No. 8 7 - 3 4
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
ARTHUR D. BOLLINGER and DALLAS
BOLLINGER, husband and wife,
Plaintiffs and Respondents,
-vs-
RAYMOND HOLLINGSWORTH and GINGER
LYNN HOLLINGSWORTH, husband and wife;
et al. ,
Defendants and Appellants.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert Holter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Sverdrup & Spencer; Scott B Spencer, Libby, Montana
For Respondent:
Warden, Christiansen, Johnson & Berg; Gary R.
Christiansen, Kalispell, Montana
Submitted on Briefs: May 22, 1 9 8 7
Decided: July 21, 1987
Filed: JUL 1 1987
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
The Hollingsworths appeal a judgment entered by the
District Court, Nineteenth Judicial District, Lincoln County,
quieting title to a strip of land and establishing the
boundary line between their property and that of the
Bollingers. We affirm the judgment of the District Court.
This action involves a dispute over the location of a
boundary line in Section 10, Township 26 North, Range 29
West, Lincoln County. The boundary lies on the north-south
quarter section line. When the section was originally
surveyed by the Government Land Office (GLO) in 1903, a
quarter-corner monument was placed at the mid-section point
on the north boundary line of Section 10. Unfortunately,
this monument was buried by the reconstruction of Highway 2
during the 1930's. Since this monument is lost, proper
location of the quarter section boundary must be determined
by reference to the other corners.
The parties' specific point of disagreement is the
proper location of the northeast corner of Section 10. The
Bollingers' position, upheld by the District Court, is that
the northeast corner is marked by the original sandstone
monument, which was found by the surveyor commissioned by the
Bollingers to resurvey the property. The Hollingsworths'
position is that a brass cap, set by the Bureau of Land
Management (BLM) in a 1964 resurvey of the area, is the
proper location of the northeast corner. On appeal, the
Hollingsworths argue the District Court's acceptance of the
Bollinger survey was clearly erroneous and unsupported by the
evidence. They also appeal the court's award of compensatory
and punitive damages against them.
Section 10 was originally surveyed by the GLO in 1903.
Around 1912, Mr. Fosseum, the original homesteader of the
Hollingsworths' property, built a rail fence on the
north-south quarter section line which divided the upper
portion of Section 10. This fence separated the Fosseum
property from the Manicke property. The Manickes were
predecessors-in-interest to the Bollingers, and were the
parents of Mrs. Bollinger. The rail fence remained in this
location until 1982, when the Bollingers replaced it with a
new barbed wire fence.
The Hollingsworths purchased the Fosseum property in
1982 from the Shelleys, Mr. Fosseum's successors-in-interest.
In 1984, Mr. Hollingsworth told Mr. Bollinger he was going to
build a fence and a road 50 feet west of the old rail fence
line (and 50 feet in toward the Bollingers' property) . The
Bollingers contacted an attorney who wrote the Hollingsworths
a letter asking them to contact him and discuss the matter.
The Hollingsworths did not respond to this letter.
In the spring of 1985, the Hollingsworths removed the
Bollingers' fence and installed a new fence approximately 50
feet to the west. The Bollingers' attorney sent a second
letter to the Hollingsworths demanding an explanation of
their actions and requesting they or their attorney contact
him. The Hollingsworths again did not respond. The
Bollingers then hired a surveyor to survey their property.
By using the original GLO survey notes and locating the
original northeast corner monument, the surveyor set the lost
north quarter corner (now buried under Highway 2) by single
proportion measurement and established the quarter section
boundary eight feet to the west of the old rail fence line.
The Bollingers built a second fence on this re-established
boundary line. In the fall of 1985, the Bollingers
discovered their new fence had again been cut. They filed
their complaint in this action January 2, 1986.
The first issue raised by the Hollingsworths is whether
the District Court's judgment which located the quarter
section boundary was clear error of law and unsupported by
the evidence. The standard of review in considering a
judgment rendered in a civil action before the District Court
without a jury is whether the findings of fact are clearly
erroneous. Rule 52(a) M.R.Civ.P.; Roberts v. ~ission Valley
Concrete Industries, Inc. (Mont. 19861, 721 P.2d 355, 357, 43
St.Rep. 1254, 1257.
This Court has had the opportunity to examine the law of
boundaries on several occasions. As we first stated in
Vaught v. McClymond (1945), 116 Mont. 542, 549-50, 155 P.2d
612, 616, "[tlhe location of corners and lines established by
the government survey, when identified, is conclusive . . .."
Whether that original location is right or wrong as shown by
later surveys is immaterial; the true corner of a section or
quarter section is where the GLO surveyors in fact
established it. Stephens v. Hurly (1977), 172 Mont. 269,
278, 563 P.2d 546, 551. "The best evidence is the corners
actually fixed upon the ground by the government surveyor, in
default of which the filed notes and plats come next . . .."
Vaught v. McClymond, 116 Mont. at 557, 155 P.2d at 620
(emphasis in original).
The original 1903 GLO survey notes for Section 10 state
that a 16"xlO"x6" sandstone, carved with two notches on one
side and five notches on the other side, was used as a
monument for the northeast corner of Section 10. This stone
was not located when the BLM resurveyed the section in 1964
and relocated the section corners. However, a piece of
sandstone meeting this exact description was located by Mr.
Bollinger's surveyor, and its existence was corroborated by
the testimony and exhibits of Mr. Hollingworth's surveyor.
The District Court also conducted an on-the-ground inspection
of the boundary location and observed the sandstone monument.
As we stated in Buckley v. Laird (1972), 158 Mont. 483, 491,
493 P.2d 1070, 1074:
The object of a resurvey is to furnish proof of the
location of the lost lines or monuments, not to
dispute the correctness of or to control the
original survey. The original survey in all cases
must, whenever possible, be retraced, since it
cannot be disregarded or needlessly altered after
property rights have been acquired in reliance upon
it. On a resurvey to establish lost boundaries, if
the original corners can be found, the places where
they were originally established are conclusive
without regard to whether they were in fact
correctly located . . ..
The testimony of the Bollingers' surveyor, his field
notes and the 1903 GLO field notes introduced at trial all
indicate that the resurvey "followed in the footsteps" of the
original survey and was based upon location of the original
corner monuments for Section 10. The Hollingsworths have
argued that courses and distances based upon the BLM resurvey
are more consistent with the original GLO notes than those of
the Bollingers' surveyor. However, the general rule is that
courses and distances must yield to natural or artificial
monuments. Buckley v. Laird, 158 Mont. at 492, 493 P.2d at
1075. We therefore hold that the District Court correctly
determined the boundary line between the parties' properties
based upon the Bollinger resurvey which located the original
corner monuments.
The second issue raised by the Hollingsworths is whether
the District Court erred in awarding compensatory and
punitive damages against them. The District Court found the
Bollingers had sustained the following losses:
1. Lost pasturage for July, August and September,
1985 at a value of $192.00;
2. Replacement of the fence destroyed by
Hollingsworths at a value of $1,057.00;
3. Cost of the survey to establish the property
boundary at $3,020.20
The court awarded the Bollingers $4,371.10 for actual
damages and $4,000.00 for punitive damages based upon Mr.
Hollingsworth's malicious and oppressive actions in
destroying two of the Bollingers' fences. The difference in
the amount awarded for actual damages and the losses set
forth in the court's findings is $101.90. This discrepancy
is accounted for by the following calculations:
1. The Bollingers testified that they incurred a
$100.00 expense in purchasing hay. The District
Court included this expense without listing it as a
loss in the findings of fact.
2. The Bollingers' cost to rebuild the fence was
$1,057.90. The court awarded $1,057.00
3. The Bollingers' cost of the survey was
$3,021.20. The court awarded $3,020.20.
The $101.90 error is clerical in nature and we amend the
District Court's findings nunc pro tunc in order to conform
to the judgment for actual damages of $4,371.10
Punitive damages may be recovered for tortious acts of
malice and oppression. Section 27-1-222, MCA. The testimony
at trial indicated the Hollingsworths ignored the Bollingers'
request to negotiate the boundary dispute, and that Mr.
Hollingsworth destroyed two of the Bollingers' fences. This
evidence was substantial and credible so as to support the
District Court's award of punitive damages.
The judgment of the District Court is affirmed.
We Concur:
/
Chief Justice