No. 87-14 INTHE SUPREMECOURTOF THE STATE OF MONTANA 1987

TERRYL. STIDHAM andNORMA STIDHAM, husband andwife, Plaintiffsand Respondents,-vsCITY OF WHITEFISH, MONTANA, Defendant,Appellant and Respondent,

CITYOFWHITEFISH,MONTANA, Defendant,Third-PartyPlaintiff, Appellant and Respondent,-vsMORRISON-MAIERLE,INC., Third Party DefendantandAppellant.

APPEAL FROM: District Courtof the Eleventh JudicialDistrict, Inand for theCounty of Flathead, The Honorable Nat Allen,Judgepresiding. COUNSELOF RECORD: ForAppellant: Keller,Reynolds, Drake, Sternhagen & Johnson; ThomasQ. Johnson argued forMorrison-Maierle, Helena, Montana ForRespondent: Moses LawFirm; StephenC. Moses argued for Stidham, Billings, Montana LeoW. Tracy argued for City of Whitefish,Montana

Submitted: June 30, 1987 Decided: November 13, 1987 Filed: 

## Hi+!*1-;

## f987

ClerkMr. Justice R.C. McDonough delivered the Opinion 

### of the Court.

Morrison-Maierle, Inc., and theCity ofWhitefish appeal a judgment in favor of plaintiffs, filed and entered in the District Court of the Eleventh Judicial District,County of Flathead. We setaside the judgmentand remand. This case originated as an action in trespassby plaintiffs and respondents (Stidhams) against the City 

### of Whitefish. The City filed a third-party complaint against Morrison-Maierle, Inc. TheCitybuilt a waterpumphouse 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 toprovide 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 itwas,Morrison, as the engineer,
was responsible for theerror. Morrison alsodenied that the pumphouse was located on lot 5 and denied that they had the responsibility toproperly locate thepumphouse. TheDistrictCourt on itsown motionbifurcated the case ordering that the first trial concern only theboundary 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 firsttrial the court found that Stidhamswere relyingon the correct boundary,andpursuant 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. Morrisonthen asked for certification of such findings and conclusions
as finalwhich the court refused todo. The casewas set for the second trial andwas determined to be an inverse condemnation case onmotion of the City and Morrison. The courtpursuant 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 trialwas held and a verdict of $61,000had in favor of plaintiff. After the usual motions, which were denied, appeal was takenby Morrison and the City from the judgment.

The issues for revieware: 

### 1. Whether the City reserved its right to appeal the boundary line and ownership issue and the estoppeland laches issue? 2. Whether Morrison can properly appeal the boundary line and ownership issue,the estoppel and laches issue,and the certificationissue? 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 supportedby substantial credible evidence? 

### 4. Whether the District Court erred in striking the defensesof 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 conclusionsof law as final and thereby allowing thismatter 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 findingsof 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, theCitymay 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 toMorrison as aparty, 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, Morrisonwas a realparty in interest. The District Court's decision as to issue No. 3 is affirmed inpart and reversed inpart. Lot 4 is agovernment subdivision with a meander line bordering onWhitefish 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 followingplat.

~ike indispute Theparties dispute the.location of the linedividing lots 4 

### and 5. 

### None of theoriginal 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 lineof lot 5 

### (alsothe east lineof 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 evidencewas 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 determinationis notclearly erroneousand 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 toMorrision andthe 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,asprovided for in thedeed, it can only lead to the conclusion that their line is correct. The description to which they refer commencesas 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 describedboundary: 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 parallelwith said center line

# . .. However, the land described by this wording is the land bounded on the west by thewest line of lot 5 for itbegins "at a point in the west line" of lot 5. The west line of 

### -- 

### ---- Stidhams' land described in the deeds is the truewest 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 courseand 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 thedescription). However, thedescription statesthe beginning point of the southboundary is on thewest 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 thewest line of lot 5 

### continueson 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 lowwater 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 suchcorner ison land. Since the District Court adopted the Stidham proposed line as the west line of lot 5, 

### it must also be concluded thatwhatwould be the northeast corner of lot 4 

### ifboundary lines are produced is on land or barely in the lake, and thusthe lake has receded. The locationof cornersand lines established by the government survey is conclusive and the true corners are where the United States surveyors in fact established them. Stephensv. Hurley (1977),172Mont. 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 onseparate lengths of the other two sidesof 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 4of roughly 93 feetof shoreline. Under the Stidhams' line there is very little shoreline if any, adjacent to lot 

### 4. Therefore the lakehas receded. By what means ithas receded the recorddoes notdisclose. On the receding or relictionof 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 thewater and his access cannot be destroyed by the changing of the level of thewaterby gradualrecession. Hehas the right topreserve 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 (4thed. 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 shallbe equitable and shallbe proportional so far as to give each shore owner a share of the land tobe divided relative to his portion of the original shoreline. See 2R. 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 thisprinciple could

### apply to this case, see followingplat:

possible relicted nds to Lot 4

possibleboundary

. 

### in relicted portion

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 imaginarypoint in the center of the lake or a cove of the lake. If the lake is long and narrow and somewhat jagged, the lines couldbe extended fromthemeander corners to an imaginary base linerunning the longway 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 DistrictCourt ignores the reliction rule. Instead ofdrawing the lines so that lot 4would retain aproportionate shareof 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 theoriginal 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 (2ded. 1938); 3 H. Farnham, The Law of Waters and Water Rights SS 841-43

(1904). See also Karterud v. Karterud (S.D. 1923), 195N.W. 972; Scheifertv. Briegel (Minn. 1903), 96N.W. 44; Kapp v. Hansen (S.D. 1961), 111N.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 ofwhat now is thought to be part of lot 5 is actually controlledby the City aspart 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 ifa portion of thepumphouse would still be within lot 5, a different shape and size of landwould be takenby the inverse condemnation. A survey to establish the location

### of thewest lot line of lot 5north 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 casewewill discuss issues 4 and 5raised 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 lacheswere 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 notpresent 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 isvacated. The verdict and. 

### judgment are vacated and the case is remanded for further proceedings in accordance with this opinion.

We Concur:



# ---.----------CistrictJudgeRussell K. Fillner sitting forJusticeJohn C. Harrison,dissenting.

I dissent. "Theworld 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 "isasking 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 shouldhave the correct length of the meander line." (Emphasissupplied) 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 areawas 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 toprove 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 sayby 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 theprinciples 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



### * Inthelightofamajorityopinioninthiscase, theLegislature might want to takea lookatenactinglegislationthatdd requireany surveyingthat involves shorelines on lakes and bodies of water inbbntana be made with reference to governmentmonuments, or that such survey, if basedona prior survey, that such prior survey be shown to have been based on government uwnments, Anyplatorsurveynotmeeting suchrequirementscouldnotbefiled ofrecord, norusedinevidence. 

### **althoughitshouldbe. SeeRule19(a)and21,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 Lakehas 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 theAtlantic orPacific Oceans. I hope that it is obvious from what I have herein said that we simply do not knowwhether 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, 651P.2d 1018,said: "Theproper 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, Iwould 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 ruleon it before the first trial, it did make its ruling thereafter. Themajority 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 itmight 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 therefor. 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 obviouslymispl-aced. Thatdid notchange 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 themajority'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 realpart of justice." Here this case is being remanded to the parties toengage 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 JusticeJohn C. Harrison