Stephens v. Hurly

No. 13402
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977

GARY F. STEPHENS and
NANCY L. STEPHENS, husband
and wife,
Plaintiffs and Counter-Defendants,

DR. JOHN T. HURLY, as Trustee,
and ROBERT HURLY,
Defendants and Counter-Claimants,
and Appellants

Appea; from: District Court of the Eleventh Judicial
District,
Honorable J. M. Salansky, Judge presiding.
Counsel of Record:
For Appellants:
Robert Hurly argued, Glasgow, Montana
Murphy, Robinson, Heckathorn 6 Phillips,
Kalispell, Montana
For Respondents:
Warden, Walterskirchen & Christiansen,
Kalispell , Montana
Gary Christiansen argued, Kalispell, Montana

Submitted: March 23, 1977
Decided: y p 20
~ I C J ~

Filed: AFR 2 0 1978
Mr. Justice Frank I. Haswell delivered the Opinion of the
Court.
This case concerns a dispute over the location of
the boundary separating two parcels of lake front property.
Gary F. Stephens and Nancy L. Stephens (his wife) brought the
action in the district court, Flathead County, seeking deter-
mination that their survey correctly established the boundary
line between their property and the adjoining property of
appellants Hurly. Stephens also sought a decree quieting
title to their property; removal of certain encroachments;
reimbursement of the cost of their survey; compensatory and
punitive damages; and permanently enjoining the Hurlys or
their successors in interest from interfering with their prop-
erty. Hurlys counterclaimed for quiet title.
The case was tried before Hon. Robert S. Keller, dis-
trict judge, sitting without a jury. Judgment was entered for
the Stephens, quieting title and establishing the boundary as
set forth in their survey. In addition, the court permanently
enjoined Hurlys or their successors from interfering with the
Stephens' property, ordered the encroachments removed, and
awarded costs of the survey to the Stephens. From this judg-
ment the Hurlys appeal.
The two parcels of property in question were part of a
larger tract originally owned by one George E. Barkley. This
tract was located on the shore of Whitefish Lake in Government
Lot 4 , Section 24, Township 31 North, Range 22 West M.P.M.
On August 10, 1934, Barkley conveyed the Stephens property to
their predecessors in interest. About a year later, Barkley
conveyed the Hurly property to their predecessors in interest.
The legal descriptions for each parcel have remained the same
from the time of the initial Barkley conveyances to the present
time.
In 1959, one John Thumma sold the Hurlys a tract of
land 160 feet wide bounded on the west by Whitefish Lake, on
the north by what is now the Viking Motel property, bounded
on the east by the Big Mountain highway, and bounded on the
south by the Stephens property. The Hurly property was at

the time of the sale, and ever since, has been bounded by the
waters of Whitefish Lake on one side, and enclosed by fences
on the remaining three sides.
In 1973, Stephens purchased the parcel adjoining the
Hurly property on the south, with the intent of constructing

a residence thereon. Stephens staked out the location of the
house on the ground. The house was custom designed by an
architect for that particular parcel of land, taking into care-
ful consideration the width of the lot. While staking out the
residence, it became apparent that although the deed provided

for 80 feet in width, there was not actually 80 feet between
the Stephens' south boundary and the Hurly fence on the north.
At that point Stephens contacted Dean Marquardt, a
certified civil engineer and land surveyor, and requested a
survey to determine the location of the common boundary line

between the Stephens and Hurly tracts. Marquardt prepared the
survey and staked the dimensions of the Stephens lot using the

existing controlling corners and information from previous
surveys of the tracts nearby. The original government survey
notes which were compiled on the area in question in 1893 were

not used by Marquardt.
The Marquardt survey established the Hurly fence was in
fact encroaching upon the northern portion of the Stephens'
property. The encroachment is a pie-shaped strip running the
entire length of the Stephens' lot from the lake shore to the
Big Mountain highway. It is approximately 10 feet wide at the
lake shore and tapers down to 2 feet at the highway. An 8' x

42' mobile home, water and sewer lines, and various other
improvements are located upon this pie-shaped piece of property.
Stephens notified Hurlys of the encroachment and attempt-
ed to negotiate a resolution of the problem. They were totally
unsuccessful; in fact the Stephens were advised by the Hurlys
that the courts were their only alternative. Thereafter the
complaint was filed on July 18, 1974.
Three issues are presented for review:
I. Is the Stephens' action barred because they were not
in possession of the property within five years of the commence-
ment of their action?
11. Are Hurlys entitled to a decree quieting title to
the disputed tract by adverse possession?
111. Is the Marquardt survey correct?
Issue I. As an affirmative defense, the Hurlys claim
the Stephens are barred from commencing an action for quiet
title by the provisions of sections 93-2504 and 93-2505, R.C.M.
1947, which provide:
Section 93-2504. " No action for the recovery
of real property or for the possession thereof,
can be maintained, unless it appear that the
plaintiff, his ancestor, predecessor, or
grantor, was seized or possessed of the property
in question within five years before the commence-
ment of the action."
Section 93-2505. "No cause of action, or defense
to an action, arising out of the title to real
property, or to rents or profits out of the same,
can be effectual, unless it appear that the person
prosecuting the action, or making the defense, or
under whose title the action is prosecuted or the
defense is made, or the ancestor, predecessor, or
grantor of such person, was seized or possessed
of the premises in question within five (5) years
before the commencement of the act in respect to
which such action is prosecuted or defense made."
The record clearly shows that the Stephens and their
predecessors were not in actual possession of the disputed
property for the five years immediately prior to the commence-
ment of this action. The record reflects this testimony at the
trial:
"Q. (to Mr. Stephens) Have you and your wife
ever been on and had possession of the property
which was enclosed by the fence and includes
the trailer? A. We sure haven't."
"Q. (to Mr. Hurly) Since you have been there,
has anyone ever been in possession of the land
north of your south fence? A. No one.
"Q. Other than yourself and your family? A.
NO one else."
The quoted statutes both use the words "seized or possessed
of the property in question within five (5) years before the

commencement of the action." This language is clearly in the
alternative--"seized - possessed."
or Thus seisin alone by the
Stephens meets the statutory requirements.
In Hanley v. Stewart, 155 Pa.Super. 535, 39 A.2d 323, 326,
the court said:
" * * * there is substantial competent authority
for the position that 'seized', used by itself,
commonly refers to a possession in fee simple."
The court in Altschul v. O'Neill, 35 Or. 202, 58 P. 95, 96,
said :
"'The law deems every man to be in the legal seisin
and possession of land to which he has a perfect
and complete title. This seisin and possession
is co-extensive with the right, and continues till
he is ousted thereof by an actual adverse possession.'"
A general discussion of the concept of "seisin" is
found in 63 Am Jur 2d, Property S40, p. 324:
"By the ancient law of England, the title,
that is, full and complete dominion of land,
could be conveyed only by the solemn act of livery
of seisin, and no deed or charter was necessary.
Deeds and charters came into use at a later
period. At first they were held not to convey
the estate itself but only to evidence, the nature
of the conveyance; gradually, however, the rule
of actual seisin or seisin in deed came to be
regarded as the equivalent of livery of seisin,
and it has long since been the rule that livery
of seisin is not necessary to perfect a fee simple
title to land. Seisin in a legal sense means
possession of land coupled with the right to possess
it and a freehold estate therein; it is practically
the same thing as ownership. The law deems every
 man to be in the legal seisin and possession of
land to which he has a perfect and complete
title. This seisin and possession is co-
extensive with his right, and continues until
he is ousted therefrom by an actual adverse
possession. Actual occupancy is not essential
to a lawful seisin, although it is to a tortious
or unlawful seisin.
" * * * When a man is once seised of land, his
seisin is presumed to continue until a disseisin
is proved." (Emphasis added.)
This quotation makes it clear the Stephens and their predecessors
in interest were seized of the property in question. There is
no contention that the Stephens' title is not complete. The
property was conveyed to them as defined by the legal descrip-
tion. The Marquardt survey, using this description, established
the Hurly fence is in fact encroaching upon the Stephens' prop-
erty. We hold the Stephens and their predecessors were seized
of the property in question and therefore entitled to bring this
action to quiet title.
We also find the provisions of section 93-2507, R.C.M.
1947, are applicable. This section states:
"In every action for the recovery of real
property, or the possession thereof, the person
establishing a legal title to the property is
presumed to have been possessed thereof within
the time required by law, and the occupation of
the property by any other person is deemed to have
been under and in subordination to the legal title,
unless it appear that the property has been held
and possessed adversely to such legal title for
five (5) years before the commencement of the
action." (Emphasis added.)
The Hurlys have the burden of overcoming this presumption by
proof to the contrary. See: Warren v. Warren, 127 Mont. 259,
261 P.2d 364; Norwegian Lutheran Church of America v. Armstrong,
112 Mont. 528, 118 P.2d 380.
Issue 11. The trial court held the elements of adverse
possession were not proved by the Hurlys. We agree.
The statutory requirements to establish adverse possession
appear in section 93-2513, R.C.M. 1947, which states:
 "In no case shall adverse possession be con-
sidered established under the provisions of
any section or sections of this code unless
it shall be shown that the land has been
occupied and claimed for a period of five
(5) years continuously, and the party or
persons, their predecessors and grantors, have,
during such period, paid all the taxes, state,
county, or municipal, which have been legally
levied and assessed upon said lands."
The determinative question in regard to this issue is whether
the Hurlys paid the taxes on the disputed property for a period
of five years. The Stephens called Alice Logan, a clerk in
the assessor's office of Flathead County, as a witness. She
testified as to the means by which the taxable valuation is
applied to a parcel of property:
"Q. Mr. Proud indicated that when you apply the
valuation which he puts together, to the real prop-
erty involved, that the real property is what is
set forth in the deed, in connection with any given
tract of land, is that correct? A. That is correct.
"Q. Do you in the Assessor's office pay any atten-
tion at all as to what may be between two fences,
for example? A. No Sir. We just use the descrip-
tion that is on the transfer as it comes to us or
on the cards that are printed.
"Q. On the deeds? A. Uh-huh."
The testimony is clear that the Stephens' deed defined
their parcel by means of a legal description of the boundary
lines. Therefore, the Stephens, not the Hurlys, paid the taxes
on the disputed piece of property. The assessment was made on the
basis of the legal description in the deed rather than an on-
site measurement of the area enclosed within the Hurly fence.
The Hurlys further argue that since they paid the person-
al property tax on the mobile home located on the disputed prop-
erty, they must have paid the tax on the property upon which it
rested. Such is not the case. Jim Proud, who is the Supervisor
for the Appraisal Board for the State Department of Revenue,
Flathead County, testified:
"Q. So if we are trying to determine whether or
not A, who has his trailer encroaching on B's
 property has now been appraised by you, if he
has been in fact been assessed for this portion
of B's property in addition to his own by virtue
of the fact that he is sitting there now, that
is what the guts of this case is all about. You
are not trying to make that determination in any
way. The most value you are adding to A is the
value of that trailer and not the ground upon
which it sits? A. That is right.
"Q And you have already made the determination
of the value of the ground upon which it sits,
based on a legal description from the tract index,
and it is based on the deed description, isn't it?
A. That is right.
"Q. So even though this trailer of A is sitting
on B's property, when you add that as an improve-
ment to A's property, believing it to be A's
property, the most that you did was add the value,
the market value of the trailer, to the deed des-
cription of A's property? A. If we had placed it
in the incorrect lot."
The district court was correct in its ruling that the
Hurlys had not paid the taxes on the disputed strip of property,
therefore the elements of adverse possession had not been estab-
lished. The payment of taxes to prove title by adverse possession
is a positive statutory requirement. Lowery v. Garfield County,
122 Mont. 571, 208 P.2d 478; Brannon v. Lewis and Clark County,
143 Mont. 200, 387 P.2d 706; Smith v. Whitney, 105 Mont. 523,
74 P.2d 450. Where the evidence shows that Hurlys paid taxes on
the basis of the land description in the deed which does not
include the strip of property in dispute, in absence of an agree-
ment extending the boundary to include this strip, such payment
does not constitute the payment of taxes on the disputed strip.
Blayden v. Morris, 37 Idaho 37, 214 P. 1039; Johnson v. Buck,
7 C.A.2d 197, 46 P.2d 771.
Issue 111. The Hurlys further argue the Marquardt survey
was incorrect and the district court erred in establishing the
boundary line as set forth in the survey. Hurlys contend the
original Government Land Office (GLO) survey was not used as the
basis or point or origin for the Marquardt survey and, further,
the GLO survey and the Marquardt survey are inconsistent.
 We find no merit in either contention. The location
of corners and lines established by the government survey is
conclusive and the true corner of a government subdivision of a
section of land is where the United States surveyors in fact
established it, whether such location is right or wrong, as
may be shown by a subsequent survey. Vaught v. McClymond, 116
Mont. 542, 155 P.2d 612.
Marquardt determined that the sole remaining official
GLO monument which controls the property in question is located
at the southeast corner of Section 24. The GLO survey notes
show that monuments were originally placed at the mid-section
line of the south boundary of Section 24 and at the lake shore
of Whitefish Lake. Marquardt testified that the former monument
is now covered by the Big Mountain highway and the latter no
longer can be located.
Marquardt used as the basis for his survey two corners
located upon the south line of Section 24 which had been estab-
lished by previous surveys in the area. Corner records had been
filed on these corners and the testimony is clear that the sur-
veys which located these corners were based on and consistent
with the original GLO survey. Hurlys contend that since the
surveyor did not go back to the official GLO monument at the
southeast corner of Section 24, the survey is not based on the
GLO survey as required by law. But the record is clear that the
Marquardt survey is based upon and consistent with the GLO survey
and that is all that is required.
Hurlys further argue the GLO survey and the Marquardt
survey are inconsistent and Marquardt chose to ignore the GLO
survey. This is not borne out by the transcript:
"Q. (by counsel for Hurlys) In other words,
you disregarded that for that reason, that you
felt they were probably wrong with their
bearings? A. I didn't disregard it. I chose
 to accept the controlling elements of the
survey. Now, in a GLO survey the controlling
elements are the original corners, which were
set, or the locations for those corners. Now,
they control over bearing and distance. And
so in retracing the survey, you use the mon-
uments, or if you don't have the original monu-
ments, you use what is the best evidence as to
the location of those corners. And I consider
the best evidence of the location of those two
corners to be the monumented corners which are
of record and have been used by other surveyors
for at least 21 years, as far as I know."
There was sufficient evidence before the district court
to support its finding that the survey had been properly made
and the lines properly located. In this regard the law in this
jurisdiction was aptly stated in Myrick v. Peet, 56 Mont. 13,
22, 180 P. 574, where the court said:
" * * * The court below, short of being actually
upon the ground, following step by step the witness in
examining the monuments which the surveyors testi-
fied bore the official stamp of identification,
was in a peculiarly advantageous position to get
the psychological effect of the testimony given by
the witness. They were all fresh from the locus in
quo, and gave the court first impressions by pointing
o x upon the maps the objects by which the definite
location of the monuments could be determined. Be-
fore the judgment of the court below reached by such
means, and presumptively correct, can be impeached,
it must be made clearly to appear that some fact
properly for the consideration of the jury was arbi-
trarily determined by the court * * *."
The judgment of the district court is affirmed.

Justice

7
We concur
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Justices
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