NO. 87-464
I N THE SUPREME COURT OF THE STATE O F MONTANA
1988
PAT M. GOODOVER,
P l a i n t i f f and R e s p o n d e n t .
-vs-
L I N D E Y ' S , I N C . , and t h e ESTATE O F
W I L L I A M C . FOREST, D e c e a s e d , e t a l . ,
D e f e n d a n t s and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of M i s s o u l a ,
T h e H o n o r a b l e Jack L . G r e e n , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
P a u l N e a l C o o l e y ; Skelton & C o o l e y , M i s s o u l a , M o n t a n a
H a r r i s o n , L o e n d o r f & P o s t o n , ( W i l l i a m Forest E s t a t e ) ,
Helena, Montana
F o r Respondent:
J o h n W. Larson, Missoula, Montana
S u b m i t t e d on B r i e f s : A p r i l 7, 1988
Decided: June 1 3 , 1 9 8 8
Filed: aH13
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
This is an appeal from a judgment of the Fourth
Judicial District Court, Missoula County, determining a
specific property line monument in favor of plaintiff/
respondent Pat Goodover (Goodover). Defendant/appellant
Lindey's Inc., (Lindey's), appeals the judgment and we
affirm.
Appellant in this case presented eleven issues, which
are more appropriately restated as follows:
1. Whether the District Court erred in allowing
hearsay evidence in determining the location of the boundary
monument?
2. Were the District Court's findings of fact,
conclusions of law and judgment based on substantial credible
evidence?
3. Whether the District Court abused its discretion in
denying Lindey's motion for a new trial or in the alternative
amendment of the judgment?
4. Whether the District Court abused its discretion in
denying Patricia Jewell's motion to intervene?
In dispute is the location of the northeast corner of
lot two, of the Seeley Lake Shores Sites which was filed as a
platted unofficial subdivision with the Missoula County Clerk
and Recorder in 1944. From this plat, and testimony
presented at trial, it is clear that the original intent of
the developers was to provide lots with 100 feet of lake
frontage, except for lot one, purchased by Lindey's, which
was to contain 125 feet. However, the plat is filled with
errors.
Goodover, who owns lot two, filed this action for
declaratory judgment and quiet title after Lindey's, by its
surveyor, R. David Schurian, established a new lot corner on
the northeast side of Goodover's boathouse. The complaint
was filed August 21, 1984 and subsequently amended twice.
A bench trial was held April 7, 1987, and findings of
fact, conclusions of law and a judgment in favor of Goodover
were filed on June 15, 1987 reserving the issue of damages
for a later hearing. Motions for a new trial or amendment of
the judgment, along with a motion for a stay made in
anticipation of filing a motion to intervene filed by
Patricia Jewell (Jewell), were denied by the District Court
on October 2, 1987. Jewell owns lot five which is adjacent
to lot three but was not named as a party in this action.
This appeal followed.
The only dispute at trial was the location of the
monument for the northeast corner of lot two and the
accompanying lake frontage. The lots are set around the
southeast corner of the lake as follows: lot three is
immediately south of lot five, lot one is south and westerly
of lot three, and lot two is west of lot one. Goodover
purchased lot two with Mills Folsom from Don Paddock in 1965.
Paddock had purchased the property from George Meltzer who
had bought the land from Jim Sullivan.
Meltzer was called at trial by Lindey's and testified
that the northwest corner of lot two and lot four to the west
was marked with a wooden monument. This monumentation was
generally accepted by all parties, including Greg Martinsen,
Goodover's surveyor, and Schurian. Meltzer stated that the
northeast corner was marked both with a wooden monument and a
mushroom-headed spike known as a boat spike. Meltzer was a
Missoula County land and building appraiser during the time
he owned lot two and testified that he measured the lake
frontage of lot two as approximately 93 feet.
In deposition, Folsom testified that the east line of
the property was marked by blazes on trees and that the
northeast and northwest corners were marked by wooden stakes.
Goodover purchased Folsom's share of the property in 1 9 6 6 .
Both Folsom and Goodover stated a metal barrel and wooden
stake marked the northeast corner of the lot in 1 9 6 5 . This
barrel and stake were removed, and a new fence as well as an
outhouse were erected by Lindey's along the property line,
after Schurian re-surveyed the property. Schurian placed a
new northeast corner monument near the middle of the east
side of Goodover's boat house. This activity resulted in a
temporary order being issued by the District Court
disallowing the destruction of any of the other property
markers.
Lindey's is purchasing lots one and three from William
C. Forest, now deceased. Lindey's requested of Forest a
Certificate of Survey of the property and hired Professional
Consultants, Inc., a firm of registered surveyors including
Schurian, to prepare the Certificate. Schurian and his crew
found all the corners on lot five, and retraced the work done
by Ainsworth and Associates, Inc., which surveyed lot five in
1970. At that time, Martinsen, who was later hired by
Goodover, worked for Ainsworth and Associates, Inc., and did
work on lot five. Ainsworth and Associates, Inc. later
became Professional Consultants. Schurian found uniform
one-inch pipes as markers for boundaries common to lots seven
and five, five and three, one and three and two and four.
The only monument that was not found by Schurian was that
between lots one and two.
Schurian prepared the Certificate of Survey using the
"compass rule" to locate the corner between lots one and two.
He then placed 5/8-inch rebar with a 13-inch aluminum cap to
mark where he believed the northeast corner to be. This
survey shows the southeast corner of Goodover's boathouse
encroaching on lot one.
The survey completed by Schurian leaves Goodover with
what appears to be 89.64 feet of lake frontage, lot one with
125 feet of lake frontage and lot three with 100 feet of lake
frontage. However, at trial, Schurian presented an exhibit
and testified that his measurement really provided Goodover
with 95.35 feet if the aluminum cap boundary was extended to
the waterfront. This testimony was impeached to some extent
by Martinsen when he was recalled as a rebuttal witness.
Martinsen testified that the problem with Schurian's
explanation was that it required the line to go straight into
the lake, whereas the official manner of measuring lake
frontage calls for a central point in the water to be
extended back to the land at an angle.
Martinsen was hired by Goodover twice. The first time,
Martinsen located a 1;-inch pipe with a :-inch rod sticking
through it which he believed to be the original northeast
corner marker. The District Court found, in its judgment of
June 12, 1987, that this pipe monument was within a foot of
the barrel and stake monument that Goodover relied upon and
that the monument was in line with at least one of the blazed
trees.
Goodover would not accept this marker originally
because he found out Martinsen had worked for Ainsworth and
Associates, Inc. Martinsen, however, was rehired by Goodover
and on March 13, 1987 again located the 1;-inch pipe with the
rod sticking in it by use of a metal detector.
Martinsen also searched for and found pipe that marked
the other lots on Seeley Lake. Martinsen testified that 11
of these lots were within two to three percent of the
100-foot frontage intended. By using the pipe that Martinsen
located on lot two, Martinsen stated the percentage of
variation was less than one percent as the distance of
frontage was 99.33 feet. Percentage of variation for lots
one and three were 1.12%.
At trial, Goodover testified Sullivan told him a glove
and stake, located approximately four to five feet east of
the boathouse, was the property marker between lots one and
two. Goodover testified that Paddock had indicated a barrel
and stake marked the boundary. Paddock, when he transferred
the property to Folsom and Goodover, provided a plat that he
said was prepared by a surveyor who had blazed the trees
along the east boundary of lot two. Pictures of a number of
blazed trees were presented as evidence.
Both surveyors testified that the purpose of a
retracement survey is to follow in the steps of the original
surveyor. The District Court made a finding of fact that the
amount of lake frontage allocated by Martinsen more closely
followed the original survey than that allocated by Schurian.
Therefore, taking into consideration the testimony that all
monumentation was second generation monumentation; that both
experts acknowledged that distances on the original survey
were more reliable than courses or bearings, and that
monuments were superior to distances; and the degrees of
variation presented, the court found the "best available
evidence of the corner between Lot 1 and Lot 2 ...
was the
existence of the pipe monument, barrel and stake" and "there
is sufficient credible testimony to locate the corner between
Lot 1 and Lot 2 ... approximately five feet to the east of
the existing boathouse."
In its conclusions of law the court referred to the
Bureau of Land Management Manual of Survey Instructions
(1973), the underlying regulations of which were discussed
and approved by the Montana Supreme Court ruling of Vaught v.
McClymond (1945), 116 Mont. 542, 155 P.2d 612. The District
Court concluded that sufficient credible evidence existed
that the original survey distance for lake frontage for lots
eight through twenty-one was 100 feet with lot one containing
125 and that the most common type of secondary monumentation
along the lake frontage was buried pipe. The court concluded
the pipe, found at the northeast corner of lot two by
Martinsen, was the best reliable evidence concerning the
original intent of the surveyor. Finally, the court made a
conclusion of law that sufficient credible testimony was
presented to locate the corner between lot one and two at the
monumentation found by Martinsen and that COS 2351, the
certificate of survey completed by Schurian, should be
amended to conform to the findings and conclusions.
Initially, as to issue one, we note that counsel for
Lindey's appropriately objected to Goodover's recitation of
his conversation with Sullivan regarding the boundary
according to the barrel and stake as hearsay. The court
originally sustained the objection but upon being directed to
the exceptions to hearsay rule, overruled the objection.
Rule 803 (20), M.R.Evid., states:
Reputation in a community, arising before
the controversy, as to boundaries of or
customs affecting lands in the community,
and reputation as to events of general
history important to the community or
state or nation in which located.
Lindey's contends there was no evidence "attempting to
prove the reputation in the community concerning the boundary
between Lots 1 and 2 of Seely Lake Shores Sites." The
specific statement involved Sullivan stating the northeast.
corner was marked with a glove located on a post. Goodover
said the statement was made after he requested Sullivan to
show him where his property line was so he could build his
boathouse five feet from the line.
The disputed testimony is as follows:
Q. When did you find those blazes on the
trees?
A. Before I built the boathouse, where I
built it, I got ahold of Mr. Sullivan and
asked him to come over and show me the
location of the property line so I could
build the boathouse leaving about five
feet between the property line and where
the foundation was poured.
Mr. Sullivan showed me the property line
where the flag--where the glove was
located on the post and where the metal
can was tied around it, and he said that
was my northeast corner.
[Defense Counsel] : I'11 move to strike
on the grounds it's hearsay.
The Court: Sustained.
[Plaintiff's Counsel] : Your Honor, if I
may, I agree it's hearsay, but I think
the evidence as to common boundary is
within the exception of 801 (d)20. [Sic].
The Court: I think that's probably
correct. 1'11 reverse my ruling.
[Plaintiff's Counsel then did not further
question Goodover about the stake and
glove].
The exception erroneously quoted by plaintiff's counsel
allows hearsay because it provides a rebuttable presumption
"that a person is the owner of property from common
reputation of ownership." MCA Commission Comments, Rule
803 (20). Cases cited therein are: Brennan v. Mayo (1937),
105 Mont. 276, 72 P.2d 463; Nemitz v. Reckards (19341, 98
Mont. 229, 38 P.2d 980; and Kurth v. LeJeune (19281, 83 Monte
100, 269 P. 408. None of these cases are helpful with the
issue we are faced with here. Generally, the testimony must
report a general consensus of opinion and not just an
assertion of an individual's personal observation. The
Nature Conservancy v. Nakila (Hawaii App. 1983), 671 P.2d
1025, 1033; 5 Wigmore, Evidence S 1584 (Chadbourn rev. 1974).
Goodover presented the statements of Sullivan as an
assertion of Sullivan's individual personal observation.
[Tlhe reason for this rule is not only
caused by the perishable nature of
boundary markers, but also because
general reputation about facts of
community interest are generally
trustworthy. It is unlikely that a
falsehood could become generally accepted
in a community as the truth. The
prolonged and constant exposure of these
facts to observation and discussion by
the community sifts out the possible
errors and gives to the residual facts
which are generally accepted by the
locality a t.rustworthiness which allows
these facts to be presented as evidence
in a court of law.
.
4 Weinstein's Evidence, 9 803 (20)[Ol], 803-344 (1987)
In the case at bar, the rationale for excepting
Goodover's testimony from the hearsay rule is not present.
Goodover asserted Sullivan showed him where the property
border marker existed. This assertion was presented as fact
of personal observation. The reasoning behind the exception
requires that the reputation of where Goodover's property
line existed is reliable because "there is a high probability
that the matter underwent general scrutiny as the community
reputation was formed." Weinstein, supra, at 803-345. No
evidence was presented regarding the reputation of the
monument position. Lindey's objection was appropriate and
should have been sustained.
Other evidence was presented which supported Goodover's
statement, e.g., statements by Martinsen that the marker he
found was beyond the monument Goodover referred to; and
testimony by Folsom that Paddock had told both Folsom and
Goodover that a surveyor had blazed the trees between lots
one and two. This evidence was sufficient to be accepted by
the court without Goodover's recitation.
Therefore, we hold that it was harmless error to allow
the testimony at issue. Although the District Court referred
to the statement in its findings of fact, it did not rely
solely on the statement in its conclusions of law nor is it a
basis for the judgment. We have held that admission of
hearsay testimony can be harmless error and not rise to the
level of reversible error numerous times. Hill v. Turley
(Mont. 1985), 710 P.2d 50, 55, 42 St.Rep. 1783; Lindberg v.
Leatham Bros., Inc. (Mont. 1985), 693 P.2d 1234, 1243, 42
St.Rep. 137.
Regarding the issue of substantial credible evidence
Lindey's contends: (1) that the District Court erred in
finding Martinsen's exhibits depicted a "retracement;"
(2) that it was error to find a 1-inch axle was a monument;
(3) that it was error to find Martinsen's survey was based
on the best and most reliable evidence; (4) that the court
erred in finding the buried pipe monument at lot two was the
most common type of secondary evidence; and (5) that the
court erred in finding the correct and true boundary was
retraced by exhibits 31 and 34, (maps of the area).
In considering a judgment rendered in a civil action
before the district court without a jury, reversal will not
occur unless it is shown findings of fact are clearly
erroneous. Rule 52 (a), M.R.Civ.P. ; Bollinger v.
Hollingsworth (Mont. 1987), 739 P.2d 962, 963, 44 St.Rep.
1228.
With this standard in mind, we hold that the District
Court did not err in adopting its findings of fact, and
conclusions of law.
Lindey's relies on A Treatise - - - -of Surveying
- on the Law
- Boundaries, Clark (3rd Ed.), Chp. 13, p. 280 in regard to
and
the "retracement" argument:
Section 258. The theory of the following
surveyor -- The cardinal principle
guiding a surveyor who is running the
lines of a previous survey is to follow
in the footsteps of the previous
surveyor.
Both surveyors agreed with this statement but Lindey's
claims Martinsen did not follow the rule and contends
exhibits 31 and 34 were based on "nothing more than a
traverse around the lake shore" and further, that the court
erred in finding Martinsen's survey was based on the best and
most reliable evidence.
We find that a number of general rules have been
established in this area to determine the proper location of
lost or obliterated boundaries or corner monuments. These
rules are best set forth in Vaught, supra:
"A survey of public lands does not
ascertain boundaries; it creates them."
[Citation omitted.] "The quarter lines
are not run upon the ground, but they
exist, by law, the same as the section
lines. " [Citation omitted.] The
location of corners and lines established
by the government survey, when
identified, is conclusive [citation
omitted] and the true corner of a
government subdivision of a section 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. [Citation omitted.]
Original monuments of survey established
during a government survey, when properly
identified, control courses and
distances, [citation omitted] and field
notes and an official plat of government
surveys of record will control in
ascertaining locations, even though the
monuments established are gone.
[Citation omitted.] In ascertaining the
lines of land or in re-establishing the
lines of a survey, the footsteps of the
original surveyor, so far as discoverable
on the ground, should be followed and it
is immaterial if the lines actually run
by the original surveyor are incorrect.
[Citation omitted.] In surveying a tract
of land according to a former plat or
survey, the surveyor's only duty is to
relocate, upon the best evidence
obtainable, the courses and lines at the
same place where originally located by
the first surveyor on the ground ...
- object of a resurvey - - furnish
The is to
proof of the location - - -
of the lost lines
- monuments,
or not to dispute the
-
correctness - - - control the original
of or to
survey. The original survey in all cases
must, whenever possible, be retraced,
since it cannot be disresarded or
needlessly altered after rights
have been acquired in reliance upon it.
(Emphasis added.)
Vaught, 116 Mont. at 549-550, 155 P.2d at 616.
The District Court stated that it believed the "best
evidence" of the corner between lots one and two was the
existence of the pipe monument, barrel and stake, and line of
blazed trees. Therefore the court did not rely on the stake
and glove referred to by Goodover but more on the testimony
of Martinsen. Further, the court stated that Martinsen's
evidence was more in line with the original intent of the
surveyor.
Martinsen testified that he worked for Goodover
searching for monuments on lot two in 1982 and on March 13,
1987. Both times he located the northeast monument, a
13-inch pipe with a 3-inch round rod sticking in it, with the
use of a metal detector. He testified that he searched for
and found monuments on lots eight through twenty-one in an
effort to establish the 100-foot frontage the original
surveyors intended. All of these lots, he testified, had a
degree variation of between two and three percent. Finally,
it was Martinsen's expert opinion, relying on the pipe
monument, blazed trees, stake and barrel, and line of
occupation, that the proper corner monument between lots one
and two was the monument he located and which he portrayed on
exhibit 34. The District Court relied upon this opinion in
adopting its findings of fact.
There was sufficient, credible evidence for the court
to rule as it did. The general rule is that courses and
distances, similar to what Schurian did with his "compass
rule" location, must yield to natural or artificial
monuments. Bollinger, 739 P.2d at 964; citing Buckley v.
Laird (1972), 158 Mont. 483, 492, 493 P.2d 1070, 1075. Here,
Martinsen located an artificial monument as opposed to the
placement made by Schurian through his "compass rule."
Schurian testified that he could not locate the pipe
Martinsen found even though he used a metal detector. With
the evidence presented by both parties, we cannot find the
District Court erred where it relied on one party's evidence.
In the case of Helehan v. Ueland (Mont. 1986), 725 P.2d
1192, 43 St.Rep. 1679, the district court was presented with
varying testimony from surveyors in a boundary dispute. The
District Court sided with one surveyor's testimony based on
reliance of an original monument. We said a trial judge1s
finding based on substantial though conflicting evidence will
not be disturbed unless there is a clear preponderance of
evidence against such finding. Helehan, 725 P.2d at
1194-1195. No clear preponderance of evidence has been
presented by Lindey's in this case to disturb the District
Court's findings.
Both experts testified, both presented exhibits. The
credibility and weight accorded witnesses is a primary
function of a trial judge sitting without a jury and is of
special consequences where the evidence is in conflict.
Corscadden v. Kenney (1977), 175 Mont. 98, 103, 572 P.2d
1234, 1237; see also, Wortman v. Griff (1982), 200 Mont. 528,
651 P.2d 998. This rule is especially appropriate in a
non-jury case where the court is faced with conflicting
interpretations, testimony or opinions of expert witnesses.
See, Stidham v. City of Whitefish (Mont. 1987), 746 P.2d 591,
593, 44 St.Rep. 1869, 1872.
We hold also that the District Court did not err in
denying Lindey's motion for a new trial or in the alternative
to amend the judgment and Jewell's motion to intervene.
The granting of a new trial or amendment of the
judgment, is within the sound discretion of the trial court
and will be reversed only for manifest abuse of discretion.
Walter v. Evans Products Co. (Mont. 1983), 672 P.2d 613, 616,
43 St.Rep. 1844; Jankovich v. Neil1 (1969), 153 Mont. 337,
340, 457 P.2d 475, 477. Further, upon review, we view
motions for new trials in a light most favorable to the party
against whom the motion is directed. Dieruf v. Gollaher
(1971), 156 Mont. 440, 446, 481 P.2d 322, 325.
Lindey's argument for new trial or amendment of the
judgment is based on newly discovered evidence. At the
September 17, 1987 hearing on Jewell's motion to intervene,
Jewell's attorney and Lindey's counsel attempted to get
evidence before the court supporting the motion for new
trial. Jewell's counsel made an offer of proof that Lewis
Lindemer would testify that it was discovered that the
variation in lake frontage could have occurred since 1944
because fill material had been dumped at the site. Further,
Lindemer would testify that the $-inch pipe the court found
to be secondary monumentation between lots three and five was
in reality a water pipe. Lindemer had testified at the
original trial but did not present this evidence at that
time. The evidence could have been available but was not
produced at the original trial. The basic rule for granting
a new trial on newly discovered evidence is that the new
evidence could not have been discovered and produced at trial
with exercise of reasonable or due diligence. Rule 60(b),
M.R,Civ.P.; Carbon County v. Schwend (Mont. 1984), 688 P.2d
1251, 1253, 41 St.Rep. 1874. Further, absent a showing that
the new evidence would produce a materially different result,
a district court does not abuse its discretion in refusing to
grant a new trial. Bushnell v. Cook (Mont. 1986), 718 P.2d
665, 669, 43 St.Rep. 825. We find the District Court did not
abuse its discretion in denying the motion for a new trial,
or in the alternative, amending the judgment where this
evidence could have been available but was not presented at
trial.
As to the attempted intervention by Jewel1 pursuant to
Rules 19 and 24(a), M.R.Civ.P., we initially note, "[tlhe
intervention rule is a discretionary judicial efficiency rule
used to avoid delay, circuity, and multiplicity of suits."
Grenfell v. Duffy (1982), 198 Mont. 90, 95, 643 P.2d 1184,
1187. At the hearing September 17, 1987, an oral offer of
proof was made that a title expert would testify regarding an
alleged cloud on Jewell's title.
In this case, Jewell's motion was made subsequent to
the entry of: judgment. Motions to intervene made after a
judgment are not per se untimely, but the rule requiring
timely application to intervene is, again, left to the
discretion of the District Court. Rule 24, M.R.Civ.P.; In re
Marriage of Glass (Mont. 1985), 697 P.2d 96, 99, 42 St.Rep.
328. The District Court did not abuse its discretion in this
case, Jewell's rights have not been litigated.
We affirm.
We concur: