### 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. HonorableWilliam 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, 1981Mr. 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 inCarbon County, Montana. A summary judgment was granted against the Notts infavor of the defendants and appellants, Glen Booke, Vicky Booke, John A. Heidema and Jack D. Heidema. InNott

v. Booke (1979), Mont. 

## , 598 P.2d 1137, 36 St.Rep. 1542, thisCourt reversed thatjudgment and remanded the

case to DistrictCourt for a fullhearing. Pursuant to that decision, the DistrictCourt sittingwith 

### a jury returned a verdict infavor of the Notts. From thatjudgment the Heidemas appealed. Appellants raise three issues: 1. Does instruction no. 8 warrant a new trialbecause 

### it incorrectly states the law and prejudices defendants' rights? Instruction no. 8 provided: "You areinstructed that if you find that an agreement existed between Lyle Nott and the defendants' predecessors in interest, John and Genevieve Shupak, that the disputed stripof land laywith an agreed upon or fixed boundary, or that an agreement existed between the Notts and Shupaks, that extended the boundary linebetween 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 DistrictCourt's refusal to give defendants' proposed instruction no. 

### 5 prejudice the defendants' rights because 

### it 

### isa correct statement of the law and was needed tobalance the other instructions? Defendants' proposed instruction no. 5 stated: "Where two adjoining proprietors aredivided by a fence which they suppose tobe the true line, they arenot bound by this supposed line, but must conform to the true 

### linewhen ascertained." 3. Can plaintiffs recover allcosts of a survey whichcovered their entireproperty rather than merely the disputed area? The dispute involves the stripof land located between Notts' and Booke-Heidemas' property. They are adjacent landowners inCarbon County, Montana, their land adjoining atthe Notts' southern and Booke-Heidemas' northern boundaries. The Notts' property 

### isdescribed according to their deed as: "The North Half of the Southwest Quarter (N1/2 SW1/4)

## , the Southwest Quarterof the Southwest Quarter (SW1/4 SW1/4), Lot 9 and the North 19 feetof Lots 10 and 11, all located inSection 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 

### isdescribed as: "TractA of Certificate of Survey No. 885, situated inLots 10 and 11, Section 4 and Lot 2, Section 9, Township 6 South, Range 23 East, 

### M.P.M." The area indispute 

### isapproximately 1950 feet in length, 68 feet inwidth on the eastend, 38 feetinwidth

on the west end, and slightly over two acres 

### intotal area. It 

### is also enclosed by a boundary line fence which was constructed by Notts in 1946. The Notts claim 

### title to the stripof land under a deed executed in 1946 toLyle B. Nott and his then spouse, Rosia Nott, from the Booke-Heidemas' predecessor ininterest, John and Genevieve Shupak. In 1946, the Notts employed William Burke to conduct a survey of the boundary linebetween theirproperty and the Shupak's, whereupon a fence was constructed by the Notts along the line as laidoutby 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 discoveredan error inhis calculations and determined the proper boundary line tobe 19 feetnorth of the fence. To settle the dispute, the Shupaks executed a deed for good consideration to the Notts conveying the north 19 feetof Lots 10and 11. The parties thereafter occupied their lands inaccordance 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 inaccordance 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 

### titleby satisfying all the elements of adverse possession, including the requirement topay all taxes on the land as 

### set outinsection 70- 19-411, MCA, which provides: "OCCUPANCY AND PAYMENT OF TAXES NECESSARY TO PROVE ADVERSE POSSESSION. 

### Inno 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 allof the taxes, state, county, ormunicipal, which have been legally levied and assessed upon said land.

### " In thisCourt's previous opinion, at598 P.2d 1139, 

### we stated: 

# ".



# . .where a boundary linehas 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 constitutea payment upon such land for the purpose ofsatisfying the statute. Townsend v. Kouk01, 148Mont. at8; 416 P.2d at536." Further, the opinion contained the following comments relative to the factual issue to be decided: "The question of factwhich 

### ismost crucial to a determination of the issue facing thisCourt, then, 

### iswhether an agreement existed between appellants and respondents, or their predecessors ininterest, that the disputed stripof land lay within an agreed upon or fixed boundary." This issuewas submitted to the jury, and inaccordance with 

### its findings, the District Court entered a decree quieting 

### title to the disputed strip to the Notts. Bookes and Heidemas filedmotions contesting the survey expenses, which motions were denied. Heidemas now appeal the entire judgmen

### t

# . Instruction no. 

### 8 was objected to

### attrial on the basis that 

### itwas 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 

### isobjected to and 

### it shall not be sufficient in stating the ground of such objection to stategenerally the instruction does not statethe law or 

### is against the law, but such ground of objection shall specify particularlywherein the instruction

### isinsufficient or does not statethe law, or what particular clause therein 

### isobjected to I1 

# ... Objection to an instruction that 

### it

### is an incorrect statement of the law without specifying the defecthas long been considered an insufficient objection and 

### wewillnot review the alleged error occasioned by the giving of an allegedly incorrectinstruction. Brunnabend v. Tibbles (1926)

## , 76 Mont. 288 at303, 246 P. 536 at540. That rule applies here. Appellants also argue that they 

### wereprejudiced by the court's refusal togive their offered instruction no. 5, the

source of which 

### isMyrick v. Peet (1919), 56 Mont. 13at26, 180 P. 574 at579. The statement from that case, however, presupposes thatno valid agreement as to the boundary line has been made. That 

### isprecisely the question put before the jury by instructionno. 8 and (inthe words of this Court), "thequestion of factwhich 

### ismost crucial to a determination of the issue facing this Court 

# .

# . ." Nott 

### v. Booke, supra, at 1/10 

### nt

# ., 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 therewas substantial evidence to support their verdict, and thatno prejudice to the defendants resulted. On the issue of costs, appellants citeJohnson 

### v. Jarrett (1976), 169 Mont. 408, 548 P.2d 

### 144, wherein we directed DistrictCourt 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. at417, 548 P.2d 149. The survey inthe case atbar covered the Notts' entire property. Any part that did not go to establishing the disputed boundary linemay have been unnecessary, and the costof such excess, if any, should not be charged to the defendants. Accordingly, the judgment of the DistrictCourt 

### is affirmed, with the exception of the determination of survey costs charged to defendants, which shall be redetermined on remand to the DistrictCourt inaccordance with the directions

### herein. Costs to respondent.



## J Justice

We Concur:

Chief Justice



## .............................. Justices