NO. 80-406 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

LYLE NOTT AND ODEAL NOTT , 

Plaintiffs and Respondents, 

GLEN BOOKE and VICKY BOOKE, husband 

and wife, and JACK D. HEIDEMA, JOHN 

A. HEIDEMA, 

Defendants and Appellants. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Carbon. 

Honorable William J. Speare, Judge presiding. 

Counsel of Record: 

For Appellants: 

Swandal, Douglass & Swandal, Livingston, Montana 

Berger, Sinclair and Nelson, Billings, Montana 

For Respondents: 

Holmstrom, Dunaway and West, Billings, Montana 

Submitted on briefs: July 2, 1981 

Decided: September 11, 1981 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

Lyle and Odeal Nott, plaintiffs and respondents, brought 

this action to quiet title to certain property in Carbon 

County, Montana. A summary judgment was granted against the 

Notts in favor of the defendants and appellants, Glen Booke, 

Vicky Booke, John A. Heidema and Jack D. Heidema. In Nott 

v. Booke (1979), Mont. , 598 P.2d 1137, 36 St.Rep. 

1542, this Court reversed that judgment and remanded the 

case to District Court for a full hearing. Pursuant to that 

decision, the District Court sitting with a jury returned a 

verdict in favor of the Notts. From that judgment the 

Heidemas appealed. 

Appellants raise three issues: 

1. Does instruction no. 8 warrant a new trial because 

it incorrectly states the law and prejudices defendants' 

rights? 

Instruction no. 8 provided: 

"You are instructed that if you find that an 

agreement existed between Lyle Nott and the 

defendants' predecessors in interest, John and 

Genevieve Shupak, that the disputed strip of 

land lay with an agreed upon or fixed boundary, 

or that an agreement existed between the Notts and 

Shupaks, that extended the boundary line between 

their properties to include the disputed portion 

of land up to the existing fence line, then you 

must find for the plaintiff." 

2. Does the District Court's refusal to give defendants' 

proposed instruction no. 5 prejudice the defendants' rights 

because it is a correct statement of the law and was needed 

to balance the other instructions? 

Defendants' proposed instruction no. 5 stated: 

"Where two adjoining proprietors are divided by 

a fence which they suppose to be the true line, 

they are not bound by this supposed line, but 

must conform to the true line when ascertained." 

3. Can plaintiffs recover all costs of a survey which 
covered their entire property rather than merely the disputed 

area? 

The dispute involves the strip of land located between 

Notts' and Booke-Heidemas' property. They are adjacent 

landowners in Carbon County, Montana, their land adjoining 

at the Notts' southern and Booke-Heidemas' northern boundaries. 

The Notts' property is described according to their deed as: 

"The North Half of the Southwest Quarter (N1/2 

SW1/4) , the Southwest Quarter of the Southwest 

Quarter (SW1/4 SW1/4), Lot 9 and the North 19 

feet of Lots 10 and 11, all located in Section 

Four, Township Six South, Range 23 East, M.P.M." 

The Bookes purchased their land in 1976 from the Heidemas. 

The land was originally owned by John and Genevieve Shupak. 

The legal description of the property is described as: 

"Tract A of Certificate of Survey No. 885, 

situated in Lots 10 and 11, Section 4 and Lot 

2, Section 9, Township 6 South, Range 23 East, 

M.P.M." 

The area in dispute is approximately 1950 feet in 

length, 68 feet in width on the east end, 38 feet in width 

on the west end, and slightly over two acres in total area. 

It is also enclosed by a boundary line fence which was 

constructed by Notts in 1946. 

The Notts claim title to the strip of land under a deed 

executed in 1946 to Lyle B. Nott and his then spouse, Rosia 

Nott, from the Booke-Heidemas' predecessor in interest, John 

and Genevieve Shupak. 

In 1946, the Notts employed William Burke to conduct a 

survey of the boundary line between their property and the 

Shupak's, whereupon a fence was constructed by the Notts 

along the line as laid out by Burke. After the construction 

of the fence, however, the Shupaks disagreed as to the 

correct placement of the fence and boundary line. This, in 

turn, led to the land being resurveyed by Burke, who discovered 
an error in his calculations and determined the proper 

boundary line to be 19 feet north of the fence. To settle 

the dispute, the Shupaks executed a deed for good consideration 

to the Notts conveying the north 19 feet of Lots 10 and 11. 

The parties thereafter occupied their lands in accordance 

with the boundary fence. During this time, the Notts cultivated 

the land, constructed fences and corrals for livestock and 

built a concrete irrigation flume next to the fence and upon 

the land which is the subject of this dispute. Notts were 

also assessed and have paid taxes upon their land in accordance 

with the description on the deed since 1946. 

Bookes purchased their land from Heidemas in 1976. To 

comply with the provisions of the Subdivision and Platting 

Act, a certificate of survey was made after the purchase. 

This survey, which was conducted in 1977, created a further 

discrepancy between the boundary fence and Burke's second 

survey, giving rise to the present dispute. 

Notts argue that they have acquired title by satisfying 

all the elements of adverse possession, including the requirement to pay all taxes on the land as set out in section 70- 

19-411, MCA, which provides: 

"OCCUPANCY AND PAYMENT OF TAXES NECESSARY TO PROVE 

ADVERSE POSSESSION. In no case shall adverse 

possessions be considered established under this 

code unless it be shown that the land has been 

occupied and claimed for a period of 5 years 

continuously and the party or persons, their 

predecessors,and grantors have during such period 

paid all of the taxes, state, county, or municipal, 

which have been legally levied and assessed upon said 

land. " 

In this Court's previous opinion, at 598 P.2d 1139, we 

stated: 

". . . where a boundary line has been agreed upon 

or fixed because of the uncertainty of the parties 

as to the true boundary and the deed description 

does not include the disputed land, the payment of 

taxes according to the deed description does constitute a payment upon such land for the purpose of 
satisfying the statute. Townsend v. Kouk01, 

148 Mont. at 8; 416 P.2d at 536." 

Further, the opinion contained the following comments relative 

to the factual issue to be decided: 

"The question of fact which is most crucial to 

a determination of the issue facing this Court, 

then, is whether an agreement existed between 

appellants and respondents, or their predecessors 

in interest, that the disputed strip of land lay 

within an agreed upon or fixed boundary." 

This issue was submitted to the jury, and in accordance 

with its findings, the District Court entered a decree 

quieting title to the disputed strip to the Notts. Bookes 

and Heidemas filed motions contesting the survey expenses, 

which motions were denied. Heidemas now appeal the entire 

j udgmen t . 

Instruction no. 8 was objected to at trial on the basis 

that it was not a correct statement of the law. According 

to Rule 51, M.R.Civ.P., 

"INSTRUCTIONS TO JURY-OBJECTION.. . . Objections 

made shall specify and state the particular grounds 

on which the instruction is objected to and it shall 

not be sufficient in stating the ground of such 

objection to state generally the instruction does 

not state the law or is against the law, but such 

ground of objection shall specify particularly wherein 

the instruction is insufficient or does not state the 

law, or what particular clause therein is objected to I1 ... 

Objection to an instruction that it is an incorrect 

statement of the law without specifying the defect has long 

been considered an insufficient objection and we will not 

review the alleged error occasioned by the giving of an 

allegedly incorrect instruction. Brunnabend v. Tibbles 

(1926) , 76 Mont. 288 at 303, 246 P. 536 at 540. That rule 

applies here. 

Appellants also argue that they were prejudiced by the 

court's refusal to give their offered instruction no. 5, the 

source of which is Myrick v. Peet (1919), 56 Mont. 13 at 
26, 180 P. 574 at 579. The statement from that case, however, 

presupposes that no valid agreement as to the boundary line 

has been made. That is precisely the question put before 

the jury by instruction no. 8 and (in the words of this 

Court), "the question of fact which is most crucial to a 

determination of the issue facing this Court . . . " Nott v. 

Booke, supra, at 1/10 n t . , 598 P.2d 1139, 36 St.Rep. 1545. 

The jury was further instructed by instruction no. 9 that 

"in order to establish an agreed boundary line, the evidence 

must show more than mere acquiescence . . .I1. Therefore, we 

conclude that the jury was fully and correctly instructed as 

to the law, that there was substantial evidence to support 

their verdict, and that no prejudice to the defendants 

resulted. 

On the issue of costs, appellants cite Johnson v. 

Jarrett (1976), 169 Mont. 408, 548 P.2d 144, wherein we 

directed District Court to "determine whether any part of 

the map and survey costs billed by plaintiffs arose from 

surveys or maps of plaintiffs' property outside Lot 5 or did 

not pertain to the location of the 'wagon road. ' Any such 

unnecessary expense shall not be allowed as costs charged to 

defendant." 169 Mont. at 417, 548 P.2d 149. 

The survey in the case at bar covered the Notts' entire 

property. Any part that did not go to establishing the 

disputed boundary line may have been unnecessary, and the 

cost of such excess, if any, should not be charged to the 

defendants. 

Accordingly, the judgment of the District Court is 

affirmed, with the exception of the determination of survey 

costs charged to defendants, which shall be redetermined on 

remand to the District Court in accordance with the directions 
herein. Costs to respondent. 

J Justice 

We Concur: 

Chief Justice 

.............................. Justices