No. 14665 

IN THE SUPF!EMEC COW OF THE STATE OF PJD~ 

1979 

Plaintiffs and Appellants, 

GLEN BOOKE and VICKY BOOKE, 

husband and wife, and JACK 

D. HEIDEMA and JOHN A. HEIDENA, 

Defendants and Respondents. 

Appeal fm: District Court of the Thirteenth Judicial District, 

Honorable Robert H. Wilson, Judge presiding. 

Counsel of Record: 

For Appellants: 

Fillner and Pitet, Billings, Wntana 

For Wspondents: 

Reno and Dolve, Billings, Wntaw 

Swandal, Douglass & Swandal, Livingston, mntana 

Filed: 

Suhitted on briefs: June 7, 1979 

Decided: 

AUG 2 0 1979 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal from a motion for summary judgment 

entered in favor of respondents Jack and John Heidema and 

Glen and Vicky Booke in the District Court of the Thirteen 

Judicial District. The granting of the motion in effect 

dismissed a complaint brought by the appellants, Lyle and 

Odeal Nott, seeking to quiet title to a disputed portion of 

land by a claim of adverse possession. 

Appellants and respondents are adjacent landowners in 

Carbon County, Montana, their land adjoining at appellants' 

southern and respondents' northern boundaries. In 1942, 

appellants purchased their property, which is described 

according to their deed as: 

The North Half of the Southwest Quarter 

(N1/2SW1/4), the Southwest Quarter of the 

Southwest Quarter (SW1/4SW1/4) , Lot 9 and 

the North 19 feet of Lots 10 and 11, all 

located in Section Four, Township Six South, 

Range 23 East, M.P.M. 

Respondents Bookes purchased their land in 1976 from respondents Heidemas. The land was originally owned by John and 

Genevieve Shupak. The legal description of the property is 

described as: 

Tract A of Certificate of Survey No. 885, 

situated in Lots 10 and 11, Section 4 and 

Lot 2, Section 9, Township 6 South, Range 

23 East, M.P.M. 

The strip of land which is the center of dispute is located 

between appellants' and respondents' property. It is a 

triangular portion of land, approximately 1950 feet in 

length, 68 feet in width on the east end, 38 feet in width 

on the west end, and slightly over two acres in total area. 

It is also enclosed by a boundary line fence which was 

constructed by appellants in 1946. 
Appellants claim title to the strip of land under a 

deed executed in 1946 to Lyle B. Nott and his then spouse, 

~osia Nett, from the respondents' predecessor in interest, 

John and Genevieve Shupak. That deed was the culmination of 

an agreement settling a boundary line dispute between those 

parties. 

In 1946 the Notts employed William Burke to conduct a 

survey of the boundary line between their property and the 

Shupaks', whereupon a fence was constructed by the Notts 

along the line as laid out by Burke. After the construction 

of the fence, however, the Shupaks disagreed as to the 

correct placement of the fence and boundary line. This, in 

turn, led to the land being resurveyed by Burke, who discovered an error in his calculations and determined the 

proper boundary line to be 19 feet north of the fence. To 

settle the dispute, the Shupaks executed a deed for good 

consideration to the Notts conveying the north 19 feet of 

Lots 10 and 11. 

The parties thereafter occupied their lands in accordance with the boundary fence. During this time, the Notts 

cultivated the land, constructed fences and corrals for 

livestock and built a concrete irrigation flume next to the 

fence and upon the area of land which is the subject of this 

dispute. Appellants were also assessed and have paid taxes 

upon their land in accordance with the description on the 

deed since 1946. 

Respondents Bookes purchased their land from respondents Heidemas in 1976. To comply with the provisions of 

the Subdivision and Platting Act, a certificate of survey 

was made after the purchase. This survey, which was conducted in 1977, created a further discrepancy between the 
boundary fence and Burke's second survey, giving rise to the 

presently disputed portion of land. 

On July 6, 1977, appellants filed an action against 

respondents Bookes to quiet title to the disputed portion of 

land, proceeding on the theory of adverse possession. An 

amended complaint filed on August 16, 1978, added respondents Heidemas, the record owners of the disputed property. 

All parties to the lawsuit thereafter filed and requested 

motions for summary judgment. The District Court granted 

respondents Bookes' motion on August 30, 1978, and respondents Heidemas' motion on January 9, 1979. From these 

orders the Notts appeal. 

The first allegation of error we shall consider is 

whether the District Court erred in granting respondents' 

motions for summary judgment. Rule 56(c), M.R.Civ.P., 

provides that summary judgment shall be granted if: 

". . . the pleadings, depositions, answers to 

interrogatories, and admissions on file, together 

with the affidavits, if any, show that there is 

no genuine issue as to any material fact and that 

[the moving] party is entitled to judgment as a 

matter of law . . ." 

In construing the above rule, we have previously held 

that the party moving for summary judgment has the burden of 

showing the complete absence of any genuine issue as to all 

facts which are deemed material in light of those substantive principles which entitled him to a judgment as a matter 

of law. We have also held that this is a strict standard 

and that, if there is any doubt as to the propriety of the 

motion for summary judgment, it should be denied. Fulton v. 

Clark (1975), 167 Mont. 399, 403, 538 P.2d 1371, 1373; 

Harland v. Anderson (1976), 169 Mont. 447, 450, 548 P.2d 

613, 615; Cheyenne Western Bank v. Young (1978), Mont . 

, 587 P.2d 401, 404, 35 St.Rep. 1806, 1809. 
Our function in this appeal, then, is to determine 

whether there is a genuine issue of material fact precluding 

summary judgment, 

Appellants argue that the District Court erred because 

they have acquired title to the disputed strip of land by 

satisfying all of the elements of adverse possession. 

Included in these elements is the statutory requirement that 

an adverse claimaint pay all municipal, county and state 

taxes upon land he occupies and wishes to claim for a continuous period of five years. Section 70-19-411, MCA, 

provides: 

"In no case shall adverse possession be considered 

established under this code unless it shall be 

shown that the land has been occupied 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 legally been levied and assessed upon such land." 

While respondents admit that appellants have paid taxes 

according to their deed description, they argue that such 

payment does not satisfy the requirements of section 70-19- 

411, MCA. Their primary contention is that the payment of 

taxes upon the north 19 feet of Lots 10 and 11 is not equivalent to the payment of taxes upon a portion of land which 

is approximately 1950 feet in length, 68 feet in width on 

the east end, 38 feet in width on the west end, and slightly 

over two acres in total area. Therefore, because they argue 

that appellants have not satisfied - all of the elements of 

adverse possession, the motion for summary judgment was 

properly granted as a matter of law. 

This Court has had prior occasion to consider what kind 

of payment will suffice to meet the requirements of section 

70-19-411, MCA. We have held that, where the evidence shows 
that taxes have been paid on the basis of the land description in the deed which does not include the strip of property in dispute, in the absence of an agreement extending 

the boundary to include this strip, such payment does not 

constitute payment of the taxes on the disputed strip. 

Townsend v. Koukol (1966), 148 Mont. 1, 8-9, 416 P.2d 532, 

536; Stephens v. Hurly (1977), Mont. , 563 P.2d 

546, 551, 34 St.Rep. 243, 249. However, where a boundary 

line has been agreed upon or fixed because of the uncertainty of the parties as to the true boundary and the deed 

description does not include the disputed land, the payment 

of taxes according to the deed description does constitute a 

payment upon such land for the purpose of satisfying the 

statute. Townsend v. Koukol, 148 Mont. at 8, 416 P.2d at 

536. 

The question of fact which is most crucial to a determination of the issue facing this Court, then, is whether an 

agreement existed between appellants and respondents, or 

their predecessors in interest, that the disputed strip of 

land lay within an agreed upon or fixed boundary. 

Appellants have filed two pleadings which allege that 

the "boundary line dispute was settled between . . . Nott 

and Shupak by an agreement being reached as to the correct 

placement of the boundary line on the fence line as constructed by [Nott] . . . " Moreover, they have filed the 

deposition of Lyle Nott in which he answers the following 

questions: 

"Q. So sometime, then, after you bought, I understand there became a dispute between you and the 

Shupaks regarding the boundaries of the two adjoining pieces of land? A. That's right. 
"Q. As a result of that survey, then, you and the 

Shupak's [sic] then settled the difference of 

opinion on the boundaries of your property? A. 

We did. 

"Q. And he deeded to you, to settle that dispute, 

he deeded to you the north 19 feet of Lots 10 and 

11 in Section 4? A. That's right." 

Respondents, in turn, have left the above allegations 

uncontroverted in their briefs and have also admitted that 

the disputed strip is "enclosed within a . . . fence originally 

constructed by the [Notts] . " 

In view of this testimony, we find that the pleadings, 

depositions and admissions place in controversy a genuine 

issue of material fact, namely whether an agreement existed 

between the Notts and Shupaks that extended the boundary 

line between their properties to include the disputed portion of land. This question may ultimately be determinative 

of the result in the case. 

Accordingly, we find that it was error for the District 

Court to grant respondents' motions for summary judgment, 

and we remand this cause to the District Court for a full 

hearing on the matter. 

We concur: I I 

Chief Justice 

Justices