No. 13349 INTHE SUPREME COURT OF THE STATE OF MONTANA

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

## , Plaintiffs and Respondents,

GENE RANDONO, etux. and GREAT FALLS FOREST PRODUCTS INC. Defendants and Appellants.

Appeal from: DistrictCourt 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. JusticeDaniel J. Shea delivered the Opinion of the Court.

This 

### is an appeal from ajudgment of the District Court, Lewis and Clark County, decreeing that plaintiff W. D. (Don) Martin, et

### ux. (Martins) were entitledto 

### 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 sawmillwas located on the property along with several other structures and was operatedby the Pappin Construction Co. until 1964. Don Martin was employed by Pappin as the foreman of the sawing crew. Since 1959, Martin alsomaintained his family residence, a mobile home, partially on the land indispute. 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' trailerhome stayed inthe

same place. In the spring 1965 the Great Falls Forest Products, Inc. finishing millburned down and went out of business; as a result very shortly thereafter, the logging and sawmill operation at Lincoln terminated. 

### It 

### isclear 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 trailerhome.This testimony was given atthe trial: 

### "Q.* 

# ** Mr. Martin, after the termination of the operation of the millby Gray, did anything take place between you and any member of the Defendant corporation relative toyour presence on the premises? "A. Yes. 

### I talked toGene Randono. He informed me that if I was going toremain on the property I would pay $50 a month rent. I informed him I would not. I considered the ground asmine .I1 In 

### its findings the trialcourt relied on this statement exclusively asbeing 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 atthe time of the alleged statement

was only 17 or 18years of age) testified that Gene Randono orally permitted Martin tokeep 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 hiswife Carrol, both defendants in this action, left soon thereafter to live inNevada 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 felldelinquent for the years 1964 through 1970. The property was struck off to the county. InJanuary 1971Don Martin and J. P. Mulcare (not a party tothis action) paid $2,670.14 to the Lewis and Clark County Treasurer and received a certificateof assignment for the delinquent taxes. Martin and Mulcare together had been involved inprevious 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 attrialDon Martin wasasked why he didnot pay the taxes each year as they accrued. He answered: A. I didn't want to alertthem [theRandonos] 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 leftquiet 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 forhis 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 ifhe couldn't get it forback taxes lateron in the future sometime

# ." During the summer 1971, afterDon Martin had taken the tax assignment, a cabin which was approximately 150 feet from theMartin 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 toDon Martin but apparentlyMartin refused to cash the check, claiming the land belonged tohim. Presumably the county treasurer 

### stillholds the money in trust forMartin. Soon after this redemption the family corporation tried to sellthe 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 trailerhome. The Martins did not put the entire 22 acres to their own use byeither cultivating the land or enclosing it. They did however, occasionally pasture a few tethered horses on the land. To facilitateaccess to their trailerhome theMartins built a driveway. They also cleaned up part of the property by removing carbodies 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 isundisputed 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 hisbrothers and friendswith him from the University of Montana. Later his wife alsocame to the property on many occasions. Frequently they held parties inthe cabin and on one occasion in 1969, this irritated theMartins 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 fromMr. Martin that therewere people ina cabin very close to his propertywho were apparently moving in. They were having parties and a lot of noise and he requested that something be done about it sohe could gethis sleep atnight." After talking to the occupants of the cabin, the sheriff returned toDon Martin and reported this conversation: "A. 

# ** He [W.A. Randono] said there was no problem that the cabin belonged tohisuncle [Gene Randono]. So I have no way of determining proof of ownership of property, so atthat point I returned toMr. Martin and told him what I found out and if anything was to proceed from there, itwould probably have tobe a civil suit." During this entireperiod theMartins admitted the Randonos and their friends used the cabin and stayed there for various periods of time. While the relationship was notalways thebest between the Martins and the young Randonos, Martins never directly told the Randonos they owned the land and must get permission touse the land and stay in the cabins. During directexamination Don Martin admitted thathe had no objection toRandono and his friends staying atthe cabin and that he allowed them to stay therebecause: "A. 

# ** * I figured it easier to not stirthem up and cause problems and I didn't want toalert them to the fact that I had my mind up (sic) I was going toaccumulate this ground." During the time period involved Ralph Randono an attorney who was also a listedofficer of the family corporation, testified he visited the land involved on several occasions and was never toldby the Martins they were claiming the land. He stopped in Lincoln on several occasions to see the Martins and itwas always a friendly relationship, they always had coffeebrewing. InApril 1971, some three months afterDon Martin paid the taxes and had taken an assignment, Ralph Randono listed the property with SorrellRealty Co. of Great Falls. He took the realtor on the land, showed him theboundaries 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 entireperiod between 1964 and 1971Ralph Randono knew of no situationthat would alarmhim that anyone was seeking the property by adverse possession. InMay 1972, W. A. Randono learned Don Martin had taken a tax assignment on the land, and he then redeemed the land by paying a.11theback taxes, together with interest and penalties. Shortlyafter the tax redemption, W. A. Randono and a Missoula land speculator went on the land for the purpose of arranging

a saleto the speculator. They were then confrontedby Don Martin who ordered them off the land, claiming the land was his.Severalmonths laterDon Martin fileda quiet titleaction claiming adverse possession under claim of title. The Randono family corporation counter sued claiming damages forwrongful withholding of property and damages for the lost sale to the Missoula speculator. The District Court decreed title inDon Martin, and thisappeal followed. Inaddition totheir claim the court was inerror in decreeing adverse possession, theRandonos alsoclaim the court should have granted damages forwrongful. withholding of property and for the lost sale. The Martins concede they would be liable for damages forwrongful 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. InPrice v. Western Life Insurance Co. 513, (19441, 115Mont. 509,/514, 146 P.2d 165, this Court recognized that one may convert a permissive possession into a hostile one but "I tomake 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 theburden to overcome permissive use, quoting with approval fromLindokken

v. Paulson, (1937), 224 Wis. 470, 272 N.W. 453,455, tobe: "'The law isvery rigid with respect to the fact that a permissive use inthebeginning can be changed into one which ishostile and adverse only by themost unequivocal conduct on the part of the user. The rule is that the evidence of adverse possession must be positive, must be strictlyconstrued against the person claiming a prescriptive right, and that every reasonable intendment shouldbe made in favor of the true owner. 111 Whether one 

### is seeking to convert permissive possession intoa prescriptive right or into one of outright ownership,we seeno difference intheburden the claimant must bear. Using this rule as a yardstkk theMartins have failed intheirburden. The District Court inaddition toconcluding that theMartins had fulfilled the requirements of possession for 

### 5 years and payment of taxes, section 93-2513, R.C.M. 1947, held: 

# "** * that theirpossession has been actual, visible, exclusive, hostile and continuous for the fullperiod necessary to create a bar under the statute of limitations.11 These requirements of section 93-2513 must be proven toestablish

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), 148Mont. 1, 416 P.2d 532. To convert the originalpermissive possession intoone of

a hostile claim the trialcourt relied exclusivelyon the statement made by Martin when he claimed he refused topay rent to Gene Randono and considered the land ashis own. Even assuming this statement tobe true, it is atbest equivocal, and certainly cannot be construed tobe 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 asmine." If rent was requested fromMartin it could have been for the rent of the piece of land on which the trailerhome was located. It 

### is not clear from this testimony thatMartin actually made a statement toGene Randono that he was claiming ownership of the land. Further, the conduct and statements of theMartins from 1965 through 1971, failed toestablishthe requisite elements of adverse possession. It appears the Martins were relying more on theirmisconceived application of the law. To them possession, plus ultimately paying the back taxes for fiveyears, was sufficient toestablish their claim to adverse possession. That is not enough. -8-While it might be argued theirpossession 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 fornot objectingbelies any intent totake the property by true adverse possession. He testifiedhe did not objectbecause he did not want toput the Randonos on notice of his intent to later "accunulate this ground." He further testifiedhe didnot pay the back taxes year by year as they accumulated because he did not want toput the Randonos on notice of his intent to acquire the land inthe future. By these admissions theMartins clearly failed toestablish that their possession was exclusive and hostile. From the inception of the firstclaim of right tothe land through the entireperiod required for adverse possession, it

was required that theMartins1conduct be continuously hostile and exclusive to the true owners. Here, the possession was purposely nonhostile and nonexclusive. It 

### isaxiomatic that adverse possession does not allow the possessors tomask 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 trialcourt inmaking its findings and conclusions did not determine if these statuteshad been fulfilled. Section 93-2510 provides that if the claim isnot under a written instrument, judgment, or decree 

### "*

# * * the land so actually occupied, and no other, is deemed tohave been held adversely." The companion statute, section 93-2511, further 

### limitsadverse possession by providing thatwhere the claim 

### isnot under awritten instrument, judgment, or decree land is deemed to have been possessed and occupied inthe following cases only: 

### "1. Where ithas been protected by 

### a substantial inclosure; "2. Where ithas been usually cultivated or improved

# ." Here, it appears the land atone time was surroundedby 

### a fence on allsides. However, during the period of the alleged adverse possession, the fence and other structures on the property deteriorated significantly. Atthe end of the alleged prescriptive period a fence existed only on one>si.deof the property. One of the cabinswas destroyed by fireand 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 sixormore carbodies (itwas never establishedwho owned the

carbodies); cutting and removing of dead treesnear the trailerhome; building a driveway foreasier access to the trailerhome; and, ingeneral, cleaning up the place. Suffice it to say, this evidence did not fulfillthe requirements of the statutes. The Martins concede liability forwrongful withholding of the premises, if their claim of adverse possession isnot upheld. However, they maintain that in such event the claim of damages for lostprofits 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 forwrongful withholding must 

### stillbe determined by the trialcourt and it must alsoenter findings and conclusions on the Randonos' counterclaim of damages because of a lost sale.We reverse thejudgment of the District Court and remand this cause for further proceedings consistent with this Opinion.


# \d& (&&

-".. Chief Justice