No. 82-103 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

WESLEY CASTLES and 

RUTH B. CASTLES, 

Plaintiffs and Respondents, 

VIOLA LAWRENCE, sometimes written 

Viola R. Arnundson; SHARON DONOVAN 

WHEATLEY, sometimes writken Sharon 

Lee Donovan; VICTORIA FAE ROSBARSKY: 

CLEBER ALLEN AMUNDSON, et al, 

DefendaAhs and Appellants. 

Appeal from: District Court of the First Judicial District, 

In and for the County of Lewis and Clark 

Honorable Peter G. Meloy, Judge presidkng. 

Counsel of Record : 

For Plaintiffs: 

Smith Law Firm, Helena, Montana 

For Defendants: 

Galt and Swanberg; Robert Swanberg, Helena, Montana 

-- -- 

Submitted on briefs: August 19, 1982 

Decided: April 14, 1983 

Filed: &PR 14 1983 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

This is a quiet-title action in the District Court of 

Lewis and Clark County covering Tract C, a tract of 

approximately 5 acres in Lewis and Clark County. Plaintiffs, 

and the answering defendants (defendants) , claimed title by 

deeds and also by adverse possession. The trial court, 

sitting without a jury, entered a decree quieting title in 

the plaintiffs. We affirm. 

The following are the issues which we will discuss: 

(1) Is there sufficient evidence to establish title by 

adverse possession in the plaintiffs? 

(2) Are the boundaries of Tract C correctly described 

in the decree? 

The evidence shows that after receiving a deed in 1963, 

the plaintiffs entered into the possession of the land. 

Their 1963 deed was based upon the following description 

contained in the chain of title: 

"Part of Placer Survey No. 99, Sec. 35, T.llN., 

R.2W, containing 3 acres more or less; and Part of 

Placer Survey No. 99, Sec. 35, T.llN, Range 2W, 

containing 5.25 acres more or less; said surveys . . . being in Lewis and Clark County, Montana." 

Defendan.ts contend this description is legally defective, and 

could not pass title to plaintiffs. We need not determine 

whether the description in the deed was sufficient to pass 

title, because we conclude that plaintiffs hold title by 

adverse possession. The District Court found that the 

plaintiffs occupied Tract C under a claim of title arising 

from the 1963 deed. The court also found that plaintiffs 

possessed the land for more than five years. The evidence 

supporting these findings is unrebutted. As a result, the 
plaintiffs met the adverse possession requirements of section 

70-19-407, MCA: 

"70-19-407. Occupancy under claim founded on 

instrument or judgment -- when considered adverse. 

When it appears that the occupant or those under 

whom he claims entered into the possession of the 

property under claim of title, exclusive of other 

right, founding such claim upon a written 

instrument as being a conveyance of the property in 

question or upon the decree or iudgment of a 

competent court and that there has been a continued 

occupation and possession of the property included 

in such instrument, decree, or judgment or of some 

part of the property under such claim for 5 years, 

the property so included is deemed to have been 

held adversely, except that when it consists of a 

tract divided into lots, the possession of one lot 

is not deemed a possession of any other lot of the 

same tract." 

The defendants argue that the plaintiffs did not have 

possession of Tract C, but the evidence does not support this 

contention. Possession is defined in section 70-19-408, MCA, 

as follows: 

"70-19-408. Claim founded on instrument or 

judgment--what considered possession and 

occupation. (1) For the purpose of constituting 

an adverse possession by any person claiming a 

title founded upon a written instrument or a 

judgment or decree, land is deemed to have been 

possessed and occupied in the following cases: 

" (a.) where it has been usually cultivated or 

improved ; 

"(b) where - it has been protected by - a substantial 

enclosure;. . . "(~mphasis added. ) 

The 1963 deed was sufficient to constitute a written 

instrument on which plaintiffs' claim of title was founded. 

The record shows that the plaintiffs completed an enclosure 

of Tract C in 1964. At that time, they completed a fence 

around all portions of the property which were not bordered 

by Hauser Lake. The lake boundary is the only enclosure for 

the balance of the property. We hold that the lake boundary 

constitutes a substantial enclosure as referred to in section 

70-19-408. This is consistent with the holdings in other 
jurisdictions. Springer v. Durette (19591, 217 Or. 196, 342 

P.2d 132; Trask v. Success Mining Co. (1916), 28 Ida.ho 483, 

155 P. 288. See generally, 2 C.J.S. 696 Adverse Possession, 

S 36. 

The foregoing holding is also consistent with the 

holding of this Court in Swecker v. Dorn (1979), 181 Mont. 

436, 593 P.2d 1055, in which this Court held that an adverse 

claimant need only prove his possession has been evidenced by 

a substantial enclosure, and need not prove any further 

occupation, cultivation or use. This conclusion is 

strengthened by the evidence which shows the plaintiffs made 

a number of improvements to Tract C. These improvements 

included erecting fences in relation to McGuire Creek; the 

exclusion of trespassers; the removal of "no trespassing" 

signs the defendants placed on the lands; grazing livestock; 

leasing the tract to others for grazing; hunting on the 

property; and using the tract in mining operations. 

In addition, section 70-19-411, MCA, requires that a 

claimant pay the taxes levied during the five year period of 

adverse possession. Section 70-19-411, states: 

"70-19-411. Occupancy and payment of taxes 

necessary to prove adverse possession. In no case 

shall adverse possession be considered established 

under this code unless it shall be shown that the 

land has been occupied and claimed for a period of 

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 land." 

The court found that the plaintiffs paid taxes on the 

property for the years 1975 through 1980, based upon the 

county assessment. The defendants, on the other hand, did 

not pay any taxes on the tract. 
The conclusion of the District Court was that the 

pla.intiffs ha.d been in actual, exclusive, hostile and adverse 

possession of Tract C, continuously for more than five years 

prior to the filing of the complaint, claiming title as joint 

tenants with right of survivorship, and that the plaintiffs 

had paid all taxes of every kind levied and assessed during 

that five year period. The record contains substantial, 

credible evidence to support the findings of fact and 

conclusions of the District Court. Cameron v. Cameron 

(1978), 179 Mont. 219, 587 P.2d 939. 

Finally, defendants argue that the trial court 

erroneously awarded plaintiffs more land than they had 

adversely possessed. We a-gree with this contention. In its 

decree quieting title, the trial court used the following 

description of Tract C: 

". . . thence North 24' 30' West, a distance of 

415.0 feet - to - a on -- in the center of McGuire 

Creek; thence down the center of ~c~uire~reek to 

the point where it empties into Hauser Lake;. . ." 

(Emphasis added.) 

Since the plaintiffs obtained title to Tra.ct C by enclosing 

it with a fence, it is clear that they should receive title 

only to that portion that they actually enclosed. The 

evidence shows that the creek has shifted its course since 

1964 when plaintiffs erected their fences and completed their 

enclosure of the land. Consequently, in granting plaintiffs 

the land to the middle of McGuire Creek, the trial court gave 

them land which their fences did not enclose. As plaintiffs 

had not enclosed that land, they cannot claim title under 

section 70-19-408 (b) , MCA. 

In addition, the record shows that plaintiffs only paid 

taxes on those portions within their fenceline. Under 

section 70-19-411, MCA, they could not prove adverse 
possession of any of the land on which they did not pay 

taxes. Since they did not pa.y taxes on any portions outside 

of their fenceline, they cannot claim the land between their 

fenceline and the middle of McGuire Creek. 

We therefore return this matter to the District Court 

for modification of the property description in this decree 

to include only that property within the fenceline along 

McGuire Creek; and with that exception, the judgment is 

affirmed. 

We Concur: 

344bQ,w ULd? 

Chief J&stis