No. 14665 

### INTHE SUPF!EMECCOW OF THE STATE OFPJD~ 1979

Plaintiffs

### andAppellants,

GLEN 

### BOOKE and VICKYBOOKE, 

### husband 

### andwife, and

### JACK D. 

### HEIDEMA and JOHNA. HEIDENA, Defendants and Respondents.

Appeal fm: DistrictCourt of theThirteenth

### Judicial District, HonorableRobert H. Wilson, Judgepresiding. Counsel of Record: ForAppellants: Fillner andPitet, Billings, Wntana For Wspondents: Reno and Dolve, Billings, Wntaw Swandal, Douglass & Swandal, Livingston, 

### mntana

Filed: Suhitted

### onbriefs: June 7, 1979 Decided: 

## AUG20

# 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 SouthwestQuarter (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: TractA 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 tothe stripof land under a deed executed in 1946 toLyle 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 toconduct a survey of theboundary linebetween their property and the Shupaks', whereupon a fence was constructed by the Notts along the lineaslaidoutby Burke. After the construction of the fence, however, the Shupaks disagreed asto the correctplacement of the fence and boundary line. This, in turn, led to the land being resurveyed by Burke, who discovered an error inhiscalculations and determined the proper boundary linetobe 19 feetnorth of the fence. To 

### settle the dispute, the Shupaks executed 

### a deed forgood consideration to the Notts conveying the north 19 feetof Lots 10and 11. The parties thereafter occupied their lands inaccordance 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 tothe fence and upon the area of land which is the subject of this dispute. Appellants 

### were alsoassessed and have paid taxes upon their land inaccordance 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 PlattingAct, a certificate of survey

was made after the purchase. This survey, which was conducted in 1977, created a further discrepancy between theboundary 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 toquiet title tothe disputed portion of land, proceeding on the theory of adverse possession. An amended complaint filedon August 16, 1978, added respondents Heidemas, the record owners of the disputed property. Allparties to the lawsuit thereafter filed and requested motions for summary judgment. The DistrictCourt granted respondents Bookes' motion on August 30, 1978, and respondents Heidemas' motion on January 9, 1979. From these orders the Notts appeal. The firstallegation of error

### we shall consider 

### is whether theDistrictCourt erred ingranting 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 [themoving] party 

### isentitled tojudgment asa matter of 

### law

# . 

# .."

In construing the above rule, 

### we have previously held that the partymoving for summary judgment has the burden of showing the complete absence of any genuine issue as to all factswhich are deemed material in lightof those substantiveprinciples which entitled him to

### a judgment asa matter of 

### law. We have alsoheld that this 

### is a 

### strict standard and that, if there is any doubt as tothe 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 factprecluding 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 claimaintpay 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: "Inno 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 appellantshave 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 judgmentwas properly granted as a matter of law. This Court has had prior occasion to considerwhat kind of paymentwill suffice to meet the requirementsof section 70-19-411,MCA. We have held that, where the evidence showsthat taxes have been paid on the basis of the land description inthe deed which does not include the stripof property indispute, inthe absence of an agreement extending the boundary to include this strip, such payment does not constitutepayment of the taxes on the disputed strip. Townsend v. Koukol (1966), 148Mont. 

### 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 linehas been agreed upon or fixed because of the uncertainty of the parties asto 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, 148Mont. at8, 416 P.2d at 536. The question of factwhich 

### ismost crucial toa determination of the issue facing thisCourt, then, iswhether an agreement existedbetween appellants and respondents, or their predecessors ininterest, that the disputed stripof land laywithin an agreed upon or fixed boundary. Appellants have filed two pleadings which allege that the "boundary linedispute was settled between 

# . .

# . Nott and Shupak by an agreement being reached as to the correct placement of the boundary lineon the fence line as constructedby [Nott]

# . .

# ." Moreover, they have filed the deposition of Lyle Nott inwhich 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 resultof 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 toyou, to 

### settle that dispute, he deeded toyou the north 19 feet of Lots 10 and 11 inSection 4? A. That's right." Respondents, inturn, have leftthe above allegations uncontroverted intheir briefs and have also admitted that the disputed stripis "enclosed within a 

# . . 

# . fence originally constructed by the [Notts]

# ." In view of this testimony, 

### we find that the pleadings, depositions and admissions place incontroversy a genuine issue of material fact, namely whether an agreement existed between the Notts and Shupaks thatextended the boundary linebetween their properties to include the disputed portion of land. This question may ultimately be determinative of the result inthe case. Accordingly, 

### we find that 

### it was error for the 

### District Court togrant respondents' motions for summary judgment, and 

### we remand this cause tothe DistrictCourt for 

### a full hearing on thematter.

We concur: 

# I 

# I

Chief Justice

Justices