IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

SPROUL A. McGUINESS et al., 

Plaintiffs and Respondent, 

vs. 

DONALD E. MAYNARD and LEWIS AND 

CLARK COUNTY, MONTANA, a political 

subdivision of the State of Montana, 

Defendants and Appellants. 

Appeal from: District Court of the First Judicial District, 

In and for the County of Lewis and Clark 

Honorable Gordon Bennett, Judge presiding. 

Counsel of Record: 

For Appellants: 

Thomas C. Honzel, Helena, Montana 

Donald E. Maynard, Pro Se, Helena, Montana 

For Respondent: 

Harrison, Loendorf & Poston, Helena, Montana 

John Poston, Helena, Montana 

Submitted on briefs: January 6, 1983 

Decided:February 18, 1983 

Filed: FEB 1 8 I983 

- Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

The District Court of the First Judicial District issued 

on February 2, 1982, a partial summary judgment declaring the 

January 3, 1969, tax deed issued to Donald E. Maynard, to be 

void - ab initio. Then, on September 14, 1982, the same court 

issued a final judgment dismissing Maynard's alternative 

claim of adverse possession and returning the tax deed 

property to its previous owners. Maynard now appeals these 

judgments. 

Prior to 1953, all surface and mineral rights, title and 

interests in Placer Survey No. 1198 were owned by the Robert 

S. Hale Estate. On April 20, 1953, Placer Survey No. 1198 

was sold to B.F. Otten. The deed provided for the following 

reservation: 

" . . . subject to the reservation in the grantor, 

the heirs and devises of Robert S. Hale, their 

successors and assigns of all mineral in said 

property with the rights of said parties, their 

lessees, successors and assigns to enter in and 

upon said property, with right of egress and 

ingress to explore for mining and mine and operate 

the same, extract therefrom and sell any ore and 

mineral, the right to erect buildings and equipment 

thereon and remove the same with the right of the 

use of surface therefor without any hindrance or 

restraint on the part of the grantees or their 

successors and free from any claim for damage 

resulting from such mining operations and all water 

rights pertaining to these mining claims are 

reserved by the grantor; 

" . . . The grantees shall pay all taxes on the 

above described property for the year 1953 and 

thereafter, both on the surface, and upon the 

mineral . . . " (Emphasis supplied) 

On December 11, 1956, the Merritts purchased Otten's 

surface rights interest in Placer Survey No. 1198. They have 

since paid all taxes assessed on that property in their 

names. However, in 1957, Lewis and Clark County commenced 

assessing the surface and mineral rights separately. 
Therefore, the Merritts paid only the taxes assessed against 

their surface rights. 

The taxes assessed against the reserved mineral rights 

interest went unpaid. The county thereafter "struck off" the 

mineral interest and attempted to sell it. Defendant Maynard 

purchased that interest December 1968. Lewis and Clark 

County issued Maynard the tax deed on Janaury 3, 1969. 

Maynard's interest came to light in August, 1979, when 

the Merritts attempted to sell their interest in Placer 

Survey No. 1198. On February 19, 1981, Sproul A. McGuinness, 

as heir to the Robert Hale Estate, and the Merritts brought 

this suit to quiet title to the property. A lis pendens was 

filed in the office of the Lewis and Clark County Clerk and 

Recorder on that same day. 

Pre-trial discovery by attorneys for all parties 

narrowed the scope of the issues. On August 19, 1981, 

plaintiffs, pursuant to Rule 34, Montana Rules of Civil 

Procedure, requested Lewis and Clark County to produce the 

affidavit required by section 15-18-204, MCA. The affidavit 

is the sole proof that notice of the sale of the property for 

delinquent taxes was given the owner of the property sold. 

Section 15-18-202, MCA. The county responded September 8, 

1981, stating: 

" . . . the affidavit of notice . . . was not filed 

in the office of the Clerk and Recorder and that, 

therefore, Defendant is unable to produce the 

same . " 

Plaintiffs moved for summary judgment on January 11, 

1982. Following a January 27, 1982 hearing on that motion, 

the District Court held Maynard's tax deed to be void for 

failure to file the affidavit, pursuant to section 15-18-204, 

MCA. The court also denied, as premature, plaintiff's motion 

t- 
for summary judgment on Maynard's counterclaims of adverse 

possession, laches and the statute of limitations. 

At defendant's request, his second attorney withdrew as 

counsel on April 10, 1982. Maynard has since proceeded 

pro se. 

A hearing on Maynard's counterclaims, specifically that 

of adverse possession, was held September 1, 1982, before the 

court sitting without a jury. Defendant's daughter testified 

that in 1975 she assisted her father in digging holes along 

the creek with a posthole digger and panning that soil for 

gold. A small storage shed was constructed on the property 

in 1978 and a larger residence was constructed in 1980. A 

neighbor, Earl Lutzenhizer, testified to seeing Maynard pan 

for gold on the property for three years prior to September 

1, 1982. Mr. Maynard himself testified that he had been 

". . . testing for gold on that property since 1975." 

Excavating commenced in 1979 and buildings were constructed 

in 1978 and 1980. The mine allegedly became commercial and 

operating in 1979. 

Clella Merritt testified for plaintiffs that the 

Merritts first became aware of mining activities on their 

property on August 29, 1979. Then on March 23, 1980, 

Merritts learned that Donald Maynard had constructed a 

storage shed on their property. Jay Merritt testified that 

he saw no signs of mining activity on the property prior to 

1976. He was out of state from 1978 to 1980 and. first 

noticed mining excavations in 1980 or 1981. Finally, Gil 

Alexander, an ex-resident of the area with training in 

geological research and mining exploration, testified that 

although he had been on the property for recreational 

purposes many times previous to 1977, he had never noticed 

any evidence of mining activity. 
The District Court concluded in its judgment dated 

September 14, 1982 that: "Defendant's occupancy and 

possession of the property was such in character and length 

of time that it failed to create a right by adverse 

possession." Further, the surface rights of Placer Survey 

No. 1198 were held to belong to Robert Earl Merritt, Clella 

Merritt and the Merritt Ranch Company; the mineral interests 

of Placer Survey No. 1198 were held to belong to Sproul A. 

McGuinness and the other heirs of the Robert Hale Estate; 

Donald Maynard's claim of adverse possession was dismissed. 

In his appeal of that judgment, Donald Maynard presents 

these issues: 

1. Did the District Court err in declaring 

Defendant/Appellant Donald E. Maynard's tax deed from Lewis 

and Clark County void? 

2. Did the District Court err in allowing the owner of 

the surface rights of Placer Survey No. 1198, Merritt Ranch, 

to prosecute this quiet title action by joining Sproul A. 

McGuinness, an heir of the Robert Hale Estate? 

3. Did defendant's second attorney exceed his authority 

when he signed the stipulation allowing Sproul A. McGuinness 

to bring this suit? 

4. Did plaintiff's attorney follow the proper 

procedures for a quiet title action as required by sections 

15-18-401 and 15-18-402, MCA? 

5. Were defendant's due process rights violated when 

his initial attorney refused to request a jury tria.l? 

6. Did the District Court err in rewarding Merritts 

since they had allegedly disregarded earlier opportunities to 

pay the taxes on the mineral interest? 

We find no abuse of discretion and affirm the decision 

of the District Court. 
Section 15-18-204, MCA, states in part: 

"Affidavit of notice. No deed of the property sold 

at a delinquent tax sale shall be issued by the 

county treasurer to the purchaser of the property 

until the proof of service of notice of application 

for tax deed has been filed with the county clerk 

and recorder as required by 15-18-202." 

The provisions of section 15-18-204, MCA are mandatory and 

prohibitory. They specifically prohibit the issuance of a 

tax deed by the county treasurer until after such an 

affidavit has been filed. King v. Rosebud County (1981), 

Mont . , 631 P.2d 711, 38 St.Rep. 1145. No affidavit 

was filed in this case. Therefore, the tax deed issued to 

Maynard by the Lewis and Clark County Treasurer is void - ab 

initio. 

Further, there was no open, notorious, exclusive, 

adverse, continuous or hostile occupation or possession of 

the property by Maynard for five years prior to the date the 

complaint was filed, February 19, 1981. Section 70-19-401, 

MCA; Scott v. Weinheimer (1962), 140 Mont. 554, 374 P.2d 91. 

Neither has Maynard shown "actual possesion of the mineral 

interest by openly operating the mine" for the same five year 

period. Lehfeldt v. Adams (1956), 130 Mont. 395, 400, 303 

P.2d 934, 937. Therefore, Maynard has not acquired title to 

the mineral interest of Placer Survey No. 1198 through 

adverse possession. 

Maynard's remaining contentions are meritless. 

Attorneys for all parties stipulated that Sproul A. 

McGuinness was an heir of the Robert Hale Estate and thus 

vested with sufficient title and standing to bring the quiet 

title action. Richard Pyfer signed the February 3, 1982 

stipulation as attorney for Maynard. Maynard had signed a 

Notice of Change of Attorney October 27, 1981, designating 

Pyfer's firm as his new counsel of record. Therefore, Pyfer 
was acting within the scope of his authority when he signed 

the stipulation. 

The procedures for a quiet title action found in 

sections 15-18-401 and 15-18-402, MCA, are procedures to be 

followed when a purchaser of a property tax deed wishes to 

quiet his title to that property as against anyone else. 

They are procedures Maynard would have followed had he sought 

to quiet his title to the mineral interests. They do not 

apply to quiet title actions by the true owner of the 

property. 

Actions to quiet title are actions in equity. R. 

McClintock, Handbook of the Principles of Equity, S192, p. 

520 (2d ed. 1948). Judges may enpanel juries for equity 

actions; however, they are not bound to do so. Downs v. Smyk 

(1982) , Mont. , 651 P.2d 1238, 39 St.Rep. 1786. 

Defendant was not entitled to a jury trial. His due process 

rights were not violated when his attorney failed to request 

a jury trial. 

Finally, Merritts were not "rewarded". They received 

only that to which they were legally entitled, the surface 

rights to Placer Survey No. 1198. 

The judgment of the District Court is affirmed. 

We concur: 

Justices,