### No. 12841 INTHE SUPREME COURT OF THE STATE OF MONTANA 

### 1975

JUMPING RAINBOW 

### RANCH, a Montana Corporation,Plaintiff and Respondent,

-vs

# - RICHARD J. 

### CONKLIN 

### etal., Defendants and Appellants.

Appeal 

### from: District Court of the SixthJudicial District, Honorable W. W. 

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

### For Appellants

### : Berg, Angel, Andriolo & 

### Morgan, Bozeman, Montana Charles F. Angel argued, Bozeman, Montana For Respondent: Landoe & 

### Gary, Bozeman, Montana Joseph B. 

### Gary argued, Bozeman, Montana Huppert and Swindlehurst, Livingston, Montana James Murad, San Francisco, California

Filed: Submitted: 

### June 13, 1975 Decided: A&-.. 

## 3& a;; *

### Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from a judgment entered 

### iz the district court, Park County, pursuant tofindings of factand conclusions of law finding that plaintiff Jumping Rainbow Ranch 

### isthe owner of certain lands; that the quitclaimdeed filedby defendants Richard J. Conklin and wife and John Orser and wife constituted

a cloud on plaintiff's title; and, that actionsinobtaining and recording the quitclaim deed 

### were reckless, erroneous, fraudulent and wrongful, causing plaintiff to suffer damages in the amount of $5,000. The litigation involved a dispute as tothe ownership of certain lands inSection 35, Township 3 South, Range 9East, M.P.M., Park County, Montana. Plaintiff is a Montana corporation whose soleowners arePaul McAdam and hiswife. In 1966, Paul McAdam purchased certain real property from Elard and Mildred Basset. McAdam and hiswife transferred thisproperty toplaintiff corporation on April 21, 1972. A plat from therecords of the Bureau of Land Management shows that Lots 5 and 6 inSection 35 lietotally within the northeast quarter of that section and contain 25.12 acres and 37.84 acres respectively. The quitclaim deed filedby defendants 

### isdated April 5, 1971, and was filed on May 3, 1971. That deed, except for one of two islands described therein, covers some of theproperty in the northeast quarter of Section 35. This dispute arose over the 17.9 acres and the two islands. The quitclaim deed dated April 5, 1971, came from one D. G. Anderson Duncan and covered portions of the plaintiff's properties, and it 

### isby this deed that defendants claim title. From the testimony attrialand the depositions taken and introduced attrial, the history of thedeed is revealed. Counsel for plaintiff describes it inhis brief:"The source of Conklin's title toLots 5 and 6 of Section 35, Township 3 South, Range 9East, 

### lies deep inthe annals of western folklore. It seems that according toConklin, an attorney of sixteen (16) years' experience, anAnderson passed through the Yellowstone Valley during the 1800's. Itwas from thisAnderson that Conklin feelshe derived merchantable title. After discovering that his secretary's maiden name was Anderson, Conklin asked Mrs. Duncan to quitclaim any interest shemight of had inLots 5 and 6 inthe Northeast Quarterof Section 35, Township 3 South, Range 9 East. The fullconsiderationfor signing her name tothe deed was Ten Dollars ($10.00) and a box of Russell Stover chocolates." Conklin admitted that he never had Lots 5 and 6 surveyed; he

never purchased title insurance nor did he ever study the abstract of titletodetermine if any Andersons showed inthe chain of title. Hetestified he had checked the records of the Bureau of Land Management inBillings, Montana and the original survey showed that lots 5 and 6 had a boundary perimeter on thewest side thereof and 

### a straightnorth-south survey lineand that allproperty lying west of the straightnorth-south survey linehad never been patented. trialplaintiff's exhibit 5 was a the survey of the lands question on file

### atthe Bureau of official Land Management office, dated June 25, 1888, 

### and showed thatSection 25 and inparticular Lots 5 and 6 thereof, had a western boundary along the rightbank of the Yellowstone River. Affixed toexhibit 5, and made a part thereof, 

### is a photographic blow-up of theproperty inquestion, ~ots 5 and 6, with an overlay prepared to scale. The exhibit indicates the west boundaries of Lots 5 and 6 were not straight lines, but the right bank of the Yellowstone River, or geographically speaking, the east bank of the Yellowstone River. Plaintiff's exhibit 5, a 1951United States Geological Survey, indicates there has been an accretion to lands in~ots 5 and 6 since the survey of 1874, as shown on the June 25, 1888 plat. The trialcourt found that allthe accreted lands have been exclusively and open and notoriously owned by plaintiff and 

### its

### predecessors in interest for more than five years preceding the commencement of this action; that plaintiff purchased the land in 1966 and immediately improved it by diking and 

### other extensive improvements commencing in 1967, in the 

### way of fish ponds for cultivating fish. 

### The complaint here was filed on March 29, 1972. On April 20, 1972,plaintiff obtained a quitclaim deed,from 

### Allyn and 

### Agnes O'Hair, W. 

### O1~air,/his wife, covering: "All land lying East of the middle of the Yellowstorie River in Section thirty-five (35),Townshithree (3) 

### South,Range Nine (9)

### East, M..P.M., a-s 

### more particularly any portl- Lots One (1)ar;d



# . d 

### Two (3) 

### Section th t ?-,, 

### --Live(35)tha:.

## :i. .: 

### East

. - 

### . .

### ---le 

### of the S'ellowstoneRiver ilr 

### said ,'.lrty-five (35)

# ".

. 

### -sdeed was filed July 21, 1972. An amended complaint was filed on July 20, 

### 1972. Conklin deeded his interest to a Mr. and Mrs. John Orser. Orser testified by deposition that he paid Conklin between $1,000 and $5,000 for legal services,but refused to tie his testimony to the purchase of the land. Orser conveyed to a Cal Rossi of San Francisco. Rossi, according to Orser,was to pay him $1,000 per acre,when he got clear title, but had paid nothing down. Conklin, at the time of submission of his brief, alleged he no longer claimed interest in the land and the court's findings of a slander of title was erroneous because there was no substantial evidence in the record to showhis conduct was malicious. Conklin raises eight issues on appeal. We find those issuesmay be combined into 2 issues: (1) Is there sufficient evidence for the court to find that all the lands east of the Yellowstone River, particularly Lots 5 

### and 6,Section 35, Township 3 South,Range 9 East, M.P.M. 

### belonging to Jumping Rainbow Ranch, Inc.? (2) Would the actions of Conklin in filing the deed resultin substantialdamage toplaintiff, Jumping ~ainbow Ranch, Inc.? The action of Conklin, a licensed attorney of this state for some sixteen years, was an attempt todeprive plaintiff of certain real estate. Conklin insistsnow that he does not

now own the land nor claim any interest in

### it. Hisargument that he raises the question of ownership only astoits effect on the monetary judgment against him, is difficulttounderstand. Prior tojudgment, and atthe taking of hisdeposition, he stated: "A. No, 

### sir, I am claiming a fee interest in this land. Titleof record---." Thereafter, he deeded 

### it to

### Orser who deeded 

### it toRossi, who 

### was toget $17,000 if he and Conklin could clear the title. In Diamond Investment Co. v. Geagan, 154 Mont. 122, 460 P.2d 760, this Court held that a defendant ina quiet title action must rely on strengthof hisown title and not weakness of plaintiff's title. Roe v. Newman, 162 Mont. 135, 509 P.2d 844; Brown

v. Cartwright, 163Mont. 139, 515 P.2d 684. Conklin's attempt toestablish title through a quitclaim deed by his secretary whose maiden name was Anderson is, of itself, the weakest interest of title toqualify toclaim any interest in the land. Perhaps, because of lack of strength of his own title, defendant goes on ingreat lengths toprove the land does not belong toplaintiff. Such diversionary arguments lend no strength to his claim of title. Damages toplaintiff were brought about by Conklin's claim of interest in the land, for it was his prior actions that necessitated the filingof this action toclear title ata 

### timehe alleged

an interest. Therefore, the source of his claimed interest and his acts arerelevant toan adjudication of the matter. Conklin, as an attorney, knew or should have known, the standard procedure forproving title toland. This record isbarren

### of such proof. Plaintiff admitted the present acreage of Lots 5 and 6 is greater than the acreage existing at the time of the original survey,but showed that the increasewas caused by accretion by the Yellowstone River, not by an error of survey. This Court in Smith v. Whitney, 105 Mont. 523, 74 P.2d 450, a case arising along the Yellowstone River in Custer County, found that accreted lands belong to the riparian owner. Helland v. Custer County, 127 Mont. 23, 256 P.2d 1085. In Smith some 184 acres had accreted during a period of 60years. Here, the evidence shows some 17

acres seem to have accreted in 80 years, and we have no difficulty agreeing with the trial court's finding in this matter. On the issue of damages, the record shows through the testimony of PaulMcAdam that the plaintiff suffered considerable damage as a result of Conklin's filing his quitclaim deed. Substantial improvementshad been made on the land in question. A dragline had dug out a swamp to make fishponds for raising trout. Dilces had been placed along the shoreline,approximately 20 feet back from the river. Further expansion of ponds on Lots 5 

### and 6 had to be curtailed. McAdam testified he suffered in lost profits, at least $4,000. The trial court found plaintiff damaged in the amount of $4,000. The additional $1,000 was assessed by the trial court because of Conklin's and Orser's malicious conduct resulting in the slander of title. This Court in Continental Supply Co. 

### v. Price, 126 Mont. 363, 374, 376, 251 P.2d 553, recognized that in view of the pleadings and record,malice as an essential element of the crosscomplaint for slander of title could be presumed. In Continental the Court cited Keiser 

### v. Kile, 166 Okl. 41, 26 P.2d 194, 195, with approval: "The principal element in a suit for slander of

### title ismalice." and then noted: "From the pleadings it appears affirmatively that the plaintiff in disregard of defendant's rights knowingly, recklessly,erroneously, fraudulently and wrongfully filed a blanket lien upon many legal subdivisions of real property, in which defendant held leasehold interests, all of which would demonstrate a willingness on the part of the plaintiff to cloud and disparage the title of defendant and the will to vex, annoy and harass and injure the defendant. "Where,as here, no justifiable motive is shown in the record,malice is presumed. [Citingcases and authority]

### " See: Vol. 20,Montana Law Review, 1118: Paulsonv. Kustom Enterprises, Inc., 157 Mont. 188, 483 

### P.2d 708. Here, the record clearly shows the action of Conlclin in filing his quitclaim deed was such as to warrant the necessary showing of malice to entitle plaintiff to punitive damages. The findings of fact, conclusions of law,and judgment of the trial court are affirmed.



### We concur:

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