No. 87-14 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

TERRY L. STIDHAM and NORMA STIDHAM, 

husband and wife, 

Plaintiffs and Respondents, 

-vsCITY OF WHITEFISH, MONTANA, 

Defendant, Appellant and Respondent, 

CITY OF WHITEFISH, MONTANA, 

Defendant, Third-Party Plaintiff, 

Appellant and Respondent, 

-vsMORRISON-MAIERLE, INC., 

Third Party Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Nat Allen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Keller, Reynolds, Drake, Sternhagen & Johnson; 

Thomas Q. Johnson argued for Morrison-Maierle, Helena, 

Montana 

For Respondent: 

Moses Law Firm; Stephen C. Moses argued for Stidham, 

Billings, Montana 

Leo W. Tracy argued for City of Whitefish, Montana 

Submitted: June 30, 1987 

Decided: November 13, 1987 

Filed: Hi+!* 1 -; f987 

Clerk 
Mr. Justice R.C. McDonough delivered the Opinion of the 

Court. 

Morrison-Maierle, Inc., and the City of Whitefish appeal 

a judgment in favor of plaintiffs, filed and entered in the 

District Court of the Eleventh Judicial District, County of 

Flathead. We set aside the judgment and remand. 

This case originated as an action in trespass by plaintiffs and respondents (Stidhams) against the City of 

Whitefish. The City filed a third-party complaint against 

Morrison-Maierle, Inc. The City built a water pumphouse with 

inlet pipes on lot 4 located on the edge of Whitefish Lake. 

The property was leased from Burlington-Northern, Inc. 

Morrison contracted with the City to provide the engineering 

services for the pumphouse project. Stidhams claimed that 

part of the pumphouse was actually built on a part of lot 5 

which is owned by them. The City denied that the pumphouse 

was built on lot 5 and if it was, Morrison, as the engineer, 

was responsible for the error. Morrison also denied that the 

pumphouse was located on lot 5 and denied that they had the 

responsibility to properly locate the pumphouse. 

The District Court on its own motion bifurcated the case 

ordering that the first trial concern only the boundary line 

issue. The parties stipulated that the balance of the 

issues, including the question of the City's and Morrison's 

defense of estoppel and laches, would be tried at the second 

trial. At the first trial the court found that Stidhams were 

relying on the correct boundary, and pursuant to a motion for 

summary judgment found that Morrison, and not the City, was 

responsible for any damages caused by the location of the 

pumphouse. Morrison made appropriate motions relative to 

such findings and conclusions which were denied. Morrison 
then asked for certification of such findings and conclusions 

as final which the court refused to do. 

The case was set for the second trial and was determined 

to be an inverse condemnation case on motion of the City and 

Morrison. The court pursuant to Stidham's motion ruled that 

the defenses of laches and estoppel were incompatible with 

the theory of inverse condemnation and struck the defenses. 

A jury trial was held and a verdict of $61,000 had in favor 

of plaintiff. After the usual motions, which were denied, 

appeal was taken by Morrison and the City from the judgment. 

The issues for review are: 

1. Whether the City reserved its right to appeal the 

boundary line and ownership issue and the estoppel and laches 

issue? 

2. Whether Morrison can properly appeal the boundary 

line and ownership issue, the estoppel and laches issue, and 

the certification issue? 

3. Whether the District Court's findings of fact and 

conclusions of law relative to the location of the boundary 

line were clearly erroneous and not supported by substantial 

credible evidence? 

4. Whether the District Court erred in striking the 

defenses of laches and estoppel? 

5. Did the District Court err in granting judgment to 

the City and against Morrison regarding their relationship 

and responsibility? 

6. Did the District Court err in not certifying its 

findings of fact and conclusions of law as final and thereby 

allowing this matter to go up on appeal following the first 

phase of the trial and in advance of the second? 
As to issues 1 and 2, the City, although they did not 

present any witnesses of their own at the first trial, 

through the pleadings, pre-trial order, proposed findings of 

fact and conclusions took the same position as the proposed 

contentions, findings and conclusFons of Morrison. The City 

appealed in its notice the issues involved. Throughout the 

trial, the City actively contested Stidham's boundary 

contention and asserted its contention of laches and 

estoppel. Thus, the City may appeal these issues. 

Neither is Morrison precluded from appealing its 

boundary line and ownership issue, the laches and estoppel 

issue, and certification. Stidhams proposed that Morrison 

was not a real party in interest to the boundary line and 

ownership dispute or the laches and estoppel issue, but was 

only involved as a third party defendant with the issues of 

its contract with the City. Throughout the record, Morrison 

actively opposed Stidhams' contentions and supported its own 

contentions relative to these matters. Stidhams made no 

objection in the lower court to Morrison as a party, and they 

are barred from raising it on appeal. In view of the 

District Court ruling that Morrison was responsible for any 

and all damages recovered by Stidhams against the City, 

Morrison was a real party in interest. 

The District Court's decision as to issue No. 3 is 

affirmed in part and reversed in part. Lot 4 is a government 

subdivision with a meander line bordering on Whitefish Lake. 

Instead of the usual 40 acres it contains only 39.95 acres. 

The remaining .05 of an acre of lot 4 is in the lake if the 

boundary lines were to be extended into the lake to make a 

full 40 acre governmental subdivision. The original 

government survey cut off a small portion of the northeast 
corner and surveyed a meander line along the shore of the 

lake. See following plat. 

~ike in dispute 

The parties dispute the. location of the line dividing lots 4 

and 5. None of the original government monuments material to 

this case were found by the surveyors. Nor were there any 

government monuments found which could be used as reference 

points. 

The west line of lot 5 (also the east line of lot 4), as 

proposed by Stidhams, would run through the middle of the 

pumphouse. Morrison and the City proposed a line which 

located the pumphouse and inlet pipe entirely within lot 4, 

which is controlled by the City. Expert opinion and other 

competent and relevant evidence was offered by both sides as 

to their respective positions. The District Court in its 

findings of fact found the Stidham line to be the correct 

line. The court's determination is not clearly erroneous and 

is supported by substantial credible evidence. We will not 

disturb its findings. 

Morrison and the City contend the Stidham land, 

according to the description in the deeds from Stidham's 

predecessors, extends to Morrison's and the City's proposed 

west line of lot 5. This is true according to Morrision and 
the City because by computing the courses and the distances 

of the southern boundary (railway's northeast right-of-way 

boundary) along the track center line reference points of the 

railway, as provided for in the deed, it can only lead to the 

conclusion that their line is correct. The description to 

which they refer commences as follows: 

All that part of Lots Five (5) and Six (6) of 

Section Twenty-six (26) Township Thirty-one (31) 

North, Range Twenty-two (22) West of the Montana 

principal meridian, lying North of the following 

described boundary: 

Beginning at a point in the West line of said Lot 

Five (5) One Hundred (100) feet distant Northeasterly, measured at right angles, from the center 

line of said main track of said railway, as now 

located and constructed; thence Southeasterly 

parallel with said center line . . . 

However, the land described by this wording is the land 

bounded on the west by the west line of lot 5 for it begins 

-- "at a point ---- in the west line" of lot 5. The west line of 

Stidhams' land described in the deeds is the true west line 

of lot 5 wherever it may be on the ground. The court i.s 

aware that by basing the south boundary of the tract on a 

course and distance description using the Stidhams' west line 

as the true line leaves a gap in the south line between 

Stidhams' west line of lot 5 and the east line of lot 6 (the 

end of the description). However, the description states the 

beginning point of the south boundary is on the west line of 

lot 5, wherever it may be located, and the south boundary 

ends on the east line of lot 6. The location of the south 

boundary is not at issue. The reference to these boundary 

lines takes precedence over the course and distances which 

might be described in between as contended by the City and 

Morrison. See S 70-20-201, MCA. 
However, the District Court erred in establishing the 

disputed boundary between the shoreline as shown in the 

original survey and the shoreline as it is today. The 

finding assumes that the west line of lot 5 continues on the 

same course north from the meander corner as produced to its 

intersection with the north lot line of lot 4 as it is 

produced eastward. This is incorrect. It is only the true 

line to its intersection with the low water line of the lake 

at the time of the original survey, which is referenced by 

the meander corner on said west line. Some of Stidhams' 

plats introduced in evidence show only a minute corner of 

such lines produced and put the north line of lot 4 and the 

west line of lot 5 (east line of lot 4) barely in the lake 

and such minute portion is only a small fraction of the .05 

of an acre as shown to be in the lake in the original 

government plat. Some of the Stidhams' plats actually show 

such produced corner to be on land and they argue in their 

briefs that such corner is on land. 

Since the District Court adopted the Stidham proposed 

line as the west line of lot 5, it must also be concluded 

that what would be the northeast corner of lot 4 if boundary 

lines are produced is on land or barely in the lake, and 

thus the lake has receded. The location of corners and lines 

established by the government survey is conclusive and the 

true corners are where the United States surveyors in fact 

established them. Stephens v. Hurley (1977), 172 Mont. 269, 

563 P.2d 546. 

If the triangular area of .05 of an acre in the water 

cut off of the 40 acre tract in the original government 

survey of lot 4, would Lave equal sides of 66 feet, the 

length of the meander line of lot 4 would be 93 feet more or 

less, and the length could vary slightly depending on 
separate lengths of the other two sides of the triangle. The 

original government field notes should have the correct 

length of the meander line. In other words, we have a 

meander line of lot 4 of roughly 93 feet of shoreline. Under 

the Stidhams' line there is very little shoreline if any, 

adjacent to lot 4. Therefore the lake has receded. By what 

means it has receded the record does not disclose. 

On the receding or reliction of a lake the law does not 

extend the original boundary lines on the same courses and 

directions they were on land, which has been done here. A 

riparian owner has the right of access to the water and his 

access cannot be destroyed by the changing of the level of 

the water by gradual recession. He has the right to preserve 

his contact with the water by appropriating the accretions of 

the land exposed by reliction which form along the shore. 

Land formed by accretion or reliction becomes part of the 

shore and the riparian owner acquires title to the water. 

See 78 Am. Jur. 2nd Waters 5 418 (1975) ; J. Grimes, Clark on 

Surveying and Boundaries 5 573 (4th ed. 1976); 2 R. Patton & 

C. Patton, Patton on Titles § 300 (2d ed. 1938). He has a 

share in the land left exposed by the receding of the lake. 

The general principle which governs how the relicted 

exposed shoreline is divided between the lot owners on the 

lake is any division of the relicted land shall be equitable 

and shall be proportional so far as to give each shore owner 

a share of the land to be divided relative to his portion of 

the original shoreline. See 2 R. Patton & C. Patton, Patton 

on Titles fj 302 (2d ed. 1938); 3 H. Farnham, The Law of 

Waters and Water Rights 5 841 (1904) ; 78 Am. Jur. 2d -- Waters 

5 422-25 (1975). For an example of how this principle could 
apply to this case, see following plat: 

possible relicted 

nds to Lot 4 

possible boundary 

. in relicted port ion 

To draw this boundary line the starting points are at 

the meander corners as per the original government survey. 

In this case the corners are located, one, on the north line 

of lot 4 and two, on the east line of lot 4, which is the 

same as the west line of lot 5. If a lake is round and not 

jagged these lines are usually extended from the meander 

points to an imaginary point in the center of the lake or a 

cove of the lake. If the lake is long and narrow and 

somewhat jagged, the lines could be extended from the meander 

corners to an imaginary base line running the long way of the 

lake along the center of the lake and at right angles to the 

base line. 

In this case, the boundary drawn by the District Court 

ignores the reliction rule. Instead of drawing the lines so 

that lot 4 would retain a proportionate share of lake front, 

the lines are continued on their original path. The result 

is loss of shoreline for lot 4 and a violation of the rule. 

To correct this error, the lines should be drawn in a 

northeasterly direction instead of a northerly direction 

starting from the point where the lines intersect the 
original shoreline. The plat above shows the possible 

boundary lines in the relicted portion. J. Grimes, Clark on 

Surveying and Boundaries 5s 573-75 (4th ed. 1976); 2 R. 

Patton & C. Patton, Patton on Titles 5 302 (2d ed. 1938); 3 

H. Farnham, The Law of Waters and Water Rights SS 841-43 

(1904). See also Karterud v. Karterud (S.D. 1923), 195 N.W. 

972; Scheifert v. Briegel (Minn. 1903), 96 N.W. 44; Kapp v. 

Hansen (S.D. 1961), 111 N.W.2d 333. 

Therefore, the west boundary of lot 5 (east boundary of 

lot 4) north of the meander corner has not been properly 

established. That leaves open the possibility that the 

pumphouse lies entirely within lot 4, and a portion of what 

now is thought to be part of lot 5 is actually controlled by 

the City as part of lot 4. 

We therefore vacate the judgment in this action and 

remand to the District Court for a proper survey of the 

boundary line between lots 4 and 5 north and east of the 

common meander corner in the relicted portion of the lake 

pertaining to these lots. Even if a portion of the pumphouse 

would still be within lot 5, a different shape and size of 

land would be taken by the inverse condemnation. A survey to 

establish the location of the west lot line of lot 5 north of 

the common meander corner with lot 4 should be done in 

accordance with the principles of law as above set forth. 

To assist the court in future actions taken by it 

pertaining to this case we will discuss issues 4 and 5 raised 

by the appeal. Issue 6 by virtue of this opinion is moot. 

Did the District Court err in striking Morrison's and 

the City's defenses of laches and estoppel? No. The City 

and Morrison by motion which was granted by the court, 

converted this action to one of inverse condemnation. Their 
defenses of estoppel and laches were then inappropriate and 

had no application. 

Issue number 5 is whether or not the Court erred in 

granting summary judgment in favor of the City and against 

Morrison regarding their relationship. The City moved for 

summary judgment contending that co-defendant Morrison was 

solely liable for any wrong committed in locating the 

pumphouse and inlet pipes. The motion was filed, briefed, 

argued and submitted. The Court did not rule on it before 

the first trial. However, after the first trial the court 

ruled in its findings of fact and conclusions of law that 

Morrison was solely liable. The parties had previously 

stipulated that their relationship would not be an issue at 

the first trial, and did not present evidence directed toward 

this issue. There is a contested question of fact of who 

between the City and Morrison had the responsibility for and 

who did actually locate the site for the pumphouse. The 

order is in error and such order granting the motion for 

summary judgment is vacated. 

The verdict and. judgment are vacated and the case is 

remanded for further proceedings in accordance with this 

opinion. 

We Concur: 

---.---------- 
Cistrict Judge Russell K. Fillner sitting for Justice John C. 

Harrison, dissenting. 

I dissent. "The world will little note nor long remember" * 

what I write here, Nevertheless, I will set forth briefly my 

reasons for not being able to concur with the majority opinion, 

as follows: 

The majority holds that the trial Judge committed plain 

error (clearly erroneous) because he failed to find that 

Whitefish Lake receded! The majority "is asking for clairvoyance 

not even possessed by a trial judge." (Justice John Harrison's 

opinion in Mageli v. Daniels, 400 P.2d 896, at 898. ) Was there 

any evidence produced at the trial showing that Whitefish Lake 

receded? No. Neither was the issue raised in the trial court, 

nor even in this court. The majority opinion holds that the 

trial judge's finding that the Stidham line is the correct 

boundary line between Lots 4 and 5 is supported by substantial 

and credible evidence; and therefore, the findings will not be 

disturbed. The majority then states that "it must also be 

concluded that what would be the northeast corner of Lot 4 if 

boundary lines are produced, is on land or barely in the lake, 

and thus the lake has receded." The majority then attempts to 

support this conclusion by indulging in assumptions that the -05 

of an acre in the original government survey: 
"would have equal sides of 66 feet, the 

length of the meander line of Lot 4 would 

be 93 feet more or less, and the length 

could vary slightly depending on separate 

lengths of the other two sides of the 

triangle. The original government field 

notes should have the correct length of the 

meander line." (Emphasis supplied) 

The point is that this is not part of the record, 

although it should have been. While at first blush, the 

majority's conclusion that Whitefish Lake has receded may appear 

to be logical, if we assume that the Stidham survey is absolutely 

correct, but that is not the only logical conclusion. It is just 

as logical to assume that the shore of the lake in this area was 

pushed upward. How or by what means I am no more able to say 

than the majority can state by what means the lake has receded. 

Furthermore, even if the lake has receded, it is obvious that 

Morrison-Maierle must have been aware of the need for another 

survey to supplement the Stidham survey prior to trial. If the 

trial judge is in plain error for not recognizing the need for 

such additional survey, what excuse does Morrison-Maierle have? 

It certainly possesses the requisite engineering and surveying 

knowledge, resources and ability to have determined the proper 

boundary line under the equitable principles governing relicted 

exposed shorelines. Having failed to do so, it is hardly 

entitled to another bite at the apple. Morrison-Maierle elected 

to rely on the defense that Stidham didn't own the property and 

that the GN survey was the correct one. 
The problem here is that neither party located the 

corners or lines, and particularly this boundary line, by 

reference to government surveys or monuments.* At oral argument, 

the Defendant, Morrison-Maierle, stated that it now knew where 

the true line was and would like to have an opportunity to prove 

it. If it has, in fact, gone back to some government monument 

and proceeded with its survey from that point, it may very well 

be that the line is otherwise than established by the Stidham 

survey. However, it had that opportunity at the trial level. 

The point being that none of the parties are contending that 

Whiefish Lake has receded or that the principles of reliction 

should apply in this case. Perhaps I can best bring into focus 

what I'm trying to say by this scenario: 

Under the majority opinion as I read it, this case will 

be remanded to the District Court for the parties (which one is 

unclear) to make a survey based on the principles of reliction so 

that Lot 4 will have its same share of the shoreline as before 

the lake receded. So assume that is dutifully accomplished. This 

may or may not result in changing the boundary as regards the 

pumphouse. Now then, be it remembered that this boundary line is 

the boundary between lands owned by the Burlington Northern 

Railroad and the Plaintiffs (Stidham). The Burlington Northern 

Railroad is not a party to this suit.** So then, the Burlington 

* In the light of a majority opinion in this case, the Legislature might want 

to take a look at enacting legislation that dd require any surveying that 

involves shorelines on lakes and bodies of water in bbntana be made with 

reference to government monuments, or that such survey, if based on a prior 

survey, that such prior survey be shown to have been based on government 

uwnments, Any plat or survey not meeting such requirements could not be filed 

of record, nor used in evidence. 

** although it should be. See Rule 19(a) and 21, M.R.Civ.P. 
Northern Railroad, being unsatisfied with the Stidham survey, 

brings suit to establish the boundary line between Lots 4 and 5. 

It conducts a survey based on government monuments and, lo and 

behold, such survey establishes the line east of the Stidham line 

and, pres-to, Whitefish Lake has not receded after all. So what 

happens then? But even if the Burlington Northern should not 

bring suit, what will be the effect of this case on other 

boundary lines - past, present and future - on the shores of 

Whitefish Lake, if the level of Whitefish Lake has not receded as 

the court states it must have done? Finally, it is fortunate 

that Montana is not a coastal state when one contemplates the 

world-wide ramifications of such a decision on the shorelines of 

the Atlantic or Pacific Oceans. 

I hope that it is obvious from what I have herein said 

that we simply do not know whether the Stidham line is absolutely 

the correct line. All that we can say is as the majority has 

stated, that the Court's determination is clearly not erroneous 

and is supported by substantial credible evidence. Justice 

Morrison, speaking for an unanimous court, in Rose v. Rose, - 201 

Mont. 86, 651 P.2d 1018, said: 

"The proper function of the trial court is 

to assess the evidence, ascertain the 

witnesses' credibility and render its 

findings based upon substantial credible 

evidence. If that is accomplished, this 

Court cannot overturn its decision. 

Crabtree v. Crabtree, (1982), 200 Mont. 

178, 651 P.2d 29, 30 St.Rep. 1668." 
The trial Court's determination, being supported by 

substantial credible evidence, should be affirmed. 

I agree with the majority's conclusion that the District 

Court did not err in striking Morrison's and the City's defenses 

of laches and estoppel. As to Issue No. 5, I would affirm the 

granting of the City's motion for summary judgment. The motion 

was filed, briefed, argued and submitted as the majority found. 

While it is true that the trial court did not rule on it before 

the first trial, it did make its ruling thereafter. The majority 

just makes the conclusionary statement that "there is a contested 

question of fact of who between the City and Morrison had the 

responsibility for and who did actually locate the site for the 

pumphouse." The only "contested" facts presented by the 

Defendant, Morrison-Maierle, in that regard are that an Alderman 

of the City of Whitefish took one of Morrison-Maierle's employees 

to the site, suggesting that it might be an appropriate place for 

the pumphouse and that its contract with the City does not 

require it to do any survey work without additional compensation 

theref or. Those facts really aren't contested, but it is 

undisputed that the City leased Lot 4 from Burlington Northern 

for the purpose of locating the pumphouse thereon. 

Morrison-Maierle contracted to put the pumphouse on Lot 4. It 

relied upon an old survey done by the Great Northern Railway, 

predecessor in interest to the Burlington Northern Railroad. 

It's reliance on that line was obviously mispl-aced. That did not 
change its responsibility to have placed the pumphouse as agreed 

in its contract with the City on Lot 4. This it failed to do. 

Accordingly, I would affirm the District Court's verdict and 

judgment in this case. 

In conclusion, I am convinced that the majority's opinion 

is motivated by a search for truth, but what is truth? I rather 

believe that a lawsuit is a search for justice under the law. In 

that regard, see the remarks made by David Elderkin, a Cedar 

Rapids attorney for 50 years, published in the Montana Lawyer, 

October 1987, page 16, where he states that the claim that a 

lawsuit is a search for truth is nonsense. "While we must 

proceed by truthful means, a lawsuit is a search for justice and 

a timely, inexpensive system of dispute resolution is a real part 

of justice." 

Here this case is being remanded to the parties to engage 

in further time-consuming and expensive surveying that none of 

the parties believe is necessary or warranted, which, instead of 

/-- discovering the truth, will only serve to obguscate it. 

\\ ! ,' 7 

District Judge 

sitting for Justice John C. Harrison