No. 86-15 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

THOMAS J. HELEHAN, 

Plaintiff and Appellant, 

-vs0. M. UELAND, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver BOW, 

The Honorable Mark Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Leslie Hamner, Butte, Montana 

For Respondent : 

Maurice A. Maffei, Butte, Montana 

Submitted on Briefs: July 10, 1986 

Decided: September 16, 1986 

Filed: SEP 1 6 1986 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from an order of the District Court 

of the Second Judicial District in and for the County of 

Silver Bow, Montana. Plaintiff brought the action seeking 

determination that his survey correctly established the true 

boundary and asking for trespass damages. Defendant 

counterclaimed requesting similar relief. Following a bench 

trial, the District Court accepted defendant's survey and 

off-set damages. We affirm in part and remand in part. 

This case concerns a dispute between two adjacent 

landowners over the exact location of their boundary. 

Plaintiff, Thomas J. Helehan, owns two patented mining claims 

in Silver Bow County, several miles west of Butte. He also 

has interests in four unpatented mining claims located on 

public domain just north of his patented claims. Defendant, 

0. M. Ueland, owns the property immediately to the west of 

Helehanls patented claims. 

The dispute between the two men apparently began in the 

early 1960's. Horses which Helehan permitted to graze on his 

land began to wander off his land onto Ueland's. At the 

time, the only semblance of a division line was an old 

dilapidated wooden fence which ran roughly north and 

south between the parties' properties. This fence had 

evidently been built long before either party had acquired 

his property and neither felt obligated to repair or maintain 

it. Consequently, it had long since ceased to function as a 

barrier. 

Ueland complained to Helehan of the horses, but Helehan 

replied that their properties were open range and that he 
therefore had no responsibility to fence in the animals. So 

in 1969, Ueland decided to fence out the horses and built a 

new fence over the site of the old wooden one. Also, in an 

effort to more fully fence out the horses, Ueland added to 

his fence an additional segment on the public domain north of 

Helehan's patented claims. This segment, running generally 

east and west, was apparently placed between Helehan's 

patented and unpatented claims. 

Helehan objected to Ueland's fence, claiming first that 

it was located east of the true boundary and therefore 

encroached upon his land and second, that it barred access to 

his unpatented claims. In 1970 he hired a licensed surveyor, 

Jack Hendrickson, to determine the exact line of the 

boundary. Hendrickson's survey supported Helehan's 

allegations that the fence intruded upon Helehan's property; 

it indicated that the true border was located west of the 

fence. 

Helehan filed this action in 1975, seeking a 

determination of the boundary as established by Hendrickson's 

survey, removal of Ueland's fence and trespass damages. 

Ueland counterclaimed, seeking grazing damages caused by the 

horses stationed on Helehan's land and one-half the cost of 

the fence. 

In 1976, before the case was heard, Ueland hired his 

own licensed surveyor, Walter Everly. Everly's survey, in 

direct contrast to Hendrickson's, indicated that the fence 

was entirely within Ueland's property and that the boundary 

line was in fact well to the east of the location of the 

fence. Ueland accordingly dismantled his fence and rebuilt 

it along the line shown by Everly's survey. 
Helehan responded by hiring Matt Vranish to resurvey 

the boundary lines in 1983 or 1984 and by hiring David Albert 

to retrace Jack Hendrickson's 1970 survey. Both these 

licensed surveyors generally confirmed Hendrickson's 

findings . 

The parties finally brought the case to trial in 1985. 

As to the proper location of the boundary between Ueland's 

land and Helehan's patented claims, the court held for 

Ueland, establishing the border line in conformance with 

Everly's survey. As to the stretch of fence separating 

Helehan's patented and unpatented mining claims, the District 

Court held that since the fence was located on public domain, 

Helehan first had to exhaust his administrative remedies with 

the proper agency. As to damages, the court held that 

Helehan was liable for grazing damages but that Ueland was 

not entitled to any reimbursement for the cost of his fence. 

The court concluded, however, that the grazing damages and 

the fence construction were off-setting. 

We face three issues on appeal: 

(1) Whether the District Court erred in establishing 

the boundary in accordance with Everly's survey. 

(2) Whether the District Court erred in ruling that 

plaintiff had failed to exhaust his administrative remedies 

as to the alleged trespass of his unpatented claims. 

(3) Whether the District Court's damage awards were 

correct. 

Issue 1: The tracts of property in question were 

originally surveyed in 1877 by official United States 

surveyors. Pursuant to the practices of the time, the 

government surveyors often marked section corners and quarter 

corners by embedding a large stone in the ground and 
surrounding it with smaller stones. The large stone was then 

usually engraved with an appropriate identification. These 

original monuments remain important for they still determine 

exact locations of section corners and lines. Indeed, the 

true corner of a government section is where the original 

surveyor in fact established it, whether such location is 

right or wrong as shown by subsequent surveys. Vaught v. 

McClymond (1945), 116 Mont. 542, 550, 155 P.2d 612, 616. So 

when surveyors use corner sections and lines to base 

measurement and plot tracts, it is essential that they 

properly identify and authenticate the original monument. 

In the course of their survey, appellant's surveyors 

Hendrickson and vranishl located what they perceived to be a 

stone monument. This unmarked "monument" was located in 

roughly the same area as the southeast corner of Section 24. 

Hendrickson and Vranish ultimately accepted this stone as the 

survey marker for the southeast corner and included this 

location in their measurement. 

Surveyor Everly also spotted this stone but rejected it 

as the southeast corner marker. Everly had had occasion to 

survey the same section line in 1949 and, according to his 

map and notes of that time, had failed to find any monument 

marking the southeast corner despite a considerable search. 

Everly further testified that the stone marker relied upon by 

Hendrickson and Vranish was not present in 1949. He stated 

that given his lengthy search for this corner in 1949 and the 

marker's highly visible location in the same general area as 

1. Appellant's third surveyor, David Albert, undertook 

merely a retracement of Hendrickson's survey. We find 

Albert's results to be of little probative value. 
the southeast corner, he could not but have noticed the 

marker had it been present. Instead, Everly placed the 

southeast corner in the same location he had placed it in 

1949--nearly two hundred feet to the east of the stone 

marker. This discrepancy is the principal basis for the 

conflicting surveys. 

Defendant also introduced into evidence a 1929 highway 

map which indicated that the southeast corner had likewise 

not been found at that date. 

Upon review of this evidence, we hold that the District 

Court did not err in establishing this boundary in accordance 

with Everly's survey. The scope of this Court's review when 

considering the findings and conclusions of a district court 

sitting without a jury is by now well settled. We are 

confined to determining whether there is substantial credible 

evidence to support the District Court's findings and 

conclusions. General Mills, Inc. v. Zerbe Bros., Inc. (Mont. 

1983), 672 P.2d 1109, 1111, 40 St.Rep. 1830, 1832. In so 

determining, we must view the evidence in the light most 

favorable to the prevailing party. Cameron v. Cameron 

(1978), 179 Mont. 219, 228, 587 P.2d 939, 944. Further, the 

evidence may conflict with other evidence and still be deemed 

"substantial." Cameron, at 945. 

We find that the District Court had substantial 

credible evidence to support its ruling. Walter Everly was 

not only an experienced surveyor but also an experienced 

surveyor of the property in question. His detailed 

testimony, in connection with the highway map, lend 

sufficient support to the court's decision. A trial judge's 

finding based on substantial though conflicting evidence will 

not be disturbed unless there is a clear preponderance of 
evidence against such a finding. Cameron, supra at 944. 

This has not been shown. 

Issue 2: Appellant argues that the District Court 

erred in ruling that if Ueland's fence interfered with 

Helehan' s enjoyment of his unpatented mining claims, he must 

first exhaust his administrative remedies through the proper 

agency. Though Helehan stated that this was an issue on 

appeal, his counsel has failed to present a persuasive 

argument in the two paragraphs addressing the issue. We find 

no merit in this issue. 

Issue 3: The District Court ruled that Helehan was 

liable for overgrazing damages caused to Ueland's property by 

the horses allowed on Helehan's land. The court estimated 

this damage at $3,000. The court further ruled that Ueland 

was not entitled to any reimbursement from Helehan for the 

cost of the fence, the total cost of which was also estimated 

at $3,000. The court then off-set these amounts. 

We note initially that these costs do not off-set. 

There are damages flowing from Helehan to Ueland but none 

flowing from Ueland to Helehan. The correct award, 

consistent with the court's findings, would have been a 

damage award in favor of Ueland. 

We find, however, that this error is harmless, as we 

find no evidence in the record supporting the lower court's 

award to defendant for grazing damages. Montana has long 

recognized an open range law whereby landowners must fence 

out intruding livestock. See Jenkins v. Valley Garden Ranch, 

Inc. (1968) , 151 Mont. 463, 443 P.2d 753; Bartsch v. Irvine 

Co. (1967), 149 Mont. 405, 427 P.2d 302; Thompson v. 

Mattuschek (1959), 134 Mont. 500, 333 P.2d 1022. 
The record is barren of any evidence indicating grazing 

damages done to defendant's property after 1969, the date 

Ueland built his fence. Before 1969, Helehan could not be 

legally obligated to restrain the horses and cannot be held 

liable for damages occurring during this time. Because we so 

hold, we decline to discuss Helehan's liability for 

trespassing horses which he neither owns nor agisters. We 

therefore remand this case and instruct the District Court to 

enter judgment consistent with this opinion. 

In conclusion, we a£ f irm the District Court ' s 

determination of the true boundary line and remand the damage 

awards. 

We concur: A 

J~~~~~~ ief Justice