No. 85-453
I N THE SUPREME COURT OF THE STATE OF MONTANA
1986
GEORGE CLAYTON an i n c o m p e t e n t p e r s o n
by DOROTHY MURPHY, G u a r d i a n a d . L i t e m ,
P l a i n t i f f and A p p e l l a n t ,
THE ATLANTIC R I C H F I E L D COHPANY; THE
BUTTE, ANACONDA AND P A C I F I C RAILROAD
CO.; and DEFENDANTS A THROUGH Z ,
D e f e n d a m t s and R e s p o n d e n t s .
APPEAL FROM: D i s t r i c t C o u r t of t h e S e c o n d J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of S i l v e r B o w ,
T h e H o n o r a b l e Mark P . S u l l i v a n , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
E d w a r d Y e l s a , A n a c o n d a , Montana
F o r Respondent:
Poore, Roth & Robinson; J a m e s A. Poore, Jr., B u t t e ,
Pllontana
S u b m i t t e d on B r i e f s : Feb. 7, 1986
Decided: A p r i l 22, 1986
Filed:
Mr. Justice John C. Harrison. delivered the Opinion of the
Court.
This is a.n appeal from the District Court of the Second
Judicial District of the State of Montana, for the County of
Silver Bow. The appeal is from an order for summary
judgment. We affirm.
The following facts are pertinent to this case.
The respondent (railroad) bought a right-of-way across
property granted in 1892 to certain parties not essential to
this lawsuit, on which were unpatented mining claims. The
deeds were recorded in Silver Bow County, Montana. After
obtaining the grants, the railroad constructed, operated, a-nd
maintained a railroad line which has been in the same
geographical location from the date of construction to the
present. The right-of-way was fenced fifty feet on either
side of the center line of the railroad tracks, except where
the tracks cross a bridge or a road. The ground between the
fences has not been used for any purpose by anyone other than
the railroad. The railroad has paid the taxes levied against
the right-of-way during this entire period.
On September 13, 1954, appellant (Clayton) obtained a
patent from the United States Government covering land which
included the railroad's right-of-way, but the patent did not
refer in any way to the right-of-way. Clayton took no action
with respect to the existence of, or use of, the right-of-way
until shortly before filing this action in September 1983.
The tracks were used by at least one train per day and
sometimes many trains per day going in each direction, not
only from 1954 but prior to that tine. Right-of-way
employees and work crews worked freely back and forth over
all parts of the right-of-way system during this period and
made necessary repairs.
Clayton admits the railway roadbed existed in its
present location continuously from the time of his getting a
patent to the land until the present, and that the railroad
maintained the right-of-way. He admits the rail-road operated
openly and obviously with at least one train per day each way
from sometime prior to September, 1954, up to and includinq
the present time. Neither Clayton, his wife, his guardian ad
litem, nor any other person has tried to interfere with the
use of the tracks by the railroad, nor have they interfered
with the employees of the company when they were working
within the right-of-way. Clayton admits the railroad company
has preempted all use of the area occupied by its track,
roadbeds, ties, signalling equipment and fences within the
right-of-way and fifty feet on either side of the centerline,
and that the right-of-way land has not been used in any way
by him from September, 1954, until the present.
Clayton filed an action to quiet title, and a tort
claim for trespass and damages. The railroad raised the
defenses of adverse possession, prescription, laches,
estoppel and the applicable statute of limitations. In
addition, the railroad filed a counterclaim to quiet titl-e to
its right-of-way based upon (1) adverse possession; or (2)
prescription, and requested the Court to decree that it owned
an easement and right-of-way for railway purposes which
extended 50 feet on either side of the center line of the
railroad as it presently exists across appellant's property.
Thereafter Clayton filed a reply alleging the railroad
was barred b 7 laches and the statute of limitations, for
l
judgment on the pleadings, and for a partial summary judgment
reserving only the question of damages. The railroad moved
for summary judgment supported by pleadings, answers to
interrogatories, admissions and affidavits wherein the file
showed no genuine issue of material fact.
The District Court denied Clayton's motions, granted
the railroad's motion, and entered judgment for the railroad.
Clayton appeals.
Three issues are presented by Clayton:
(1) Was the District Court correct in denying
Clayton's motion for a judgment on the pleadings?
(2) Was the District Court correct in denying
Clayton's motion for summary judgment?
(3) Was the District Court correct in granting the
railroad's motion for summary judgment?
We affirm the holding of the District Court on all
three issues.
A motion for judgment on the pleadings is provided for
in Rule 12fc), I4.R.Civ.P. The Ninth Circuit Court of Appeals
recently announced the judicial standard of review applied to
a Rule 12(c) motion. The movant must "clearly establish that
no material issue of fact remains to be resolved and that he
is entitled to judgment as a matter of law." Doleman v.
Meiji Mut. Life Ins. Co. (9th Cir. 1984), 727 F.2d 1480,
1482. A Rule 12(c) motion should be denied if the
defendant's answer raises a. defense, which if proven, would
defeat the plaintiff's claim. Austad v. U.S. (9th Cir.
1967) , 386 F. 2d 147, 149. The affirmative defenses raised by
the railroad, if proven, would defeat Clayton's claim.
This Court has said a Rule 12(c) motion is improper if
the court must look to matters beyond the pleadings. Mathews
v. Glacier General Assurance Co. (1979), 184 Mont. 368, 375,
603 P.2d 232, 236. If matters beyond the pleadirlys need be
considered, "the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56 ... " Rule
12 (c) I4.R.Civ.P. The District Court in this case was
requested to examine matters beyond the pleadings in order to
resolve the controversy. Tax records, affidavits, records of
the Butte-Silver Bow County Clerk and Recorder, answers to
requests for admissions, and the results of requests for
production of documents were required to reach a conclusion
on plaintiff's motion. Consequently, a 12 (c) motion for
judgment on the pleadings is procedurally incorrect and was
correctly denied.
Clayton next argues the District Court should have
granted his motion for summary judgment. Summary judgment is
proper only when there is no genuine issue of material fact
and as a matter of law the movant is entitled to prevail.
Cereck v. Albertsons (1981), 195 Mont. 409, 411, 637 P.2d
509, 510. This rule imposes a strict standard on Clayton
which he is unable to meet. Both counts in his complaint are
barred by laches and the applicable statutes of limitations.
Laches exists "where there has been an unexplained
delay of such duration or character as to render the
enforcement of an asserted right inequitable. " Brabender v.
Kitt Manufacturing Co. (1977), 174 Mont. 63, 67-68, 568 P.2d
547, 549. A person can be charged with laches where "he was
either actually or presumptively aware of his rights."
Hereford v. Hereford (1979), 183 Mont. 104, 108-09, 598 P.2d
600, 602. Here both Clayton and others were actually and
presumptively aware of their rights and the alleged invasion
of those rights by the railroad.
Clayton had actual and constructive notice of the
railroad's claim to the right-of-way beginning at and prior
to the time that he received his patent. The presence and
continued use of the right-of-way by the railroad was more
than adequate notice to cause any reasonable person to make
an inquiry whether there were conflicting claims to the land
in question. The mining locations and deeds were a matter of
public record and were available to Clayton.
When there appears possession of land by
persons other than the record holder,
which possession is inconsistent with
the record title, there is a duty of
inquiry imposed upon a purchaser of that
land.
Rase v. Castle Mountain Ranch, Inc. (Mont. 1981), 631 ~ . 2 d
680, 685, 38 St.Rep. 992, 998. Here the appellant idly sat
by for 29 years before asserting his claim of title. Such
conduct is not condoned by this Court and has not been in the
past.
It is now too late for Clayton to attempt to disturb
the railroad title and possession. See Brabender v. Kitt
Manufacturing Co. supra; Richardson v. Richland County (Mont.
1985), 711 P.2d 777, 42 St.F,ep. 1834; Anderson v. Richland
County (Mont. 1985), 711 P.2d 784, 42 St.Rep. 1843.
All a.pplicable statutes of limitations commenced to run
when Clayton accrued an enforceable right. Pope v. Keefer
(1979), 180 Mont. 454, 464, 591 P.2d 206, 212. Accepting
Clayton's position that exclusive title was bestowed upon him
by the United States patent September 13, 1954, this
enforceable claim accrued on that date. Section 27-2-207,
MCA, requires that any action for injury to or waste or
trespass "on real or personal property" must be brought
within two years.
If Clayton now contends the railroad's occupation of
the right-of-way caused personal injury, a cause of action
for personal injury was barred in 1957 by the three-year
statute of limitations provided for in S 27-2-204(1), MCA.
The quiet title action is barred by S 70-19-401, MCA,
because Clayton was not "seized or possessed of the property
in question within five years before the commencement of the
action. I
' It was well established that the railroad's
possession of the property in question has been exclusive and
continuous since 1954. Possession is self-defining, and the
term "seisin" means possession. Northern Pacific R. Co. v.
Cannon (1891), 46 Fed. 224, 234. "Seisin" means a claim of
title accompanied with possession. Webb v. Wheeler
(Neb. 1908), 114 N.W. 636.
Application of S 70-19-404, MCA, clearly destroys any
presumption that the railroad's title was subordinate to
Clayton's. When property is held and possessed adversely for
five years to one with legal title before commencement of an
action, the one holding adversely is no longer subordinate.
Clayton waited 29 years to bring this action and by
virtue of his own admissions, answers to interrogatories, and
plea.dings in this case, his motion for a partial summary
judgment was correctly denied by the District Court.
As to the railroad's motion for summary judgment, the
same rule applies. The railroad must show it has title to
the right-of-way by adverse possession and/or prescription.
Section 70-19-407, MCA, provides in part that where a
person such as the railroad enters into possession of
property (the right-of-way) and bases its right upon a
written instrument, then, if the person has been in continual
occupation and possession of the property described in the
written instrument for five years, the described property "is
deemed to have been held adversely." For purposes of
§ 70-19-407, occupancy is deemed to be adverse, where it has
been "improved," S; 70-19-408(l) (a), MCA, or "where it has
been protected by a substantial enclosure,"
70-19-408 (1) (b), MCA. There is no dispute that the
property has been enclosed by a fence and has been improved,
i.e., maintained, since 1954.
When adverse possession is not based on a written
instrument, the fact that the land is within a substantial
enclosure is sufficient to establish adverse possession.
Thibault v. Flynn (1958), 133 Mont. 461, 466, 325 P.2d 914,
917. See also, Dillon v. Antler Land Company (D. Mont.
1972), 341 F.Supp. 734, 742-743. Even if the 1892 deeds were
void, the right-of-way was and is enclosed by a fence and the
requirements of the statute have been satisfied. Dillon,
supra, at 743. Castles v. Lawrence (Mont. 19831, 662 P.2d
589, 590, 40 St.Rep. 545, 547, and Swecker v. Dorn (1979),
181 Mont. 436, 441, 593 P.2d 1055, 1058.
Regardless of whether or not the railroad predicates
its ownership of the easement upon an instrument in writing,
it nevertheless has acquired a prescriptive easement.
Payment of taxes is not required to establish a prescriptive
easement. Eountain View Cemetery v. Granger (1978), 175
Mont. 351, 574 P.2d 254; Kostbade v. Metier (1967), 150 Mont.
139, 432 P.2d 382; Scott v. Weinheimer (1962), 140 Mont. 554,
374 P.2d 91.
Clearly, the railroad has met its burden. Once this
burden is met, the party opposing summary judgment must come
forward with substantial evidence raising a factual issue.
Farmers Insurance Exchange v. Janzer (Mont. 1985), 697 P.2d
460, 462, 42 St.Rep. 337, 339. Clayton simply is unable to
do so.
Having satisfied all. statutory and common law
requirements to establish its title, the railroad's motion
for summary judgment was properly granted and we affirm the
District Court's decision.
We Concur: /(
.
f
Justices