June 21 2011
DA 10-0457
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 143
JOHN ALEXANDER ETHEN REVOCABLE TRUST
AGREEMENT DATED OCTOBER 17, 1996,
JOHN ALEXANDER ETHEN, Trustee, and
JANET RUTH ETHEN REVOCABLE TRUST
AGREEMENT DATED OCTOBER 17, 1996,
JANET RUTH ETHEN, Trustee,
Plaintiffs, Appellees and Cross-Appellants,
v.
RIVER RESOURCE OUTFITTERS, LLC,
and CHRISTINE K. FISCHER,
Defendants and Appellants.
APPEAL FROM: District Court of the Third Judicial District,
In and For the County of Granite, Cause No. DV 07-37
Honorable Ray J. Dayton, Presiding Judge
COUNSEL OF RECORD:
For Appellant River Resource Outfitters, LLC:
Mark E. Jones, Attorney at Law, Hall, Montana
For Appellant Christine K. Fischer:
Clinton J. Fischer, Attorney at Law, Polson, Montana
For Appellees:
Jane E. Cowley, Peter S. Dayton, Worden Thane, P.C.,
Missoula, Montana
Submitted on Briefs: April 26, 2011
Decided: June 21, 2011
Filed:
__________________________________________
Clerk
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Justice Brian Morris delivered the Opinion of the Court.
¶1 Appellees John and Janet Ethen (Ethens) sought declaratory relief in the Third
Judicial District Court, Granite County, to resolve a boundary dispute with Appellants
River Resource Outfitters (Joneses) and Christine Fischer (Fischer) (collectively
Neighbors). The court declared that the common boundary line between the parties’
properties runs in a meander line along the west bank of Flint Creek. We affirm.
¶2 We review the following issues on appeal:
¶3 Whether the District Court improperly relied upon extrinsic evidence to determine
legal title to the disputed property.
¶4 Whether the District Court correctly determined that the boundary line between
the parties’ properties meanders along Flint Creek.
¶5 Whether Ethens filed a timely claim for declaratory relief.
¶6 Whether the District Court failed to join other landowners on Flint Creek.
¶7 Whether Neighbors gained title to the disputed property through adverse
possession.
¶8 Whether the District Court abused its discretion when it declined to award
attorney fees to Ethens.
FACTUAL AND PROCEDURAL HISTORY
¶9 Ethens purchased property in Granite County in July 2007. Neighbors own
properties that border Ethens’ property. James and Mary Mellen (Mellens) originally
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owned in one common tract Neighbors’ and Ethens’ properties. Mellens’ tract consisted
of approximately 125 acres. Flint Creek runs north and south through the property. A
county road runs east and west through the property.
¶10 Mellens conveyed approximately 35 acres to Thelma and Warren Cummins, Sr. in
1960 through a deed titled the “Mellen-Cummins Deed.” The deed stated that Mellens
intended to convey “only all of the lands which they own [w]est of Flint Creek and
[s]outh of the present [c]ounty [r]oad.” Warren Cummins, Sr. quitclaimed Cummins’
parcel to Thelma Cummins Brownell in 1976. The deed excluded a paragraph from the
original Mellen-Cummins Deed. The relevant boundary description did not change.
Thelma deeded her parcel to Warren Cummins, Jr. (Cummins) in 1996.
¶11 Mary Mellen transferred the remainder of the original 125-acre tract that she and
James had retained, approximately 90 acres, to her daughter, Frances E. Lane (Lane), in
1963. Lane created the Lane Ranch in 1977. Flint Creek served as the boundary between
Cummins’s property (to the west) and the Lane Ranch (to the east). The county road
served as Cummins’s north boundary with the Lane Ranch.
¶12 Charles Lane commissioned surveyor William Bayer (Bayer) in 1982 to create
three parcels from the approximately 90-acre parcel known as the Lane Ranch. Bayer
created the first recorded certificate of survey (COS 162) involving any of these
properties. Bayer referred to the Mellen-Cummins Deed to prepare the survey. Bayer
surveyed the west bank of Flint Creek with a compass and set course points along the
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bank of the creek. Bayer did not set any pins along Flint Creek. Bayer created three
parcels—two to the east of Flint Creek, and one to the north of the county road. The
diagram below roughly depicts COS 162.
Parcel 1
County Road
Flint Parcel 2
Creek
Cummins
Parcel 3
¶13 James and Deanna Lane sold Parcel 2 of COS 162 to Fischer in 1990. Fischer
later commissioned plat 45-M in order to subdivide her property. Bayer prepared plat
45-M in accordance with COS 162 and the Mellen-Cummins Deed. Fischer sold
approximately ten acres of Parcel 2 along Flint Creek to Joneses. Fischer retained
approximately 20 acres south of Joneses’ parcel along Flint Creek. Cummins owned the
parcel to the west of Flint Creek. Cummins eventually sold his parcel to Ethens in 2007.
The following diagram roughly depicts the current configuration of the parcels in relation
to Flint Creek.
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County Road
Flint
Creek Joneses
_ _ _ _ _ _ _ _ _ _ Parcel 2
Ethens Fischer
Parcel 3
¶14 Ethens’ deed from Cummins describes Ethens’ property by incorporating
certificate of survey 521 (COS 521). COS 521 constituted a retracement survey of the
property originally created in the Mellen-Cummins Deed. Cummins commissioned COS
521 in order to resolve a dispute regarding the south boundary with a different neighbor.
COS 521 incorporates most of the same course points along Flint Creek that Bayer had
set forth in COS 162.
¶15 The parties dispute ownership over a small strip of land west of Flint Creek. The
contested area of land consists of .61 acres along the Joneses/Ethens boundary and 1.04
acres along the Fischer/Ethens boundary. The Mellen-Cummins Deed and the
subsequent certificates of survey describe the boundary in dispute. The Mellen-Cummins
Deed describes the boundary between Ethens’ property and Neighbors’ properties as
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running along the west bank of Flint Creek. The narrative descriptions in COS 162, COS
521, and plat 45-M likewise describe the boundary as running along the west bank of
Flint Creek.
¶16 COS 162 set forth fixed course points along the west bank of Flint Creek. Bayer
mapped the course points in 1982 along the top of the west bank of Flint Creek. The
course points now lie slightly west of the west bank of Flint Creek. A subsequent
surveyor’s fixing of these course points on the ground has led to the dispute over the
acreage just west of Flint Creek.
¶17 Ethens claim that Flint Creek constitutes the property boundary between their
property and Neighbors’ properties. They argue that Bayer’s course points in COS 162
created a meandering boundary line along Flint Creek. Ethens rely on the original
Mellen-Cummins Deed and the succeeding certificates of survey to support their
argument that a meandering boundary along Flint Creek provides landowners on both
sides of the creek access to its waters.
¶18 Cummins advertised the parcel that he sold to Ethens as creek front property.
Ethens became aware of the fact that Neighbors disputed the boundary while they
negotiated the purchase of the property from Cummins. Ethens decided to purchase the
property based on their research and subsequent belief that Cummins’s parcel bordered
Flint Creek. Ethens negotiated a reduced purchase price for the property in light of the
potential boundary dispute with Neighbors.
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¶19 Neighbors commissioned a new survey of their properties shortly after Ethens
purchased the property from Cummins. Certificate of survey 788 (COS 788) placed fixed
pins on the ground along the west bank of Flint Creek according to the course points in
Bayer’s 1982 survey. COS 788 depicts a boundary line that used a straight line to
connect the pins, unlike the previous surveys that had drawn the boundary along Flint
Creek. The boundary line in COS 788 lies just to the west of Flint Creek. This property
boundary excludes Ethens’ access to Flint Creek. Ethens sought declaratory relief to
resolve the dispute.
¶20 The District Court held a bench trial. The court declined Neighbors’ summary
judgment motion that had sought to join to the action other landowners with a property
interest in parcel 3. Ty Throop (Throop) purchased parcel 3 of COS 162 from Lanes over
twenty years ago. Throop owned parcel 3 at the time of trial. Throop testified on behalf
of Neighbors regarding his interpretation of parcel 3’s boundary with Ethens’ property.
¶21 The court agreed with Ethens that the Mellen-Cummins Deed and the subsequent
certificates of survey, COS 162, COS 521, and plat 45-M, described a meandering
boundary line along the west bank of Flint Creek. The parties agreed that Flint Creek
qualifies as a non-navigable stream. The court declared, therefore, that Ethens’ property
line extended to the center of Flint Creek. The court also declared that COS 788
constituted an invalid survey and ordered it stricken from the public record.
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¶22 The court rejected Neighbors’ alternative claim that they had acquired property
west of Flint Creek through adverse possession. The court likewise rejected Neighbors’
claims that Ethens had acquiesced to a fixed boundary line west of Flint Creek, that the
doctrines of laches and equitable estoppel barred Ethens’ claim, and that Ethens had
failed to join an indispensible party. The court declined to award Ethens’ request for
attorney fees. Neighbors appeal and Ethens cross-appeal on the issue of attorney fees.
STANDARD OF REVIEW
¶23 This Court reviews findings of facts to determine whether substantial credible
evidence supports the district court’s findings. Mont. Rail Link v. CUSA PRTS., LLC,
2009 MT 432, ¶ 26, 354 Mont. 101, 222 P.3d 1021. We must review the evidence in the
light most favorable to the plaintiff. Id. We review for correctness a district court’s
conclusions of law. Id. We review for an abuse of discretion a district court’s decision to
award attorney fees under § 27-8-313, MCA. Renville v. Farmers Ins. Exch., 2004 MT
366, ¶ 20, 324 Mont. 509, 105 P.3d 280.
DISCUSSION
¶24 Whether the District Court improperly relied upon extrinsic evidence to determine
legal title to the disputed property.
¶25 The court must interpret the plain language of an unambiguous deed. Tester v.
Tester, 2000 MT 130, ¶ 25, 300 Mont. 5, 3 P.3d 109. The court cannot resort to extrinsic
evidence of the grantor’s intent to interpret an unambiguous deed. Id. The Mellen-
Cummins Deed appears in Ethens’ chain of title. Neighbors nevertheless argue that
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Ethens’ deed from Cummins provides an unambiguous property description, and,
therefore, the court improperly considered extrinsic evidence in the form of the Mellen-
Cummins Deed.
¶26 Tester dealt with a boundary dispute similar to the dispute here. The Court in
Tester looked first to the parties’ chains of title. Id. at ¶ 15. The district court had
interpreted one of the deeds in the chain of title contrary to the plain language of that
deed. Id. at ¶ 27. The deed unambiguously set forth the disputed boundary. Id. at ¶ 28.
The district court should have limited its analysis to the deed’s unambiguous language.
The district court instead improperly considered extrinsic evidence of the grantor’s intent
to locate the boundary that was not included in the language of the deed. Id.
¶27 Ethens’ deed from Cummins describes the property as set forth “in certificate of
survey 521.” A certificate of survey becomes part of the deed when a deed grants land
according to an official survey. Olson v. Jude, 2003 MT 186, ¶ 46, 316 Mont. 438, 73
P.3d 809. COS 521 does not constitute extrinsic evidence of the grantor’s intent. Tester,
¶ 27. COS 521 constitutes an essential part of Ethens’ deed from Cummins. Olson, ¶ 46.
The District Court properly examined COS 521. Id.
¶28 The parties dispute the meaning of the metes and bounds description in COS 521.
COS 521 constituted a retracement survey of Ethens’ parcel that originally had been
created in the Mellen-Cummins Deed. Cummins commissioned COS 521 in order to
resolve a dispute regarding the parcel’s southern boundary. COS 521 states on its face
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that the survey serves “to clarify omissions in previous deed transfers for this parcel of
land.”
¶29 The surveyor who created COS 521 testified that he had relied on the
Mellen-Cummins Deed. In fact all of the surveyors who testified referred to the
Mellen-Cummins Deed. Neighbors never objected to any reference to the Mellen-
Cummins Deed by the surveyors. The parties also stipulated on the first day of trial that
the court should admit any documents that described the parties’ chains of title. The
court admitted the parties’ chains of title. Ethens’ chain of title includes the
Mellen-Cummins Deed.
¶30 Neighbors inconsistently argued their position regarding the Mellen-Cummins
Deed. Neighbors presented the District Court with the Mellen-Cummins Deed in their
first motion for summary judgment on October 22, 2008. Neighbors initially argued that
the Mellen-Cummins Deed provided critical evidence relevant to the boundary dispute.
They argued in their first summary judgment brief that the Mellen-Cummins Deed
unambiguously excluded Ethens’ access to Flint Creek. Neighbors changed course,
however, by the time that they had filed their second summary judgment brief on
November 25, 2008. They argued instead in their second summary judgment brief that
the Mellen-Cummins Deed constituted extrinsic evidence. Neighbors failed to explain
their change in position.
¶31 The District Court allowed the Mellen-Cummins Deed into evidence. The
Mellen-Cummins Deed, prepared before Ethens’ deed from Cummins, provides the first
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description of the disputed boundary. Ethens’ chain of title includes the
Mellen-Cummins Deed. Tester, ¶ 15. The information contained in the Mellen-
Cummins Deed cannot be considered extrinsic evidence under these circumstances. Id. at
¶ 27. The District Court simply interpreted the plain language of the Mellen-Cummins
Deed, the subsequent certificates of survey, and Ethens’ deed from Cummins. The court
properly examined the chains of title to the parties’ properties in seeking to define the
boundary. Id. at ¶ 15.
¶32 Whether the District Court correctly determined that the boundary line between
the parties’ properties meanders along Flint Creek.
¶33 Neighbors argue that the District Court incorrectly found that the evidence
described the parties’ boundary as a meander line along the west bank of Flint Creek
instead of a fixed boundary just west of Flint Creek. The court relied on certificates of
survey that describe the boundary, the properties’ chains of title, lay testimony, and
expert testimony from several Montana land surveyors. The court sorted through
sometimes contradictory evidence to determine whether the disputed boundary
constituted a meander line or a fixed and definite boundary line.
¶34 This Court discussed the definition and purpose of meander lines in Andersen v.
Monforton, 2005 MT 310, ¶¶ 17-30, 329 Mont. 460, 125 P.3d 614. A surveyor uses a
meander line to show that a body of water serves as the boundary. Id. at ¶ 19. A
meander line sets specific measurements on a survey to define the quantity of land for
purchase. Meander lines define a boundary as moving with a body of water’s shifting
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bank, even though meander lines contain specific measurements. Id. at ¶ 20. A boundary
along a body of water runs to the edge of the body of water. A boundary along a body of
water generally does not become definite and fixed unless the grantor explicitly indicates
such intent. Id. at ¶ 21; § 70-16-201, MCA.
¶35 The Mellen-Cummins Deed describes the boundary between Ethens’ property and
Neighbors’ properties as the west bank of Flint Creek. The Mellen-Cummins Deed
explicitly states its intention “to convey and warrant conveyance only all of the lands
which [the Mellens] own [w]est of Flint Creek.” The Mellen-Cummins Deed did not
reserve a portion of land west of the west bank of Flint Creek. Andersen, ¶ 21. The
Mellen-Cummins Deed did not set forth any fixed points west of the west bank of Flint
Creek. The plain language of the Mellen-Cummins Deed supports the court’s finding.
Mont. Rail Link, ¶ 26. Nothing in the Mellen-Cummins Deed indicates an intent to create
a fixed boundary west of the west bank of Flint Creek. Section 70-16-201, MCA.
¶36 COS 162 constitutes the first recorded survey of the disputed properties. COS
162’s narrative describes the boundary between the parties’ properties as running along
the west bank of Flint Creek. Bayer prepared COS 162 according to the
Mellen-Cummins Deed. Bayer surveyed Flint Creek with a compass and set course
points along the west bank of the creek. Bayer set the course points in order to calculate
acreage for Lane’s parcels.
¶37 Bayer had intended to create a fixed boundary line along the top of the west bank
of Flint Creek. He did not believe, however, that the Mellen-Cummins Deed granted
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Cummins access to Flint Creek. Bayer admitted on cross-examination that the call to the
west bank of Flint Creek in the Mellen-Cummins Deed constituted a bound call. Bound
calls, according to Bayer, supersede survey data. Montana law confirms Bayer’s
testimony. See Bollinger v. Hollingsworth, 227 Mont. 454, 457, 739 P.2d 962, 964
(1987) (citing Buckley v. Laird, 158 Mont. 483, 492, 493 P.2d 1070, 1075 (1972)). The
bound call to Flint Creek in COS 162 therefore would override any set course points,
including the course points that Bayer himself had set. Id. Bayer also agreed that the
boundary did not create a straight line, but fluctuated along the west bank of Flint Creek.
¶38 Another Montana surveyor, Barney Hallin (Hallin), testified that the boundary set
forth on COS 162 constituted a meandering boundary line along Flint Creek. Hallin
interpreted COS 162 in light of the Mellen-Cummins Deed. He also relied on the
narrative included in COS 162 that describes the boundary as running along the west
bank of Flint Creek. Hallin testified that COS 521 likewise set forth a meandering
boundary line.
¶39 Cummins commissioned COS 521 to resolve a boundary dispute with his neighbor
to the south. The narrative in COS 521 describes Ethens’ eastern boundary as “along the
west bank of Flint Creek.” Hans Bohrnsen (Bohrnsen) prepared COS 521. Bohrnsen
incorporated Bayer’s course points along the west bank of Flint Creek. Bohrnsen
testified, similar to Bayer, that a survey does not require fixed pins if the deed calls to a
natural monument creating the boundary. Flint Creek constitutes a natural monument
creating the boundary between the parties’ properties. Bohrnsen testified that COS 521
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does not set a fixed boundary line. COS 521 set forth a meandering boundary line that
fluctuates with the course of Flint Creek.
¶40 Tom Moodry, another Montana surveyor, testified for Neighbors that the disputed
boundary lies to the west of the west bank of Flint Creek. Moodry based his testimony
on a different interpretation of the same certificates of survey and the Mellen-Cummins
Deed. He believed that the grantor of the Mellen-Cummins Deed had not intended to
convey access to the waters of Flint Creek. He reached this conclusion despite the
language in the Mellen-Cummins Deed that the boundary ran “along the west bank of
Flint Creek.” Moodry interpreted the phrase “along the west bank of Flint Creek” to
mean “close to, nearby, parallel to, but away from the running water” of Flint Creek.
¶41 The surveyors presented contradictory testimony. The district court determines
the credibility of the witnesses and the weight assigned to their respective testimony.
Kulstad v. Maniaci, 2009 MT 326, ¶ 52, 352 Mont. 513, 220 P.3d 595. The District
Court agreed with Hallin and Bohrnsen that the evidence established a meandering
boundary along Flint Creek. Bayer did not characterize the boundary line that he had
created in COS 162 as a meandering boundary. Bayer testified, however, that he had
intended the boundary to run along Flint Creek. Bayer set fixed course points for the
purpose of determining acreage. This Court similarly identified a meandering boundary
line in Andersen as one that runs along the edge of a creek and serves to quantify acreage.
Andersen, ¶ 20.
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¶42 Neighbors also argue that the absence of the term “meander line” from the
relevant deeds and certificates of survey supports the existence of a fixed boundary line.
A deed need not specifically characterize the boundary line as a meander line, however,
when the narrative description of the land grant clearly indicates that the boundary
meanders along a watercourse. Andersen, ¶ 21. The narrative descriptions in COS 162,
COS 521, and plat 45-M all describe the boundary as running along Flint Creek. Id. The
surveys also portray a boundary line that runs along Flint Creek.
¶43 The District Court based its finding that COS 162, COS 521, and plat 45-M set
forth a meandering boundary line along Flint Creek on the exhibits and testimony.
Hallin’s testimony and Bohrnsen’s testimony support the District Court’s finding. Id.
Other substantial credible evidence in the record, including the Mellen-Cummins Deed,
further supports the court’s findings. Mont. Rail Link, ¶ 26. The court properly
characterized the disputed boundary as a meandering line along Flint Creek. Id.
¶44 Whether Ethens filed a timely claim for declaratory relief.
¶45 Neighbors make a series of related arguments that Ethens failed to file a timely
claim for relief. They argue either that the statute of limitations had run on Ethens’ claim
or that the doctrines of laches, equitable estoppel or acquiescence bar Ethens’ claim.
Neighbors base these arguments on the premise that Ethens or their predecessors in
interest knew that COS 162 and COS 521 set forth a fixed boundary line and did nothing
until Neighbors filed COS 788.
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¶46 Neighbors commissioned COS 788 after Ethens had purchased their property.
Earlier surveys had reflected a meandering boundary line along Flint Creek. COS 788,
unlike the previous surveys, placed fixed pins on the ground according to Bayer’s course
points from COS 162. The surveyor drew straight lines in order to connect the newly
placed pins. COS 788 set forth for the first time a fixed boundary line west of Flint
Creek. The pins locate the boundary approximately 20 to 100 feet west of Flint Creek.
The fixed boundary in COS 788 runs through the middle of an old building on Ethens’
property. Ethens had no involvement in the preparation or recordation of COS 788.
¶47 Neighbors filed COS 788 on November 27, 2007. Ethens filed their claim for
declaratory relief in response to COS 788 three weeks later on December 19, 2007.
Neighbors fail to cite a relevant statute of limitation. Ethens filed their claim less than a
month after Neighbors had filed COS 788. The equitable doctrine of laches likewise
does not bar Ethens’ claim disputing the fixed boundary set forth in COS 788. The
relative alacrity exercised by Ethens cannot qualify as sitting on their rights. Montanans
for Just. v. State, 2006 MT 277, ¶ 25, 334 Mont. 237, 146 P.3d 759. The record does not
support Neighbors’ claim that Ethens had acquiesced to a fixed boundary. The doctrine
of equitable estoppel likewise does not bar Ethens’ claim.
¶48 Whether the District Court failed to join other landowners on Flint Creek.
¶49 Section 27-8-301, MCA, provides that the court must join any person who has an
interest that a declaratory judgment would affect. M. R. Civ. P. 19(a)(1) requires a
district court to join a party to an action if complete relief cannot occur in the party’s
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absence. Complete relief relates to persons already parties, rather than to relief between a
party and the absent person. Mt. West Bank v. Mine & Mill Hydraulics, Inc., 2003 MT
35, ¶ 32, 314 Mont. 248, 64 P.3d 1048. The facts and circumstances of each case
determine whether a court must join a particular non-party. Id. We will reverse for an
abuse of discretion the district court’s decision whether to join a party. Mohl v. Johnson,
275 Mont. 167, 169-70, 911 P.2d 217, 219 (1996).
¶50 The bank in Mt. West Bank brought a foreclosure action against Mine & Mill
Hydraulics (Mine & Mill) after Mine & Mill had defaulted on several of its loan
obligations. Mt. West Bank, ¶ 34. The action involved multiple parties all whom had
some type of interest in the disputed property. Id. The district court denied the
defendant’s request to join Mountain Hydraulics. Id. The former directors of Mine &
Mill had created Montana Hydraulics after Mine & Mill had failed. Montana Hydraulics
held no legal interest in the disputed property. Id. Montana Hydraulics did not qualify as
an indispensable party. Id.
¶51 The District Court determined that it could grant meaningful relief without joining
other landowners along Flint Creek. The boundary at issue lies between Ethens’ property
and Neighbors’ properties. The parties dispute ownership over a strip of acreage west of
Flint Creek as described in COS 788.
¶52 Other neighboring landowners hold no legal interest in the disputed acreage at
issue in this case. Mt. West Bank, ¶ 34. In fact, the owner of parcel 3 testified at trial.
The owner of parcel 3 had notice of Ethens’ declaratory relief action and elected not to
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intervene. Other landowners may, including the owner of parcel 3, have an interest in the
court’s interpretation of the relevant surveys. The only boundary in dispute in this action,
however, lies between Ethens’ property and Neighbors’ properties. This decision does
not determine the rights of any other landowners along Flint Creek. Section 27-8-301,
MCA. We cannot say that the District Court abused its discretion in declining
Neighbors’ efforts to join other landowners under these circumstances. Mt. West Bank,
¶ 32.
¶53 Whether Neighbors gained title to the disputed property through adverse
possession.
¶54 Neighbors must prove through clear and convincing evidence that their possession
qualified as “open, notorious, exclusive, adverse, continuous, and uninterrupted” in order
to establish ownership through adverse possession. Meadow Lake Estates Homeowners
Assn. v. Shoemaker, 2008 MT 41, ¶¶ 36-37, 341 Mont. 345, 178 P.3d 81. Neighbors
presented evidence of their properties’ tax assessments. Neighbors had paid taxes on the
disputed acreage and claimed that they exclusively had used property to the west of Flint
Creek.
¶55 Neighbors maintain that they have used the disputed property west of Flint Creek
for recreation and had chosen to leave the land undisturbed. Ethens presented similar
testimony. The court found that both parties in fact had used the disputed property to
access Flint Creek. Neighbors failed to provide the Court with clear and convincing
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evidence that their use of the disputed property west of the west bank of Flint Creek
qualified as exclusive. Shoemaker, ¶ 36.
¶56 Whether the District Court abused its discretion when it declined to award
attorney fees to Ethens.
¶57 The district court may award attorney fees at its discretion under § 27-8-313,
MCA, when equitable considerations support the award. United Natl. Ins. Co. v. St. Paul
Fire & Marine Ins. Co., 2009 MT 269, ¶ 38, 352 Mont. 105, 214 P.3d 1260. The District
Court identified no equitable considerations that would support an award of attorney fees
to Ethens. Both parties genuinely believed that they owned the disputed property.
Ethens had negotiated a $130,000 reduced purchase price for their property in light of
potential attorney fees that could result from litigation to resolve the boundary dispute.
The District Court did not abuse its discretion under these circumstances when it declined
to award attorney fees to Ethens. Id. at ¶ 38.
¶58 Affirmed.
/S/ BRIAN MORRIS
We Concur:
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JIM RICE
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