No. 12841 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

JUMPING RAINBOW RANCH, a 

Montana Corporation, 

Plaintiff and Respondent, 

-vs - 

RICHARD J. CONKLIN et al., 

Defendants and Appellants. 

Appeal from: District Court of the Sixth Judicial 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 to findings of fact and conclusions 

of law finding that plaintiff Jumping Rainbow Ranch is the owner 

of certain lands; that the quit claim deed filed by defendants 

Richard J. Conklin and wife and John Orser and wife constituted 

a cloud on plaintiff's title; and, that actions in obtaining 

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 to the ownership 

of certain lands in Section 35, Township 3 South, Range 9 East, 

M.P.M., Park County, Montana. Plaintiff is a Montana corporation 

whose sole owners are Paul McAdam and his wife. In 1966, Paul 

McAdam purchased certain real property from Elard and Mildred 

Basset. McAdam and his wife transferred this property to plaintiff corporation on April 21, 1972. A plat from the records of 

the Bureau of Land Management shows that Lots 5 and 6 in Section 

35 lie totally within the northeast quarter of that section and 

contain 25.12 acres and 37.84 acres respectively. 

The quitclaim deed filed by defendants is dated April 5, 

1971, and was filed on May 3, 1971. That deed, except for one 

of two islands described therein, covers some of the property 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 is by this deed that defendants claim title. 

From the testimony at trial and the depositions taken 

and introduced at trial, the history of the deed is revealed. 

Counsel for plaintiff describes it in his brief: 
"The source of Conklin's title to Lots 5 and 6 

of Section 35, Township 3 South, Range 9 East, 

lies deep in the annals of western folklore. It 

seems that according to Conklin, an attorney of 

sixteen (16) years' experience, an Anderson 

passed through the Yellowstone Valley during 

the 1800's. It was from this Anderson that 

Conklin feels he derived merchantable title. 

After discovering that his secretary's maiden 

name was Anderson, Conklin asked Mrs. Duncan to 

quitclaim any interest she might of had in Lots 

5 and 6 in the Northeast Quarter of Section 35, 

Township 3 South, Range 9 East. The full consideration for signing her name to the 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 title to determine if any Andersons showed in the chain of 

title. He testified he had checked the records of the Bureau of 

Land Management in Billings, Montana and the original survey showed 

that lots 5 and 6 had a boundary perimeter on the west side thereof 

and a straight north-south survey line and that all property lying 

west of the straight north-south survey line had never been patented. 

trial plaintiff's exhibit 5 was a the 

survey of the lands question on file at the Bureau of 

official 

Land 

Management office, dated June 25, 1888, and showed that Section 

25 and in particular Lots 5 and 6 thereof, had a western boundary 

along the right bank of the Yellowstone River. Affixed to exhibit 

5, and made a part thereof, is a photographic blow-up of the property in question, ~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 1951 United 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 trial court found that all the 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'ellowstone River ilr 

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

. -s deed 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 show his conduct was malicious. 

Conklin raises eight issues on appeal. We find those 

issues may 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 result 
in substantial damage to plaintiff, Jumping ~ainbow Ranch, Inc.? 

The action of Conklin, a licensed attorney of this 

state for some sixteen years, was an attempt to deprive plaintiff 

of certain real estate. Conklin insists now that he does not 

now own the land nor claim any interest in it. His argument that 

he raises the question of ownership only as to its effect on the 

monetary judgment against him, is difficult to understand. 

Prior to judgment, and at the taking of his deposition, 

he stated: 

"A. No, sir, I am claiming a fee interest in this 

land. Title of record---." 

Thereafter, he deeded it to Orser who deeded it to Rossi, who was 

to get $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 in a quiet title action 

must rely on strength of his own title and not weakness of plaintiff's title. Roe v. Newman, 162 Mont. 135, 509 P.2d 844; Brown 

v. Cartwright, 163 Mont. 139, 515 P.2d 684. 

Conklin's attempt to establish title through a quitclaim 

deed by his secretary whose maiden name was Anderson is, of itself, 

the weakest interest of title to qualify to claim any interest in 

the land. Perhaps, because of lack of strength of his own title, 

defendant goes on in great lengths to prove the land does not 

belong to plaintiff. Such diversionary arguments lend no strength 

to his claim of title. 

Damages to plaintiff were brought about by Conklin's claim 

of interest in the land, for it was his prior actions that necessitated the filing of this action to clear title at a time he alleged 

an interest. Therefore, the source of his claimed interest and 

his acts are relevant to an adjudication of the matter. 

Conklin, as an attorney, knew or should have known, the 

standard procedure for proving title to land. This record is barren 
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 increase was 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 60 years. 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 Paul McAdam that the plaintiff suffered considerable damage as a result of Conklin's filing his quitclaim deed. Substantial improvements had 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 is malice." 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. [Citing cases and 

authority] " 

See: Vol. 20, Montana Law Review, 11 18: Paulson v. 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: 

,f ' 

// " 4. - . i - i 

Q 4- r %. 

Chie Justice 

)ldLL-.d-a-.~ 

Justices \I