No. 85-453 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

GEORGE CLAYTON an incompetentperson by DOROTHY MURPHY, Guardian ad.Litem, Plaintiffand Appellant,

THE ATLANTIC RICHFIELD COHPANY; THE BUTTE, ANACONDA AND PACIFIC RAILROAD CO.; and DEFENDANTS A THROUGH Z, Defendamts and Respondents.

APPEAL FROM: DistrictCourtof the SecondJudicial District, Inand forthe Countyof Silver Bow, TheHonorableMark P. Sullivan, Judge presiding.

COUNSEL OF RECORD:

ForAppellant: Edward Yelsa, Anaconda, Montana

ForRespondent: Poore, Roth & Robinson; JamesA. 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.nappeal from the DistrictCourtof the Second Judicial District of the State ofMontana, for the County of Silver Bow. The appeal is from an order for summary judgment. We affirm. The following facts arepertinent 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, exceptwhere the tracks cross a bridge or a road. The ground between the fenceshas notbeen used foranypurposeby anyone other than the railroad. The railroad haspaid the taxes levied against the right-of-wayduring this entireperiod. On September 13, 

### 1954, appellant (Clayton)obtained a patent from the United States Government covering landwhich included the railroad's right-of-way, but thepatent did not refer in anyway to the right-of-way. Clayton took no action with respect to the existenceof, oruse of,the right-of-way until shortly before filing this action in September 1983. The 

### trackswere 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-roadoperated openly and obviouslywith at least one trainper day each way from sometimeprior to September, 1954, up to and includinq thepresent time. Neither Clayton, hiswife,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 sideof the centerline, and that the right-of-way land has not been used in any way by him from September, 1954,until thepresent. 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-eto 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'sproperty. Thereafter Clayton filed a 

### reply alleging the railroad

was barred bl7 laches and the statute of limitations, for judgmenton thepleadings, and forapartial summary judgmentreserving 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 ofmaterial fact. The District Court denied Clayton's motions, granted the railroad'smotion,and entered judgment for the railroad. Clayton appeals. Three issues arepresented by Clayton:

(1) Was the District Court correct in denying Clayton's motion for a judgment on thepleadings? (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 isprovided for in Rule 12fc), I4.R.Civ.P. TheNinth Circuit Court ofAppeals recently announced the judicial standard of review applied to

a Rule 12(c) motion. Themovantmust "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 courtmust look tomatters beyond thepleadings. Mathews

v. Glacier General Assurance Co. (1979), 184Mont. 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 examinemattersbeyond thepleadings 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 hismotion for summary judgment. Summary judgment is proper only when there is no genuine issue ofmaterial 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 tomeet. Both counts inhis 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 "hewas 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 rightsby 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 therewere conflicting claims to the land in question. Themining locations and deeds were amatter of public record andwere available to Clayton. When there appearspossession of landby persons other than the record holder, which possession is inconsistent with the record title, there is a duty of inquiry imposedupon apurchaser 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 notbeen 

### in the past. It is now too late for Clayton to attempt to disturb the railroad title and possession. See Brabender v. Kitt ManufacturingCo. 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.pplicablestatutes of limitationscommenced 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 titlewasbestowed 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 twoyears.

### 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 "seizedor 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 hasbeen 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), 114N.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 isheld 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 ofhis own admissions,answers to interrogatories,and plea.dings in this case, his motion for a partial summary judgmentwas correctly denied by the DistrictCourt. 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 thepersonhasbeen in continual occupation and possession of the property described in thewritten instrument for fiveyears, thedescribedproperty "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 1892deeds were void, the right-of-waywas 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), 181Mont. 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 aprescriptive easement. Eountain View Cemetery v. Granger (1978), 175 Mont. 351, 574 P.2d 254;Kostbade v. Metier (1967),150Mont. 139, 432 P.2d 382; Scottv. 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 judgmentmust come forward with substantial evidence raising a factual issue. Farmers Insurance Exchange v. Janzer (Mont. 1985), 697 P.2d460, 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