No. 83-519
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
BRUCE E. FUNK, as the Personal
~epresentativeof the Estates
of Kenneth E. Funk and Alice
M. Funk, Deceased,
Plaintiff and Appellant,
RANDOLPH K. ROBBIN,
Defendant and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Robert M. Holter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Warden, Christiansen, Johnson & Berg, Kalispell,
Montana
For Respondent :
Murray, Kaufman, Vidal & Gordon, Kalispell, Montana
Submitted on Briefs: May 3, 1984
I Decided: October 9, 1984
,- '.
ijt 1
; 0
Filed:
Clerk
Nr. Justice Fred J. Weber delivered the Opinion of the Court.
Kenneth E. Funk and Alice M. Funk brought a quiet title
action against Randolph K. Robbin in the District Court of
Flathead County, asking to quiet title according to a
Certificate of Survey. Defendant Robbin counterclaimed.
Kenneth Funk died during the pendency of the action and Alice
Funk died following the trial of the case to a 6-person jury.
Bruce Funk, personal representative of his parents' estates,
appeals from the judgment in favor of defendant and from the
denial of his motion for a judgment N.O.V. or a new trial. We
affirm.
The issues are:
1. Was there substantial evidence to support the
verdict against the plaintiff on his complaint to quiet title
in accordance with Certificate of Survey No. 6056?
2. Does substantial evidence support the verdict
quieting title in favor of defendant on his counterclaim?
3. Did the trial court commit reversible error in
ma-king certain evidentiary rulings?
4. Did the trial court err in giving and refusing
certain jury instructions?
5. Did the trial court err in denying the plaintiff 's
motion to quash defendant's costs?
The basic question is the location of the boundary lines
between the plaintiff's and defendant's real property in
Section 3, Township 27 North, Range 20 West, M.P.M. The
plaintiff owns the SE% and the E+SW%, while defendant owns
the NW%SW%, the S+N$ and the NE%NE%. The parties purchased
the property in 1963 or earlier.
The fences which run along the north/south and east/west
boundaries between the plaintiff's and defendant's property
have been in the same locations for more than 39 years. In
1958 defendant cleared the timber from 20 acres in the
disputed area immediately west of the fence. After preparing
the ground for several years, defendant has continuously
cropped the la.nd since that time. In addition, a member of
the defendant's family carved images in the rock face on a
ledge of rock located in the disputed area.
In 1980 plaintiff decided to sell a portion of his
property located in Section 3. Plaintiff hired a Registered
Land Surveyor, who prepared Certificate of Survey No. 6056,
which was filed in Flathead County. Survey 6056 showed that
the fences between the plaintiff1s and defendant I s real
property were not located on the 1/16th section line on the
west side, or the 1/4 line on the north side. The area in
dispute is west of the north/south fence running from a rock
formation in a northerly direction in the NE%SW% in Section
3.
Nr. Hersman, the Registered Land Surveyor who prepared
Survey 6056, testified in behalf of the plaintiff. Surveyors
Smith and Lautern testified in behalf of the defendant. Many
documents were admitted into evidence. There was extensive
testimony with regard to the accuracy of Survey 6056. The
plaintiff contended that the survey was accurate and that
title to the disputed property described in Survey 6056
should be quieted in the plaintiff. The surveyors testifying
for the defendant testified that Survey 6056 was not accura.te
and that there were lost corners, which made it impossible to
survey exactly where the 1/4 line and 1/16th line were located
in Section 3. The defendant submitted testimony and evidence
to substantiate its theory that the fence lines constitute
the agreed boundaries whether or not located on the 1/16th
and 1/4 line of Section 3. The evidence was sharply
contradictory.
In its verdict, the jury held against plaintiff on its
complaint to quiet title and for the defendant on his
counterclaim of title. The District Court entered judgment
that plaintiff was not entitled to have title quieted against
the defendant and in accordance with Certificate of Survey
6056. Judgment was entered holding that the fences
constituted the boundary line between the parties1 property
and that the title to the disputed area was quieted. in
defendant. In addition, the District Court determined costs
and disbursements in the sum of $5,618.65. The plaintiff
appeals.
Was there substantial evidence to support the verdict
against the plaintiff on his complaint to quiet title in
accordance with Survey 6056?
In substance the plaintiff contends there was no
evidence that Survey 6056 was not properly and accurately
made, and that no other survey was produced to prove the
boundaries were anywhere other than shown in that survey.
Defendant contends that the evidence is not sufficient to
meet plaintiff's burden of proof.
In reviewing the sufficiency of the evidence in a jury
case, we apply the standards set forth in Gunnels v. Hoyt
(Mont. 1981), 633 P.2d 1187, 1191, 38 St.Rep. 1492, 1495:
"Plaintiff's first issue disputes the sufficiency
of the evidence to support the verdict. In
considering the sufficiency of evidence, we apply a
limited standard of review. Where a fact issue is
presented before a court sitting with a jury, and
there is substantial evidence to support the jury
verdict, the verdict will stand . . .
"We review the evidence in a light most favorable
to the prevailing party. We will reverse only
where there is a lack of substantial evidence to
support the judgment ...
"If there is conflicting evidence in the record,
the credibility and weight given to such
conflicting evidence is the province of the jury
and not this Court ...
"If there is substantial evidence in the record to
support the finding of the jury, then we must
sustain the trial court's action in denying the
plaintiff's motion for a directed verdict . . ."
In addition in an action to quiet title, plaintiff must
succeed on the strength of his own title and not on the
weakness of the defendant's title. McAlpin v. Smith (1950),
123 Mont. 391, 395, 213 P.2d 602, 603.
+In substance, plaintiff contends that his surveyor used
previous surveys and did not make a retracement survey of the
original general land office survey. As a result, plaintiff
contends Survey 6056 is entitled to be treated as correct in
all respects. While there is some factual basis in the
record for these contentions, that argument disregards the
standard of review applied by this Court. Our first step is
to determine if there is substantial evidence to support the
verdict of the jury.
With the aim of confirming the accuracy or inaccuracy of
Survey 6056, Surveyor Smith made an extended study of the
records in the county and an extended search on the ground
for the location of the various township lines, section
Lines, and other survey points. Smith, who was engaged by
the defendant, testified to the significant conflict in
distances between two original surveys prepared by surveyors
employed by the general land office in early years. The
result was a difference in one direction of measured
distances up to 320 feet and in the other direction between
150 and 200 feet. Smith also testified that he could not
determine the survey points used as a basis for various
I-ocations by Surveyor Hersman, who prepared Survey 6056 for
plaintiff, and Mr. Medland, a previous surveyor upon whom
Hersman had relied. Smith testified that the northwest
corner of Section 3 was a "lost corner," which means that the
monument and its accessories were destroyed and cannot be
replaced by anything other than proportional measurement from
other points. Smith also testified that he found errors in
Survey 6056 and that the corner used as a basic point in
Survey 6056 was incorrect. Smith concluded that Survey 6056
did not correctly reflect the boundary line between the
plaintiff's and defendant's property. He also testified that
the evidence failed to show that the existing fence was -
not
the proper boundary between plaintiff and defendant.
Surveyor Lautern affirmed Smith's testimony in part.
Based upon information furnished by both Hersman and Smith,
Lautern testified that he was unable to locate the
appropriate corners.
The record shows there is substantial evidence to
support the jury verdict against the plaintiff. While there
is conflicting evidence, the credibility and weight of the
evidence is the province of the jury. We therefore affirm
the verdict and judgment with regard to the sufficiency of
the evidence to support the verdict against the plaintiff on
his complaint to quiet title according to Survey 6056.
Does substantial evidence support the verdict quieting
title in favor of defendant on his counterclaim?
Plaintiff argues that there is insufficient evidence to
establish that the boundary fence, which existed for more
than 39 years, was the agreed boundary between the plaintiff
and defendant. Defendant contends to the contrary.
We stated the law regard.ing the establishment of an
agreed boundary line in a similar case, Christie v. Papke
(Mont. 1983), 657 P.2d 88, 88-89, 39 St.Rep. 2054, 2055-56:
"Although we have recognized the right of adjoining
- -
property owners to establish an agreed boundary
line (Myrick v. Peet (1919) 56 Mont. 13, 180 P.
574), under Townsend v. Kuokol the parties are
required to prove by clear and convincing evidence
all elements of an implied agreed boundary. In
Townsend, 148 Mont. 1, at 6, 416 P.2d 532, at 535,
we stated:
"i]n order to establish an agreed boundary line,
the evidence must show more than mere acquiescence
and occupancy for the time prescribed by the
statute of limitations; it must go further and show
that there was uncertainty in the location of the
line, that there was an agreement among the
coterminus owners, express or implied, fixing the
line, and that there was an actual designation of
the line upon the ground and occupation in
accordance therewith.'"
The facts in evidence here are sufficient to meet the
standard of Townsend.
(1) Uncerta.inty - boundary line.
of This uncertainty is
clearly established by the evidence which, as previously
mentioned, was directly contradictory as to whether it had
been possible to establish a boundary line by Survey 6056.
There was substantial evidence showing that it was impossible
to establish such a boundary line by surveying measurement.
In addition, the defendant testified with regard to the
uncertainty as to the line over a span of years.
(2) Express - implied agreement between owners.
or There
are a number of facts which establish an agreement between
plaintiff and defendant. As previously mentioned, the
boundary fences in question have been in place for more than
39 years and prior to plaintiff Is ownership of the property.
There is no conflict in the evidence that defendant cleared
timber frcn 20 acres in the disputed area in 1958 and
thereafter continuously cropped the land, without objection
or question on the part of plaintiff. The carving on the
rock fa.ce of the large rock formation in the disputed area
also constitutes evidence of agreement. The evidence also
shows that in 1975 plaintiff asked defendant's permission to
complete a d r a i n a g e d i t c h a c r o s s d e f e n d a n t ' s land. Before
t h e p l a i n t i f f was allowed t o p r o c e e d w i t h work on t h e d i t c h ,
he was required to obtain agreement on the part of the
defendant. After a discussion regarding the agreement,
defendant prepared, and d e f e n d a n t and p l a i n t i f f signed t h e
f o l l o w i n g w r i t t e n agreement:
" P e r m i s s i o n i s hereby g r a n t e d t o Kenneth and A l i c e
Funk whereby t h e y may d r a i n w a t e r from d i t c h e d
p o r t i o n s o f t h e i r farm a c r o s s t h a t p a r t o f t h e
Robbin Hereford. Ranch known a s t h e ' B i g Rock' a r e a .
(An a l r e a d y e x i s t i n g d i t c h . )
" I t i s u n d e r s t o o d t h a t t h e Robbin p o r t i o n o f t h e
d i t c h i s t o be c l e a n e d and improved w i t h a backhoe
i n such a way a s t o p r o v i d e good d r a i n a g e i n t o Rose
Creek and a t t h e same t i m e minimize any b a r r i e r s
which t h e d i t c h may c a u s e t o l i v e s t o c k .
"Robbin H e r e f o r d Ranch r e s e r v e s t h e r i g h t t o revoke
t h e use of t h e d i t c h i n t h e event t h a t f u t u r e
f l o o d i n g o r w a t e r damage i s d e t e r m i n e d t o be
excessive."
Testimony e s t a b l i s h e d that the "Big Rock" a r e a was a.
massive rock outcropping located i n t h e disputed a r e a and
c o n s t i t u t e d t h e s o u t h e r l y end o f t h e boundary f e n c e between
p l a i n t i f f and d e f e n d a n t . While it i s t r u e t h a t t h e agreement
was obtained to meet the requirements of the soil
conservation service, it established that plaintiff and
d e f e n d a n t a g r e e d t h a t t h e "Big Rock" a r e a was a p a r t o f t h e
defendant s ranch. The p a r t i e s a g r e e d t h a t p e r m i s s i o n was
g i v e n by t h e defendant t o plaintiff t o drain water across
defendant's ranch, with defendant reserving the right to
revoke t h e u s e o f t h e d i t c h i n t h e e v e n t o f f l o o d i n g o r w a t e r
damage.
The e v i d e n c e e s t a b l i s h e s t h a t f o l l o w i n g e x e c u t i o n o f t h e
agreement, plaintiff proceeded w i t h t h e d i t c h work. As a
part of t h a t d i t c h work, plaintiff t o o k down t h e boundary
fence i n question. Thereafter, a t plaintiff's expense, he
e r e c t e d t h e f e n c e a g a i n i n i t s same l o c a t i o n . I n t h e course
of the ditch work, a very large tree stump was pulled out of
the ground and left in the disputed area. Removal of the
stump required major equipment work. Pursuant to defendant's
request, the plaintiff moved this stump off of the disputed
area and on to plaintiff's land.
All of these facts together are sufficient to show there
was an agreement between the plaintiff and defendant fixing
the boundary line at the location of the north/south boundary
fence and that there was an actual designation of that line.
(3) Occupation of the ground - accordance
in with
Agreement. The evidence as previously summarized clearly
establishes that for many years the defendant occupied,
farmed and used the land in question for livestock and
farming purposes.
We conclude that there is substantial evidence to
support the conclusion that the boundary fence constituted
the actual boundary by agreement between plaintiff and
defendant. We affirm the verdict and judgment in that
regard.
111
Did the trial court commit reversible error in making
certain evidentiary rulings?
Plaintiff objects to a number of evidentiary rulings by
the District Court. The majority of these contentions do not
meet the requirement of Rule 103, M.R.Evid. which in
pertinent part states:
" (a) Effect of erroneous ruling. Error may not be
predicated upon a rulinq which admits or excludes
evidence unless a substantial right of the party is
affected . . ."
In most instances the plaintiff has failed to show where a
substantial right was affected by the rulings.
Mrs. Funk wa.s asked in the course of her direct
examination if there was any intention of recognizing the old
fence line as the true boundary when the Agreement regarding
the ditch line was executed. The court sustained the
objection to the answer to that question. At that time the
Agreement had not been admitted into evidence. When it was
subsequently admitted, no rebuttal testimony was offered by
the plaintiff . We find no abuse of discretion by the
District Court and no substantial right of the plaintiff
affected.
Plaintiff objects to the court's refusal to allow
Hersman to testify as to whether he knew of any other surveys
in the area. The question was not whether he had relied on
any other surveys, but rather whether he knew of any other
surveys. Under that circumstance, the existence of other
surveys is irrelevant and the ruling of the District Court
was correct.
The plaintiffs also objected to the introduction of the
Agreement regarding the drainage ditch, the defendant's
photograph of his carving on the rock and certain newspaper
articles. These exhibits were relevant as defined in Rule
401, M.R.Evid. They each tended to prove the relevant facts
for which they were offered. In addition, plaintiff failed
to demonstrate how the admission of the exhibits affected any
substantial right. We affirm these rulings of the District
Court.
IV
Did the trial court err in giving and refusing certain
instructions?
Plaintiff contends the District Court erred in refusing
plaintiff's proposed Jury Instruction No. 7. That
instruction was adequately covered by the court's
Instructions Nos. 16 and 17. There was no error in such
refusal.
Plaintiff objects to Instruction No. 16 for the reason
that there was allegedly no evidence of a boundary line by
acquiescence or implied agreement so that the reference to
"five years" was improper and misleading. As previously
held, there was evidence of a boundary line by agreement of
the parties, so this argument is inappropriate.
Plaintiff objects to Instructions Nos. 11 and 18,
contending that they are contrary or inconsistent.
Instruction No. 11 instructs that the original survey must,
whenever possible, he retraced, since it cannot be
disregarded or needlessly altered after property rights have
been acquired in reliance upon it. Instruction No. 18
instructs that in making its decision the jury is not to
consider or conjecture as to the affect of the decision on
the boundaries or corners of adjacent lands owned by persons
not parties to this suit. We find no inconsistency between
these instructions.
Plaintiff argues that Instruction No. 6 should not have
been given because there was no admissible evidence as to an
agreement of a boundary line. We have held to the contrary.
v
Did the trial court err in denying the plaintiff's
motion to quash defendant's costs?
Plaintiff first objects to defendant's memorandum of
costs as not being timely filed. The verdict of the jury was
rendered June 23, 1983. The memorandum of costs and
disbursements was filed July 8, 1983. Notice of entry of
judgment was given on July 14, 1983.
Section 25-10-501, MCA provides that the party who
claims costs must deliver a memorandum to the clerk and serve
it upon the adverse party "within 5 days after the verdict or
notice of the decision of the court . . . or, if the entry of
the judgment on the verdict or decision be stayed, then
before such entry is made . . .." This section was construed
i r i Poeppel v. Fisher (1977), 175 Mont. 136, 142, 572 P.2d
"This Court has held that the five day period
allowed for filing of a memorandum of costs and
disbursements 'is compu.ted from the day the court
enters judgment, not from the day the court orally
announces its decision.'. ..The District Court's
ruling on post-trial motions delayed entry of
judgment until June 24, 1976. Plaintiff filed his
memorandum of costs and disbursements prior to
entry of judgment, on April 26, 1976, and such
filing was timely."
Applying this rule, we hold that the memorandum of costs and
disbursements was timely filed and served.
Plaintiff objects to allowing expenses claimed for
copies of public documents and for the preparation of maps
and surveys by Mr. Smith and preparation of maps charged by
Mr. Lautern. Section 25-10-201, MCA in pertinent part
provides :
"A party to whom costs are awarded . is . .
entitled to include in his bill of costs his
necessary disbursements, as follows:
" (4) the legal fees paid for filing and recording
papers and certified copies thereof necessarily
used in the action or in the trial;
"(8) the reasonable expenses for making a map or
maps if required and necessary to be used on trial
or hearing; .. ."
In Johnson v. Jarrett (1976), 169 Mont. 408, 417, 548
P.2d 144, 149, this Court held that the cost of preparation
of maps and surveys are allowed where necessary to explain
the facts and location in issue. The record shows that
surveyors Smith and Lautern prepared maps, surveys and charts
bearing on the boundaries in question and demonstrating the
lack of accuracy of Survey 6056. These were properly
prepared for the express purpose of explaining the factual
situation to the jury and court.
Plaintiff also objected to the allowance of costs where
they were not actually certified copies of public documents.
There was no issue made of the necessity for certification
and the instruments were therefore a.dmitted to be copies of
public documents.
The costs were properly allowed.
A£ firmed.
We concur: