No. 90-252 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

KENNETH M. GUE and SHIRLEY M. GUE, husband and wife, Plaintiffs and Appellants,

GARY L. OLDS and SUE ELLEN OLDS, husband and wife, Defendants and Respondents.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable John M. McCarvel, Judge presiding.

COUNSEL OF RECORD: For Appellant:

Filed: Patrick R. Watt and Joseph G. Mudd, Jardine, t- Stephenson, Blewett & Weaver, Great Falls,Montana L= 

### - 2 0 

## r! '-?or Respondent:

I LLI

"

### - _I 

### - -. Patricia O'Brien Cotter, Cotter & Cotter, Great

1-- Falls, Montana -)
Submitted on Briefs: August 30, 1990 October 18, 1990 Decided:

YClerkChief Justice J.A. Turnage delivered the Opinion of the Court. The District Court for the Eighth Judicial District, Cascade County,entered summary judgment for the Oldses inthis quiet title action. We reverse and remand for further proceedings consistent with this Opinion. The issues are: 1. Did the District Court err in concluding that laches barred the Guestaction to quiet title? 2. Did the Oldses meet the statutory requirements to acquire title to Lots 14 through 18 by adverse possession? 3. Did the court err in concluding that 70-19-401, MCA, barred the Guestaction to quiet title? 4. Did the court err by determining material questions of fact in granting summary judgment for the Oldses? 5. Are the Gues entitled to summary judgment on the Oldses' claim of adverse possession of Lots 14 through 18? The plaintiffs, Kenneth M. and Shirley M. Gue, and the defendants, Gary L. and Sue Ellen Olds, own adjoining property in Neihart,Montana. In 1959 and 1960,Gary Olds, then a singleman, purchased Lots 3 through 7 and Lots 10 through 13, Block 11,Town of Neihart. Olds and two local miners, now deceased,marked out the area included in the lots,but theminers and others inNeihart told Olds that confusionhad existed in theboundaries in the Town of Neihart for at least the last fifty years.In 1973,plaintiffs Gue,who are friends of defendants Olds, purchased Lots 14 through 18, Block 11,Town of Neihart. By that time,Gary Oldshad married and ownedhisproperty jointly withhis wife Shirley,and they had built a cabin. The Gues' lots directly adjoin the Oldses property. When the Guesbought theirproperty, Gary Olds told Kenneth Gue that the cabin the Oldseshad built may be encroaching on the Guestproperty a bit and that the property line might be inaccurate. No steps were taken to ascertain the correct boundary line, however, and in 1975 the Oldses built a fence on the accepted property line. In 1985, in anticipation of selling their Neihart property, theGueshired D. LesterTurnbull to survey it. TheOldses agreed topay the expense of having Turnbull survey theirproperty at the

same time. Turnbull's survey placestheOldseslcabinentirelywithin Lot 15, which is owned by the Gues. After attempts to negotiate a settlement failed, the Gues brought this suit to quiet title to their property. In their answer to the complaint, the Oldses denied that their cabin is situated upon the Guestproperty and counterclaimed to quiet title in theproperty onwhich their cabin sits. After discovery, the Oldses moved for summary judgment and theGuesmoved for partial summary judgment that they are thetitle holders to Lots 14 through 18.The District Court concluded that the Guestclaim is barred by the statute of limitations and by the doctrine of laches. It further concluded that the Oldses have established, by adverse possession, title to the property upon which the cabin is located and up to the boundary line established by their fence. I Did the District Court err in concluding that laches barred the Guestaction to quiet title? Laches exists where therehas been a delay of such a duration

as to render enforcement of the asserted right inequitable. Castillo v. Franks (1984), 213 Mont. 232, 241, 690 P.2d 425, 429. There is no absolute rule as to what constitutes laches, and each case is determined according to its own particular circumstances. Montgomery v. First Nat. Bank (1943), 114Mont. 395, 408, 136 P.2d 760, 766. For laches to be applied, the court must find lack of diligence by the party against whom the defense is asserted and prejudice to theparty assertingthedefense. Coalition fdrCanyon Preservation v. Bowers (9thCir. 1980), 632 F.2d 774, 779. In thepresent case, the District Court concluded that laches applied because the Gues became presumptively aware of the questionable accuracy of the boundary line between their property and that of theOldseswhen theypurchased their lots in 1973. The court also relied upon the Guestfailure to object to the location of the fence the Oldses built in 1975.Kenneth Gue stated in his deposition that Gary Olds had told him that theboundary line might be off by "a couple feetvv and that his cabin might be "close to the line." As Gue testified, in contrast, the Turnbull survey puts the cabin within the Guesl property in excess of an entire lot width. That's a horse of a different color. There is no evidence that the Gueswere aware of the extent of encroachment on their property until they commissioned the Turnbull survey. Further, there has been no showing that the Oldses have been prejudiced by the Guest delay in asserting theirclaim. TheOldseslcabin wasbuilt well before the Gues purchased Lots 14 through 18. As an ancillary matter, the Oldses contend that because the record contains only a sketch of the survey done by Turnbull and because Turnbull himself has not been deposed, there is insufficient evidenceto supporttheGueslcontentionsforpurposes of the summary judgmentmotions. The testimony of Kenneth Gue and Gary Olds, aswell as the sketch,indicatesthat theTurnbull surveyput the Oldses cabin on Lot 15. We conclude that there is sufficient evidence in the record to support the Guestposition for purposes of thesemotions for summary judgment. We hold that the District Court erred in concluding that the doctrine of laches is applicable in this case.Did the Oldses meet the statutory requirements to acquire title to Lots 14 through 18 by adverse possession? The District Court concluded that the Oldses established title to theproperty underlyingtheircabinby adversepossession. A party claiming title through adverse possession must have "paid all the taxes, state, county,or municipal, whichhavebeen legally levied and assessed upon said landv1 during the period of adverse possession. Section 70-19-411,MCA. The District Court concluded that the Oldseslpayment of taxes on their cabin satisfied the requirement of the statute. This Court has consistently held that If[o]ne cannot gain adverse possession to land unless one pays the taxes on the land throughout the statutoryperiod.I1 See e.g. Burlingamev. Marjerrison (1983), 204 Mont. 464, 472, 665 P.2d 1136, 1140 (emphasis supplied). Payment of taxes on an improvementon theproperty does not fulfill the statutory requirement. Stephensv. Hurly (1977), 172 Mont. 269, 276-77, 563 P.2d 546, 550-51. We conclude that payment of taxes on the cabin is not sufficienttomeet the requirement of 5 70-19-411,MCA. TheOldses have not claimed that they have paid any property taxes on Lots 14 through 18. We hold that the Oldses failed to establish a right to Lots 14 through 18 by adverse possession because they did not establish that they paid property taxes on that property.Did the court err in concluding that 5 70-19-401, MCA, barred the Guestaction to quiet title? The court concluded that the Guestaction was barred by the applicable statute of limitations, 5 70-19-401,MCA: No action for the recovery of realproperty or for the possession thereof can be maintained unless it appear that the plaintiff, his ancestor,predecessor, or grantor was seized or possessed of the property in question within 5 yearsbefore the commencementof the action. In reaching its conclusion, the court reasoned that the Gues did not have possession of the land underlying the cabin for at least five years preceding this action. The District Court stated in its findingsand conclusions that ttseisintl means possession. It relied upon Clayton by Murphy v. Atlantic Richfield Co. (Mont. 1986), 221 Mont. 166, 717 P.2d 558. That reliancewasmisplaced. Clayton concerned application of the statute of limitations in the context of prescriptive easements, not fee title. Statements in that case about the meaning of ltseisinlt are thus limited in application. In a situation involving fee title to property, actual occupancy is not essential to a lawful seisin; a titleholder is seized of property as long as his or her title is complete and disseisin is not proved. Stephens, 563 P.2d at 549-50, quoting 63 Am.Jur.2dI Property 5 40,p. 324. There is nothing in the recordto dispute the Guesltestimony that they are holder of fee title to Lots 14 through 18. No defect in their title has been shown. Disseisinhas not beenproved. We hold that 5 70-19-401, MCA, does not bar the Gueslaction to quiet title. IV Did the court err by determining material questions of fact in granting summary judgment for the Oldses? The Gues claim that, in entering its summary judgment, the District Court determined the location of Lots 14 through 18 and 10 through 13. They state that the location of these lots is a material issue of fact. The order of the District Court did not set forth a legal description of the land towhich the Oldseshave established title by adversepossession. Itdid not clarifywho holds title to ~ots 14 through 18 or where those lots are located in relation to the Oldseslcabin. However, to the extent that the courtlsjudgment established the locations of Lots 14 through 18 and 10 through 13, that judgment isvacated. 

### v Are theGues entitled to summary judgment ontheOldsestclaim of adversepossession of Lots 14 through 18? The Guesmaintain that,because the Oldses have not presented any evidence of payment of taxes on Lots 14 through 18, they have failed as a matter of law to make a valid claim of adversepossession of those lots. Under our reasoning in Issue 111, they

are correct. Payment of taxes is necessary for establishing title through adverse possession. The Oldses have not shown that they paid any taxes on Lots 14 through 18. We conclude that summary judgment should be entered denying the Oldses' claim of adverse possession of Lots 14 through 18. Reversed and remanded for further proceedings consistentwith this Opinion.

We concur:

I