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: 

For Appellant: 

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 

CLERK OF SUPREME COURT 

S4A7E OF &iBMTAEdA 
Justice 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 the plaintiffs 

proved by a preponderance of the evidence that their southern 

boundary actually lies on a survey line which describes defendants' 

northern boundary? 

2. 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? 

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 a boundary line dispute between the owners of adjacent 

property in Flathead County. The properties are adjoined at the 

plaintiffs' (Aker and Smithers) southern border and the defendants' 

(Hagermans) northern border. In essence, the dispute involves 

whether an existing fence between the property represents the true 

property lines of the parties. ~aintaining that it did not, 

plaintiffs demanded defendants remove all encroachments, including 

2 
a 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' tract was parallel to the south line of the section and 

997.5 feet north of the south line of the section. 

Prior to 1952 plaintiff Aker's father erected a fence near 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 the property north of 

the fence. 

In 1971, Hagermans obtained a survey of their property. Mr. 

Marquardt, the surveyor, notified Hagermans that the north boundary 

of their property lay to the south of the fence. The survey also 

demonstrated that fact. Hagermans requested a boundary agreement 
with the plaintiffs which would provide that the Hagermansv 

property ran up to the fence. The plaintiffs refused to enter into 

such an agreement. 

Hagermans used the land south of the fence for their horses, 

one year's oat crop, a sawmill (abandoned in 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 construction of 

the building. Plaintiffs did not take any legal action at that 

time . 

In 1985 Hagermans began construction of a septic system on 

the property south of the fence but north of the surveyed property 

line. Plaintiffs then filed this action demanding that Hagermans 

remove their encroachments. 

The District Court concluded the boundary between the parties 

is the boundary described in Marquardtls 1971 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 actually lies on a survey line which describes defendants1 

northern boundary? 

Hagermans maintain that plaintiffs have failed to substantiate 

their claim because they never surveyed their property. They 

maintain that both parcels must be surveyed to show a common 

boundary. 

Plaintiffs contend that a proper survey is sufficient 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), 201 Mont. 200, 657 P.2d 

88, the District Court stated that "parties having a common 

boundary may agree that a presumed boundary is correctgg. However, 

it further stated that l1once a true boundary is determined, the 

parties must conform to 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 a division fence, as between them, until the true line 

is ascertained, when they must conform to the true line. 

(citations omitted) . 
Pilgrim v. 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 

support Hagermansf argument 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 

plaintiffs provedthat their southern boundary actually lies on the 

survey line which also describes the Hagermansf northern boundary. 

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-line boundary. Hagermans maintain that there was such 

an agreement. They argue that their construction up to the fence 

line was evidence of their reliance on the fence as the boundary. 

Hagermans urge this was a case of Ifmere acquiescencew. 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 1971 Marquardt survey. 

In Christie, a fence was located at the supposed property line 

for 56 years. A subsequent survey showed the actual boundary to 

be south of the existing fence line. Christie destroyed the 
original fence and built a new one along the boundary 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. (citations omitted). 

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 failing to find that plaintiffs 

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 there was no cause of action until there 

was an encroachment. They contend that the first encroachment was 

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 a garage which encroached upon the boundary line 

as described by Marquardtls survey. . . . 

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 between the Marquardt survey line and 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. The first incident of actual trespass on Plaintiffs1 

land was in 1983, when [Hagermansl ] tenant built a garage 

over the survey line. [Hagermans] again encroached on 

Plaintiffs1 property in 1985, when the septic system was 

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 have paid taxes on the property for the full statutory period. 

Perusich v. Meier (1987), 229 Mont. 458, 747 P.2d 857. From the 

above findings and conclusions, it is clear that Hagermans failed 

to prove the elements of a claim for adverse possession. 

The Hagermans also attempt to argue that they have established 

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 - 

amounting to a representation or a concealment of 

material facts. 2. These facts must be known to the party 

estopped at the time of his said conduct, or at least the 

circumstances must be such that knowledge of them is 

necessarily imputed to him. 3. The truth concerning these 

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 with the 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. He must in fact act upon 
it 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 or presumptively aware of his rights but fails to act. 

A party is held to be 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 no unexplained delay 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 the District Court err in awarding damages to plaintiffs? 

Hagermans maintain that the District Court's award of damage 
was in error. Plaintiff was the only witness to testify regarding 

damages. He estimated damages based upon an estimated rental 

value. Hagermans urge his testimony on damages 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 how much 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 $30 per month. He further testified that the 

rental value of the property on which the garage exists is $120 per 

month. The District Court awarded plaintiffs damages of $7,159. 

Plaintiffs urge that as long as Mr. Aker's statement of the amount 

he would 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 the value 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 provided 
by the testimony of Mr. Aker, noting that such testimony was 

uncontradicted. Furthermore, the District Court is the exclusive 

judge of the witness1 credibility. We hold that the District Court 

did not err in awarding damages to plaintiffs. 

We Concur: / &/ bTLc,-&p< 

Chief ustice