### No. 12038 IN

### THE SUPREME COURT OF THE 

### STATE OF MONTANA 1971

GEORGE D

# .BUCKLEY

## ,etal.

# , Plaintiffs and Respondents,

-vs

# - JAMES V. 

### LAIRD, 

### et al., Defendants and Appellants.

Appeal from: District Court of the Eighteenth Judicial District, Honorable W. W. 

### Lessley, Judge presiding. Counsel of Record: For Appellants

### : Morrow, Nash and Sedivy, Bozeman, Montana. Edmund P. Sedivy argued, Bozeman, Montana. For Respondents

### : McKinley T. 

### Anderson, Jr. 

### argued, Bozeman, Montana.

Submitted: December 

### 1, 1971 Decided:

## FEBd

# -1911)

-. 

### Filed: 

## FEB

## 7-

# 19R

### Mr. Justice Wesley Castles delivered the Opinion of the Court.



### Mr. and 

### Mrs. Buckley and 

### Mr. and 

### Mrs. Helppie brought this action in the district court of the eighteenthjudicial district, county of Gallatin, toquiet titletoa certain strip of land, as against

### Mr. and 

### Mrs. Laird and 

### Mr. and 

### Mrs. Hall, and allother persons claiming an interest therein. The trial court, sittingwithout a jury, mzde findings of fact and conclusions of law and entered judgment for the plaintiffs, and later, judgment nunc pro tunc. 

### The trialcourt by order denied defendants' exceptions to the findings of fact and conclusions of law, judgment and judgment nunc pro tunc. Defendants appeal. Plaintiffs Helppie and Buckley own certain land near West Yellowstone, in GallatinCounty, Montana, situate in the South Half of Section 21, Township 13 South, Range 4 East. Buckley had purchased the south half of Section 21 from McCracken in 1944. Immediately thereafter, they hired 

### Mr. Papke, a surveyor, and subdivided a portion of the property intoLazy Acres Subdivision. Beginning in 1960 through 1963, Helppie purchased certain lots inLazy Acres from Buckley, in three separate transactions.Atthe time Buckley purchased the property from McCracken, there was a fence on the north boundary of the property. This tence was mostly down but the posts and wire were visible and Buckley showed Papke the fence, prior tohis survey. The plat otLazy Acres as prepared by Papke was filedwith the clerk and recorder of Gallatin County in 1948. Papke determined and set forth in his plat that the east-west center lineot Section 

### 21

was the north boundary of Lazy Acres. This north line of Lazy Acres corresponds with the previous fence line.Defendants, Laird and Hull, atthe time of trial, claimed to own allthe land south of U.S. Highway 191and north of the north line of Lazy Acres Subdivision. James 

### V. Laird, and his sister

### Mrs. Hull, acquired their interest in the land after the death of their father in 1951. Their fatherhad acquired the land by deed in 1926, from 

### Mr. and 

### Mrs. Wakefield. The deed described the land so acquired as being the "East half of the northwest nuarter 

### (E 112,~~ 114) and thewest half of thenortheast quarter (W 112, NE 1/4), alllocated in theNorth Half of Section 21, of Township 13 South, Range 4 East

# ." The Laird family had been on the property since 1904, and Laird had been familiarwith the land since 

### 1917. After Helppie completed purchase of the last of Lazy Acres in 1963, they hired a surveyor, Thomas 

### J. Hallin, to survey the lands concerning theirboundary linebetween their property and Lairds

## ' property. Hallin completed his survey in 1965, and delivered the plat toHelppie. The plat has never been recorded. Hallin concluded that, inhis opinion, the true east-west center line of Section 21was about forty feet north of thenorthboundary of Lazy Acres, as surveyed and platted by Papke. A total of about two acres ot land 

### is in dispute. Since about 1940, there has been a cabinhome on the Laird property. There has been an outhouse on the two acre strip of land in disputewhich was built by the Lairds in 1942, and used by them ever since in conjunction with the cabin home. Laird had alsoused the stripof land, now inquestion, for cutting green trees and firewood, walking, planting trees, and other general use. Dad Laird 

### had told both his daughter 

### Mrs. Hull, and her husband Mr. Hull, in 1937, that the southboundary of his property was atthe fence line.Laird and Hull offered as evidence tax receipts showing that since 1934, through 1967, they had paid allthe taxes on the Laird land known as Tract H. Laird paid the taxes on four-fifths otthe land and Hull paid the taxes on one-fifth. Track H 

### is that portion of the land in the north half of Section 21, lying south of the current U.S. Highway 191, and north of the north line of Lazy Acres, which includes the two acres now in dispute. Tract 

### H was surveyed out by Laird on August 

### 1, 1931, and the survey

was filed for record alongwith deed dated November 

### 17, 1953, trom 

### Mrs. Vella E. Laird toJames V. Laird, otTract H, consisting of 13.35 acres. Thereafter, the tax receipts recite the payment of taxes by Laird and Hull on land in the north half 02 Section 21, "South

or Highway Desig.. on Assessor's Plats as Tract H". Laird was originally paying the taxes on 10.68 acres of the land and Hull

was paying on 2.67 acres. Later, after 1960, when approximately 2.8 acres of Tract 

### H was deeded to the StateHighway Commission tor right-of-way, Laird paid the taxes on 8.42 acres and Hull paid the taxes on 2.10 acres. Buckley admitted that the two acre stripof land had

never been used by him forany purpose. 

### Mr. Buckley thought that the fence had been built in 1935, and described 

### it asa barbed wire fence on posts. The fence was in such shape that anyone could 

### still follow the linetoday. Buckley, after sellingLazy Acres Subdivision toHelppie, retained only a tract of land of approximately two acres, which was alsoplatted by Mr. Papke inAugust 1961, using his previously determined center line. The Buckley land is located west of Lazy Acres. Mrs. Buckley admitted that they at

no time ever made claim for or went beyond the fence line, which corresponded with the Papke survey, as they assumed the fence line

### was the boundary linebetween the properties. Although tax receipts

were offered by Buckley toshow payment of taxes on land in the southhalf of Section 21, 

### Mrs. Buckley admitted that they assumed they were only paying taxes to the fence line. Helppie claims titletothe two acres of land indispute, which liesbetween thenorthernboundary of Lazy Acres Subdivision and the east-west center lineof Section 21, as found by surveyor Hallin. Helppie claims tohave paid taxes on the two acre strip. However, the tax receipts offered by Helppie reveal that from the period 1960 to 1965, they only paid taxes on "~azy Acres SubdivisionLots 2 through 5and 8, through 

### 11, 16, 17, 20, 21, 28 and 29." In 1966, receipts were offeredby Helppie which reveal

11 

### that !n addition totheLazy Acre lots, they paid taxes on Tract B 

### asDesign. Assessor's Platbeing inSW 1/4, less HI4 

### 21 13s4E 14.35". No evidence was ever offered toshow where Tract B 

### was, other than on 

### its face; this 14.35 acre tract is inthe south half of Section21, and hence has nothing todo with the two acres indispute. ' 

### In 1967, Helppie offered their receipt to show that they alsohad paid taxes on property described as "That porttion

### E 1/2- NE 

### 1/2-S~ 1/4 lying 14 

### of Lazy A.Sub & 

### S. of W.Y. HW. 

### 21 13s4E 15.46". Again, this land 

### is clearly located inthe southhalf of Section 21, and alsowest of theLazy Acres Subdivision, and hence does not cover the two acres indispute. The tax receipts offered by Buckley similarly show that Buckley paid taxes on various lots inLazy Acres Subdivision during periods from 1954-1956, and in 1960, and from 1963-1967. Buckley alsopaid some taxes on the 14.35 acre

### Tract B, 

### beginning in 1954, and on Tract W, 

### described as "being 150' x 

### 150' inNW 

### 1/4-~~ 

### 1/4, IND. 

### SITE". No evidencewas offered that eitherTract W 

### or Tract B 

### had anything todo with the two acre tract of land in dispute.

### Mr. Helppie admitted thatwhen he firstpurchased the property from Buckley in 1960, he observed thewire fence. After receiving the Hallin survey, Helppie built a jack-log fence along the Hallin east-west center line of Section 21, but by the next spring someone had moved it

### back to the original fence line on the east-west 

### center linepreviously established by surveyor Papke. Helppie never consulted Laird about the new fence, prior tobuilding it. 

### Mr. Helppie admitted that they had made no other use of the two acre stripin dispute. Appellants setup three issues on appeal. (1) Are defendants Laird entitled to the two acre strip in dispute by adverse possession? 

### (2) Are defendants Laird entitled tothe two acre strip by acquiesence? 

### (3) Are defendants Laird entitled tothe two acre strip because the Papke survey line isthe true and correct east-west center lineof Section 21? Respondents approach the problem from IssueNo. 

### 3. Basically, respondents assert that allthe parties intended toclaim only to the.true 

# -east-west center line of Section 21, when it

### was estabMshed by a proper survey. They then reject the Papke survey as

indicated on their own officialplat, hire a new surveyor Hallin and assert

### h all in's survey as the only "proper" survey. Hallin's criticalpoints inhis survey were the quarter
corners on thenorth-south section lines of 

### Section 21. On 

### the west section line, between Sections 20 and 21, Hallin made some independent judgments and reestablished the quarter corner. He admitted that his reestablished quarter corner was about 50 feet north ota point equi-distant between the section corners.

### .The 1901U.S. government survey plat shows the auarter

corner tohave been established equi-distant. In the 1930 resurvey, the resurvey notes show no evidence OL 

### a quarter corner at40 chains north of the SW corner of Section 21. In reestablishing the quarter corner, the true point for the quarter corner was 39.75 chains. This was noted to"tall inmiddle of highway toWest Yellowstone, bears N.W. & 

### S.E., impracticable tosetcor." A 

### witness corner was setat40.20 chains and marked with an iron post and brass cap. This same witness corner was used towitness the 114 corner of Section 20, which was 40.59 chains from the SW

corner of Section 21. The notes show the witness corner tobe in feet, 29.7 feetnorth of the 114 corner of Section 21and 25.74 feet south or the 114 corner of Section 20. As 

### the survey lineon the section linecontinued northerly, it

### was found that the section

corner common to Sections 16, 

### 17, 20 and 21was 79.50 chains north otthe south section corner. By computation therefore, thewest quarter corner of Section 21was 39.75 chains north and 39.75 chains south of the corners, or equi-distant. Yet, Hallin found different measurements and, therefore, made his independentjudgment that the 114corner was 50 feet north of 

### that point. He concluded and reestablished his own quarter

corner so that the south 1/2 section lines measured 2668.43 feet, while the northhalf measured 2576.55 feet, or a difference of 91.88 feet. His reestablished quarter corner wound up 29.70 feet south of thewitness corner or the 1930 survey; but this point wound up what Hallin estimated tobe some 8 or 9 feetnorth of thecenter line of the road. Now then, Hallin's 114cornerjibed with one measurement of the 1930 resurvey; thatmeasurement being feet 

### 29.70lsouth of thewitness corner. Hallin's 114 corner did not jibe inmeasurement toeither sectioncorner with the 1930 resurvey;nor did itjibe with the availablenotes from the original 1901 survey, nor another 1917 survey. On the east section line, Hallin surveyed in a similar manner, except that therehe reestablished the 114 corner by proportionate measurements. Hallin then ran a straight linebetween his reestablished east and west 114 corners. None of the existing old fence lines, the Lazy Acres measurements, corners of an existing school acre,

nor other survey marks correspond with

### all in's new division line; but this new linebecame in respondents' eyes the "proper" line and, further, the "true" line towhich alladjoining properties must adhere. Hallin admitted that he disregarded the other marks and evidences or property lines because, as he put it, "inasmuch

as 

### I could find no basis or evidence of a survey atthe time 

### I did this work, we didn't (sic) disregard itand went to the method 

### I described to find the east-west centerline." [Hallin did disregard allother evidences other than his own "method".] Hallin did not discuss the problem with other landowners, nor did he seek out any other information concerning the east-west center line or any other monuments, natural or artificial. Interestingly, defendant Laird 

### is a licensed engineer and surveyor who has been familiar with the ground for his entire lifetimeand, although an interested party,he was not contacted by Hallin. Laird testified that the old tence in question was built in about 1917, fifteen tosixteen years after the 1901government survey, and that he had used and referred to the fence line in

a deed description in 1939, when some sixacres of property had been transkerred tohis brother. The "old fence" was referred to in three other deeds forboundary indentiiication. Laird alsotestified: That the east-west road was in use and surveyed in 1917. That the road was constructed upon the original 1901government east-west center lineand from his investigationhe concluded that the original east auarter corner was some eighteen to thirty-eight feet south of 

### all in's quarter corner monument and almost on the Papke survey line. That in allof the recent deeds from him and his family to the Montana Highway Commission the Papke survey had been used as the basis of the description, and the deeds had been approved. 

### It was ~aird's opinion that the witness corner from the 1930 government resurvey should have reference only tothe east auarter corner of Section 20, rather than thewest quarter corner of Section 21, although the 1930notes purport that it applies to both. The notes and plat survey of 1930 reveal that the government surveyors were atthat time only surveying for Sections 18, 19, 20, 28, 29, 32, 33 and 34, of Township 13 South, Range 4 East, which had been unsurveyed and that Section 21had been the subject of the 1901survey. The notes of the 1930 surveyor reveal that he was unable to locate thewest quarter corner of Section 21, as setby the 1901survey. The notes further reveal the surveyor did decide the quarter corner should be in themiddle of the highway but there 

### is no evidence that surveyor ever went upon Section 21 to look for monuments such as the existing fence. Hallin was hired by Helppie toperform a resurvey of the east-west center line, as set forth in the 1901survey. The rules for resurveys have been set forth in 12 Am Jur 2d, Boundaries, 

### $61, p. 599:

I IResurveys.

ItIn surveying 

### a tract of land according to a former plat or survey, the surveyor's only duty 

### is torelocate, upon the best evidence obtainable, the courses and lines atthe same place where originally located by the first surveyor on the ground. Inmaking the resurvey, he has the right touse the field notes of the original survey. Theobjec~ object of a resurvey 

### is to furnish proof of the location of the lost lines ormonuments, not todispute the correctness of or tocontrol the origina

### 1survey. The origina1-surveyina

### 11 cases must, whenever possible, be retraced, since it cannot be disregarded orneedlessly altered after property rights have been acquired in reliance upon it. 

### On a resurvey to establish lost boundaries, if the original corners can be found, the places where they were originally established areconclusive without regard towhether they were in fact correctly located, in this respect it has been stated that the rule 

### is based on the premise that the stability of boundary lines 

### is more important than minor inaccuracies or 

### mis

## - takes. But it has alsobeen said that great caution must be used in reference toresurveys, since surveys made by different surveyors seldomwholly agree. A resurvey not shown tohave been based upon the original survey 

### is inconclusive indetermining boundaries and willordinarilyyield toa resurvey based upon known monuments and boundaries ot the original survey." Since 1895, Montana has had a statute, now known as section 93-2201-4, R.C.M. 1947, which provides:

IIRules for construing description of lands. The following arethe rules for construing the descriptive part of a conveyance of real property, when the construction 

### is doubtful and there areno other sufficient circumstances todetermine 

### it:

2 When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either ot lines, angles, or surfaces, the boundaries or monuments areparamount. II The earlyMontana case of Myrick 

### v. Peet, 

### 56 Mont. 

### 13, 20, 22, 180 P. 

### 574., further discussed rules concerning resurveys:

111Before courses and distances can determine theboundary, allmeans for ascertaining the location of the lost monuments must firstbe exhausted.

## ' (Ti-edeman on Rea

### 1 Property, sec. 

### 832).111Prima facie, a fixed visiblemonument can never be rejected as false or mistaken in favor of mere course and distance as the starting point, when there 

### is nothing else in the terms of the grant tocontrol and override the fixed and visible call. The general rule that courses and distances must yield to natural or artificialmonuments rests upon the legal presumption that allgrants and conveyances aremade with reference toan actualview of the premises by the parties.

## ' (Tyler on Ejectment, 569; Garrard v. Silver Peak Mines (C.C.) 82 Fed. 585, and cases there cited. "'~onumentsare facts; the field-notes and plats indicating courses, distances, and quantities arebut descriptions which serve toassist inascertaining those facts.

## ' (Martin v. Carlin, 19 Wis. 454, 88 Am.Dec. 696.) When there 

### is a conflict between monuments and courses and distances, the latter must yield to the former. (Devlin on Real Estate, sec. 1029).

# ** f~ "The law, therefore, 

### is that where monuments can be recognized by competent civil engineers, they aretobe taken as the guide in fixingboundaries." In Vaught v. McClymond, 116 Mont. 542, 155 P.2d 612, this Court restated the rules enunciating the same principles. Respondents citeVaught for language, emphasizing the surveyor's duty torelocate, upon the best evidence obtainable the original

courses and lines. Respondents insist that&Enused the "best evidence"

# . The Hallin resurvey cannot control the location of the east-west center line, because Hallin disregarded the basic rule, togive greaterweight tothemonuments than tomere measurements. In fact, Hallin completely disregarded allthe artificial monuments--the road, the REA power pole, the school acreage, and the fence, not tomention the outhouse. The three government surveys in 1901, 1917, and 1930

are inconsistent and inaccurate. For example, the 1901survey does not even attempt to locate thewest quarter corner of Section 21. 

### It located the east quarter corner of Section 21, and placedit 

### an equi-distant 40 chains from the northeast corner and 40 chains from the southeast corner. A 

### reasonable assumption would be that thewest quarter corner would alsobe 40 chains from thenorthwest corner and 40 chains from the southwest corner. However, in 1917, the surveyor claimed he found a west quarter corner, which was 39.17 chains from thenorthwest

corner. This surveyor did not measure the 

### distance from his purported west quarter corner to the southwest corner to see if this inany way checked with the 1901survey. Later, in 1930, the surveyor finds no traceof any west quarter corner of Section 21, but he measures toa point equidistant between thenorthwest corner and the southwest corner, and finds the distance tobe 79.50 chains. He then sets a quarter

corner which 

### is 39.73 chains to the northwest corner and 39.75 chains tothe southwest corner. Finally, in 1964, surveyor Hallin comes along and, using the 1930 surveyor's witness corner, establishes his own west quarter corner which measures 2576.55 feet from the west quarter

corner tothenorthwest corner and 2600.26 feet from the west quarter corner tothe southwest corner, fora total of 5176.81 feet. Yet, the 1930 survey found the totaldistance between the northwest corner and the southwest cornerwas 5244.98 feet or 79.5 chains. In between, the government surveys and the Hallin survey, Papke apparently finds thewest quarter corner and the east quarter corner of Section 21, 

### and when he ties them up, the east-west center lineof Section 21happens tocoincidewith the old fence, running east and west across the middle of Section 21. Later, Laird finds inhis survey, that the Papke survey lineof the east-west center linecoincides with the school acreage in Section 21, and alsocoincides with an REA 

### pole in Section 21.

### Out of this maze, several conclusions can be dravm. First, afterthe 1901survey, none of the other surveyors, other

an Papke and Laird, ever purported topay any attention tothe artificialmonuments. In fact, the 1917 and 1930 surveyors did not even indicate in theirnotes that they went upon the ground of Section 21 to look formonuments. Second, Hallin only compounded the error, because rather than talking tothe people who had lived in the area, such as Laird, and rather than giving consideration to the artificial monuments, most of which had been there prior to 1930, such as the road and fence, Hallin chose to follow the 1930 survey and

some of its 

### survey monuments, including the 1930witness corner for thewest quarter corner, which, admittedly, were placed without giving consideration tothe existing artificialmonuments. However, Hallin's measurements and location or thewest quarLe~

corner do not even LO-respondwlth the 1~30 survey. Fillally, trle ~esult or r;he Hallin survey runs contrary to~allln's own admission, tna~ no surveyor, arcer tne 1901survey, irlcludi~lg ihe later governmeni sur~eyors 

## , sllould have ally right tochange the locat~on or amount OL 

### a mall's property. Yet, tnis is exactlywnai tneHallin su~vey purports todo. The Papke survey tended to p;eserve the exlstirlg lo~ations OL 

### property ot the owners living lnthe area atthat tlme. In fact, Hallin admitted that if from the 1901survey either the surveyor or the property owners established thewest quarter corner ata point equi-distant from the northwest corner and the southwest corner, thewest quarter corner would be ata point fifty feet south of where Hallin has it 

### now designated, and ata point just about exactly in linewith the Papke survey.In summary, the Papke survey 

### is consistent with the general rules of land description and survey and deviates the least from the original 1901survey. The east-west center line of Section 21, as found by Papke, 

### is held tobe the true survey of this line, rather than the Hallin ce~ter line, which purports todisrupt and change the existing property lines, not only between Helppie and Laird, but alsoaffecting a

### 11 adjoining land

owners not a party tothis action, such as

### Mr. Kephart, the United States Forest Service and the stateof Montana, by virtue of its school lands. Having found that the trial court was in error in adopting the Hallin survey and that the Papke survey of the disputed area 

### is the correct one, it 

### is not necessary to discuss Issues 

### 1and 

### 2, adverse possession or acquiescence. The judgment 

### is reversed and the cause remanded for entry of judgment in favor of appellants.

~ssocate Justice

Associate Justices