NO. 89-371 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

VIOLET L. SMITHERS and JAMES J. AKER, Plaintiffs and Respondents,

-vDONALD HAGERMAN and BERNIDE E. HAGERMAN, Defendants and Appellants.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Michael Keedy, Judge presiding.

COUNSEL OF RECORD: ForAppellant: Lane K. Bennett, Kalispell, Montana For Respondent: James C. Bartlett; Hash, O'Brien & Bartlett; Kalispell, Montana

Submitted on Briefs: June 7, 1990 Decided: August 17, 1990

CLERKOFSUPREMECOURT S4A7EOF &iBMTAEdAJustice Fred J. Weber delivered the Opinion of the Court.

In a boundary dispute, the District Court for the Eleventh Judicial District, Flathead County, ruled in favor of plaintiffs, ordered that defendants remove their encroachments on plaintiffst land and awarded damages in the amount of $7,159. Defendants appeal. We affirm. The issues for our consideration are: 1. Did the District Court err in ruling that theplaintiffs proved by a preponderance of the evidence that their southern boundary actually liesona survey line which describesdefendants' northern boundary? 2. Did the District Court err in failing to find that a valid par01 agreementwas entered into by the parties setting the disputed boundary as the existing fence? 3. Did the District Court err in failing to find that plaintiffs lost the right to prevail based upon estoppel, laches and adverse possession? 4. Did the District Court err in awarding damages to plaintiffs? This is aboundary line disputebetween the ownersof adjacent property in Flathead County. The properties are adjoined at the plaintiffs' (Akerand Smithers) southern borderand thedefendants'

(Hagermans) northern border. In essence, the dispute involves whether an existing fencebetween theproperty represents the true property lines of the parties. ~aintainingthat it did not, plaintiffs demanded defendants removeall encroachments,including 2a garage and a septic system, which were on their property. Defendants refused to do so, maintaining that the fence truly represented the property lines. This lawsuit resulted. The plaintiffs' property which is north of the defendants' property, was deeded to the plaintiffs in 1954. Neither of the plaintiffs subdivided the property. The metes and bounds description established that the south line of the tract was parallel to the south line of the section and 997.5 feet north of that south line. In 1955 the defendants acquired a rectangular tract lying to the south of the plaintiffs' tract. The metes and bounds description in that deed established that the north line of the defendants' tractwasparallel to the south line of the sectionand 997.5 feet north of the south line of the section. Priorto 1952plaintiffAker's fathererected a fencenear the south boundary of the plaintiffs' property. He did not obtain a survey. He "eyeballed" the fence line. The fence has never been moved and has been maintained by the plaintiffs. The District Court found that until 1971, plaintiff Aker believed that the fence was on the south boundary line of the plaintiffs' tract. Up to that date he used theproperty north of the fence. In 1971,Hagermans obtained a survey of their property. Mr. Marquardt, thesurveyor,notifiedHagermansthatthenorthboundary of their property lay to the south of the fence. The survey also demonstrated that fact. Hagermans requested a boundary agreementwith the plaintiffs which would provide that the Hagermansv property ran up to the fence. Theplaintiffs refused to enter into such an agreement. Hagermansused the land south of the fence for their horses,

one year's oat crop, a sawmill (abandonedin the 19601s),and for the storage of building materials. At some time prior to 1985, plaintiffs commissioned Marquardt to reflag the survey pins that had been placed for the 1971 survey. Hagermans concede that plaintiffs never falsely represented their position regarding the true boundary and that they always claimed that the property line was as shown in the 1971 survey. In 1983 a tenant of Hagermans began building a garage which encroached upon the south line of the plaintiffsv property as described by the Marquardt 1971 survey. Plaintiffs notified the tenant that he was improperly building on their property. The tenant passed that information on to the Hagermans. Notwithstanding that notice, the tenant completed constructionof the building. Plaintiffs did not take any legal action at that time

# .In 1985 Hagermans began construction of a septic system on theproperty south of the fencebut north of the surveyedproperty line. Plaintiffs then filed this action demanding that Hagermans remove their encroachments. The District Court concludedtheboundarybetween theparties is the boundary described in Marquardtls1971 survey. From that decision, Hagermans appeal.Did the District Court err in ruling that the plaintiffs proved by a preponderance of the evidence that their southern boundary actuallyliesona survey linewhich describesdefendants1 northern boundary? Hagermansmaintainthatplaintiffs have failedto substantiate their claim because they never surveyed their property. They maintain that both parcels must be surveyed to show a common boundary. Plaintiffscontendthataproper surveyissufficient evidence to establish a boundary line. They further argue that when an encroachment occurred, they took timely legal action. Relying on Christie v. Papke (1982), 201Mont. 200, 657 P.2d 88, the District Court stated that "parties having a common boundarymay agree that apresumed boundary is correctgg.However, it further stated that l1oncea true boundary is determined, the parties must conformto the true line." Hence, the District Court concluded that once the true boundary became known in 1971, it became the true boundary with which the parties must comply. We agree. A fence does not establish a boundary line when it does not conform to the true line, even if the property owners thought it

was the true line. Where two adjoining properties are divided by a fence, which both owners suppose to be on the line, such fence is adivision fence, asbetween them,until the true line is ascertained,when they must conformto the true line. (citationsomitted)

# .Pilgrimv. Kuipers (1984), 209 Mont. 177, 182, 679 P.2d 787, 790. In the case before us, when the true line was established by the 1971 survey, instituted by the Hagermans, it then became the boundary to which the parties must conform. The law does not supportHagermansfargument that all four corners of both parcels must be surveyed to establish the correct boundary. The survey established the boundary line without contradiction. In addition the description in the deeds to the plaintiffs and the Hagermans established the same common boundary line. We hold that the plaintiffsprovedthattheir southernboundary actuallylieson the survey linewhich also describes theHagermansfnorthernboundary. I1 Did the District Court err in failing to find that a valid par01 agreement was entered into by the parties setting the disputed boundary as the existing fence? The District Court determined that the parties never agreed to a fence-lineboundary. Hagermans maintain that there was such

an agreement. They argue that their constructionup to the fence line was evidence of their reliance on the fence as the boundary. Hagermansurge thiswas a case of Ifmereacquiescencew. Plaintiffs maintain that there never was such an agreement and that the first time Hagermans and plaintiffs learned the location of the true boundary line was after the 1971Marquardt survey. InChristie,a fence was locatedat the supposed property line for 56 years. A subsequent survey showed the actual boundary to be south of the existing fence line. Christie destroyed theoriginal fenceand built a new one along theboundary indicated by the survey. Papke then destroyed the new fence and replaced it where it was located for 56 years. Christie sued. Papke maintained that the fence became the actual boundary by implied agreement resulting from the fence location on the boundary and because Christie helped to maintain the fence. This Court concluded that more than mere acquiescence was necessary, and stated: [Tlhe parties are required to prove by clear and convincing evidence all elements of an implied agreed boundary. In order to establish an agreed boundary line, the evidence must show more than mere acquiescence and occupancy for the time prescribed by the statute of limitations; it must go further and show that there was uncertainty in the location of the line, that there was an agreement among the coterminous owners, express or implied, fixing the line, and that there was an actual designation of the line upon the ground and occupation in accordance therewith. (citationsomitted). Christie, 657 P.2d at 89. We agree with the trial court that Hagermans have failed to show more than mere acquiescence. We further conclude that the record does not provide clear and convincing evidence of an agreement, either express or implied. We hold that the District Court did not err in failing to find that a valid par01 agreement

was entered into by the parties setting the disputed boundary as the existing fence.

Did the District Court err in failingto find thatplaintiffs lost the right to prevail based upon estoppel, laches and adverse possession?Hagermans urge that as a matter of equity, either estoppel, laches or adverse possession should be applied because they relied

on the fence as the boundary and because of acquiescence on the part of the plaintiffs. Plaintiffs argue that therewasno causeof action until there

was an encroachment. They contend that the first encroachmentwas not until 1982 or 1983 when a garage was built on their land. The District Court agreed and made the following significant findings of fact and conclusions of law: FINDINGS OF FACT 18. In 1982 or 1983, a tenant of [Hagermans] began building agaragewhichencroachedupontheboundary line as described by Marquardtlssurvey. 

# . .. 19. In 1985 [Hagermans] began construction of a septic system on property which lay south of the fence, but north of boundary line as surveyed by Marquardt. 

# . . . 21. 

# . . . [Hagermans] sold property to third parties based upon the Marquardt survey. 22. [Hagermans] did not cultivate or improve the property betweentheMarquardt survey lineand the fence.

CONCLUSIONS OF LAW 5. Once the true boundary became known in 1971, [Hagermans] made only one demand for the property in dispute, which was rebuffed; they made no additional claim adverse to Plaintiffs until 1983.

6. [Hagermans] never occupied the property prior to 1983, in such a manner to establish adverse possession or easement.

7. Thefirst incident ofactualtrespass onPlaintiffs1 landwas in 1983,when [Hagermansl]tenant built agarage over the survey line. [Hagermans] again encroached on Plaintiffs1property in 1985,when the septic systemwas partially built on Plaintiffs1 property. Plaintiffs brought this action for ejectment and rents. Therefore,the defenses of statutes of limitations and laches are unavailing.

8. Plaintiff at no time falsely represented their position to [Hagermans]. [Hagermans] did not rely upon the fence as their northern boundary in the subsequent land sale to third parties. Thus [Hagermans] may not rely upon estoppel. For a claim of adverse possession, it must be proved that the property was claimed under color of title or by actual, visible, exclusive, hostile and continuous possession during the statutory period of five years, and the party claiming adverse possession must havepaid taxeson theproperty forthe full statutoryperiod. Perusich v. Meier (1987), 229 Mont. 458, 747 P.2d 857. From the above findingsand conclusions, it is clear that Hagermans failed to prove the elements of a claim for adverse possession. TheHagermans also attempt to arguethattheyhaveestablished title by equitable estoppel and laches. We do not find it necessary to rule on any possible claim of title as a result of either equitable estoppel or laches. In Mellem v. Kalispell Laundry & Dry Cleaners (1989), 237 Mont. 439, 774 P.2d 390, this Court set out the elements of equitable estoppel: 1. There must be conduct

## - acts, language,or silence

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amounting to a representation or a concealment of material facts. 2. These facts must be knowntotheparty estoppedat the time of his said conduct,orat leastthe circumstances must be such that knowledge of them is necessarily imputedtohim. 3. Thetruth concerningthese facts must be unknown to the other party claiming the benefit of the estoppel, at the time when it was acted upon by him. 4. The conduct must be done with the intention,or at least withthe expectation,that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon

# .. . . 5. The conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it. 6. Hemust in fact act uponit in such a manner as to change his position for the worse. Hagermans fail to establish any facts which showed a misrepresentation or concealment. The Hagermans did not rely on the fence line as a boundary and they sold parcels in accordance with the 1971 survey. The District Court concluded that the Hagermans failed to prove the essential elements of equitable estoppel and we agree with that determination. Similarly, a claim of laches by the Hagermans is without merit. Laches exists where there has been an unexplainable delay of such duration or character as to render the enforcement of an asserted right inequitable. Laches is appropriate where a party is actually orpresumptively aware ofhis rights but failsto act. Aparty isheld tobe aware of their rights where the circumstances he or she knows of are such as to put an ordinary prudent person

on inquiry. See Sperry 

### v. Montana State Univ. (Mont. 1989), 778 P.2d 895, 46 St.Rep. 1482. The first encroachment of plaintiffsf land occurred in 1983 and then again in 1985. Plaintiffs filed this action in 1986. We agree with the determination by the District Court that there was nounexplaineddelay of a sufficient duration to justify a finding of laches. We hold that the District Court correctly found that the Hagermans failed to establish adverse possession, equitable estoppel or laches. IV Did theDistrict Court err in awarding damages toplaintiffs? Hagermansmaintain that the District Court's award of damagewas in error. Plaintiffwas the onlywitness to testify regarding damages. He estimated damages based upon an estimated rental value. Hagermans urgehis testimonyondamages was totally lacking in credibility and merit. Plaintiffs point out that Hagermans had the opportunity to

cross examine Mr. Aker. Plaintiffs maintain that in accordance with 5 26-1-301, MCA, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact. They argue that under 5 26-1-302, MCA, a witness is presumed to speak the truth, and the court is the exclusive judge of the witness' credibility. Mr. Aker was asked howmuch he would charge a third person to erect and maintain a portion of garage on or to place a sewage system under his property. He testified without contradiction that the rental value of the property on which the septic system lies is $30permonth. He further testified that the rentalvalue of theproperty on which the garageexists is $120per month. The District Court awarded plaintiffs damages of $7,159. Plaintiffs urge that as long asMr. Aker's statement of the amount hewould charge for compensation is reasonable and uncontradicted, the trial judge was free to adopt the testimony as true and sufficient. We agree. Section 27-1-318, MCA, provides: Wrongful occupation of real property. The detriment caused by the wrongful occupation of real property in cases not otherwise provided for in this code is deemed to be thevalue of the use of the property for the time of such occupation 

# . . . and the costs, if any, of recovering the possession. The District Court properly considered the rental value providedby the testimony of Mr. Aker, noting that such testimony was uncontradicted. Furthermore, the District Court is the exclusive judge of thewitness1credibility. Wehold that theDistrict Court did not err in awarding damages to plaintiffs.

We Concur: 

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Chief ustice