No. 86-455
IN THE SUPREME COURT OF THE STATE OF MONTANA
ESTHER P. PETERSON,
Plaintiff and Appellant,
-vs-
GEORGE TAYLOR and GEWYNN TAYLOR.,
his wife, the heirs and devisees of
CHARLES T. HOWITT, Deceased, and all
other persons unknown, claiming or who
might claim any right, title, estate or
interest in, or lien or encumbrances
upon, the real property described in the
complaint or any thereof adverse to
Plaintiff's ownership or any cloud upon
Plaintiff's title thereto whether such
claim or possible claim be present or
contingent,
Defendants and Respondents.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Madison,
The Honorable Frank Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gregory 0 Morgan, Bozeman, Montana
.
For Respondent:
Morrow, Sedivy & Bennett; Terry Schaplow, Bozeman,
Montana
Submitted on Briefs: March 5, 1 9 8 7
Decided: April 16, 1987
Filed :
a Clerk
-!
P&
I
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Plaintiff Esther Peterson appeals the findings of fact,
conclusions of law, and order of the District Court, Fifth
Judicial District, County of Madison which quieted title to
property in Pony, Montana. We affirm the order of the
District Court.
The dispute in this case arises over the ownership of a
tract of land designated as the "Mill Site" on the 1877 plat
map for the townsite of Pony. Plaintiff Mrs. Peterson was
born and raised in Pony. Her father, Dave BOX, ran the Pony
Electric Company, which was located at the southern end of
the Mi11 Site directly behind the family house. The Box
family home was located on a 80' x 100' parcel also within
the Mill Site. Mrs. Peterson apparently was under the
impression that her family owned the entire tract of land
locally known as the Mallory Mill Site, an area of 4.18
acres.
Defendants George and Gewynn Taylor claim their interest
in the Mallory Mill Site as devisees under the will of
Charles Howitt. Mr. Howitt had been married to Emily Morris
Howitt, niece of Leah Morris Mendenhall, the common grantor
of both the Howitts and the Boxes.
The ownership history of the Mallory Mill Site is as
follows. FTilliam Morris and Henry Elling each received %
interest in the entire Mill Site by sheriff's deed dated
1891. After each man's death, their interests in the Mill
Site devolved such that in 1931, Leah Morris Mendenhall owned
a 1/6 interest in the Mill Site, and the Elling Estate
Company owned a 5/6 interest in the Mill Site. In 1931, Leah
Mendenhall and the Elling Estate Company executed a deed in
favor of Dave Box which granted to him as follows:
That certain piece or parcel of land lying, being,
situated and contained in the Southeast quarter of
the Southwest quarter (SE4 SW&) of Section eighteen
(18), Township two (2) South of Range two (2) West,
Montana Principal Meridian, and comprising all that
part or portion thereof lying at and within the
southerly end of the tract heretofore known and
designated as the Mallory Millsite not platted,
dedicated and included in the certain recorded
dedication and plat of the Millsite Addition to the
Town of Pony, now appearing on file and of record
in the office of the County Clerk and Recorder of
Madison County, Montana, together with all
buildings, improvements and machinery, including
water wheel, generators, motors and equipment
therefor, held, owned and used for and in
connection with the electric lighting and power
plant of the grantors and all poles, wires,
transformers, meters and other equipment comprising
the electric lighting system of the town of Pony,
and the so-called Strawberry power line extending
between said Pony power plant and the
Strawberry-Keystone mine and mill; and also
therewith the certain water right and ditch and
reservoir right and wooden acqueduct [sic] or pipe
line leading to said plant from the ditch and
reservoir hereinafter mentioned, and the certain
water right, dam, ditch, reservoir, headgate and
overflow rights and the use, privileges and rights
of way thereof and therefor, comprising and
including what is generally known as the Mallory or
Elling & Morris water and ditch rights previously,
from about 1876 to 1902, used for the Mallory mill
and Elling & Morris stone mill on the Elephant Lode
Mining Claim, and thereafter to and including the
present time used for the operation of the
so-called Elling & Morris hydro-electric plant now
hereby conveyed; and the good will of the electric
lighting business; excepting, however, and hereby
recognizing and reserving only from this conveyance
the sufficient and necessary use of said ditch and
water for irrigation and domestic uses on the
southerly 250 feet of said Elephant Lode Mining
Claim, known as the W. W. Morris residence tract.
It is the interpretation of this deed which is the
center of controversy in the instant quiet title dispute.
Mrs. Peterson filed her complaint to quiet title to the
Mill Site in 1984. A non-jury trial was held July 15 and 16,
1986. On August 5, 1986, the District Court issued findings
of fact, conclusions of law, and an order and memorandum
stating that both Petersons and Taylors had a vested interest
in the Mill Site and that both had paid taxes on a part of
the Mill Site. The court then ordered an equitable partition
of the property.
Mrs. Peterson specifies four issues on appeal:
1) Whether findings no. 7 and 9 of the District Court
order are unsupported by the evidence and clearly erroneous?
2) Whether the 1931 deed to Dave Box is ambiguous?
3) Whether the District Court's interpretation of the
1931 deed to Dave Box was error of law?
4) Whether Esther Peterson has established title by
adverse possession?
A quiet title action is a suit in equity. Dahlberg v.
Lannen (1929), 84 Mont. 68, 76, 274 P. 151, 153. Under S
3-2-204(5), MCA, the duty of this Court in equity cases is to
review all questions of fact and law. Where it is alleged
that the evidence is insufficient to support the findings of
the trial court, we will not set aside those findings unless
there is a decided preponderance of the evidence against
them. Dahlberq,at 77, 274 P. at 153; Rase v. Castle Mountain
Ranch, Inc. (Mont. 1981), 631 P.2d 680, 684, 38 St.Rep. 992,
996. Where issues of fact are close, this Court sitting in
equity cases will defer to the findings of the trial court
since it is in a better position to make decisions of fact.
Rase, at 684, 38 St.Rep. at 996.
Issues no. 1, 2 and 3 all relate to the District Court's
interpretation of the 1931 deed to Dave Box. Mrs. Peterson's
main contention is that under the District Court's
interpretation the deed is void for ambiguity and vagueness
of legal description.
The District Court found as follows:
7. On April 14, 1931, Ellings Estate Company and
Leah Mendenhall deeded to Dave Box, Plaintiff's
father, the so-called southerly end of the
Millsite. The property was described as follows:
". . . comprising all that part or portion thereof
lying & within the southerly - - - tract
end of the
heretofore known anddesignated as the Mallor
Millsite - platterdedicated a n d T n c m e d in thz
not
certain recorded dedication and plat of the
Millsite addition to the Town of Pony, now
appearing on file and of record in the office of
the County Clerk and Recorder of Madison County,
Montana, together - - buildings, improvements
with all
and machinery, including water wheel, generators,
motors and equipment therefor,. . ."
While this description is ambiguous, it is clear
that the Grantors intended to convey the portion of
the Millsite occupied by the Pony Electric Company,
since it referred to improvements, machinery and
equipment.
It is also clear that the deed did not convey any
property west of Plaintiff's westerly fence line,
and also there was reserved a remaining interest
which was conveyed to Leah Mendenhall in 1955
(Defendants' Exhibit X).
9. From the various conveyances, payment of taxes
and acts of occupancy, the Court finds generally
that :
Peterson is the owner of the 80 x 100 lot, and
an undescribed Southern portion of the Millsite,
including that area occupied by the Pony Electric
Company. All other portions of the Millsite are
owned by the parties as tenants in common, and in
an attempt to effect an equitable partition, said
remainder shall be divided as hereinafter
indicated [ .1
Mrs. Peterson argues that "heretofore known and
designated as the Mallory Millsite" modifies "piece or parcel
of land" at the beginning of the property description. She
contends "the southerly end of the tract" refers to the fact
that the entire Mill Site is located in the southern quarter
of section 18.
We find the District Court's interpretation of the deed
as set forth in findings of fact no. 7 and 9 to be the
correct one. It is clear by ordinary rules of grammar that
the parcel of land gra-nted to Dave Box was comprised of a
part or portion of the Mill Site tract, and that portion was
located at the south end of the Mill Site. This
interpretation is further supported, as noted by the District
Court, by the fact that the parcel of land is granted
"together with" the buildings and machinery associated with
the Pony Electric Company, such buildings and equipment being
located directly behind and at the south end of the Mill Site
behind the Box-Peterson home. We hold that there is a
decided preponderance of the evidence in favor of the
District Court's findings of fact no. 7 and 9.
Mrs. Peterson argues that such an interpretation is void
since there are no detailed boundary lines set out by such an
interpretation. The general rule is that a deed will be
liberally construed so as to give it effect, rather than to
render it a nullity. Howe v. Messimer (Mont. 1929), 84 Mont.
304, 312, 275 P. 281, 283. A deed will not be void for
uncertainty if the identity of the property can be determined
by reference to extrinsic evidence. Shilts v. Young (Alaska
1977), 567 P.2d 769, 773. The property description in the
deed is adequate if it contains sufficient information to
permit the identification of the property to the exclusion of
all others. - ; followed - Dimond v. Kelly (Alaska 1981) ,
Id. in
629 P.2d 533, 540-41; - - Blumenthal v. Concrete
see also
Constructors Co. (N.M.Ct.App. 1984), 692 P.2d 50, 54-55.
The property description describing the buildings,
improvements, machinery, water rights to run the generators,
and goodwill of the electric lighting business provides
adequate information from which to determine the boundary
lines of the Pony Electric Company property. It was also
clear from a field inspection by the court that the
improvements of the Pony Electric Company did not extend past
the west fence line of Mrs. Peterson's property. F e hold
l
that the description in the 1931 deed to Dave Box was
sufficient to permit the use of extrinsic evidence to
determine the boundaries of the property. We find no abuse
of discretion in the District Court's equitable division of
the property between the two parties.
The final issue raised by Mrs. Peterson is whether she
has established title by adverse possession to the entire
Mill Site. We hold that she has not. As correctly stated by
the District Court, adverse possession requires the payment
of taxes in addition to the requirements, when claim to the
property is founded upon an instrument, of § 70-19-408, MCA.
See § 70-19-411, MCA. The tax assessment for Mrs. Peterson,
until 1984, listed the property assessed as the 80' x 100'
lot upon which her home was located, and "part of Mallory
Millsite." Mrs. Peterson states she thought she was paying
taxes on the entire Mill Site. Regardless of her belief,
there is no indication that the taxes assessed against
property owned by Mrs. Peterson and the Taylors were
incorrect. We agree with the District Court that Mrs.
Peterson has not sustained her claim of adverse possession.
The judgment of the District Court is affirmed.