No. 05-305
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 290
ALLENE K. KARLSON,
Plaintiff, Counterdefendant
and Respondent,
v.
LUDVIK ROSICH,
Defendant, Counterclaimant
and Appellant.
APPEAL FROM: The District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause DV 02-182,
Honorable Deborah Kim Christopher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Keith W. McCurdy, McCurdy Law Firm, P.C., Polson, Montana
For Respondent:
Darrel L. Moss, Sullivan, Tabaracci & Rhoades, P.C.,
Missoula, Montana
Submitted on Briefs: February 23, 2006
Decided: November 8, 2006
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Ludvik Rosich (Rosich) appeals from the findings of fact, conclusions of law and
order entered by the Twentieth Judicial District Court, Lake County, declaring the
boundary line between properties owned by Rosich and Allene K. Karlson (Karlson).
We reverse and remand.
¶2 We address the following issue on appeal:
¶3 Did the District Court err in determining the boundary line between the parties’
properties?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Clyde and Myrtle Norman (Normans) owned a parcel of real property on the east
lakeshore of Flathead Lake, being a part or portion of Government Lot 4, Section 16,
Township 24 North, Range 19 West, Lake County, Montana. In December 1971, Clyde
Norman marked off a proposed division of the property into two parcels, a northern
parcel and southern parcel, for the purpose of granting the southern parcel to their
daughter and son-in-law, Gladys and Ludvik Rosich. A road surveyor, Ludvik prepared a
survey of the divided lots using a third order ground survey method (i.e., transit,
Dietzger, and steel tape). However, because Ludvik was not a registered land surveyor,
the survey was signed off on June 4, 1973, by Gordon Sorenson, a registered land
surveyor. The completed survey, denominated as Certificate of Survey H-2131, and a
deed conveying the southern parcel to Gladys and Ludvik was recorded on November 9,
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1973. The northern parcel was retained by the Normans, who transferred the parcel to
other family members. The parcel was ultimately transferred to Karlson.
¶5 Rosich remains the owner of the southern parcel. A dispute arose between
Karlson and Rosich regarding the location of the common property line between their
respective properties, and, as a result, Karlson filed an action requesting the District
Court to declare and adjudicate the correct and proper location of the boundary line
between the two tracts of land pursuant to the Montana Uniform Declaratory Judgments
Act, § 27-8-101, et seq., MCA. Karlson asserted that the boundary line was properly
identified by the survey prepared by surveyor Jane Eby (Eby survey). Rosich denied that
the Eby survey correctly identified the dividing line and filed a counterclaim asserting the
boundary line was properly shown on the survey prepared by surveyor Greg Marengo
(Marengo survey).
¶6 The case was tried before the District Court without a jury. On February 1, 2005,
the court entered judgment in favor of Karlson. The court found that the property had
been divided pursuant to a family transfer exemption under the Subdivision and Platting
Act, and declared the true and correct property line was as depicted by the Eby survey.
Rosich filed a motion to amend and supplement the court’s findings of fact and
conclusions of law and to alter or amend the order, which Karlson opposed and the
District Court denied. Rosich appeals.
STANDARD OF REVIEW
¶7 “Declaratory relief is an equitable remedy.” Oregon ex rel. Dept. of Transp. v.
Heavy Vehicle, 198 F.Supp.2d 1202, 1206 (D. Or. 2002). “Section 3-2-204(5), MCA, in
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combination with Rule 52(a), M.R.Civ.P., control this Court’s standard for reviewing
equitable cases and require that findings of fact be upheld unless they are clearly
erroneous.” Hansen v. 75 Ranch Co., 1998 MT 77, ¶ 20, 288 Mont. 310, ¶ 20, 957 P.2d
32, ¶ 20 (citing McCann Ranch, Inc. v. Quigley-McCann, 276 Mont. 205, 208, 915 P.2d
239, 241 (1996)). “Our standard of review pertaining to a district court’s conclusions of
law, in rendering a declaratory judgment, is to determine if the court’s interpretation of
the law is correct.” Skinner v. Allstate Ins. Co., 2005 MT 323, ¶ 10, 329 Mont. 511, ¶ 10,
127 P.3d 359, ¶ 10 (quoting City of Great Falls v. DPHHS, 2002 MT 108, ¶ 10, 309
Mont. 467, ¶ 10, 47 P.3d 836, ¶ 10).
DISCUSSION
¶8 Did the District Court err in determining the boundary line between the parties’
properties?
¶9 In order to determine the proper surveying standards to be applied to the disputed
boundary line, the District Court first considered whether this division of property
qualified as an exemption under the Montana Subdivision and Platting Act (Act). We
note that, in undertaking this issue, it appears 1 the District Court applied the 2003 version
of the Act. Although we ultimately determine herein that the 2003 version of the Act is
not applicable to this division, we nonetheless initially undertake consideration of the
District Court’s analysis under the 2003 statutes, in order to address other pertinent issues
raised in its order and to provide guidance upon remand.
1
The version of the statute applied by the District Court is not expressly identified
in its order.
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¶10 If the property division here was not exempted and, therefore, subject to the Act’s
review and regulation, then the survey standards to be applied would be those provided
by § 76-3-402, MCA (2003), entitled “Survey and platting requirements for subdivided
lands.” 2 On the other hand, if the property division qualified as an exemption under the
Act, then the survey would be governed by § 76-3-401, MCA (2003), entitled “Survey
requirements for lands other than subdivisions.”
¶11 In addressing the exemption issue, the District Court concluded the Normans’
division of the property was “for the benefit of their children” and, therefore, was “a
division of land not considered a subdivision under § 76-3-207(1)(a), MCA.” However,
this statute provides that “divisions made outside of platted subdivisions for the purpose
of relocating common boundary lines between adjoining properties” are “not subdivisions
under this chapter.” The problem here is apparent: although the District Court concluded
that the division qualified for a family exemption, it nonetheless cited the provision
governing a common boundary exemption. This division could not have qualified as a
common boundary relocation, because the land divided was wholly owned by the
Normans—there was no common boundary line between multiple owners at the time of
the division that could have been relocated. Thus, the exemption provided under § 76-3-
207(1)(a), MCA (2003), could not have been applicable.
2
Those requirements include that “retracement of lines must conform to United
States bureau of land management instructions, and all public land survey corners must
be filed in accordance with Corner Recordation Act of Montana . . . .” Section 76-3-
402(3), MCA (2003).
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¶12 The District Court may have intended to refer to § 76-3-207(1)(b), MCA (2003),
which provides an exemption from subdivision review for divisions made “for the
purpose of a single gift or sale in each county to each member of the landowner’s
immediate family.” This supposition arises from the District Court’s finding that the
Normans’ division was for the benefit of their children.
¶13 However, even if this Court’s conjecture is correct, and the District Court intended
to rely on § 76-3-207(1)(b), MCA (2003), in concluding that the division was exempted
under the Act by virtue of a family transfer, the court’s order was unclear about the
surveying criteria it was applying to the division. The District Court concluded that “this
is not a subdivision under § 76-3-207(1)(a) M.C.A., so § 76-3-402 M.C.A., does not
apply,” but nonetheless found that the Eby survey, which it ruled was the correct survey,
“utilized, conformed to, and adhered to the U.S. Bureau of Land Management
instructions”—the criteria required by § 76-3-402, MCA (2003).
¶14 Though we raise the above-referenced concerns to assist in analyzing the matter
upon remand, the greater question is which version of the Act is applicable herein.
Obviously, before questions about the Act, its exemptions, and the proper survey criteria
can be taken up, the applicable version of the Act must be determined. The issue here
involves an element of time, that is, the intention when the property was originally
divided. “The object of all rules for the establishment of boundaries is to ascertain the
actual location of the boundary as made at the time.” Rogers Bros. Coal Co. v.
Roberts, 287 S.W. 725, 726 (Ky. App. 1926) (emphasis added). “As to boundary
disputes, the primary purpose is to track the footsteps of the original surveyor, to locate
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the survey as it was intended to be located on the ground by him.” State v. Pennsylvania
Railroad Company, 228 A.2d 587, 595 (Del. Super. 1967) (citing Moore v. Campbell,
254 S.W.2d 1018, 1024 (Tex. Civ. App. 1953)).
¶15 Thus, the law governing survey criteria at the time of the transaction must be
applied. “[Courts] have long held that parties to a conveyance have a right to rely upon
the law as it was at that time.” Ark. Presbytery of Cumberland v. Hudson, 40 S.W.3d
301, 310 (Ark. 2001), cert denied, 534 U.S. 945, 122 S. Ct. 329 (2001); see generally 23
Am. Jur. 2d Deeds § 9 (2002) (a court evaluates a conveyance “[f]rom the standpoint of
time, the law in effect at the time of the execution of a deed governs its validity and
interpretation”). The Supreme Court of Missouri has held that “[i]n determining the
meaning of the provisions of the deed, we ‘must be governed by the law in force at the
time it was made.’” Leeper v. Leeper, 147 S.W.2d 660, 662 (Mo. 1941) (quoting Frame
v. Humphreys, 64 S.W. 116, 119 (Mo. 1901)). Similarly, the Supreme Court of Nebraska
has held that “the general rule is that: ‘[f]rom the standpoint of time the law in effect at
the time of the execution of a deed governs its validity and interpretation.’” Dell v. City of
Lincoln, 102 N.W.2d 62, 68 (Neb. 1960) (citation omitted). We have stated, about
contracts generally, that “[t]he laws which subsist at the time and place of the making of
a contract, and where it is to be performed, enter into and form a part of it, as if they were
expressly referred to or incorporated in its terms.” City of Philipsburg v. Porter, 121
Mont. 188, 193, 190 P.2d 676, 678 (1948) (citations omitted). Section 70-1-513, MCA,
provides that “[g]rants are to be interpreted in like manner with contracts . . . .”
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¶16 The District Court found that the deed and survey exhibit dividing the Normans’
property were “filed for record in the office of the Lake County Clerk and Recorder on
November 9, 1973.” As such, the District Court should have looked to the law in effect
at that time, not in 2003. We note that the transfer here was recorded after the enactment
of the 1973 Montana Subdivision and Platting Act, which was effective October 1, 1973,
and made applicable to “all division of real property made after June 30, 1973, into lots,
tracts, or parcels any of which is ten (10) acres or less in size.” Laws of Montana (1973),
ch. 500, § 4. Thus, questions regarding exemptions and survey criteria under the Act
must be resolved pursuant to the status of the Act at that time. 3
¶17 We conclude the District Court’s order is flawed because of internal
inconsistencies and the application of the wrong version of the Act. Accordingly, we
remand the case to the District Court for further proceedings. It is up to the District Court
to determine whether the additional taking of evidence and/or factfinding is necessary in
order to determine the proper survey criteria and resolve the boundary issue in
accordance with this opinion.
¶18 Reversed and remanded.
/S/ JIM RICE
3
Of course, the Act changed considerably between 1973 and 2003. The 1973
version did contain, however, an exemption for family transfers. Laws of Montana
(1973), ch. 500, § 4.
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We concur:
/S/ KARLA M. GRAY
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
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