agreement v. River Res. Outfitters, LLC, 2011 MT 143, ¶ 27, 361 Mont. 57, 256 P.3d 913;

see also § 70-20-201(6), MCA (construction and effect of deed reference to map); Blazer

7
See also § 23-2-301(9), MCA (definition of “ordinary high-water mark”).
7
v. Wall, 2008 MT 145, ¶¶ 31-36, 343 Mont. 173, 183 P.3d 84; Halverson v. Turner, 268

Mont. 168, 172-74, 885 P.2d 1285, 1288-89 (1994); Bache v. Owens, 267 Mont. 279,

283-86, 883 P.2d 817, 820-22 (1994).8 The construction of an instrument of conveyance,

including the question of whether its terms are vague or ambiguous, is a question of law.

Mularoni v. Bing, 2001 MT 215, ¶ 32, 306 Mont. 405, 34 P.3d 497.

¶12 Here, the parties agree with the District Court that the Ash Property lake frontage

descriptions in COS 10404 and the Ash deed are consistent, clear, and unambiguous.9 They

simply disagree about their meaning. Ash agrees with the District Court that she owns the

disputed land between the high- and low-water marks of Parker Lake bordering her

property based on the presumption of § 70-16-201, MCA, and the meander line

methodology for describing riparian borders. Merlette contrarily asserts that the specific

metes and bounds description of the Parker Lake boundary line in the source COS 10404

and the resulting Ash deed expressly limit the property to the high-water mark.

¶13 To the extent lawful and reasonably ascertainable, courts must construe instruments

of conveyance to give full effect to the intent of the grantor at the time of the conveyance.

Anderson, ¶ 33. If the language of an instrument of conveyance is clear and unambiguous,

the court must construe the instrument based on its express language and incorporated

8
However, references and depictions in certificates of survey are sufficient to create a new
property interest only to the extent that they adequately describe the interest and clearly manifest
the grantor’s intent to do so. Blazer, ¶¶ 38-40.
9
As a secondary fallback position in the event this Court might conclude that the instruments of
conveyance of the Ash Property are ambiguous, Merlette alternatively asserts that certain extrinsic
evidence precludes judgment as a matter of law and supports factual argument in his favor at trial.
8
references without resort to extrinsic evidence. Section 70-20-202(1), MCA; Anderson,

¶ 33; Pilgrim v. Kuipers, 209 Mont. 177, 180, 679 P.2d 787, 789 (1984). Extrinsic evidence

is a relevant construction aid only if the language of the instrument of conveyance is vague

or ambiguous. Anderson, ¶ 33. The language of a conveyance is ambiguous only if

susceptible to two or more conflicting meanings, both of which are objectively reasonable.

Mary J. Baker Revocable Trust v. Cenex Harvest States, Co-ops., Inc., 2007 MT 159, ¶ 20,

338 Mont. 41, 164 P.3d 851. Mere disagreement about the meaning of particular terms or

provisions does not render otherwise clear and unambiguous language ambiguous.

Heggem v. Capitol Indem. Corp., 2007 MT 74, ¶ 30, 336 Mont. 429, 154 P.3d 1189.

¶14 In construing instruments of conveyance, the court may not rely on isolated words

or provisions. Anderson, ¶ 36 (citing Rumph v. Dale Edwards, Inc., 183 Mont. 359, 368-69,

600 P.2d 163, 168-69 (1979)). The court must construe an instrument of conveyance in its

entirety, giving effect to all within its four corners, and narrowly construing and

subordinating any term or provision repugnant to the manifest general intent or purpose of

the instrument. Anderson, ¶ 36. The court must liberally construe express reservations in

grants of real property in favor of the grantor. Section 70-1-516, MCA. Except as

otherwise expressly provided or necessarily implied from the language of the instrument,

a conveyance of real property transfers to the grantee all title and interest then held by the

grantor. Section 70-1-519, MCA.

¶15 Essential to this case is the well-settled methodology for surveying and describing

riparian boundaries. Congressional acts from 1785 into the early 1800s required official

9
government surveys to subdivide all territories acquired by the United States north of the

Ohio River and west of the Mississippi River (except Texas) into six-mile square

townships, composed of 36 square-mile sections containing 640 acres each. Yellowstone

River, LLC v. Meriwether Land Fund I, LLC, 2011 MT 263, ¶ 6, 362 Mont. 273, 264 P.3d

1065 (citing Joyce Palomar, Patton and Palomar on Land Titles vol. 1, § 116 (3d ed. 2003)

and Curtis M. Brown, Walter G. Robillard, & Donald A. Wilson, Evidence and Procedures

for Boundary Location 179-200 (2d ed. 1981)). See also Curtis M. Brown, Walter G.

Robillard & Donald A. Wilson, Brown’s Boundary Control and Legal Principles (Brown’s)

§ 6 (6th ed. 2009) (discussing the development of the Public Land Survey (PLS) system).10

Where a true section or quarter-section corner would otherwise be located in “a water

course,” the PLS system required official government surveyors to run the converging

straight section lines from the other “established corners . . . to the [edge of the] water

course,” thereby establishing “fractional townships” with the water course “designated as

the external boundary of the fractional township.” Schurmeir v. St. Paul & P. RR. Co., 10

Minn. 82, 99-100 (Minn. 1865) (emphasis original) (citing 2 Stat. 313, 314 (1805)

(construing Land Act of February 11, 1805, in re mode of surveying U.S. public lands).

The PLS system thus required “an accurate survey of the meanderings of a water course”

serving as external boundary of fractional townships by reference to a “meander line,” i.e.,

10
Due to rough terrain, bad weather, antiquated instruments, and occasional error, purported
640-acre sections often vary by a few inches to several hundred feet from a precise square mile.
David E. Wolley and Lisa D. Herzog, MERS: The Unreported Effects of Lost Chain of Title on
Real Property Owners, 8 Hastings Bus. L. J. 365, 366-69 (2012).

10
a “line showing the place of the water course and its sinuosities, courses, and distances.”

Schurmeir, 10 Minn. at 100. Accord Alan C. Morganfield & Charles Carpenter, The Ins

and Outs (and Zigs and Zags) of Legal Descriptions, 102A Rocky Mtn. Min. L. Spec. Inst.

11, 49-51 (1998). Though originally applicable by federal statute only to lands surveyed

and conveyed by the federal government, the PLS system meander line methodology

became a generally accepted professional standard and practice for surveying and

describing public and private lands bounded by water bodies. See Brown’s § 1.2.

¶16 Consistent with this generally accepted standard and practice, a federal and state

common law rule soon developed that, unless the language of a conveyance clearly and

unequivocally manifests a more limited intent to fix a riparian boundary to the precise

course specified in a property description, a riparian boundary11 specified or depicted in an

instrument of conveyance, or incorporated survey or plat map, is merely a meander line,

i.e., a mere approximation of the ever-fluctuating and meandering edge of a water body

intended as the actual boundary line of the property. Andersen v. Monforton (Monforton),

2005 MT 310, ¶¶ 22-24, 329 Mont. 460, 125 P.3d 614; North Shore v. Wakefield, 530

N.W.2d 297, 302-03 (N.D. 1995); Mitchell v. Smale, 140 U.S. 406, 413, 11 S. Ct. 819,

821-22 (1891) (government land patents identifying lots conveyed by reference to the

11
“Riparian” means “relating to, or located on the bank of a river or stream (or occasionally
another body of water, such as a lake).” Black’s Law Dictionary 1524 (Bryan A. Garner ed., 10th
ed. 2014). A “riparian owner” is an owner of land “along, bordering upon, bounded by, fronting
upon,” or “abutting or adjacent and contiguous to” a non-tidal body of water. Black’s Law
Dictionary 1192 (5th ed. 1979).

11
official government survey plat “have the legal effect of a declaration that they extend to

and are bounded by the lake or stream” with all regular “legal consequences of such a

boundary in the matter of riparian rights and title to land under water” (internal punctuation

omitted)); Hardin v Jordan, 140 U.S. 371, 380, 11 S. Ct. 808, 811 (1891) (“meander lines

are intended for the purpose of bounding and abutting the lands granted upon the waters

whose margins are thus meandered” to the effect “that the waters themselves constitute the

real boundary”); St. Paul & Pac. R.R. Co. v. Schurmeir, 74 U.S. 272, 286-87 (1868)

(“[m]eander-lines are run in surveying fractional portions of the public lands bordering

upon navigable rivers, not as boundaries of the tract, but for the purpose of defining the

sinuosities of the banks of the stream, and as the means of ascertaining the quantity of the

land in the fraction subject to sale, and which is to be paid for by the purchaser”). Except

as otherwise clearly provided in the language of conveyance, a meander line merely

approximates “the border-line of the stream” and signifies that the water course is the actual

boundary rather than “the meander line . . . run on the land.” St. Paul & Pac. R.R. Co., 74

U.S. at 287. Accord Faucett v. Dewey Lumber Co., 82 Mont. 250, 257-58, 266 P. 646, 648

(1928) (citing Hardin and St. Paul & Pac. R.R. Co.); North Shore, 530 N.W.2d at 302-03.

Consequently, unless otherwise unequivocally provided on the face of the instrument, an

instrument of conveyance describing a riparian boundary by reference to a particularized

metes and bounds description, i.e., a meander line, conveys title at least to the low-water

mark of the body of water rather than the line precisely described by metes and bounds.

12
Monforton, ¶ 22 (synthesizing meander line methodology with § 70-16-201, MCA);

Faucett, 82 Mont. at 257, 266 P. at 648.

¶17 In Monforton, a residential developer acquired and subdivided a large ranch

property bordering on the Jefferson River in Madison County. Monforton, ¶¶ 7-8. The

source 1971 warranty deed to the developer, as well as the subsequent subdivision plat in

reference to which the developer conveyed subdivision lots to third parties, described the

property boundary along the Jefferson River by reference to a point on the bank of the river

and then “meandering the right bank” along a series of specified courses that corresponded

to the high-water mark. Monforton, ¶¶ 10, 13. Years later, a subsequent owner, who

acquired the undeveloped remainder of the original ranch property from the developer,

sued river lot owners for declaratory judgment that the river boundary specified in the

developer’s source warranty deed, as carried forward in the subsequent subdivision plat

and resulting lot deeds, specifically established the high-water mark as the actual boundary

of the subdivision lots contrary to the presumption of § 70-16-201, MCA. Monforton,

¶¶ 9-14. The plaintiff thus asserted that owners of subdivision river lots had no river access

because he owned the 11.4-acre strip between the high- and low-water marks along the

subdivision boundary.

¶18 After recognizing the long-settled meander line methodology for describing riparian

boundaries and the common law presumption codified in § 70-16-201, MCA,12 we rejected

12
See Faucett, 82 Mont. at 259, 266 P. at 648 (noting that § 70-16-201, MCA, is a mere
codification of the common law rule).

13
the plaintiff’s assertion that the meander line methodology applies only to the official

federal government land surveys from which it arose. Monforton, ¶¶ 18-24. Based on the

presumption of § 70-16-201, MCA, the nature and purpose of meander lines, and an

express reference to the described boundary as “meandering” along the river, we held that

the specific metes and bounds description of the riparian boundary, which included

references to monumental and non-monumental marks, was insufficient alone to “indicate

an intent contrary to” the “low-water line” presumption of § 70-16-201, MCA. Monforton,

¶¶ 26-29. We so held notwithstanding that the metes and bounds description referenced

and ran along the high-water mark, the existence of contrary extrinsic evidence, and that

the river lot owners had not paid taxes on the adjoining property between the high- and

low-water marks. Monforton, ¶¶ 26-29.

¶19 Similarly here, the parties do not dispute that their source common grantor

(Streeters) owned at least to the low-water mark of Parker Lake.13 The parties affirmatively

agree that the Ash Property lake frontage descriptions in COS 10404 and the Ash deed are

consistent, clear, and unambiguous. Mere disagreement about the meaning of the

otherwise clear and unambiguous metes and bounds descriptions in COS 10404 and the

Ash deed is insufficient to render those instruments ambiguous. Heggem, ¶ 30.

13
See § 70-16-201, MCA (riparian owners generally own at least to the low-water mark depending
on navigability).
14
¶20 While the descriptions in COS 10404 and the Ash deed do not use any form of the

term “meander” to describe the property boundary along Parker Lake, express reference or

use of the term “meander” in an instrument of conveyance is not talismanic. By nature,

water bodies meander and their boundaries are meandering. See, e.g., Faucett, 82 Mont.

at 257-58, 266 P. at 648; St. Paul & Pac. R.R. Co., 74 U.S. at 286-87; Brown’s 463 (defining

“high-water mark”). With or without express reference to the term “meander,” a metes and

bounds description that plots a varying course, using specific measured distances running

from precisely referenced points, to plot an otherwise non-uniform edge of a water body is

an approximate meander line unless otherwise clearly provided in the instrument of

conveyance. Monforton, ¶¶ 20-21.

¶21 Unlike other particularized metes and bounds descriptions intended to establish

stationary boundary lines on the ground, the purpose of a particularized metes and bounds

description along a water body is to provide a reasonably precise approximation of an

ever-varying course along the non-stationary and non-uniform edge of the water body.

Monforton, ¶¶ 20-24. The particularized approximation permits a reasonably precise

description of the location and quantity of land bought or sold with the understanding that

the actual boundary and quantity of the land varies with the fluctuating, meandering water

line of the lake or stream. Monforton, ¶¶ 20-24. In turn, the meander line methodology of

approximating riparian boundaries is consistent with the default rule of § 70-16-201, MCA,

that the party who owns property to the high-water mark of a navigable or non-navigable

body of water also owns the adjoining property between the high- and low-water marks

15
unless the source instrument of conveyance provides otherwise. Monforton, ¶ 25. Due to

the inherent difficulty in describing a naturally meandering water body by uniform

measurements, a conveyance of riparian property by reference to a specific metes and

bounds description along the high-water mark is insufficient alone to overcome the

presumption of § 70-16-201, MCA, that the grantee takes at least to the low-water mark.

Monforton, ¶¶ 26-29.14 See also § 70-1-519, MCA (conveyance of real property conveys

all title held by the grantor in the subject property unless otherwise clearly provided by the

instrument of conveyance).

¶22 As in Monforton, the metes and bounds descriptions of the Parker Lake frontage in

COS 10404 and the resulting Ash deed are unquestionably meander line descriptions, i.e.,

particularized metes and bounds plots approximately corresponding to the otherwise

non-uniform edge of a meandering water body. Aside from express references to specific

metes and bounds courses along the high-water mark, nothing in COS 10404 or the

resulting Ash deed indicate any intent of the parties’ common grantors (Streeters) to strip

themselves, or successors, of the grantors’ preexisting ownership of the land between the

14
In other words, if a grantor actually intends to limit a riparian boundary to the high-water mark,
or other described line, the grantor must expressly reserve or except the land below the high-water
mark, or other described line, from the description of the subject tract by expressly declaring, in
the subject deed and source COS or subdivision plat, that the described riparian boundary along
the high-water mark, or other described upland line, is the actual boundary line rather than an
approximate meander line. North Shore, 530 N.W.2d at 302-03. Any such reservation or
exception that effects a “division of land,” as defined by § 76-3-103(4), MCA, is of course subject
to applicable provisions of the Montana Subdivision and Platting Act. See Title 76, chapter 3,
MCA.

16
high- and low-water marks of Parker Lake along the Ash Property.15 Thus, in accordance

with the presumption of §§ 70-1-519 and 70-16-201, MCA, Streeters retained ownership

of the land between the high- and low-water marks along the Ash Property in COS 10404,

which then carried forward to Ash under a successive conveyance referencing COS 10404

without limitation. Merlette never acquired title to the land between the high- and

low-water marks along the Ash Property because the source description of the property in

COS 10404 was insufficient to separate the adjoining land below the high-water mark and

the subsequent deed from Streeters to Bradshaw expressly excluded the Ash Property from

the conveyance of the Merlette Property. Bradshaw simply never owned the disputed land

below the high-water mark to convey to Merlette even if he had intended to do so.16

Despite express reference to the high-water mark, the specific metes and bounds

description of the riparian boundary of the Ash Property in COS 10404, as carried forward

and repeated in substance in the Ash deed, was a meander line establishing the riparian

boundary of the Ash Property at least to the low-water mark of Parker Lake pursuant to

15
Despite his concession that the language of the subject instruments of conveyance are clear and
unambiguous, Merlette suggests in a secondary fallback argument that Streeters’ reservation of
“lifetime fishing and boating privileges, including access to exercise said rights,” in their 1992
conveyance of the Merlette property to Bradshaw evinces Streeters’ awareness that they did not
retain any ownership interest around Parker Lake below the high-water mark. Streeters’ rationale
for including the reservation of a personal right vis-à-vis Bradshaw is indeed subject to speculation
without resort to extrinsic evidence. However, in addition to being consistent with their
independent retention of previously acquired appurtenant lakefront access during their continued
term of ownership of the Ash Property (Parcel A), the subsequent reservation of a personal right
in the Bradshaw deed is insufficient as a matter of law to create ambiguity on the face of the prior
source COS from which the Ash Property derived and from which the Merlette Property did not.
16
Merlette has made no such showing or assertion.
17
§ 70-16-201, MCA. We hold that the District Court correctly granted summary judgment

declaring that the Ash Property includes, and thus Ash owns, the disputed land between the

high- and low-water marks of Parker Lake.

CONCLUSION

¶23 The specific metes and bounds description of the riparian boundary of the Ash

Property in COS 10404, as carried forward and repeated in substance in the Ash deed, was

a meander line description establishing the riparian boundary of the Ash Property at least

to the low-water mark of Parker Lake. We hold that the District Court correctly granted

summary judgment declaring that Ash owns the disputed land between the high- and

low-water marks.

¶24 Affirmed and remanded for further proceedings.

/S/ DIRK M. SANDEFUR

We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ JIM RICE

18