No. 14375
IN THE SUPREME COURT OF THE STATE OF MONTANA
1978
CHRISTINE SWECKER,
Plaintiff and Appellant,
-vs-
DONALD DORN,
Defendant and Respondent.
Appeal from: District Court of the Thirteenth Judicial
District,
Honorable Robert H. Wilson, Judge presiding.
Counsel of Record:
For Appellant:
Richard Ganulin, Billings, Montana
For Respondent:
Jerry W. Schuster, Billings, Montana
Submitted on Briefs: December 14, 1978
Decided: APR 2 5 1979
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
Plaintiff, who claimed title to land by adverse possession,
appeals from an order of the Yellowstone County District
Court granting defendant's motion for summary judgment in a
quiet title action.
The dispute is over the ownership of the south half of
Lot 46, Block 8, State Realty Addition in Billings, Montana,
originally owned by plaintiff's brother, George Martell.
Plaintiff claimed ownership of the parcel by virtue of an
oral gift from her brother which she alleges eventually
ripened into title by adverse possession. Defendant Dorn
claimed title to the parcel by virtue of a deed purchased
from the personal representative of Martell's estate. The
District Court gave no reasons for its grant of summary
judgment, but it appears the court ruled that one who initially
claimed possession of land under an oral grant, cannot
thereafter establish title by adverse possession. We reverse.
George Martell originally purchased the parcel involved
in 1949. He purchased Lots 44, 45 and 46 of Block 8, State
Realty Addition. Later, in 1954, Swecker purchased the
adjacent Lots 47 and 48. In 1967 Martell sold Lots 44 and
45 and the north half of Lot 46 to defendant Dorn. According
to plaintiff Swecker, at approximately the same time these
lots were sold to defendant Dorn, Martell made an oral gift
of the south half of Lot 46 to her. Martell did not, however,
give her a deed.
George Martell died in 1975 and two years later the
personal representative of his estate conveyed the south
half of Lot 46 to defendant Dorn. Plaintiff Swecker, after learning
of the deed, filed suit to quiet title in the land, claiming
title by adverse possession. In affidavits filed with the
District Court, both plaintiff and her son declared that her
brother had given her the property in 1967 and that from
1967 until 1977; she had undisputed possession of the parcel;
she had paid the property taxes on the land; and, she had
stored goods in a shed on the property. The affidavits also
stated from 1969 through 1977 she had enclosed the parcel with a
fence,and that she had planted flowers and trees on the
parcel. Defendant Dorn did not dispute these allegations by
filing .counteraffidavits, but rested his claim, as far as
we can determine, on the contention that plaintiff's original
possession cannot ripen into adverse possession. Both
parties moved for summary judgment and the District Court
granted summary judgment to defendant Dorn.
Plaintiff Swecker contends she is entitled to judgment
as a matter of law because defendant failed in his initial
burden to show that plaintiff's possession was permissive.
On the other hand, defendant Dorn claims he is entitled to
judgment as a matter of law because an oral grant of property
cannot ripen into title by adverse possession. We determine
that plaintiff is entitled to judgment as a matter of law and
therefore reverse the judgment of the District Court.
We discuss first the defendant's contention that since
plaintiff came into possession of the parcel under a par01
grant, she enjoyed only permissive possession of the property
which cannot ripen into adverse possession. Defendant relies
on the statute of frauds, sections 93-1401-5 and 93-1401-7,
R.C.M. 1947, now sections 70-20-101 and 28-2-903(1) (d) MCA.
We see no reason why an oral conveyance of land cannot
serve as the initial foundation for a claim of title by adverse
possession. In the analogous context of prescriptive
easements, we stated in McDonnell v. Huffine (1912), 44 Mont.
411, 421, 120 P. 792, 794, that "although the verbal grant
was ineffectual to pass title to the easements because of
the statute of frauds, it did furnish a sufficient foundation
upon which to lay a claim of adverse user." See also,
Ferguson v. Standley (1931), 89 Mont. 489, 501, 300 P. 245,
250 (overruled on other grounds), In Re Dolezilek's Sr.
Estate v. Dolezilek (1970), 156 Mont. 224, 228, 478 P.2d 278,
280. Most states apply this rule to a claim of adverse
possession. Annot. 43 A.L.R.2d 10-11; 3 Am.Jur.2d Adverse
Possession, 5165. A gift, after all, is a manifestation
of the donor's intent to relinquish title, and a majority of
jurisdictions accordingly reason that any other view would be
inconsistent with the concept of a gift.
The cases that hold an oral gift of real property cannot
provide a foundation for adverse possession generally turn
on the wording of the particular statute involved. Thus,
where the applicable statute required written evidence of the
property transfer to establish "color of title", par01 gifts
of realty cannot ripen into title by adverse possession. See
e g
b
W
Higgerson v. Higgerson (Mo. 1973), 494 S.W.2d 374; In Re
SSvnkd
*Ett
&sae (1948), 31 Wash.2d 565, 198 P.2d 184. But in this
State, adverse possession may be acquired either under color
of title or under claim of title.
Section 93-2509, R.C.M. 1947, now section 70-19-408 MCA,
deals with adverse possession acquired under "a written
instrument, judgment or decree" (color of title), and section
93-2511, R.C.M. 1947, now section 70-19-410 MCA, applies to
adverse possession "not founded upon a written instrument,
judgment or decree" (claim of title). As this Court stated
in Morrison v. Linn (1915), 50 Mont. 396, 402-403, 147 P. 166,
168: "While it is indispensible to defeat the holder of the
legal title that the disseisor [adverse claimant] shall
maintain his adverse possession throughout the entire statutory
period, under either color of title or claim of title, -
it
- - necessary - - initial entry into possession
is not that his
should - -
be made under any pretense - right or title."
of - (Emphasis
added.) We conclude that a par01 grant of real property
can serve as a foundation for a claim of title by adverse
possession, notwithstanding the statute of frauds. The
District Court's summary judgment in favor of defendant Dorn
was therefore improper.
We next discuss plaintiff's contention that she is
entitled to summary judgment as a matter of law. Plaintiff
and her son submitted affidavits in support of her motion for
summary judgment to the effect that she was given the property
in 1967 and maintained undisputed possession of it until 1977.
The affidavits also asserted that she had paid taxes on the
land since 1967; that the land had been fenced since 1969;
and that she "has planted flowers and trees" on the parcel.
Defendant Dorn filed no affidavits disputing these averments.
Rule 56(e), M0nt.R.Civ.P. provides in pertinent part:
". . .When a motion for summary judgment is
made and supported as provided in this rule, an
adverse party may not rest upon the mere
allegations or denials of his pleading, but
his response, by affidavits or as otherwise
provided in this rule, must set forth specific
facts showing that there is a genuine issue for
trial. - - - -not so respond, summary
If he does -
judgment, if appropriate, shall be entered
against him." (Emphasis added. ) -
Since defendant Dorn did not contravert the plaintiff's
assertions, they are taken as true. 73 Am.Jur.2d Summary
Judgment, SS24, 30.
Having determined that plaintiff's possession during
the statutory period was adverse or hostile to the title of
the record owner (her brother), we find that the uncontested
averments of her affidavits satisfy all the requirements
for title by adverse possession not founded upon a writing.
Her assertion of undisputed possession from 1967-77 sufficiently
establishes her continuous and exclusive dominion over the
property. Her uncontroverted payment of property taxes on
the parcel during the same period satisfies the requirements
of section 93-2513, R.C.M. 1947, now section 70-19-411 MCA.
Section 93-2511, R.C.M. 1947, now section 70-19-410 MCA
provides :
". .
. - - of title not founded on instrument
Claim
or judgment--what considered occupation. For
-
the purpose of constituting an adverse possession
by a person claiming title not founded upon a
written instrument, judgment, or decree, land is
deemed to have been possessed and occupied in
the following cases only:
"(1) where it has been protected by a substantial
enclosure;
"(2) where it has been usually cultivated or
improved."
This statute was patterned after California's Code of Civil
Procedure, section 325. In construing their provision, the
California courts hold that the substantial enclosure and the
usual cultivation or improvement requirements are in the
alternative, so that adverse claimant need only prove his
possession has been evidenced by a substantial enclosure and
need not prove any further occupation, cultivation or use.
2 Cal.Jur.3d Adverse Possession 844 n. 61; Safwenberg v.
Marquez (1975), 50 C.A. 3d 301, , 123 Cal.Rptr. 405, 411.
We believe this is a reasonable construction of section 93-
2511, supra,and therefore adopt it. Any contrary implication
made in Johnson v. Silver Bow County (1968), 151 Mont. 283,
286, 443 P.2d 6, 8 is hereby disapproved. Accordingly,
plaintiff's undisputed statement in her affidavit that she
enclosed the parcel with a fence from 1969-77 complies with
the requirements of section 93-2511, supra.
The District Court order granting summary judgment
to defendant Dorn is reversed, and the court is directed
to enter s u m ~ a r yjudgment in favor of plaintiff Swecker.
We Concur:
A chief Justice