NO. 89-371
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
VIOLET L. SMITHERS and JAMES J. AKER,
Plaintiffs and Respondents,
-v-
DONALD HAGERMAN and BERNIDE E. HAGERMAN,
Defendants and Appellants.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lane K. Bennett, Kalispell, Montana
For Respondent:
James C. Bartlett; Hash, O'Brien & Bartlett;
Kalispell, Montana
Submitted on Briefs: June 7, 1990
Decided: August 17, 1990
CLERK OF S U P R E M E COURT
S4A7E OF &iBMTAEdA
Justice Fred J. Weber delivered the Opinion of the Court.
In a boundary dispute, the District Court for the Eleventh
Judicial District, Flathead County, ruled in favor of plaintiffs,
ordered that defendants remove their encroachments on plaintiffst
land and awarded damages in the amount of $7,159. Defendants
appeal. We affirm.
The issues for our consideration are:
1. Did the District Court err in ruling that the plaintiffs
proved by a preponderance of the evidence that their southern
boundary actually lies on a survey line which describes defendants'
northern boundary?
2. Did the District Court err in failing to find that a
valid par01 agreement was entered into by the parties setting the
disputed boundary as the existing fence?
3. Did the District Court err in failing to find that
plaintiffs lost the right to prevail based upon estoppel, laches
and adverse possession?
4. Did the District Court err in awarding damages to
plaintiffs?
This is a boundary line dispute between the owners of adjacent
property in Flathead County. The properties are adjoined at the
plaintiffs' (Aker and Smithers) southern border and the defendants'
(Hagermans) northern border. In essence, the dispute involves
whether an existing fence between the property represents the true
property lines of the parties. ~aintaining that it did not,
plaintiffs demanded defendants remove all encroachments, including
2
a garage and a septic system, which were on their property.
Defendants refused to do so, maintaining that the fence truly
represented the property lines. This lawsuit resulted.
The plaintiffs' property which is north of the defendants'
property, was deeded to the plaintiffs in 1954. Neither of the
plaintiffs subdivided the property. The metes and bounds
description established that the south line of the tract was
parallel to the south line of the section and 997.5 feet north of
that south line.
In 1955 the defendants acquired a rectangular tract lying to
the south of the plaintiffs' tract. The metes and bounds
description in that deed established that the north line of the
defendants' tract was parallel to the south line of the section and
997.5 feet north of the south line of the section.
Prior to 1952 plaintiff Aker's father erected a fence near the
south boundary of the plaintiffs' property. He did not obtain a
survey. He "eyeballed" the fence line. The fence has never been
moved and has been maintained by the plaintiffs.
The District Court found that until 1971, plaintiff Aker
believed that the fence was on the south boundary line of the
plaintiffs' tract. Up to that date he used the property north of
the fence.
In 1971, Hagermans obtained a survey of their property. Mr.
Marquardt, the surveyor, notified Hagermans that the north boundary
of their property lay to the south of the fence. The survey also
demonstrated that fact. Hagermans requested a boundary agreement
with the plaintiffs which would provide that the Hagermansv
property ran up to the fence. The plaintiffs refused to enter into
such an agreement.
Hagermans used the land south of the fence for their horses,
one year's oat crop, a sawmill (abandoned in the 19601s), and for
the storage of building materials. At some time prior to 1985,
plaintiffs commissioned Marquardt to reflag the survey pins that
had been placed for the 1971 survey. Hagermans concede that
plaintiffs never falsely represented their position regarding the
true boundary and that they always claimed that the property line
was as shown in the 1971 survey.
In 1983 a tenant of Hagermans began building a garage which
encroached upon the south line of the plaintiffsv property as
described by the Marquardt 1971 survey. Plaintiffs notified the
tenant that he was improperly building on their property. The
tenant passed that information on to the Hagermans.
Notwithstanding that notice, the tenant completed construction of
the building. Plaintiffs did not take any legal action at that
time .
In 1985 Hagermans began construction of a septic system on
the property south of the fence but north of the surveyed property
line. Plaintiffs then filed this action demanding that Hagermans
remove their encroachments.
The District Court concluded the boundary between the parties
is the boundary described in Marquardtls 1971 survey. From that
decision, Hagermans appeal.
Did the District Court err in ruling that the plaintiffs
proved by a preponderance of the evidence that their southern
boundary actually lies on a survey line which describes defendants1
northern boundary?
Hagermans maintain that plaintiffs have failed to substantiate
their claim because they never surveyed their property. They
maintain that both parcels must be surveyed to show a common
boundary.
Plaintiffs contend that a proper survey is sufficient evidence
to establish a boundary line. They further argue that when an
encroachment occurred, they took timely legal action.
Relying on Christie v. Papke (1982), 201 Mont. 200, 657 P.2d
88, the District Court stated that "parties having a common
boundary may agree that a presumed boundary is correctgg.However,
it further stated that l1once a true boundary is determined, the
parties must conform to the true line." Hence, the District Court
concluded that once the true boundary became known in 1971, it
became the true boundary with which the parties must comply. We
agree.
A fence does not establish a boundary line when it does not
conform to the true line, even if the property owners thought it
was the true line.
Where two adjoining properties are divided by a fence,
which both owners suppose to be on the line, such fence
is a division fence, as between them, until the true line
is ascertained, when they must conform to the true line.
(citations omitted).
Pilgrim v. Kuipers (1984), 209 Mont. 177, 182, 679 P.2d 787, 790.
In the case before us, when the true line was established by the
1971 survey, instituted by the Hagermans, it then became the
boundary to which the parties must conform. The law does not
support Hagermansf argument that all four corners of both parcels
must be surveyed to establish the correct boundary. The survey
established the boundary line without contradiction. In addition
the description in the deeds to the plaintiffs and the Hagermans
established the same common boundary line. We hold that the
plaintiffs provedthat their southern boundary actually lies on the
survey line which also describes the Hagermansf northern boundary.
I1
Did the District Court err in failing to find that a valid
par01 agreement was entered into by the parties setting the
disputed boundary as the existing fence?
The District Court determined that the parties never agreed
to a fence-line boundary. Hagermans maintain that there was such
an agreement. They argue that their construction up to the fence
line was evidence of their reliance on the fence as the boundary.
Hagermans urge this was a case of Ifmereacquiescencew. Plaintiffs
maintain that there never was such an agreement and that the first
time Hagermans and plaintiffs learned the location of the true
boundary line was after the 1971 Marquardt survey.
In Christie, a fence was located at the supposed property line
for 56 years. A subsequent survey showed the actual boundary to
be south of the existing fence line. Christie destroyed the
original fence and built a new one along the boundary indicated by
the survey. Papke then destroyed the new fence and replaced it
where it was located for 56 years. Christie sued. Papke
maintained that the fence became the actual boundary by implied
agreement resulting from the fence location on the boundary and
because Christie helped to maintain the fence. This Court
concluded that more than mere acquiescence was necessary, and
stated:
[Tlhe parties are required to prove by clear and
convincing evidence all elements of an implied agreed
boundary.
In 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 coterminous 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. (citations omitted).
Christie, 657 P.2d at 89.
We agree with the trial court that Hagermans have failed to
show more than mere acquiescence. We further conclude that the
record does not provide clear and convincing evidence of an
agreement, either express or implied. We hold that the District
Court did not err in failing to find that a valid par01 agreement
was entered into by the parties setting the disputed boundary as
the existing fence.
Did the District Court err in failing to find that plaintiffs
lost the right to prevail based upon estoppel, laches and adverse
possession?
Hagermans urge that as a matter of equity, either estoppel,
laches or adverse possession should be applied because they relied
on the fence as the boundary and because of acquiescence on the
part of the plaintiffs.
Plaintiffs argue that there was no cause of action until there
was an encroachment. They contend that the first encroachment was
not until 1982 or 1983 when a garage was built on their land.
The District Court agreed and made the following significant
findings of fact and conclusions of law:
FINDINGS OF FACT
18. In 1982 or 1983, a tenant of [Hagermans] began
building a garage which encroached upon the boundary line
as described by Marquardtls survey. ...
19. In 1985 [Hagermans] began construction of a septic
system on property which lay south of the fence, but
north of boundary line as surveyed by Marquardt. ..
.
21. ... [Hagermans] sold property to third parties
based upon the Marquardt survey.
22. [Hagermans] did not cultivate or improve the
property between the Marquardt survey line and the fence.
CONCLUSIONS OF LAW
5. Once the true boundary became known in 1971,
[Hagermans] made only one demand for the property in
dispute, which was rebuffed; they made no additional
claim adverse to Plaintiffs until 1983.
6. [Hagermans] never occupied the property prior to
1983, in such a manner to establish adverse possession
or easement.
7. The first incident of actual trespass on Plaintiffs1
]
land was in 1983, when [Hagermansl tenant built a garage
over the survey line. [Hagermans] again encroached on
Plaintiffs1 property in 1985, when the septic system was
partially built on Plaintiffs1 property. Plaintiffs
brought this action for ejectment and rents. Therefore,
the defenses of statutes of limitations and laches are
unavailing.
8. Plaintiff at no time falsely represented their
position to [Hagermans]. [Hagermans] did not rely upon
the fence as their northern boundary in the subsequent
land sale to third parties. Thus [Hagermans] may not
rely upon estoppel.
For a claim of adverse possession, it must be proved that the
property was claimed under color of title or by actual, visible,
exclusive, hostile and continuous possession during the statutory
period of five years, and the party claiming adverse possession
must have paid taxes on the property for the full statutory period.
Perusich v. Meier (1987), 229 Mont. 458, 747 P.2d 857. From the
above findings and conclusions, it is clear that Hagermans failed
to prove the elements of a claim for adverse possession.
The Hagermans also attempt to argue that they have established
title by equitable estoppel and laches. We do not find it
necessary to rule on any possible claim of title as a result of
either equitable estoppel or laches. In Mellem v. Kalispell
Laundry & Dry Cleaners (1989), 237 Mont. 439, 774 P.2d 390, this
Court set out the elements of equitable estoppel:
1. There must be conduct - acts, language, or silence -
amounting to a representation or a concealment of
material facts. 2. These facts must be known to the party
estopped at the time of his said conduct, or at least the
circumstances must be such that knowledge of them is
necessarily imputed to him. 3. The truth concerning these
facts must be unknown to the other party claiming the
benefit of the estoppel, at the time when it was acted
upon by him. 4. The conduct must be done with the
intention, or at least with the expectation, that it will
be acted upon by the other party, or under such
circumstances that it is both natural and probable that
it will be so acted upon .... 5. The conduct must be
relied upon by the other party, and, thus relying, he
must be led to act upon it. 6. He must in fact act upon
it in such a manner as to change his position for the
worse.
Hagermans fail to establish any facts which showed a
misrepresentation or concealment. The Hagermans did not rely on
the fence line as a boundary and they sold parcels in accordance
with the 1971 survey. The District Court concluded that the
Hagermans failed to prove the essential elements of equitable
estoppel and we agree with that determination.
Similarly, a claim of laches by the Hagermans is without
merit. Laches exists where there has been an unexplainable delay
of such duration or character as to render the enforcement of an
asserted right inequitable. Laches is appropriate where a party
is actually or presumptively aware of his rights but fails to act.
A party is held to be aware of their rights where the circumstances
he or she knows of are such as to put an ordinary prudent person
on inquiry. See Sperry v. Montana State Univ. (Mont. 1989), 778
P.2d 895, 46 St.Rep. 1482. The first encroachment of plaintiffsf
land occurred in 1983 and then again in 1985. Plaintiffs filed
this action in 1986. We agree with the determination by the
District Court that there was no unexplained delay of a sufficient
duration to justify a finding of laches.
We hold that the District Court correctly found that the
Hagermans failed to establish adverse possession, equitable
estoppel or laches.
IV
Did the District Court err in awarding damages to plaintiffs?
Hagermans maintain that the District Court's award of damage
was in error. Plaintiff was the only witness to testify regarding
damages. He estimated damages based upon an estimated rental
value. Hagermans urge his testimony on damages was totally lacking
in credibility and merit.
Plaintiffs point out that Hagermans had the opportunity to
cross examine Mr. Aker. Plaintiffs maintain that in accordance
with 5 26-1-301, MCA, the direct evidence of one witness who is
entitled to full credit is sufficient for proof of any fact. They
argue that under 5 26-1-302, MCA, a witness is presumed to speak
the truth, and the court is the exclusive judge of the witness'
credibility. Mr. Aker was asked how much he would charge a third
person to erect and maintain a portion of garage on or to place a
sewage system under his property. He testified without
contradiction that the rental value of the property on which the
septic system lies is $30 per month. He further testified that the
rental value of the property on which the garage exists is $120 per
month. The District Court awarded plaintiffs damages of $7,159.
Plaintiffs urge that as long as Mr. Aker's statement of the amount
he would charge for compensation is reasonable and uncontradicted,
the trial judge was free to adopt the testimony as true and
sufficient. We agree.
Section 27-1-318, MCA, provides:
Wrongful occupation of real property. The detriment
caused by the wrongful occupation of real property in
cases not otherwise provided for in this code is deemed
to be the value of the use of the property for the time
of such occupation . . .
and the costs, if any, of
recovering the possession.
The District Court properly considered the rental value provided
by the testimony of Mr. Aker, noting that such testimony was
uncontradicted. Furthermore, the District Court is the exclusive
judge of the witness1 credibility. We hold that the District Court
did not err in awarding damages to plaintiffs.
/
&/
We Concur:
bTLc,-&p<
Chief ustice