No. 90-252
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
KENNETH M. GUE and SHIRLEY M.
GUE, husband and wife,
Plaintiffs and Appellants,
GARY L. OLDS and SUE ELLEN
OLDS, husband and wife,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Patrick R. Watt and Joseph G. Mudd, Jardine,
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t Stephenson, Blewett & Weaver, Great Falls, Montana
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o Respondent:
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_I Patricia O'Brien Cotter, Cotter & Cotter, Great
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Falls, Montana
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Submitted on Briefs: August 30, 1990
October 18, 1990
Decided:
Filed:
Y
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The District Court for the Eighth Judicial District, Cascade
County, entered summary judgment for the Oldses in this quiet title
action. We reverse and remand for further proceedings consistent
with this Opinion.
The issues are:
1. Did the District Court err in concluding that laches
barred the Guest action to quiet title?
2. Did the Oldses meet the statutory requirements to acquire
title to Lots 14 through 18 by adverse possession?
3. Did the court err in concluding that 70-19-401, MCA,
barred the Guest action to quiet title?
4. Did the court err by determining material questions of
fact in granting summary judgment for the Oldses?
5. Are the Gues entitled to summary judgment on the Oldses'
claim of adverse possession of Lots 14 through 18?
The plaintiffs, Kenneth M. and Shirley M. Gue, and the
defendants, Gary L. and Sue Ellen Olds, own adjoining property in
Neihart, Montana. In 1959 and 1960, Gary Olds, then a single man,
purchased Lots 3 through 7 and Lots 10 through 13, Block 11, Town
of Neihart. Olds and two local miners, now deceased, marked out
the area included in the lots, but the miners and others in Neihart
told Olds that confusion had existed in the boundaries in the Town
of Neihart for at least the last fifty years.
In 1973, plaintiffs Gue, who are friends of defendants Olds,
purchased Lots 14 through 18, Block 11, Town of Neihart. By that
time, Gary Olds had married and owned his property jointly with his
wife Shirley, and they had built a cabin. The Gues' lots directly
adjoin the Oldses property. When the Gues bought their property,
Gary Olds told Kenneth Gue that the cabin the Oldses had built may
be encroaching on the Guest property a bit and that the property
line might be inaccurate. No steps were taken to ascertain the
correct boundary line, however, and in 1975 the Oldses built a
fence on the accepted property line.
In 1985, in anticipation of selling their Neihart property,
the Gues hired D. Lester Turnbull to survey it. The Oldses agreed
to pay the expense of having Turnbull survey their property at the
same time.
Turnbull's survey places the Oldsesl cabin entirely within Lot
15, which is owned by the Gues. After attempts to negotiate a
settlement failed, the Gues brought this suit to quiet title to
their property. In their answer to the complaint, the Oldses
denied that their cabin is situated upon the Guest property and
counterclaimed to quiet title in the property on which their cabin
sits. After discovery, the Oldses moved for summary judgment and
the Gues moved for partial summary judgment that they are the title
holders to Lots 14 through 18.
The District Court concluded that the Guest claim is barred
by the statute of limitations and by the doctrine of laches. It
further concluded that the Oldses have established, by adverse
possession, title to the property upon which the cabin is located
and up to the boundary line established by their fence.
I
Did the District Court err in concluding that laches barred
the Guest action to quiet title?
Laches exists where there has been a delay of such a duration
as to render enforcement of the asserted right inequitable.
Castillo v. Franks (1984), 213 Mont. 232, 241, 690 P.2d 425, 429.
There is no absolute rule as to what constitutes laches, and each
case is determined according to its own particular circumstances.
Montgomery v. First Nat. Bank (1943), 114 Mont. 395, 408, 136 P.2d
760, 766. For laches to be applied, the court must find lack of
diligence by the party against whom the defense is asserted and
prejudice to the party asserting the defense. Coalition fdr Canyon
Preservation v. Bowers (9th Cir. 1980), 632 F.2d 774, 779.
In the present case, the District Court concluded that laches
applied because the Gues became presumptively aware of the
questionable accuracy of the boundary line between their property
and that of the Oldses when they purchased their lots in 1973. The
court also relied upon the Guest failure to object to the location
of the fence the Oldses built in 1975.
Kenneth Gue stated in his deposition that Gary Olds had told
him that the boundary line might be off by "a couple feetvv
and that
his cabin might be "close to the line." As Gue testified, in
contrast, the Turnbull survey puts the cabin within the Guesl
property in excess of an entire lot width. That's a horse of a
different color. There is no evidence that the Gues were aware of
the extent of encroachment on their property until they commis-
sioned the Turnbull survey. Further, there has been no showing
that the Oldses have been prejudiced by the Guest delay in
asserting their claim. The Oldsesl cabin was built well before the
Gues purchased Lots 14 through 18.
As an ancillary matter, the Oldses contend that because the
record contains only a sketch of the survey done by Turnbull and
because Turnbull himself has not been deposed, there is insuffi-
cient evidence to support the Guesl contentions for purposes of the
summary judgment motions. The testimony of Kenneth Gue and Gary
Olds, as well as the sketch, indicates that the Turnbull survey put
the Oldses cabin on Lot 15. We conclude that there is sufficient
evidence in the record to support the Guest position for purposes
of these motions for summary judgment.
We hold that the District Court erred in concluding that the
doctrine of laches is applicable in this case.
Did the Oldses meet the statutory requirements to acquire
title to Lots 14 through 18 by adverse possession?
The District Court concluded that the Oldses established
title to the property underlying their cabin by adverse possession.
A party claiming title through adverse possession must have "paid
all the taxes, state, county, or municipal, which have been legally
levied and assessed upon said landv1during the period of adverse
possession. Section 70-19-411, MCA. The District Court concluded
that the Oldsesl payment of taxes on their cabin satisfied the
requirement of the statute.
This Court has consistently held that If[o]ne cannot gain
adverse possession to land unless one pays the taxes on the land
throughout the statutory period.I1 See e.g. Burlingame v. Marjer-
rison (1983), 204 Mont. 464, 472, 665 P.2d 1136, 1140 (emphasis
supplied). Payment of taxes on an improvement on the property does
not fulfill the statutory requirement. Stephens v. Hurly (1977),
172 Mont. 269, 276-77, 563 P.2d 546, 550-51.
We conclude that payment of taxes on the cabin is not
sufficient to meet the requirement of 5 70-19-411, MCA. The Oldses
have not claimed that they have paid any property taxes on Lots 14
through 18. We hold that the Oldses failed to establish a right
to Lots 14 through 18 by adverse possession because they did not
establish that they paid property taxes on that property.
Did the court err in concluding that 5 70-19-401, MCA, barred
the Guest action to quiet title?
The court concluded that the Guest action was barred by the
applicable statute of limitations, 5 70-19-401, MCA:
No action for the recovery of real property or
for the possession thereof can be maintained
unless it appear that the plaintiff, his an-
cestor, predecessor, or grantor was seized or
possessed of the property in question within
5 years before the commencement of the action.
In reaching its conclusion, the court reasoned that the Gues did
not have possession of the land underlying the cabin for at least
five years preceding this action.
The District Court stated in its findings and conclusions that
ttseisintl
means possession. It relied upon Clayton by Murphy v.
Atlantic Richfield Co. (Mont. 1986), 221 Mont. 166, 717 P.2d 558.
That reliance was misplaced. Clayton concerned application of the
statute of limitations in the context of prescriptive easements,
not fee title. Statements in that case about the meaning of
ltseisinlt
are thus limited in application.
In a situation involving fee title to property, actual
occupancy is not essential to a lawful seisin; a titleholder is
seized of property as long as his or her title is complete and
disseisin is not proved. Stephens, 563 P.2d at 549-50, quoting 63
Am.Jur.2dI Property 5 40, p. 324. There is nothing in the record
to dispute the Guesl testimony that they are holder of fee title
to Lots 14 through 18. No defect in their title has been shown.
Disseisin has not been proved. We hold that 5 70-19-401, MCA, does
not bar the Guesl action to quiet title.
IV
Did the court err by determining material questions of fact
in granting summary judgment for the Oldses?
The Gues claim that, in entering its summary judgment, the
District Court determined the location of Lots 14 through 18 and
10 through 13. They state that the location of these lots is a
material issue of fact.
The order of the District Court did not set forth a legal
description of the land to which the Oldses have established title
by adverse possession. It did not clarify who holds title to ~ o t s
14 through 18 or where those lots are located in relation to the
Oldsesl cabin. However, to the extent that the courtls judgment
established the locations of Lots 14 through 18 and 10 through 13,
that judgment is vacated.
v
Are the Gues entitled to summary judgment on the Oldsest claim
of adverse possession of Lots 14 through 18?
The Gues maintain that, because the Oldses have not presented
any evidence of payment of taxes on Lots 14 through 18, they have
failed as a matter of law to make a valid claim of adverse
possession of those lots. Under our reasoning in Issue 111, they
are correct. Payment of taxes is necessary for establishing title
through adverse possession. The Oldses have not shown that they
paid any taxes on Lots 14 through 18. We conclude that summary
judgment should be entered denying the Oldses' claim of adverse
possession of Lots 14 through 18.
Reversed and remanded for further proceedings consistent with
this Opinion.
We concur:
I