No. 87-196 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

WILLIAM M. PERUSICH and MARGERY 

E. PERUSICH, 

Plaintiffs and Respondents, 

-vsDAVID E. MEIER, 

Defendant and Appellant , 

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 L. Hamner, Butte, Montana 

For Respondent: 

Richardson & Richardson; George W. Richardson, Butte, 

Montana 

Submitted: Oct. 16, 1987 

Decided: December 22, 1987 

Filed: nu 2 :? 1987 
Mr. Justice L. C. Gulbrandson delivered the Opinion. of the 

Court. 

In this action involving disputed ownership of land the 

District Court for the Second Judicial District, Silver Bow 

County, Montana, granted plaintiffs William and Margery 

Perusich (Perusichs) all right, title and interest in the 

disputed parcel of land. Defendant David E. Meier (Meier) 

appeals. 

We affirm. 

The issues presented by the parties can be addressed in 

one statement: 

Whether there was sufficient evidence to allow the 

District Court to find the Perusichs had acquired all right, 

title and interest in the disputed property by adverse 

possession? 

This case involves a land dispute between two Butte, 

Montana, neighbors over the ownership of land described as 

Tract Two on Certificate of Survey 224 (Cos 224) and the 

southern portion of lots 19, 20, and 21 on Certificate of 

Survey 119B (Cos 119B). The land lies within property 

claimed by Meier, who lives on lot 18, and the Perusichs, who 

own Tract One. This area is commonly known as the "Crosby" 

home and consists of 0.36 acres of a 160-acre patented Speir 

& Bauer Placer Mining Claim. The Perusichs purchased the 

property from the conservator of the estate of Mae Crosby in 

September, 1980. The Perusichs claim they and the previous 

"Crosbys" have been in uninterrupted possession of the home 

for more than twenty-five years. Evidence was presented that 

for over fifty years the Perusichs and their predecessors in 

interest, have occupied the land. 

The Meier home and Crosby home are separated by a 

vacant lot. Both Tract One and Two have been fenced for 

approximately twenty-five years. The Perusichs, and before 
them, the Crosbys, had built and maintained improvements on 

Tract Two. After a trial was held September 4, 1986, the 

District Court determined the Perusichs had acquired title to 

Tract Two by adverse possession. 

In August, 1982, the Perusichs had a survey, Cos 224, 

prepared and filed. It shows the Crosby home semi-enclosed 

in a fence. The property is comprised of two parcels, Tract 

One and Tract Two and an undedicated alleyway. Cos 224 was 

based on an unrecorded drawing entitled the "Rocker Townsite" 

of which the source and date are unknown. It is further 

unknown whether the Rocker Townsite originated from an actual 

survey. However, the Rocker Townsite was never formally 

dedicated and much of the property was acquired by squatters. 

Because no formal plat ever existed most of the property was 

described by metes and bounds. 

Meier had Cos 119B completed on December 6, 19?8. 

According to 119B lots 19, 20 and 21, claimed by Meier, 

overlap the Perusichs' land, described as Tract Two in Cos 

224, and it is this 30.74 feet-wide, 98.10 feet-long, piece 

of property which is in dispute. The Perusichs and previous 

owners maintained a fence around this property, including 

Tract Two and the alleyway, that was obvious to Meier, yet he 

never questioned their occupancy until the Perusichs commenced a quiet title action on November 8, 1985. Meier 

contends that the Perusich fence and buildings are encroachments as shown on Cos 119B. 

The title for the Spier & Bauer Placer Mining Claim for 

both surface and mineral interests was given by the United 

States government by original patent. A quiet title action 

was brought by the predecessors in interest in 1970 in which 

the court decree stated the mineral and surface interest was 

vested in Frank Benich and James Driscoll as Trustees for 

West Butte Development, the Anaconda Company, and the Butte, 
Anaconda and Pacific Railway Company. All of these parties 

were named in the Perusichs' quiet title action and dismissed 

after execution of quitclaim deeds. 

The Silver Bow County Assessor regularly assessed the 

Crosby property as lot 3, block 3 of the Rocker Townsite and 

included all of the improvements within the enclosure. Pat 

Callaghan (Callaghan), Supervisor of Delinquent Tax Sales for 

Silver Row County, testified that Tract Two, as stated in Cos 

224, was included in lot 3 and was taxed to the Crosbys and 

later to the Perusichs. According to Callaghan's notes and 

tax receipts, submitted as evidence, all tax assessments were 

paid by the Perusichs and Mae Crosby from 1978 through 1985. 

Further, the Perusichs presented the tabulation diagram used 

by the county assessor which showed that the tax valuation 

included all the improvements on Tract Two. Meier also paid 

taxes assessed against lots 15 through 23 of block 3 from 

1978 through the trial date. The District Court stated in 

its findings of fact, paragraph 16, that Meier I' [mlay also 

have paid taxes on property which included Tract Two, but 

that such tax was improperly assessed . . . --- and did not 

include improvements thereon." (Emphasis added.) 

Meier testified that the Crosbys were in possession of 

the property when he moved to Rocker as a three-year-old in 

1935. From the record, it is clear the Perusichs and their 

predecessors in interest have built fences surrounding the 

property and have made improvements on the land. Both parties exhibit color of title and submitted proof of payment of 

taxes. 

The District Court, after consideration of evidence 

raised. at hearing and supplemental evidence allowed to perfect the record, made the following paraphrased findings: 
1. That the Rocker Townsite is an unrecorded plat that 

overlies portions of the Spier & Bauer Placer in Section 21 

T3N R9W MPM Silver Bow County. 

2. That Tracts One and Two constituted. the Crosby home 

and were within the boundaries of the Spier & Bauer Placer 

and separated by an undedicated alleyway as described in Cos 

224 filed for record on August 13, 1981. 

3. All surface rights in the Spier & Bauer Placer 

contained in Section 21 which were unconveyed by deed prior 

to February 20, 1970 are inferior to the titles of the 

Anaconda Company, Frank Benich and James Driscoll, as Trustees for West Butte Land and Development, and the Butte, 

Anaconda and Pacific Railway Company by court decree, Cause 

No. 56-309. 

4. The Perusichs continuously occupied Tracts One and 

Two from August 1981 through 1986 and that prior to that 

time, Steven J. and Mae Crosby had possession of the property 

well in excess of twenty-five years sufficient to confer 

title by prescription upon the Crosbys. 

5. Tract One, Two and the alleyway were enclosed by a 

woven wire fence and regularly assessed by the Silver Bow 

County Assessor under the incomplete designation of lot 3 of 

block 3 of the Rocker Townsite. 

6. The Perusichs paid all taxes legally assessed and 

levied against Tracts One and Two and the alleyway under the 

erroneous designation of lot 3 block 3 of the Rocker Townsite 

for the years 1981 through 1985 and the Crosbys paid all 

taxes assessed and levied for the years 1976 through 1980. 

7. The Perusichs acquired all claims of right, title 

and interest in Tracts One and Two by quitclaim deeds from: 

The Blue Bird Company, Atlantic Richfield, successors of the 

Anaconda Company, and the Butte, Anaconda and Pacific Railway 

Company; Rudy E. Endresse and Frank Benich, Trustees for West 
Butte Land and Development, and the Crosbys and that all of 

these parties were dismissed as defendants in the quiet title 

action. 

8. The Perusichs and their predecessors held the 

property openly, notoriously and adversely and only Meier 

protested the quiet title action even though he was aware of 

the adverse possession as early as December 6, 1978 when he 

had Cos 119B done and was therefore estopped pursuant to 

§ 70-19-402, MCA. 

9. That Meier may have also paid improperly assessed 

taxes on the property which included Tract Two. 

The court decreed that the Perusichs were entitled to 

the entire title to surface rights of Tract Two by adverse 

possession. 

We will uphold the District Court unless it is shown 

there was insufficient evidence to support the court and it 

abused its discretion in its determination: 

This Court will not overturn the findings 

of fact of a District Court where they 

are supported by substantial, though 

conflicting, evidence unless there is a 

clear preponderance of the evidence 

against the findings. State ex rel. 

Wilson v. Department of Natural Resources 

and Conservation of State of Montana, 

Water Resources Div. (19821, Mont., 648 

P.2d 766, 772, 39 St.Rep. 1294, 1302. We 

view the evidence in the light most 

favorable to the prevailing party. 

Cameron & Jenkins v. Cameron (1978), 179 

Mont. 219, 228, 587 P.2d 939, 944. 

Burlingame v. Marjerrison (Mont. 1983), 665 P.2d 1136, 1139, 

40 St.Rep. 1005, 1007. 

In this case, the evidence supports the finding of the 

District Court that Perusichs adversely possessed the property at issue in this case. 
The requirements to establish title by adverse 

possession have been addressed by this Court on numerous 

occasions. Castles v. Lawrence (Mont. 1983), 662 P.2d 589, 

40 St.Rep. 545; Rrannon v. Lewis & Clark County (19641, 143 

Mont. 200, 387 P.2d 706. Section 70-19-407, MCA, states: 

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 judgment 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. 

For adverse possession to occur, property must be 

claimed under color of title or by actual, visible, exclusive, hostile and continuous possession during the statutory 

period of five years. Additionally, the party claiming 

adverse possession must also have paid the taxes on the 

property for the full statutory period pursuant to 

§ 70-19-411, MCA. Burlingame, supra, 665 P.2d at 1139-1140; 

Swecker v. Dorn (1979), 181 Mont. 436, 441, 593 P.2d 1055, 

It is clear from the record that the Perusichs an2 

their predecessors had possession of the property in question. Section 70-19-408, MCA, defines possession as follows: 

(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 rotected b 

substantial enclosure -s i: 

added. ) 

The Perusichs presented evidence that showed the estate 

of Mae Crosby conveyed to them Tract One, Tract Two and the 

alleyway. Although there was conflicting evidence presented 

by Meier, the Perusichs still had legitimate "claim of title 

. . . upon a written insturment as being a conveyance." The 

document, a quitclaim deed, was sufficient to create color of 

title. Sullivan v. Nee1 (1937), 105 Mont. 253, 73 P.2d 206. 

Further, there was no evidence that the conveyance was done 

without good faith. 

Adverse possession under color of title 

is possession based on a written instrument which purports to pass title but 

which in reality does not. The Court has 

stated: 

". . . for one who holds a land under a 

written instrument, a statute or a judgment or decree of court which appears to 

convey or confirm title, but does not do 

so in fact, holds und.er 'color of title'; 

that is to say he holds by virtue of 

something which gives him a colorable 

title only . . . " 

"'What is meant by color of title? It 

may be defined to be a writing upon its 

fact professing to pass title, but which 

does not do it, either from a want of 

title in the person making it, or from 

the defective conveyance that is used--a 

title that is imperfect, but not so 

obviously so that it would be apparent to 

one not skilled in the law."' Morrison 
v. Lind (1915), 50 Mont. 396, 401-409, 

147 P. 166, 168. 

Under Montana law, "An instrument which 

purports to convey land or the right to 

its possession is sufficient color of 

title as a basis for adverse possession 

if the claim is made in good faith." 

(Emphasis added.) 

Joseph Russell Realty Co. v. Kenneally (1980), 185 Mont. 496, 

503, 605 P.2d 1107, 1111. 

Meier testified that he thought the Crosbys had always 

owned the property in question. He stated that the Crosbys 

built the sheds and improvements on the property and enclosed 

the area in a fence. He further stated that he did not know 

he was taxed on the disputed property until Cos 119B was 

completed in 1978. However, even after he was aware that he 

may have had claim to the property, he made no effort to 

retrieve it. 

We have held that a fenced enclosure is sufficient to 

satisfy the actual possession requirement under S 70-19-408, 

MCA. Castles, supra, 662 P.2d at 590; Johnson v. Silver Bow 

County (1968), 151 Mont. 283, 286, 443 P.2d 6, 8, overruled 

on other grounds, 593 P.2d 1055, 1058. The establishment of 

the fence in this case clearly satisfies the enclosure requirements and this conclusion is further buttressed by the 

improvements made to the property. The improvements included 

a large shed, a smaller shed, referred to as a "doll house," 

and a dog kennel. 

The District Court found that the Perusichs and predecessors held the property "[o]penly, notoriously and adversely, as against all persons." The evidence supports this 

finding. The fence and improvements are sufficient to satisfy this requirement. The holding was open, it was not masked 

to deceive Meier. Both Perusichs and the Crosbys openly 
showed their intention of possessing Tract Two. arti in v. 

Randono (1978), 175 Mont. 321, 573 P.2d 1156, appeal after 

remand, 623 P.2d 959. 

The property was held adversely and hostile to Meier's 

interest. The Perusichs' claim was adverse to the extent 

that Neier gave no privilege or license to them or their 

predecessors to possess Tract Two. Taylor v. Petranek 

(1977), 173 Mont. 433, 437, 568 P.2d 120, 122. Yet Meier 

acquiesced in the use, even after he was aware of a possible 

claim. The use by the Perusichs and their predecessors 

clearly put Meier on notice that they were adversely holding 

the land. This Court has defined "hostile" to mean " [aln 

invasion of the owner's possession by the claimant without 

the owner's permission and in violation of the owner's right 

of property. " Price v. Western Life Insurance Co. (1943) , 

115 Mont. 509, 514, 146 P.2d 165, 167. In Price, this Court 

also stated that "adverse" meant "having opposite interests, 

having interests for the preservation, of which opposition is 

essential." Price, supra, 146 P.2d at 167. The land was 

held in violation of Meier's interests once the Crosbys 

fenced and improved the area, even though he was unaware that 

he had an interest until 1978. 

Finally, although it was contested and arguably proven 

by Meier that he also paid taxes on Tract Two, it was proven 

by the Perusichs that they, and the Crosbys prior to them, 

paid, not only the underlying property tax but also the tax 

on the improvements. Section 70-19-411, MCA, mandates that a 

claimant pay the taxes levied for adverse possession to 

occur: 

In no case shall adverse possession be 

considered established under this code 

unless it shall he 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. -(~m~hasis added. ) 

This has generally been the aspect which bars most 

parties attempting to adversely possess land. Huggans v. 

Weer (1980), 189 Mont. 334, 336-337, 615 P.2d 922, 924. 

However, the Perusichs sufficiently proved that they and 

their predecessors paid - all taxes for the mandated period and 

therefore satisfied this burden. Townsend v. Koukol (1966) , 

148 Mont. 1, 8, 416 P.2d 532, 537. The District Court appropriately mentioned that both parties may have paid the taxes 

on the property. However, not only did the Perusichs prove 

payment of - all taxes, they also showed that they were the 

party that possessed the property in an open, notorious, 

hostile and adverse manner. 

There was substantial credible evidence to support the 

District Court's findings of fact, conclusions of law and 

decree. 

Affirmed. 

We concur: i