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: 

Y 

Clerk 
Chief 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 in this 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 Guest action 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 Guest action 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 single man, 

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 the miners and others in Neihart 

told Olds that confusion had existed in the boundaries 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 Olds had married and owned his property jointly with his 

wife Shirley, and they had built a cabin. The Gues' lots directly 

adjoin the Oldses property. When the Gues bought their property, 

Gary Olds told Kenneth Gue that the cabin the Oldses had built may 

be encroaching on the Guest property 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, 

the Gues hired D. Lester Turnbull to survey it. The Oldses agreed 

to pay the expense of having Turnbull survey their property at the 

same time. 

Turnbull's survey places the Oldsesl cabin entirely within 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 Guest property and 

counterclaimed to quiet title in the property on which their cabin 

sits. After discovery, the Oldses moved for summary judgment and 

the Gues moved for partial summary judgment that they are the title 

holders to Lots 14 through 18. 
The District Court concluded that the Guest claim 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 Guest action to quiet title? 

Laches exists where there has 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), 114 Mont. 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 the party asserting the defense. Coalition fdr Canyon 

Preservation v. Bowers (9th Cir. 1980), 632 F.2d 774, 779. 

In the present 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 the Oldses when they purchased their lots in 1973. The 

court also relied upon the Guest failure 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 the boundary 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 Gues were 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 their claim. The Oldsesl cabin was built 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 evidence to support the Guesl contentions for purposes of the 

summary judgment motions. The testimony of Kenneth Gue and Gary 

Olds, as well as the sketch, indicates that the Turnbull survey put 

the Oldses cabin on Lot 15. We conclude that there is sufficient 

evidence in the record to support the Guest position for purposes 

of these motions 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 the property underlying their cabin by adverse possession. 

A party claiming title through adverse possession must have "paid 

all the taxes, state, county, or municipal, which have been legally 

levied and assessed upon said landv1 during the period of adverse 

possession. Section 70-19-411, MCA. The District Court concluded 

that the Oldsesl payment 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 statutory period.I1 See e.g. Burlingame v. Marjerrison (1983), 204 Mont. 464, 472, 665 P.2d 1136, 1140 (emphasis 

supplied). Payment of taxes on an improvement on the property does 

not fulfill the statutory requirement. Stephens v. Hurly (1977), 

172 Mont. 269, 276-77, 563 P.2d 546, 550-51. 

We conclude that payment of taxes on the cabin is not 

sufficient to meet the requirement of 5 70-19-411, MCA. The Oldses 

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 Guest action to quiet title? 

The court concluded that the Guest action was barred by the 

applicable statute of limitations, 5 70-19-401, MCA: 

No action for the recovery of real property 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 years before the commencement of 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 findings and 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 reliance was misplaced. 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 record 
to dispute the Guesl testimony that they are holder of fee title 

to Lots 14 through 18. No defect in their title has been shown. 

Disseisin has not been proved. We hold that 5 70-19-401, MCA, does 

not bar the Guesl action 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 to which the Oldses have established title 

by adverse possession. It did not clarify who holds title to ~ots 

14 through 18 or where those lots are located in relation to the 

Oldsesl cabin. However, to the extent that the courtls judgment 

established the locations of Lots 14 through 18 and 10 through 13, 

that judgment is vacated. 

v 

Are the Gues entitled to summary judgment on the Oldsest claim 

of adverse possession of Lots 14 through 18? 

The Gues maintain 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 adverse 
possession 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 consistent with 

this Opinion. 

We concur: I