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: DistrictCourtof the Second JudicialDistrict, Inand forthe Countyof SilverBOW, TheHonorableMark Sullivan, Judge presiding.

COUNSEL OF RECORD:

For Appellant: John LeslieHamner, Butte, Montana

For Respondent: MauriceA. Maffei, Butte, Montana

Submittedon Briefs: July 10, 1986 Decided: September 16, 1986

Filed: 

## SEP161986

ClerkMr. Justice JohnConwayHarrison 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-setdamages. We affirm inpart and remand inpart. This case concerns a dispute between two adjacent landowners over the exact location of their boundary. Plaintiff,Thomas J. Helehan,owns twopatentedmining 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 ofhis patented claims. Defendant, 0. M. Ueland, owns the property immediately to the west of Helehanlspatented claims. Thedispute between the two men apparently began in the early 1960's. Horses which Helehan permitted to graze onhis 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 hisproperty and neither felt obligated to repairormaintain it. Consequently, ithad long since ceased to function as a barrier. Ueland complained to Helehan of thehorses,but Helehan replied that their properties were open range and that hetherefore 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 anadditional segment on thepublic domainnorth of Helehan's patented claims. This segment, running generally east and west, was apparently placed between Helehan's patented and unpatented claims. Helehan objected toUeland's fence, claiming first that it was located east of the true boundary and therefore encroachedupon his land and second, that itbarred access to his unpatented claims. In 1970he 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 determinationof theboundary 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 shownby Everly's survey.Helehan responded by hiring Matt Vranish to resurvey theboundary lines in 1983or 1984and 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 unpatentedmining claims, theDistrict Courtheld that since the fencewas located onpublic domain, Helehan firsthad 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 issueson appeal:

(1) Whether the District Court erred in establishing theboundary 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 trespassofhis 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 surveyorsoftenmarked sectioncorners and quarter

corners by embedding a large stone in the ground andsurrounding itwith smaller stones. The large stonewas 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 locatedwhat they perceived to be a stone monument. This unmarked "monument" was located in roughly the same area as the southeast corner of Section 24. HendricksonandVranish ultimately accepted this stoneas the survey marker for the southeast corner and included this location in theirmeasurement. SurveyorEverly also spotted this stonebut 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 uponby Hendrickson and Vranish was not present in 1949. He stated that givenhis 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 notbeen found at thatdate. Upon reviewof this evidence,wehold that the District Court did not err in establishing thisboundary in accordance with Everly's survey. The scope of this Court's review when considering the findings and conclusionsof a district court sitting without a jury is by now well settled. We are confined todetermining whether there is substantial credible evidence to support the District Court's findings and conclusions. GeneralMills, Inc. v. ZerbeBros., 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 evidencemay conflict with other evidenceand 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 findingbased on substantialthough conflicting evidence will not be disturbed unless there is a clear preponderance ofevidence against such a finding. Cameron, supra at 944. This has notbeen 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 twoparagraphsaddressing the issue. We find

nomerit in this issue. Issue 3: The District Court ruled that Helehan was liable for overgrazing damages caused toUeland'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 costofwhichwas 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 favorofUeland. 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 Jenkinsv. Valley GardenRanch, 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), 134Mont. 500, 333 P.2d 1022.The record isbarren 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 occurringduring this time. Becausewe 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£firm the District Court

## 's determinationof the trueboundary line and remand the damage awards.

We concur: A 

# J~~~~~~ iefJustice