No. 13349 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

W. D. (DON) MARTIN, et ux. , 

Plaintiffs and Respondents, 

GENE RANDONO, et ux. and GREAT FALLS FOREST 

PRODUCTS INC. 

Defendants and Appellants. 

Appeal from: District Court of the First Judicial District, 

Honorable Peter G. Meloy, Judge presiding. 

Counsel of Record: 

For Appellants: 

Stimatz and Engel, Butte, Montana 

Joseph Engel, I11 argued, Butte, Montana 

For Respondents: 

Knight, Dahood and Mackay, Anaconda, Montana 

Conde F. Mackay argued, Anaconda, Montana 

Submitted: March 17, 1977 

Decided: Jm 1 0 1978 

,JAB 2 f? 't!j'fe Filed: 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

This is an appeal from a judgment of the District Court, 

Lewis and Clark County, decreeing that plaintiff W. D. (Don) 

Martin, et ux. (Martins) were entitled to 22 acres of land by 

virtue of adverse possession under claim of title. 

The land involved is located seven miles east of Lincoln, 

Montana. It consists of 22 acres of wooded forest land. A sawmill was located on the property along with several other 

structures and was operated by the Pappin Construction Co. 

until 1964. Don Martin was employed by Pappin as the foreman 

of the sawing crew. Since 1959, Martin also maintained his 

family residence, a mobile home, partially on the land in dispute. In 1964, the Great Falls Forest Products, Inc., ( a 

Randono family owned corporation) acqbired the land and also 

took over the logging and sawmill operations. The family corporation retained employees from the Pappin Construction Co., including Don Martin. The art ins' trailer home stayed in the 

same place. 

In the spring 1965 the Great Falls Forest Products, Inc. 

finishing mill burned down and went out of business; as a result 

very shortly thereafter, the logging and sawmill operation at 

Lincoln terminated. It is clear that up to this point Martins 

acknowledge they were on the land involved with the permission 

of the Randono family corporation. Don Martin testified that 

in late 1965 or early 1971 he talked with Gene Randono, the 

president of the family corporation, and Randono asked him to 

pay $50 per month rent as a condition to remaining on the property 

with his trailer home. 
This testimony was given at the trial: 

"Q.* * * Mr. Martin, after the termination of the 

operation of the mill by Gray, did anything take 

place between you and any member of the Defendant 

corporation relative to your presence on the premises? 

"A. Yes. I talked to Gene Randono. He informed me 

that if I was going to remain on the property I would 

pay $50 a month rent. I informed him I would not. 

I considered the ground as mine .I1 

In its findings the trial court relied on this statement 

exclusively as being a sufficient declaration of intent to 

adversely possess the property. 

On the other hand, W. A. Randono, the vice president of 

the family corporation (who at the time of the alleged statement 

was only 17 or 18 years of age) testified that Gene Randono orally 

permitted Martin to keep his trailer on the land in exchange for 

Martin's services as a watchman over the property and the structures located on the property. In any event, Gene Randono and 

his wife Carrol, both defendants in this action, left soon 

thereafter to live in Nevada and apparently remained there. 

After the sawmill was closed Martin acknowedged that for 

a short time he performed services as a watchman for Gene 

Randono. Property taxes assessed upon the property by Lewis 

and Clark County fell delinquent for the years 1964 through 

1970. The property was struck off to the county. In January 

1971 Don Martin and J. P. Mulcare (not a party to this action) 

paid $2,670.14 to the Lewis and Clark County Treasurer and 

received a certificate of assignment for the delinquent taxes. 

Martin and Mulcare together had been involved in previous 

property acquisitions. Later, Martin paid Mulcare's one-half 

of the tax assignment and Mulcare delived a quit claim deed to 

Martin. During direct examination at trial Don Martin was 
asked why he did not pay the taxes each year as they accrued. 

He answered: 

A. I didn' t want to alert them [the Randonos] 

to the fact. I figured they should know if the 

taxes were due. They should be paid. If they 

weren't paid, I wanted it left quiet and when 

five years was up I figured I would take it." 

After the sawmill closed Don Martin and his son Frank 

had a conversation concerning where Don Martin was going to 

live. Testifying for his father, Frank replied to a question 

on direct examination concerning whether Don Martin ever told 

Frank he was attempting to obtain ownership of the property: 

"A. Well, when I asked him where he was going to 

live, he said he was going to stay there and see 

if he couldn't get it for back taxes later on in 

the future sometime ." 

During the summer 1971, after Don Martin had taken the 

tax assignment, a cabin which was approximately 150 feet from 

the Martin trailer home, mysteriously burned to the ground. 

On May 31, 1972, the family corporation redeemed the tax 

assignment by paying $2,956.83 to the Lewis and Clark County 

Treasurer. The county treasurer sent a refund to Don Martin but 

apparently Martin refused to cash the check, claiming the land 

belonged to him. Presumably the county treasurer still holds 

the money in trust for Martin. Soon after this redemption the 

family corporation tried to sell the land to a Missoula land 

speculator, but they were accosted by Martin who claimed the 

land belonged to him and ordered them off the land. 

The total acreage of the land involved was approximately 

22 acres and there was a standing fence on one side only. The 

only portion enclosed was around the Martin trailer home. The 

Martins did not put the entire 22 acres to their own use by 
either cultivating the land or enclosing it. They did however, 

occasionally pasture a few tethered horses on the land. To 

facilitate access to their trailer home the Martins built a 

driveway. They also cleaned up part of the property by removing car bodies and dead trees. Other than this the land 

remained unimproved. There was significant deterioration to 

the buildings on the land and to the fence. 

It is undisputed that W. A. Randono came frequently to 

the land during the years involved and especially during the 

summer and on weekends. Frequently he would bring his brothers 

and friends with him from the University of Montana. Later his 

wife also came to the property on many occasions. Frequently 

they held parties in the cabin and on one occasion in 1969, 

this irritated the Martins to the extent they called the sheriff 

and had him come to check out the situation. The deputy testified as to his reason forming to the cabin: 

"A. One night I received a call from Mr. Martin 

that there were people in a cabin very close to 

his property who were apparently moving in. They 

were having parties and a lot of noise and he requested that something be done about it so he could 

get his sleep at night." 

After talking to the occupants of the cabin, the sheriff returned 

to Don Martin and reported this conversation: 

"A. * * He [W .A. Randono] said there was no 

problem that the cabin belonged to his uncle 

[Gene Randono]. So I have no way of determining 

proof of ownership of property, so at that point 

I returned to Mr. Martin and told him what I 

found out and if anything was to proceed from there, 

it would probably have to be a civil suit." 

During this entire period the Martins admitted the 

Randonos and their friends used the cabin and stayed there 

for various periods of time. While the relationship was not 
always the best between the Martins and the young Randonos, 

Martins never directly told the Randonos they owned the land 

and must get permission to use the land and stay in the cabins. 

During direct examination Don Martin admitted that he had no 

objection to Randono and his friends staying at the cabin and 

that he allowed them to stay there because: 

"A. * * * I figured it easier to not stir them up 

and cause problems and I didn't want to alert them 

to the fact that I had my mind up (sic) I was going 

to accumulate this ground." 

During the time period involved Ralph Randono an attorney 

who was also a listed officer of the family corporation, testified 

he visited the land involved on several occasions and was never 

told by the Martins they were claiming the land. He stopped in 

Lincoln on several occasions to see the Martins and it was 

always a friendly relationship, they always had coffee brewing. 

In April 1971, some three months after Don Martin paid the 

taxes and had taken an assignment, Ralph Randono listed the 

property with Sorrell Realty Co. of Great Falls. He took the 

realtor on the land, showed him the boundaries and Don Martin 

did nothing. Later in 1971, Ralph Randono, Mr. Sorrell and a 

prospective buyer went on the land.. and Don Martin did nothing. 

During this entire period between 1964 and 1971 Ralph Randono 

knew of no situation that would alarm him that anyone was seeking 

the property by adverse possession. 

In May 1972, W. A. Randono learned Don Martin had taken a 

tax assignment on the land, and he then redeemed the land by 

paying a.11 the back taxes, together with interest and penalties. 

Shortly after the tax redemption, W. A. Randono and a Missoula 

land speculator went on the land for the purpose of arranging 

a sale to the speculator. They were then confronted by Don Martin 

who ordered them off the land, claiming the land was his. 
Several months later Don Martin filed a quiet title action 

claiming adverse possession under claim of title. The Randono 

family corporation counter sued claiming damages for wrongful 

withholding of property and damages for the lost sale to the 

Missoula speculator. The District Court decreed title in Don 

Martin, and this appeal followed. 

In addition to their claim the court was in error in 

decreeing adverse possession, the Randonos also claim the court 

should have granted damages for wrongful. withholding of property 

and for the lost sale. The Martins concede they would be liable 

for damages for wrongful withholding of property were it not for 

the decree of adverse possession. 

We conclude the Martins did not establish adverse possession. 

The Martins sought adverse possession under an occupancy 

that was admittedly permissive, but which they claim they converted 

into one that was hostile. In Price v. Western Life Insurance Co. 

513, 

(19441, 115 Mont. 509,/514, 146 P.2d 165, this Court recognized 

that one may convert a permissive possession into a hostile one 

but "I to make it so there must be a repudiation of the permissive 

possession * * * and the repudiation must be brought home to the 

owner by actual notice * * *.'" In Price, we stated the burden 

to overcome permissive use, quoting with approval from Lindokken 

v. Paulson, (1937), 224 Wis. 470, 272 N.W. 453,455, to be: 

"'The law is very rigid with respect to the 

fact that a permissive use in the beginning can be 

changed into one which is hostile and adverse only 

by the most unequivocal conduct on the part of the 

user. The rule is that the evidence of adverse 

possession must be positive, must be strictly construed against the person claiming a prescriptive 

right, and that every reasonable intendment should be 

made in favor of the true owner. 111 

Whether one is seeking to convert permissive possession 

into a prescriptive right or into one of outright ownership, 
we see no difference in the burden the claimant must bear. Using 

this rule as a yardstkk the Martins have failed in their burden. 

The District Court in addition to concluding that the Martins 

had fulfilled the requirements of possession for 5 years and 

payment of taxes, section 93-2513, R.C.M. 1947, held: 

"* * * that their possession has been actual, visible, 

exclusive, hostile and continuous for the full period 

necessary to create a bar under the statute of limitat ions. 11 

These requirements of section 93-2513 must be proven to establish 

a claim of adverse possession. Smith v. Duff, (1909), 39 Mont. 

374, &P. 981; Ferguson v. Standley, (1931), 89 Mont. 489, 300 

P. 245; Townsend v. Koukol, (1966), 148 Mont. 1, 416 P.2d 532. 

To convert the original permissive possession into one of 

a hostile claim the trial court relied exclusively on the statement made by Martin when he claimed he refused to pay rent to 

Gene Randono and considered the land as his own. Even assuming 

this statement to be true, it is at best equivocal, and certainly 

cannot be construed to be a statement of intent to possess and 

own the entire 22 acres. The statement was: "I informed him I 

would not [pay rent]. I considered the ground as mine." If 

rent was requested from Martin it could have been for the rent of 

the piece of land on which the trailer home was located. It is 

not clear from this testimony that Martin actually made a statement to Gene Randono that he was claiming ownership of the land. 

Further, the conduct and statements of the Martins from 1965 

through 1971, failed to establish the requisite elements of 

adverse possession. It appears the Martins were relying more on 

their misconceived application of the law. To them possession, 

plus ultimately paying the back taxes for five years, was sufficient to establish their claim to adverse possession. That is 

not enough. 

-8- 
While it might be argued their possession was actual and 

visible, and perhaps even continuous, it was not exclusive and 

hostile. Don Martin's testimony demonstrates he did not object 

to the Randonos coming onto the land, living in the cabins, and 

generally coming and going as they pleased. His reason for not 

objecting belies any intent to take the property by true adverse 

possession. He testified he did not object because he did 

not want to put the Randonos on notice of his intent to later 

"accunulate this ground." He further testified he did not pay 

the back taxes year by year as they accumulated because he did 

not want to put the Randonos on notice of his intent to acquire 

the land in the future. By these admissions the Martins clearly 

failed to establish that their possession was exclusive and 

hostile. 

From the inception of the first claim of right to the land 

through the entire period required for adverse possession, it 

was required that the Martins1 conduct be continuously hostile 

and exclusive to the true owners. Here, the possession was 

purposely nonhostile and nonexclusive. It is axiomatic that 

adverse possession does not allow the possessors to mask their 

conduct and acquire the land by hiding their true intentions 

from the owners of record. 

Adverse possession under claim of title is limited specifically 

by sections 93-2510 and 93-2511, R.C.M. 1947. The trial court 

in making its findings and conclusions did not determine if these 

statutes had been fulfilled. Section 93-2510 provides that if 

the claim is not under a written instrument, judgment, or decree 

"* * * the land so actually occupied, and no other, 

is deemed to have been held adversely." 

The companion statute, section 93-2511, further limits adverse 

possession by providing that where the claim is not under a 
written instrument, judgment, or decree land is deemed to 

have been possessed and occupied in the following cases only: 

"1. Where it has been protected by a substantial 

inclosure; 

"2. Where it has been usually cultivated or 

improved ." 

Here, it appears the land at one time was surrounded by a 

fence on all sides. However, during the period of the alleged 

adverse possession, the fence and other structures on the property 

deteriorated significantly. At the end of the alleged prescriptive period a fence existed only on one>si.de of the property. 

One of the cabins was destroyed by fire and the other structures 

were damaged by vandals, and thieves carried off much of the 

personal property within the buildings. The land was never 

cultivated and the alleged improvements consisted of moving 

six or more car bodies (it was never established who owned the 

car bodies); cutting and removing of dead trees near the 

trailer home; building a driveway for easier access to the 

trailer home; and, in general, cleaning up the place. Suffice 

it to say, this evidence did not fulfill the requirements of 

the statutes. 

The Martins concede liability for wrongful withholding 

of the premises, if their claim of adverse possession is not 

upheld. However, they maintain that in such event the claim 

of damages for lost profits was not proven. Because the trial 

court upheld the claim of adverse possession, it did not make 

findings or conclusions on either of the counterclaims. 

Accordingly, the amount of damages for wrongful withholding must 

still be determined by the trial court and it must also enter 

findings and conclusions on the Randonos' counterclaim of damages 

because of a lost sale. 
We reverse the judgment of the District Court and remand 

this cause for further proceedings consistent with this Opinion. 

\d& (&& - ".. 

Chief Justice