No. 85-453 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

GEORGE CLAYTON an incompetent person 

by DOROTHY MURPHY, Guardian ad. Litem, 

Plaintiff and Appellant, 

THE ATLANTIC RICHFIELD COHPANY; THE 

BUTTE, ANACONDA AND PACIFIC RAILROAD 

CO.; and DEFENDANTS A THROUGH Z, 

Defendamts and Respondents. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Mark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Edward Yelsa, Anaconda, Montana 

For Respondent: 

Poore, Roth & Robinson; James A. Poore, Jr., Butte, 

Pllontana 

Submitted on Briefs: Feb. 7, 1986 

Decided: April 22, 1986 

Filed: 
Mr. Justice John C. Harrison. delivered the Opinion of the 

Court. 

This is a.n appeal from the District Court of the Second 

Judicial District of the State of Montana, for the County of 

Silver Bow. The appeal is from an order for summary 

judgment. We affirm. 

The following facts are pertinent to this case. 

The respondent (railroad) bought a right-of-way across 

property granted in 1892 to certain parties not essential to 

this lawsuit, on which were unpatented mining claims. The 

deeds were recorded in Silver Bow County, Montana. After 

obtaining the grants, the railroad constructed, operated, a-nd 

maintained a railroad line which has been in the same 

geographical location from the date of construction to the 

present. The right-of-way was fenced fifty feet on either 

side of the center line of the railroad tracks, except where 

the tracks cross a bridge or a road. The ground between the 

fences has not been used for any purpose by anyone other than 

the railroad. The railroad has paid the taxes levied against 

the right-of-way during this entire period. 

On September 13, 1954, appellant (Clayton) obtained a 

patent from the United States Government covering land which 

included the railroad's right-of-way, but the patent did not 

refer in any way to the right-of-way. Clayton took no action 

with respect to the existence of, or use of, the right-of-way 

until shortly before filing this action in September 1983. 

The tracks were used by at least one train per day and 

sometimes many trains per day going in each direction, not 

only from 1954 but prior to that tine. Right-of-way 

employees and work crews worked freely back and forth over 
all parts of the right-of-way system during this period and 

made necessary repairs. 

Clayton admits the railway roadbed existed in its 

present location continuously from the time of his getting a 

patent to the land until the present, and that the railroad 

maintained the right-of-way. He admits the rail-road operated 

openly and obviously with at least one train per day each way 

from sometime prior to September, 1954, up to and includinq 

the present time. Neither Clayton, his wife, his guardian ad 

litem, nor any other person has tried to interfere with the 

use of the tracks by the railroad, nor have they interfered 

with the employees of the company when they were working 

within the right-of-way. Clayton admits the railroad company 

has preempted all use of the area occupied by its track, 

roadbeds, ties, signalling equipment and fences within the 

right-of-way and fifty feet on either side of the centerline, 

and that the right-of-way land has not been used in any way 

by him from September, 1954, until the present. 

Clayton filed an action to quiet title, and a tort 

claim for trespass and damages. The railroad raised the 

defenses of adverse possession, prescription, laches, 

estoppel and the applicable statute of limitations. In 

addition, the railroad filed a counterclaim to quiet titl-e to 

its right-of-way based upon (1) adverse possession; or (2) 

prescription, and requested the Court to decree that it owned 

an easement and right-of-way for railway purposes which 

extended 50 feet on either side of the center line of the 

railroad as it presently exists across appellant's property. 

Thereafter Clayton filed a reply alleging the railroad 

was barred bl7 laches and the statute of limitations, for 

judgment on the pleadings, and for a partial summary judgment 
reserving only the question of damages. The railroad moved 

for summary judgment supported by pleadings, answers to 

interrogatories, admissions and affidavits wherein the file 

showed no genuine issue of material fact. 

The District Court denied Clayton's motions, granted 

the railroad's motion, and entered judgment for the railroad. 

Clayton appeals. 

Three issues are presented by Clayton: 

(1) Was the District Court correct in denying 

Clayton's motion for a judgment on the pleadings? 

(2) Was the District Court correct in denying 

Clayton's motion for summary judgment? 

(3) Was the District Court correct in granting the 

railroad's motion for summary judgment? 

We affirm the holding of the District Court on all 

three issues. 

A motion for judgment on the pleadings is provided for 

in Rule 12fc), I4.R.Civ.P. The Ninth Circuit Court of Appeals 

recently announced the judicial standard of review applied to 

a Rule 12(c) motion. The movant must "clearly establish that 

no material issue of fact remains to be resolved and that he 

is entitled to judgment as a matter of law." Doleman v. 

Meiji Mut. Life Ins. Co. (9th Cir. 1984), 727 F.2d 1480, 

1482. A Rule 12(c) motion should be denied if the 

defendant's answer raises a. defense, which if proven, would 

defeat the plaintiff's claim. Austad v. U.S. (9th Cir. 

1967) , 386 F. 2d 147, 149. The affirmative defenses raised by 

the railroad, if proven, would defeat Clayton's claim. 

This Court has said a Rule 12(c) motion is improper if 

the court must look to matters beyond the pleadings. Mathews 

v. Glacier General Assurance Co. (1979), 184 Mont. 368, 375, 
603 P.2d 232, 236. If matters beyond the pleadirlys need be 

considered, "the motion shall be treated as one for summary 

judgment and disposed of as provided in Rule 56 . . . " Rule 

12 (c) I4.R.Civ.P. The District Court in this case was 

requested to examine matters beyond the pleadings in order to 

resolve the controversy. Tax records, affidavits, records of 

the Butte-Silver Bow County Clerk and Recorder, answers to 

requests for admissions, and the results of requests for 

production of documents were required to reach a conclusion 

on plaintiff's motion. Consequently, a 12 (c) motion for 

judgment on the pleadings is procedurally incorrect and was 

correctly denied. 

Clayton next argues the District Court should have 

granted his motion for summary judgment. Summary judgment is 

proper only when there is no genuine issue of material fact 

and as a matter of law the movant is entitled to prevail. 

Cereck v. Albertsons (1981), 195 Mont. 409, 411, 637 P.2d 

509, 510. This rule imposes a strict standard on Clayton 

which he is unable to meet. Both counts in his complaint are 

barred by laches and the applicable statutes of limitations. 

Laches exists "where there has been an unexplained 

delay of such duration or character as to render the 

enforcement of an asserted right inequitable. " Brabender v. 

Kitt Manufacturing Co. (1977), 174 Mont. 63, 67-68, 568 P.2d 

547, 549. A person can be charged with laches where "he was 

either actually or presumptively aware of his rights." 

Hereford v. Hereford (1979), 183 Mont. 104, 108-09, 598 P.2d 

600, 602. Here both Clayton and others were actually and 

presumptively aware of their rights and the alleged invasion 

of those rights by the railroad. 
Clayton had actual and constructive notice of the 

railroad's claim to the right-of-way beginning at and prior 

to the time that he received his patent. The presence and 

continued use of the right-of-way by the railroad was more 

than adequate notice to cause any reasonable person to make 

an inquiry whether there were conflicting claims to the land 

in question. The mining locations and deeds were a matter of 

public record and were available to Clayton. 

When there appears possession of land by 

persons other than the record holder, 

which possession is inconsistent with 

the record title, there is a duty of 

inquiry imposed upon a purchaser of that 

land. 

Rase v. Castle Mountain Ranch, Inc. (Mont. 1981), 631 ~.2d 

680, 685, 38 St.Rep. 992, 998. Here the appellant idly sat 

by for 29 years before asserting his claim of title. Such 

conduct is not condoned by this Court and has not been in the 

past. 

It is now too late for Clayton to attempt to disturb 

the railroad title and possession. See Brabender v. Kitt 

Manufacturing Co. supra; Richardson v. Richland County (Mont. 

1985), 711 P.2d 777, 42 St.F,ep. 1834; Anderson v. Richland 

County (Mont. 1985), 711 P.2d 784, 42 St.Rep. 1843. 

All a.pplicable statutes of limitations commenced to run 

when Clayton accrued an enforceable right. Pope v. Keefer 

(1979), 180 Mont. 454, 464, 591 P.2d 206, 212. Accepting 

Clayton's position that exclusive title was bestowed upon him 

by the United States patent September 13, 1954, this 

enforceable claim accrued on that date. Section 27-2-207, 

MCA, requires that any action for injury to or waste or 

trespass "on real or personal property" must be brought 

within two years. 
If Clayton now contends the railroad's occupation of 

the right-of-way caused personal injury, a cause of action 

for personal injury was barred in 1957 by the three-year 

statute of limitations provided for in S 27-2-204(1), MCA. 

The quiet title action is barred by S 70-19-401, MCA, 

because Clayton was not "seized or possessed of the property 

in question within five years before the commencement of the 

action. I' It was well established that the railroad's 

possession of the property in question has been exclusive and 

continuous since 1954. Possession is self-defining, and the 

term "seisin" means possession. Northern Pacific R. Co. v. 

Cannon (1891), 46 Fed. 224, 234. "Seisin" means a claim of 

title accompanied with possession. Webb v. Wheeler 

(Neb. 1908), 114 N.W. 636. 

Application of S 70-19-404, MCA, clearly destroys any 

presumption that the railroad's title was subordinate to 

Clayton's. When property is held and possessed adversely for 

five years to one with legal title before commencement of an 

action, the one holding adversely is no longer subordinate. 

Clayton waited 29 years to bring this action and by 

virtue of his own admissions, answers to interrogatories, and 

plea.dings in this case, his motion for a partial summary 

judgment was correctly denied by the District Court. 

As to the railroad's motion for summary judgment, the 

same rule applies. The railroad must show it has title to 

the right-of-way by adverse possession and/or prescription. 

Section 70-19-407, MCA, provides in part that where a 

person such as the railroad enters into possession of 

property (the right-of-way) and bases its right upon a 

written instrument, then, if the person has been in continual 

occupation and possession of the property described in the 
written instrument for five years, the described property "is 

deemed to have been held adversely." For purposes of 

§ 70-19-407, occupancy is deemed to be adverse, where it has 

been "improved," S; 70-19-408(l) (a), MCA, or "where it has 

been protected by a substantial enclosure," 

70-19-408 (1) (b) , MCA. There is no dispute that the 

property has been enclosed by a fence and has been improved, 

i.e., maintained, since 1954. 

When adverse possession is not based on a written 

instrument, the fact that the land is within a substantial 

enclosure is sufficient to establish adverse possession. 

Thibault v. Flynn (1958), 133 Mont. 461, 466, 325 P.2d 914, 

917. See also, Dillon v. Antler Land Company (D. Mont. 

1972), 341 F.Supp. 734, 742-743. Even if the 1892 deeds were 

void, the right-of-way was and is enclosed by a fence and the 

requirements of the statute have been satisfied. Dillon, 

supra, at 743. Castles v. Lawrence (Mont. 19831, 662 P.2d 

589, 590, 40 St.Rep. 545, 547, and Swecker v. Dorn (1979), 

181 Mont. 436, 441, 593 P.2d 1055, 1058. 

Regardless of whether or not the railroad predicates 

its ownership of the easement upon an instrument in writing, 

it nevertheless has acquired a prescriptive easement. 

Payment of taxes is not required to establish a prescriptive 

easement. Eountain View Cemetery v. Granger (1978), 175 

Mont. 351, 574 P.2d 254; Kostbade v. Metier (1967), 150 Mont. 

139, 432 P.2d 382; Scott v. Weinheimer (1962), 140 Mont. 554, 

374 P.2d 91. 

Clearly, the railroad has met its burden. Once this 

burden is met, the party opposing summary judgment must come 

forward with substantial evidence raising a factual issue. 

Farmers Insurance Exchange v. Janzer (Mont. 1985), 697 P.2d 
460, 462, 42 St.Rep. 337, 339. Clayton simply is unable to 

do so. 

Having satisfied all. statutory and common law 

requirements to establish its title, the railroad's motion 

for summary judgment was properly granted and we affirm the 

District Court's decision. 

We Concur: /.( 

f 

Justices