No. 83-212 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

JAIWS NEDROW PILGRIM, 

Plaintiff and Appellant, 

-vsJOHN KUIPERS, et al., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Nat Allen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thomas Dooling, Dillon, Montana 

For Respondents: 

W. G. Gilbert, 111, Dillon, Montana 

Submitted on Briefs: February 2, 1984 

Decided: April 9, 1984 

Filed: ~284 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

James Medrow Pilgrim appeals from an order of the Fifth 

District Court, Beaverhead County, quieting title to two 

separate tracts of land in Pilgrim and defendant John 

Kuipers. We affirm. 

The disputed property line originated when Pilgrim sold 

a portion of his property to one of Kuipers' pred-ecessors in 

interest (Brooks), retaining the remaining tract to himself. 

The property description in this deed (Pilgrim to 

Brooks) contained at least one error and is demonstrably 

unreliable in that it does not close. The relevant part of 

the description is set forth as follows: 

" (c) Beginning a.t quarter corner on East and West 

line between Sections 7 and 18, Township 7 South, 

Range 8 West; thence North 11" 45' East 715 feet; 

thence North 69" 30' East 602 feet; thence South 

19" 00' West 675 feet to approximate center of 

channel of Beaverhead River South 68" 09' West 253 

feet; thence South 86" 30' West 230 feet, more or 

less to easterly right-of-way line of Federal Aid 

Project No. 241 D (3) at approximate center of 

channel of said river; running thence Southerly 

along said right-of-way line 190 feet more or less; 

thence South 89" 07' West 96.2 feet, more or less, 

to point of beginning, comprising 7.57 acres, more 

or less, in the Southwest Quarter of Southeast 

Quarter of Section 7, Township 7 South, Range 8 

West, M.P.M." 

At the time of the Pilgrim to Brooks conveyance, a "fox 

farm" fence existed in the approximate area of the line 

dividing the two properties. The deed, however, makes no 

reference to the fence; the conveyed property is described 

only by the metes and bounds description referred to above. 

This description originated with a survey made of the 

property at the time of the Pilgrim to Brooks sale. 

A dispute arose when Kuipers removed part of the "fox 

farm" fence and began to build a garage partially on 

Pilgrim's side of the fence. During the dispute, the 

difficulties with the property description were discovered. 
Roger Pierce, a surveyor, attempted to reconcile, to the 

extent possible, the property description with the undisputed 

boundaries and monuments on the land. The trial court 

concluded that "the Pierce survey, when modified according to 

correct surveying practices and the provisions of section 

70-20-201, MCA not only will close, but will describe a tract 

of land retained by the grantor, Pilgrim, containing an 

acreage within 20/100th of an acre of the amount stated in 

his deed". The court also noted that the boundary in the 

"Pierce survey" varies from another survey of the disputed 

boundary by only 39 feet at the northern end, and is 

effectively coincident at the southern point. 

The court ordered that the titles to the respective 

properties be quieted in accordance with the Pierce survey. 

Pilgrim appeals from the final judgment. 

The following issues are raised on appeal: 

1. Whether the trial court erroneously excluded 

evidence under the par01 evidence rule. 

2. Whether the surveying practices used in the Pierce 

survey are proper and in accordance with section 70-20-201, 

MCA . 

3. Whether the findings and conclusions of the trial 

court are "clearly erroneous?" 

Appellant argues that it is "impossible to reconcile the 

written legal description of the property with its admitted 

boundaries on the ground." Appellant reasons that extrinsic 

evidence is therefore competent and necessary to establish 

the true boundary of the property conveyed by the deed. We 

disagree. 

Sections 70-20-201 and 70-20-202, MCA are to be read 

together. The rules of construction in section 70-20-201, 

MCA resolve inconsistencies in the descriptive part of a 
conveyance. The effect of this section cannot be 

circumvented by resort to extrinsic evidence under the 

"ambiguity" clause of section 70-20-202, MCA. If the 

description in the written conveyance can be reasonably 

construed pursuant to such rules, extrinsic evidence cannot 

be used to contradict such a construction. That is the case 

here. 

Appellant argues that the proper surveying practices and 

rules of construction were not used in this case. The 

relevant statute is section 70-20-201, MCA which provides: 

"Rules for construing description. The following 

are the rules for construing the descriptive part 

of a conveyance of real property when the 

construction is doubtful and there are no other 

sufficient circumstances to determine it: 

" (1) Where there are certain definite and 

ascertained particulars in the description, the 

addition of others which are indefinite, unknown, 

or false does not frustrate the conveyance, but it 

is to be construed by the first mentioned 

particulars. 

" (2) When permanent and visible or ascertained 

boundaries or monuments are inconsistent with the 

measurement, either of lines, angles, or surfaces, 

the boundaries or monuments are paramount. 

" (3) Between different measurements which are 

inconsistent with each other, that of angles is 

paramount to that of surfaces and that of lines 

paramount to both. . . ." 

Appellant concedes that Highway 91 is a monument which 

establishes the western boundary of the Pilqrim property, and 

that the Stahl fence is also a monument correctly located on 

the northern boundary of the tract. Appellant cannot contest 

that a third monument establishes the southern boundary of 

the tract: the Beaverhead River. 

The final boundary is prescribed by these "definite and 

ascertained" boundaries using the rules of construction. 

Section 70-20-201 (I), (2), MCA. Section 70-20-201 (2), (31, 

MCA sets the heirarchy of particulars to be considered. 
Monuments are superior to lines (distances) which are 

superior to angles which are superior to surfaces. Since 

there are no monuments establishing the final boundary, 

reference must be made to the distances along the other 

boundaries. These distances, from the deed, are 602 feet 

along the northern boundary and 230 plus 253 feet along lines 

following the thread of the Beaverhead River. 

The Pierce survey correctly used these distances to 

establish the location of the final boundary. The 

reasonableness of this construction finds support in the fact 

that the Pierce survey encloses 7.37 acres as compared with 

7.57 called for in the deed. 

I KUIPERS 

I 

Appellant argues that the old "fox farm" fence is also a 

monument which establishes the final boundary. We disagree. 

There is a critical distinction between a fence which 

establishes a boundary line, and a fence that merely 

separates one side of the fence from the other. The former 

is a monument as well as a fence, while the latter is merely 

a fence. Unlike the highway right-of-way and the Beaverhead 

River, there are no calls in the legal description to the 

"fox farm" fence. There is no evidence that the fence line 

was surveyed or that the fence was built to conform to a 

surveyed line. One witness testified that the fence was 
built zig-zag apparently around trees and without any pattern 

at all. Another said it "jogged" by as much as 20 feet. In 

contrast, the legal description calls for a straight line. 

There simply is no evidence to support the fence as a 

monument. 

Nor does a fence establish a boundary line when it does 

not conform to the true line, even though the property owners 

thought it was the boundary. 

"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." 

Schmuck v. Beck (1925), 72 Mont. 606, 616, 234 P. 477, 

481; Tillinger v. Frisbie (1957), 132 Mont. 583, 586, 318 

P.2d 1079, 1083; Reel v. Walter (1957), 131 Mont. 382, 309 

P.2d 1027, Myrick v. Peet (1919), 56 Mont. 13, 180 P. 574. 

From the facts and argument above, it is clear that the 

trial court's judgment to establish the disputed boundary in 

accordance with the Pierce survey was not "clearly 

erroneous," but was a well supported and reasoned decision. 

Affirmed. 

We concur: