DA 20 - 0507



### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 2 1 MT 137N BONNIE SHURTZ,

Plaintiff and Appellee, v. DALTON GROVE PROPERTIES, LP,

Defendant and Appellant. ESTATE OF JOHN BILLMAYER, ESTATE OF KATHRYN BILLMAYER, and all other persons, unknown, claiming or who may claim any right, title, estate, or interest in or lien o f encumbrance upon the real property described in the complaint adverse to plaintiff ’ s ownership o f any cloud upon plainti ff ’ s title, whether the claim or possible claim is present or contingent,

Defendants. APP EAL FROM: Di strict Court of the Twentieth Judicial District ,

In and For the County

of Lake , Cause No. DV - 18 - 255 Honorable Deborah Kim Chris t o pher , Presiding Judge COUNSEL OF RECORD:

For Appellant: Richard P. DeJana, Richard De Jana & Associates, PLLC, Kalispell, Montana For Appellee : Joseph D . Houston, Kevin S . Jones, Jones & Associates, PLLC, Missoula, Montana Submitted on Briefs: Ap ri l 14, 2021 Decided: June 1, 2021 06/01/2021

Case Number: DA 20-05072

Filed:

__________________________________________ Clerk 

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Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Purs uant to Section I, Paragraph 3(c ), M ontana Suprem e Court Internal Operating Rules, this cas e is d ecided by me morandum opinion and shall not be cited and does not serve as precedent . Its case title, cause number, and disposition shall be inc luded in this Court’s quarterly list of noncitable cases publish ed in the Pacific Reporter and Montana Rep orts. ¶2 Dalton Grove Properti es, LP , appeals an order from the Twentieth Judicial District Court, Lake County , denying its motion s for partial summary judgment and granting Bonni e Shurtz ’ s cross motion f or summary judgment . We affirm. ¶3 This matter concerns a disputed gap of land between the boundaries of properties owned by th e parties. O n July 26, 19 82, the following lakefront property was conveyed to Shurtz and her husband , and subsequently deeded exclusively to Shurtz on June 15, 1998 : That po rtion of Government Lot 1, Section 13, Township 26 No rth, Range 20 West, Lake County, Montana, describe d a s follow s: Comme ncing at the Northeast corner of Se ction 13 ; thence along the North lin e of Section 13 W est 1060.44 f e et to the point of beginning; thence South 128.80 feet ; thence 490. 70 feet more or less to the l o w water mark of Flathe ad Lake; thence Northwesterly along the low water mark 140 feet more o r less to the North lin e of Section 13; thence along said North lin e East 540.59 feet more or less to the point of beginning, containing 1.53 acres more or less of land. In accordance with Certificate of Survey N o . 3864.4

James and Patricia Lafferty, principals of Dalton Grove , a Texas - based company, w ere d eeded the fol l owing lakefront property on February 28, 20 03 , which was later deeded entirely to Dalton Grove on June 19, 2017 : A p ortion of Government Lot 1, Section 1 3, Township 26 North, Range 20 West, P.M.M., Lake County, Montana, described as follows: Beginning at a point 20 feet West and 128.8 feet So uth of the Northeast corner of said Government Lot 1; thence running West 140 1. 1 fee t to the meander line of Flathead Lake ; thence along said meander line 100.8 feet ; thence East 141 3.9 feet to a point 20 feet West o f the Ea st line of said Government Lot 1; thence North 10 0 feet to the place of beginning. Further identifie d as being Tract 3 of the unre corded plat of Piedmont Tracts and herein referred to as Deed Exhibit H - 55, on file in the office of th e Clerk and Re corder of Lake County, Montana. Both the above - listed properties were once owned by Lewis Butterfi eld as a l arger deve l opment entitled , “ Lake County Piedmont Tracts ” (Piedmont Tracts). On May 18, 1945, the Piedmont Tracts were dep icted in E xhibit H - 55 ( H - 55) , recorded with the deed, as 18 separat e lakefront tracts of re al property located on the west side of Flathe ad Lake. H - 55 described Butterfield as the original property owner and included a signed and s worn statement dated May 11, 1945, from a civil engineer . Prior to recording H - 55 , Butterf ield had deeded multiple tracts within the Pi edmont Tracts : (1) June 19, 1939, deed for “ Lake Co . P iedmont Tracts Lot 1 8 ” ; (2) April 30, 1940, deed for “ Lot 10 of the unrecorded plat of Piedmont Trac ts ” ; (3) Apri l 30, 1940, deed for “ Lot 9 of the unrecorde d pl at of P iedmont Tracts ” ; (4) September 17, 1941, deed for “ Tract No. 16 of the plat of Lake County Piedmont Tracts ” ; (5) October 10, 1942 , deed for “ Trac t No. 15 of unrecorded plat of Lake C o unty Pi edmo nt Trac t s ” ; ( 6 ) May 3, 1943, deed for “ Tract No. 11 of the unrecorded plat of5

Lake C ounty Piedmont Tracts ” ; ( 7 ) April 6, 1 945, deed for “ Tracts numbered 1 and 2 of the first party ’ s unre corded plat of Lake C o unty Piedmont Tra cts , ” “ Tracts numbered 6, 7, and 8 of the first party ’ s unrecorded plat of Lake Co unty Piedmont Tracts, ”

“ Tracts numbered 12, 13, and 14 of the first party ’ s unrecorded plat of Lake County Piedmont Tracts , ” and “tra ct numbered 17 of the f irst party ’ s unre corded plat of L ake County Piedmont Tra c ts . ” Th e deed dated April 6, 1945 containe d a handwritten description stating: “ See Deed Exhibit H - 55. ” ¶4 Shurtz ’ s property is part of what was de scribed as “ Tracts numbered 1 and 2 of the first party ’ s unrecorded plat of Lake C ounty Piedmont Tracts ” and d epicted in a d ee d recorded April 6, 1945. There after, the grantees deeded their interest on May 13, 1946 , describ ing the property conveyed as “ Lots 1 and 2 of P ie dmont Tracts, according to the map or plat thereof on file and of record in the office of the County Clerk and Recorder of Lake County, M ontana . ” The Clerk and Re corder place d a note on the deed indicating

“ S ee Plat H - 55 in reference to this Deed. ” Also, Butterfield deeded title to the p roperty currently owned by Dalton Grove and depicted as “ Tra ct Three ” on July 23, 194 5 . Th is deed spec ific ally referred to H - 55. Butterfield ’ s conveyance of Tract 4 in the Piedmont Tracts also referred to H - 55 . ¶5 Shurtz ’ s p redec essors - in - interest subdivided their interest in Tract s 1 and 2 , creating four s epar ate parcels depicted in Certificate of Survey No. 2909 (C OS 2909) and No. 3684 (COS 3684) . By deed, dated July 26, 1982, Shurtz was conveyed the property dep icted in COS 3684 . However, when COS 2909 and COS 3684 were prepared , an error was m ad e by th e surveyor which created a gap between Tract s 1 and 2 that ran6

parallel with cardinal west bearings . Shurtz and her family have utiliz ed the gap , traversed it, and cultivated it since 1982 . Shurtz was unaware of the surveying error. ¶6 In July 2017 , Dalton Grove hired a surveyor to record a Certificat e o f Survey 7225 - RT (COS 7225 - RT) . C O S 7 225 - RT detailed the northern boundary of Tract 3 as the southern boundaries indicated in COS 2909 and COS 3684, essentially encompassing the gap at issue. C OS 7 22 5 - RT thu s al located more land to Tract 3 than what w as described in H - 55 or than what was contained in the d eed to Dalton Grove . Shurtz hired a surveyor a s well , who indicated the gap was part of Tract 2 , as shown on H - 55. Shurtz ’ s surveyor further ack no wledged that when COS 2909 and COS 3684 were prepare d, they failed to include all of Tracts 1 and 2 and di d no t establish the northern boundary of Tract 3 . H owever, the surveyor maintained that H - 55 ac curat e ly depicted all of those boundaries and was th e p roper desc ription upon which to base the survey . ¶7 Shurtz filed an action for quiet title in O c tober 2018 , asserting Dalton Grove was trespassing and had dama ged her lan d , i.e., the gap at issue. Competing motions for summary judgment were filed by both parties in 20 1 9 . Dalton Grove argued the gap at issue wa s part of Tract 3 and that H - 55 wa s not a proper dee d d epicting the P iedmont Tracts. S hurtz argued the gap wa s part of Tra ct 2 and H - 55 wa s the only true and accurate document depicting the co nveyan ce of tract s w ithin the Piedmont Tracts. A two - day bench trial was scheduled for August 19 and 20, 2020 , however , was later vacated . The District Court issued a final order on July 17, 2020, which denied Dalton Grove ’ s motions for partial summary judgment , and grante d Shurtz ’ s cross motion for summary judgment . Dalton Grove appeals .7

¶8 “ The standard of review for a distri ct court ’ s granting of summary judgment is de novo. ” Farmers Ins. Exch . v. Johnson , 2009 MT 442, ¶ 7, 354 Mont. 192, 224 P.3d 613. Th e facts presented are reviewed to determin e wheth er the p re vailing part is entitled to judgment as a matter of law. Johnson , ¶ 7. Summary judgment “ shall be rendered forthwith i f the pleadings, depositions, answers to interrogatories, and admissions on f

ile, to g ether with the affidavits, if any, sh ow that there is n o genuine issue as to any material fact and that the mo ving party is entitled to a judgment as a matter of law. ” M. R. Civ. P. 56 (c) ; Mattson v. Mont. Power Co. , 2009 MT 286, ¶ 15, 352 Mont. 2 12, 215 P.3d 6 75. We review a district court ’ s c onclusio ns of law de novo to determine whether those conclusions are correct. M attson , ¶ 15. ¶9 Dalton Grove asserts the District Court erred in relying solely on H - 55 . Dalton Grove also asserts COS 7225 - RT correctly dep icts the boundary lines betw een Tract 2 and Tract 3 ; that H - 55 only provides subjective extrinsi c evidence ; and that Butterfield intended to include the gap within Tract 3. W e disagree. ¶10 When the description containe d in a dee d “refers to a map and that r eference is inconsistent with o ther particulars, it controls t h em if it appears that the parties acted with reference to the map. ” Section 70 - 20 - 201(6), MCA ( em p hasis added) . H - 55 is a map of the Piedmo nt Tracts created and certified by a c ivil engineer in 1945 . The description provi ded, “the annexed plat is a true and correct copy of th e original plat of the Lake County Piedmont Tracts. ” All other deeds and co nveyan ces by Butterfield , or subse quent grantees , involvin g th e P iedmont Tracts refer to the H - 55 map or plat.8

We conclude H - 55 is the c ontrolling document depicting the P iedmont Tracts and its conveyances. ¶11 Our conclusion is supported by our assessment of the parties ’ intent . “ The main ob ject in construing a deed is to ascertain the intentio n of the parties from the lan gua ge used and to effectuate such intention where not inconsistent with any rule o f law. ” Henningsen v. Stromberg, 124 M o nt . 185, 191 , 221 P.2d 43 8, 442 (1950). H - 55 is the only instrument that purpo rts to show B utterfield ’ s intended divisions and convey anc es . All sub sequent documents , including the Shurtz deed and the Dalton Grove d eed , ref erence H - 55 . The property descripti ons in Butterfield ’ s de eds that predate the recording of H - 55 demonstrate he conveyed th e properties w ith reference to what was depic ted in H - 55. T o construe the conveyances consistently and ascertain the intent of the Butterfield deeds, the District Co urt had to rely on H - 55 . The District Court did not err in concluding H - 55 expressed the intention of the B utterfiel d d eeds , particularly in the c onveyances to Shurtz and Dalton Grove . ¶12 The District C o urt also correc tly con clude d that § 7 0 - 20 - 20 1, MCA, gives p riority to maps referen c ed by the deed of conveyance . Section 70 - 20 - 201 (6), MCA , prov ides that “ [w ] hen the description refers to a map and that reference is inconsistent with other particulars, it controls them if it appears the parties acted with reference to the map . . . . ” The District Court ’ s conclusion that H - 55 clearly established the intention of the landown er wa s supported by the continual reference to H - 55 in the deeds, the conveyances , and descrip tions of the boundary l ines . Furthermore, the District Court was correct in concluding COS 7225 - RT wa s not an accurate depiction of the conveyance s .9

¶13 We have determine d to decide this case pur suant to Sectio n I, Paragraph 3(c ) of our Int ernal Ope rating Rules , which provides for me morandum opinions . In the opinion of the Court, the case presents a question controlled b y settl ed law or by the clear app lication of applicable standards of review. ¶14 Affirmed. /S/ LAURIE McKINNON We concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ INGRID GUSTAFSON /S/ DIRK M. SANDEFUR