No. 12038 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1971 

GEORGE D . BUCKLEY , et al. , 

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 : F EB d - 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 eighteenth judicial 

district, county of Gallatin, to quiet title to a certain strip 

of land, as against Mr. and Mrs. Laird and Mr. and Mrs. Hall, 

and all other persons claiming an interest therein. The trial 

court, sitting without a jury, mzde findings of fact and conclusions of law and entered judgment for the plaintiffs, and later, 

judgment nunc pro tunc. The trial court 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 Gallatin County, 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 into Lazy Acres Subdivision. Beginning in 1960 through 1963, Helppie purchased 

certain lots in Lazy Acres from Buckley, in three separate transactions. 

At the 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 to his survey. The plat 

ot Lazy Acres as prepared by Papke was filed with the clerk and 

recorder of Gallatin County in 1948. Papke determined and set 

forth in his plat that the east-west center line ot 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, at the time of trial, claimed 

to own all the land south of U.S. Highway 191 and 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 father had 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 the west half of the northeast quarter 

(W 112, NE 1/4), all located in the North 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 familiar with 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 their boundary line between their property and 

Lairds ' property. Hallin completed his survey in 1965, and delivered the plat to Helppie. The plat has never been recorded. 

Hallin concluded that, in his opinion, the true east-west center 

line of Section 21 was about forty feet north of the north boundary 

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 cabin home on the 

Laird property. There has been an outhouse on the two acre strip 

of land in dispute which was built by the Lairds in 1942, and used 

by them ever since in conjunction with the cabin home. Laird had 

also used the strip of land, now in question, 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 south boundary of his property was at the 

fence line. 
Laird and Hull offered as evidence tax receipts showing 

that since 1934, through 1967, they had paid all the taxes on the 

Laird land known as Tract H. Laird paid the taxes on four-fifths 

ot the 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 along with deed dated November 17, 1953, trom 

Mrs. Vella E. Laird to James V. Laird, ot Tract 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 State Highway 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 strip of land had 

never been used by him for any purpose. Mr. Buckley thought that 

the fence had been built in 1935, and described it as a barbed wire 

fence on posts. The fence was in such shape that anyone could still 

follow the line today. Buckley, after selling Lazy Acres Subdivision to Helppie, retained only a tract of land of approximately 

two acres, which was also platted by Mr. Papke in August 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 line between the properties. Although tax receipts 

were offered by Buckley to show payment of taxes on land in the 

south half of Section 21, Mrs. Buckley admitted that they assumed 

they were only paying taxes to the fence line. 

Helppie claims title to the two acres of land in dispute, 

which lies between the northern boundary of Lazy Acres Subdivision 

and the east-west center line of Section 21, as found by surveyor 

Hallin. Helppie claims to have 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 Subdivision Lots 2 through 5 and 8, through 11, 16, 17, 20, 21, 28 

and 29." In 1966, receipts were offered by Helppie which reveal 

11 that !n addition to the Lazy Acre lots, they paid taxes on Tract 

B as Design. Assessor's Plat being in SW 1/4, less HI4 21 13s 4E 

14.35". No evidence was ever offered to show where Tract B was, 

other than on its face; this 14.35 acre tract is in the south 

half of Section 21, and hence has nothing to do with the two acres 

in dispute. ' 

In 1967, Helppie offered their receipt to show that they 

also had 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 13s 4E 

15.46". Again, this land is clearly located in the south half of 

Section 21, and also west of the Lazy Acres Subdivision, and hence 

does not cover the two acres in dispute. 

The tax receipts offered by Buckley similarly show that 

Buckley paid taxes on various lots in Lazy Acres Subdivision during 

periods from 1954-1956, and in 1960, and from 1963-1967. Buckley 

also paid some taxes on the 14.35 acre Tract B, beginning in 1954, 

and on Tract W, described as "being 150' x 150' in NW 1/4-~~ 1/4, 

IND. SITE". No evidence was offered that either Tract W or Tract B 

had anything to do with the two acre tract of land in dispute. 
Mr. Helppie admitted that when he first purchased the 

property from Buckley in 1960, he observed the wire 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 eas t-wes t center line previously established by surveyor Papke. 

Helppie never consulted Laird about the new fence, prior to building 

it. Mr. Helppie admitted that they had made no other use of the 

two acre strip in dispute. 

Appellants set up three issues on appeal. 

(1) Are defendants Laird entitled to the two acre strip 

in dispute by adverse possession? 

(2) Are defendants Laird entitled to the two acre strip 

by acquiesence? 

(3) Are defendants Laird entitled to the two acre strip 

because the Papke survey line is the true and correct east-west 

center line of Section 21? 

Respondents approach the problem from Issue No. 3. Basically, 

respondents assert that all the parties intended to claim 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 official plat, hire a new surveyor Hallin 

and assert h all in's survey as the only "proper" survey. 

Hallin's critical points in his survey were the quarter 

corners on the north-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 ot a point equi-distant between the section corners. 
.The 1901 U.S. government survey plat shows the auarter 

corner to have been established equi-distant. In the 1930 resurvey, 

the resurvey notes show no evidence OL a quarter corner at 40 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 in middle of highway to West 

Yellowstone, bears N.W. & S.E., impracticable to set cor." A 

witness corner was set at 40.20 chains and marked with an iron 

post and brass cap. This same witness corner was used to witness 

the 114 corner of Section 20, which was 40.59 chains from the SW 

corner of Section 21. The notes show the witness corner to be in 

feet, 29.7 feet north of the 114 corner of Section 21 and 25.74 

feet south or the 114 corner of Section 20. As the survey line on 

the section line continued northerly, it was found that the section 

corner common to Sections 16, 17, 20 and 21 was 79.50 chains north 

ot the south section corner. By computation therefore, the west 

quarter corner of Section 21 was 39.75 chains north and 39.75 

chains south of the corners, or equi-distant. 

Yet, Hallin found different measurements and, therefore, 

made his independent judgment that the 114 corner 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 north half measured 2576.55 feet, or a difference of 

91.88 feet. His reestablished quarter corner wound up 29.70 feet 

south of the witness corner or the 1930 survey; but this point 

wound up what Hallin estimated to be some 8 or 9 feet north of 

the center line of the road. Now then, Hallin's 114 corner jibed 

with one measurement of the 1930 resurvey; that measurement being 

feet 

29.70lsouth of the witness corner. Hallin's 114 corner did not 

jibe in measurement to either section corner with the 1930 resurvey; 
nor did it jibe with the available notes from the original 1901 

survey, nor another 1917 survey. 

On the east section line, Hallin surveyed in a similar 

manner, except that there he reestablished the 114 corner by 

proportionate measurements. 

Hallin then ran a straight line between 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 line became in respondents' eyes the "proper" line 

and, further, the "true" line to which all adjoining 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 at the time I 

did this work, we didn't (sic) disregard it and went to the method 

I described to find the east-west centerline." [Hallin did disregard all other 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 lifetime and, although an 

interested party, he was not contacted by Hallin. 

Laird testified that the old tence in question was built 

in about 1917, fifteen to sixteen years after the 1901 government 

survey, and that he had used and referred to the fence line in 

a deed description in 1939, when some six acres of property had 

been transkerred to his brother. The "old fence" was referred to 

in three other deeds for boundary indentiiication. Laird also 
testified: That the east-west road was in use and surveyed in 

1917. That the road was constructed upon the original 1901 government east-west center line and from his investigation he 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 all of 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 to the east 

auarter corner of Section 20, rather than the west quarter corner 

of Section 21, although the 1930 notes purport that it applies to 

both. The notes and plat survey of 1930 reveal that the government surveyors were at that 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 21 had been the subject 

of the 1901 survey. The notes of the 1930 surveyor reveal that 

he was unable to locate the west quarter corner of Section 21, as 

set by the 1901 survey. The notes further reveal the surveyor 

did decide the quarter corner should be in the middle 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 to perform a resurvey of the 

east-west center line, as set forth in the 1901 survey. The rules 

for resurveys have been set forth in 12 Am Jur 2d, Boundaries, $61, 

p. 599: 

I I Resurveys. 

It In surveying a tract of land according to a 

former plat or survey, the surveyor's only duty 

is to relocate, upon the best evidence obtainable, the courses and lines at the same place where 

originally located by the first surveyor on the 

ground. In making the resurvey, he has the right 

to use the field notes of the original survey. The 
objec~ object of a resurvey is to furnish proof 

of the location of the lost lines or monuments, 

not to dispute the correctness of or to control 

the origina 1 survey. The origina 1-survey in a 11 

cases must, whenever possible, be retraced, since 

it cannot be disregarded or needlessly 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 

are conclusive without regard to whether 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 also been said that great caution must be used in reference to resurveys, since 

surveys made by different surveyors seldom wholly 

agree. A resurvey not shown to have been based 

upon the original survey is inconclusive in determining boundaries and will ordinarily yield to a 

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 : 

I I Rules for construing description of lands. The 

following are the rules for construing the descriptive part of a conveyance of real property, when 

the construction is doubtful and there are no other 

sufficient circumstances to determine 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 are paramount. I I 

The early Montana case of Myrick v. Peet, 56 Mont. 13, 

20, 22, 180 P. 574., further discussed rules concerning resurveys: 

11 1 Before courses and distances can determine 

the boundary, all means for ascertaining the 

location of the lost monuments must first be 

exhausted. ' (Ti-edeman on Rea 1 Property, sec. 

832). 
11 1 Prima facie, a fixed visible monument 

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 to control and override the fixed and visible call. The general 

rule that courses and distances must yield to 

natural or artificial monuments rests upon the 

legal presumption that all grants and conveyances are made with reference to an actual view 

of the premises by the parties. ' (Tyler on 

Ejectment, 569; Garrard v. Silver Peak Mines (C.C.) 

82 Fed. 585, and cases there cited. 

"'~onuments are facts; the field-notes and 

plats indicating courses, distances, and 

quantities are but descriptions which serve 

to assist in ascertaining 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 

are to be taken as the guide in fixing boundaries." 

In Vaught v. McClymond, 116 Mont. 542, 155 P.2d 612, 

this Court restated the rules enunciating the same principles. 

Respondents cite Vaught for language, emphasizing the surveyor's 

duty to relocate, upon the best evidence obtainable the original 

courses and lines. Respondents insist that &En used the "best 

evidence" . 

The Hallin resurvey cannot control the location of the 

east-west center line, because Hallin disregarded the basic rule, 

to give greater weight to the monuments than to mere measurements. 

In fact, Hallin completely disregarded all the artificial monuments--the road, the REA power pole, the school acreage, and 

the fence, not to mention the outhouse. 

The three government surveys in 1901, 1917, and 1930 

are inconsistent and inaccurate. For example, the 1901 survey 

does not even attempt to locate the west quarter corner of Section 

21. It located the east quarter corner of Section 21, and placed 
it an equi-distant 40 chains from the northeast corner and 

40 chains from the southeast corner. A reasonable assumption 

would be that the west quarter corner would also be 40 chains 

from the northwest 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 the northwest 

corner. This surveyor did not measure the distance from his 

purported west quarter corner to the southwest corner to see if 

this in any way checked with the 1901 survey. 

Later, in 1930, the surveyor finds no trace of any west 

quarter corner of Section 21, but he measures to a point equidistant between the northwest corner and the southwest corner, 

and finds the distance to be 79.50 chains. He then sets a quarter 

corner which is 39.73 chains to the northwest corner and 39.75 

chains to the 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 to the northwest corner and 2600.26 feet from the west 

quarter corner to the southwest corner, for a total of 5176.81 

feet. 

Yet, the 1930 survey found the total distance between the 

northwest corner and the southwest corner was 5244.98 feet or 

79.5 chains. In between, the government surveys and the Hallin 

survey, Papke apparently finds the west quarter corner and the 

east quarter corner of Section 21, and when he ties them up, the 

east-west center line of Section 21 happens to coincide with the 

old fence, running east and west across the middle of Section 21. 

Later, Laird finds in his survey, that the Papke survey line of 

the east-west center line coincides with the school acreage in 

Section 21, and also coincides with an REA pole in Section 21. 
Out of this maze, several conclusions can be dravm. 

First, after the 1901 survey, none of the other surveyors, other 

an Papke and Laird, ever purported to pay any attention to the 

artificial monuments. In fact, the 1917 and 1930 surveyors did 

not even indicate in their notes that they went upon the ground 

of Section 21 to look for monuments. 

Second, Hallin only compounded the error, because rather 

than talking to the people who had lived in the area, such as 

Laird, and rather than giving considera tion 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 1930 witness corner 

for the west quarter corner, which, admittedly, were placed without 

giving consideration to the existing artificial monuments. However, Hallin's measurements and location or the west quarLe~ 

corner do not even LO-respond wlth the 1~30 survey. 

Fillally, trle ~esult or r;he Hallin survey runs contrary 

to ~allln's own admission, tna~ no surveyor, arcer tne 1901 survey, 

irlc ludi~lg ihe later governmeni sur ~eyors , sllould have ally right 

to change the locat~on or amount OL a mall's property. Yet, tnis 

is exactly wnai tne Hallin su~vey purports to do. The Papke 

survey tended to p;eserve the exlstirlg lo~ations OL property ot 

the owners living ln the area at that tlme. In fact, Hallin 

admitted that if from the 1901 survey either the surveyor or the 

property owners established the west quarter corner at a point 

equi-dis tant from the northwest corner and the southwest corner, 

the west quarter corner would be at a point fifty feet south of 

where Hallin has it now designated, and at a point just about 

exactly in line with 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 1901 survey. The east-west center line 

of Section 21, as found by Papke, is held to be the true survey 

of this line, rather than the Hallin ce~ter line, which purports 

to disrupt and change the existing property lines, not only 

between Helppie and Laird, but also affecting a 11 adjoining land 

owners not a party to this action, such as Mr. Kephart, the United 

States Forest Service and the state of 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 1 and 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