NO. 91-612 IN THE SUPREME COURT OF THE STATE OF MONTANA

YELLOWSTONE BASIN PROPERTIES, INC., a Montana corporation, and CENTRAL STATES RANCH COMPANY, a Montana corporation, Plaintiffs and Appellants,

RON BURGESS, SURVCO CO., INC., now known as VALHALIA, INC., and ANY UNIDENTIFIED PERSONS OR ENTITIES WHO MAY BE RESPONSIBLE FOR THE ACTS OR OMISSIONS OF SURVCO CO., INC., Defendants and Respondents. 

### DEC

### 1

### 01992

APPEAL FROM: DistrictCourt of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD: For Appellant: R. Mark Josephson, Josephson & Fredricks, 

### Big Timber,Montana For Respondent: Karl Knuchel, Livingston,Montana

Filed: Submitted on Briefs: August 27, 1992 Decided: December 10, 1992

### Justice 

### Fred J. 

### Weber 

### delivered the Opinion of the 

### Court.
Plaintiffs Yellowstone 

### Basin 

### Properties, 

### Inc. and Central States Ranch Company appeal the judgment of the District Court of 

### the 

### Eighteenth Judicial District, Gallatin County, Montana. The 

### judgment found in 

### favor of defendants 

### Ron Burgess and SUWCO

### CO., Inc. 

### on plaintiffs1 claims 

### of negligence, breach 

### of contract and 

### breach of warranty. We 

### affirm. The 

### issues for review are restated as 

### follows: 1. Did 

### the 

### District Court correctly determine that the 

### defendants did 

### not breach the standard 

### of 

### care they owed 

### as Registered Land 

### Surveyors? 2. 

### Did the District Court correctly refuse to 

### award 

### damages based 

### on plaintiffs' reliance upon defendantsi admissions 

### of erroneous surveys? 3. 

### Did the District Court 

### err in declining to determine the true locations of section corners despite the parties* 

### express request that it make the 

### determinations? 4. 

### Did the District Court fail to determine 

### whether defendants breached their contracts with plaintiffs to provide 

### surveys for tracts of 

### at least twenty 

### acres? Plaintiffs Yellowstone Basin Properties, Inc. (YBP) and Central 

### States

### Ranch Company (CSR)

### areMontana corporationsengaged in 

### thedevelopmentand sale

### of realproperty 

### inMontana. Defendant Ron Burgess 

### (Burgess) owned Survco 

### Co., Inc. (Sumco) 

### during the time plaintiffs' claims arose. Burgess 

### is 

### a Registered Land 

### Surveyor. Survco 

### is a company 

### providing professional surveying 2services to private landowners. From 1980 to 1983, plaintiffs contracted with defendants to survey the following real property located in Park County,Montana and to divide it into parcels of at least twenty acres for resale: For Plaintiff CSR: Section 34, T.2S., R.9E.; Section 3, T.3S. R.9E.

-

~ For Plaintiff YBP: sections 31, 32 and 33, T.2S., R.9E. Survco completed the survey, with Burgess and Mike Foley, a Survco employee and Registered Land Surveyor, ultimately filing numerous Certificates of Surveyand Corner Recordationswith the Park County Clerk and Recorder on behalf of CSR and YBP. This dispute centers around the location of the corner common to Sections 3, 4, 33 and 34 (inR.9E between T.2S and T.3S). The

corner common to Sections 3, 4, 9 and 10 (inR.9E, T.35) and the west quarter corner to Section 3 (inR.9E, T.3S) are also involved. These cornerswere originally surveyed and monumented in the 1870s by United States government suwey crews. The evidence presented at trial established the following general surveyingpractices: If original corner monuments cannot be found, surveyors look for other evidence which can assist in determining the original corner location. They use original government fieldnotes obtained from theBureau of LandManagement, county records, and any available field notes and materials from other surveyors who have surveyed the area after the original

corner was monumented. If there is some evidence of the corner location, the corner is said to be "obliterated." An obliterated

corner 

### is remonumented from the available evidence. 

### If no suchevidence is found,surveyors termthecorner as "lost" andposition it proportionately from other known corner sections. Survco surveyors could not locate the original corners at issue here. Believing them obliterated, they remonumented them. Subsequently, a question arose as to whether Survco's surveyors correctly located the obliterated corner to Sections 3, 4, 33, and 34. United Statesgovernment surveyors from the Forest Serviceand later from the Bureau of Land Management (BLM) began to survey these same corners, and subsequentlty told Burgess in 1986 that they had found the original monuments, casting doubt on the accuracy of Survco's location. BLM surveyorstestified that theyhad resurveyed Section 4but were unable to officially remonument the corners because Section 4

was sold to a private party in 1986. Although the BLM had remonumented the corner to Sections 3, 4, 33 and 34, it later removed the cap signifying an official government survey location because thepreliminary resurveyhad notbeen approvedprior to the sale. The evidence established that Survco's corner location was approximately 374 feet from the location preliminarily established by BLM as the original monument. The plaintiffs concluded that, based upon information fromBLM,therewas a probable encroachment. As 

### a result, theypurchased the acreagenecessary to compensate for the possible encroachment on properties as the result of the defendants' survey. Plaintiffs expended over $80,000 to purchase such properties.YBP and CSR brought this action against the defendants based

on negligence in surveying, breach of contract and breach of warranty. The District Court determined that all three claims hinged 

### on a determination 

### of the standard of care applicable to 

### a land surveyor inhisdealings with clients. YBP and CSR appeal the DistrictCourt's decision thatBurgess and Suwco's other surveyors did not breach their standard of care. I. Did theDistrict Court correctlydeterminethatdefendantsdid not breach the standard of care they owed as Registered Land Surveyors? The District Court found that the defendants did not breach the standard of care they owed to YBP and CSR. YBP and CSR assign clear error to this finding, claiming the District Court erred by failing to define theproper standard of care and failing to state how the defendantsmet the standard. They contend that several of the District Court's individual findings of fact are completely insupportable, thereby demonstrating that the District Court's ultimate finding is in error. They further contend that this "shows a lack of understanding to the important distinctions which must be made in this case regarding surveying terms and techniques." 

### This Court will not overturn a district court's finding of factunless it is clearly erroneous. Interstate Production Credit Ass'n 

### v. DeSaye (Iggl), 250 Mont. 320, 322, 820 P.2d 1285, 1287. If substantial evidence in the record supports the findings, they

### arenot 

### clearly erroneous. Interstate Production CreditAssfn,820 P.2d at 1287. Substantial evidence is evidence that a reasonable mind might accept 

### as adequate to support a conclusion; it consists ofmore than a scintilla of evidence and may be somewhat less than

a preponderance. Barrett 

### v. Asarco, Inc. (1990), 245 Mont. 196,

YBP and CSR first claim that the wording of Finding No. 15 demonstrates clear error, specificically: 15. 

### Insurveying

### property in Sect

### ions 31, 32, and 33 for YBP 

### in 1983 Survcoutilized and relied upon Ron Burgess1 corner recordation (forthe commoncorner of Sections 33, 34, 4, and 3) in locatinq the SW corner of Section 33 and the SW corner of Section 32, leading to the 1983 filing of Certificates of 

### Survey 713, 714, and 718. (Emphasisadded.) YBP and CSR contend that this finding showsa lack of understanding of the important distinctions which must be made in 

### this case regarding surveying terms and techniques. Although it may be argued that the terms ltplace"and "locate1*have independent significance in surveying, we do not find that difference 

### to be significanthere. We conclude that this is not clearly erroneous 

### and has 

### no effect on the real meaning of that finding. YBP and CSR next claim that, in Finding No. 17,the District Court suggests that the Forest Service created the section corner dispute 

### and possible encroachment to force someone to buy federally-owned Section 4. That finding reads as follows: 17. Sometime 

### in 1986,at the request of the U.S. Forest service, the Bureau of Land Management (herein 

### BLM), conducted a dependent resurvey 

### in theWineglass 

### area in an effort to locate and establish the "originall1common corner for sections 33, 34, 4,and 3, and the SW corner 

### of Section 33 and the 

### SW corner of Section 32, along thesouthern boundary of YBPgs"Wineglass Rancht1 property, all as part of a resurvey of Sections 4 and 6,Township 3 South, Range 9 East, Park County,Montana. The Forest Servicehad decided to

### dispose 

### of public land in Sections 4 and 6 because such land formed an island of National Forest some five miles distant from the

### main body of the ~ational 

### Forest, and Sections 4 and 6were land locked. The most likely buyers were adjacent landowners. No interest was shown in purchasing Sections 4 and 6 until the Forest Service notified Plaintiff YBP of a possible encroachment

## -- if the common corner location chosen 

### by surveyor Donald Palmer was, in fact, 

### the true common section corner. Substantial evidence in the record supports this finding; thus, it is not clearly erroneous. We conclude that this finding does not suggest that the Forest Servicehad improper motives for surveying this property. YBP and CSR next contend that Finding No. 18 has many clear

errors which 

### are not supported by the record 

### or by law. The language plaintiffs object to from that finding provides: 18. Despite the extensive surveying performed by BLM, the corner common to Sections 3, 4, 33, and 34, 

### was neither officiallyrnonumented (norremonumented), and no certification of Corner Recordation was filed by BLM. 

# . Although it is difficult to discern what plaintiffs claim is incorrect about 

### this finding,their argument seems to be that the District Court did not make it sufficiently explicit by including 

### all available testimony relating to the BI,Mgs dependent resurvey-- particularly, the 

### fact that BLM surveyors cannot legally 

### file corner recordations and certificates 

### of survey. Plaintiffsg argument focuses on the possible effect of the BLM1sdependent resurvey 

### if the government is required to conduct future surveying in 

### the area. Despite plaintiffs1argument about the effect of the

### government survey, therecord clearlydemonstratesthatBLM did not officially remonument the corners of Section 4 

### and that BLMvs preliminary resurveyhad absolutelyno legal effecthere. Finding No. 17 

### is not clearly erroneous, nor does it ignore the law. Plaintiffs also assign clear error to Finding No. 19, 

### which reads as follows: 19. There isno questionbut that thedependentresurvey conducted by BLM, as involved in this action, had an effect on property boundary locations in regard to Sections 3, 4, 33, 

### and 34. 

### However, it appears clear in the evidence that efforts which were made to wcorrectn boundaries, (andacquisition of property todo so), were accomplished by Plaintiffs on a "preliminary" dependent resurveymadeby BLM. Except asnoted in Findingof Fact 18, thedependentresurveywas neverofficially completed so as to justify wholesale invalidation of Defendants1 location of the corner common to Sections 3, 4, 33, 

### and 34, 

### or Certificates of Survey No. 490, 541, 706, 714, 718, 

### and 828. 

### Again, plaintiffsr contentions center around their argument that the 

### BLM corner location for Section 3, 4, 33 

### and 34 

### is the correct

one and that the District Court did not analyze the evidence according to the law of surveying. The District Court was not required to determine the correct corner location here. Finding No. 19 

### is supported by the record; therefore, it is not clearly

erroneous. YBP and CSR next argue that Finding No. 20 

### is clear error because the District Court describes YBP's in-house surveyor's recordations (filed shortly before trial) as "illegal and inadequate" without an explanation why they are illegal or inadequate. They contend that this makes it impossible for this Court to consider the validity of Finding 

### No. 20,

### which provides:20. Essentially, and despite an illegal and inadequate Certified Corner Recordation (Plaintiffs' Exhibit 59) recorded shortly before trial, and in line with Findings of Fact 18 and 19, official land corner records with regard to Sections 31,32 (exceptthe SW corners of these sections), 33, 34, 3, 4, and 5,Townships 2 and 3, Range 9East remain, afterthe

### BLM dependentresuweyand after trial, as they were before trial. On May 19, 1988,DavidAlbert,plaintiffs' in-house surveyor, filed Certificate of SuweyAddenda to those filed earlierby Burgess and Mike Foley. On these Certificate of SuweyAddenda, Albert used the BLM's corner location from thepreliminary dependent resurvey, which was never approved for Section 4. Albert certified that he had performed no fieldwork norwashemaking a determinationas to which line was correct. The evidence established that a Certificate of Suwey must be signed by the Registered Land Surveyor who is responsible for the suwey. Albert had nothing to dowith either surveyand fileddocuments without doing fieldwork. There is substantial evidence in the record to supportthe District Court's reference to an "illegal and inadequate" suwey. Regardless of Albert's attempts to change them, Burgess' Certificates of Survey and Corner Recordation remain the only properly certified documents for the corner of Sections 3, 4, 33 and 34. However, a determination of whether or not Albert's documents are illegal or inadequate has no bearing on Finding No. 20. The substance of Finding No. 20 remains correct--this trial had no effect on corners or boundaries. It addressed negligence, breach of contract and breach of warranty issues. Plaintiffs attack Finding No. 23 as contrary to law. It provides: 923. The establishment of corners and the filing of Certificates of Survey,as involved inthiscase,largely depends on efforts by current surveyors to follow field notes of the surveyors who originally surveyed the area. In this case, the original surveyors were William 

### H. Baker and James

### H. Thomas who surveyed the area on July 4-5, 1873. It is clear to this Court, merely upon momentary reflection of the vast area involved in such survey, that it could not have been accomplished in any reasonably accurate fashion in two days. The best evidence of this fact isthat it took the Forest Service and BLM about fiveyearsto complete only aminor part of what Baker and Thomas claimedto have accomplished in two days. YBP and CSR contend that the District Court's finding that the originalgovernmentsurvey could nothavebeen donewith reasonable accuracy suggests thatthedefendants' surveysand cornerpositions

aremore accurate than the original government survey. To support this argument, they cite Goodover v. Lindey's Inc. (1988), 232 Mont. 302, 310, 757 P.2d 1290, 1295,as holding: The location of corners and lines established by the government survey, when identified,is conclusiveand the true corner of a government subdivision of a section is where theUnited States surveyorsin factestablished it, whether such location is right orwrong, asmay be shown by a subsequent survey. Again, this contentionof error relatesto the true locationof the corner which was not addressed in the plaintiffs' complaint. Finding No. 23 includes nothing contrary to Goodover, which held that right orwrong, the original cornersand lines are conclusive. YBP and CSR also contend that FindingNo. 27 is erroneous. It provides: 27. Defendant Ron Burgess, prior to trial erroneously assumed that BLM personnel had officially completed and filed a surveybased upon knownmonuments, in accordance with accepted standardsofpractice. For this reasonhe wrote the letters marked as Plaintiffs' Exhibits 18 and 22. Federal regulations prohibit relianceonpreliminary

### surveys to alter property boundary lines and disputes arising between government surveyors and private surveyors cannot be decided solely by a federal agency. In any event, final approval of BLM's survey did not occur until 1990; 

### the approved survey affected only Section 31. 

### Acting on their own initiative, Plaintiffs caused improper Certificates of Survey and a corner recordation certification to be compiled by YBP's inhouse surveyor based wholly on BLM's unconfirmed preliminary survey,andwithout such surveyor conducting any fieldwork. Plaintiffs fault the statement that Burgess erroneously assumed that government personnel had officially completed and filed a survey according to accepted practices. They maintain that the letters speak forthemselves. However, therecord clearly supports the District Court's finding. Burgess' testimony adequately explained his reasons for changing his mind about the accuracy of BLM's survey. An evidentiary admission as contained in Burgess' letters is not conclusive and is always subject to explanation or contradiction. 2 J. 

### Strong, McCormick on Evidence 5 254 

### (4thed. 1992). 

### YBP and CSR further argue that the District Court's statement that the BLM survey only affects Section 31 

### is incorrect and contradicts a statement in Finding No. 19. 

### They also take issue with the statement relating to YBP's in-house surveyor's improper

cornerrecordationand Certificate of Survey. Again, these have no affect on the holdings relating to the negligence, breach of contract and breach of warranty claims. Plaintiffs contend that Finding No. 26 

### is not correct. That finding stated: 26. 

### Here, Defendants set monuments and recorded certificatesof surveyand certified corner recordations 11

### between 1980 

### and 1983. 

### The evidence and testimony establishes that Defendants' survey work was performed and completed in accordance with standard survey practices, and consistent with the standard of care applicable to surveyors. The District Court resolved each claim addressed in plaintiffs' complaintby concluding that each theory of liability (negligence, breach of 

### contractandbreach of warranty) depended ontheultimate issue here--whether ornot the defendants breached the standard of

care owed by a Registered Land Surveyor. Plaintiffs contend that the District Court should have defined the standard of care. During thecourseof the trial, seven surveyorstestifiedwith regard to the standard of care for surveyors. The District Court effectively consolidated the testimony of these surveyors in FindingsNo. 24 

### and 25: 24. 

## . 

# . . [Tlhe land surveyor's work often involves retracing the footsteps of surveyors who, approximately 100 years previous, performed surveys, kept field notes and set stone monuments to establish and perpetuate section lines and corners. 

## . 

# . . While present-day, licensed land surveyors are required to follow local, state, and federal regulations that define present-day standards of practice while searching for ancient monuments, it is a 

### foregone conclusion that present-day surveyors may or may not find 

### a particular ancient monument. Ifa modern surveyor failsto find theancient monument, or if he finds that the monument is obliterated, he must certify that he followed the standards of practice to remonument the location of the original surveyor. Insuch process, the surveyor isheld to certify that he followed all of the rules and regulations inmonumenting an original corner location

# .

..but it is impossible for him to insure that he is, in fact, standing in the 100-year old footprints of the original surveyor. 

# . . . 25. 

### It is possible for two qualified surveyors to meticulously follow the standards of practice for surveying while retracing a 100-year old survey, and disagree on 

### a corner location without either being negligent. 

# . . . Locating and remonumenting ancientcorner locations 

### is not 

### an exact science, 

### and mere location of a corner, or approval or disapproval of a particular surveydoesnot automaticallyestablisheither compliance of [sic] non-compliance with 

### a surveyor's standard 

### of care. At the close of the trial, the ~istrictCourt complimented plaintiffs' counsel on the manner 

### in which he presented a very difficult technical case. 

### The District Court's Findings of Fact and Conclusions of Law, when considered as a whole, demonstrate that the court carefully considered the evidence and based its findings and conclusians upon the totality of the evidence presented. Although the District Court did not specifically state the standard of care for land surveyors, it cited with approval earlier Montana case addressing surveying standards, which provides: In surveying 

### a tract of land according to a formerplat or 

### survey,the surveyor's only duty 

### is to relocate, upon the best evidence obtainable, the courses and lines at 

### the 

### same place where 

### originally located 

### by the first surveyor on theground. Vaught 

### v. McClymond (1945), 216 Mont. 542, 550, 155 P.2d 612, 616- 17, (emphasis original) (quoting 8 

### Am. Jur. Boundaries, 5 102



### In Vauqht, this Court remanded the case and instructed: The 

### survey should be made pursuant to the statutes prescribingtherules regulating the surveyof government 

### landsand 

### inaccordancewith instructionsandregulations issued thereunder by the general land office for the guidance of county surveyors and others 

### in ascertaining boundary lines created by the government survey and 

### in relocating 

### corners or monuments theretofore established which may-havebeen lost Vausht, 116 Mont. at 559, 155 Thedefendantspresented or obliterated. P.2d at 620. extensive evidence 

### to establish that 13they compliedwith rules and regulations as set forth in Bureau of Land Management, US. Department of the Interior, Manual of Survevins Instructions (1973). Testimonyby defendent Burgess and six other surveyors established that this 1973 manual is the approved source relied on by both government surveyors and Registered Land Surveyors. The surveyors testified indetail as to what was considered the "best evidence obtainable." The best evidence includes original government field notes, county records and field notes from other surveyorswho have surveyed the land, if available. We conclude that a surveyor who complieswith rules and regulations as set forth in the approved source, currentlythe 1973 Manual of Survevinq Instructions, and who uses the best evidence obtainable meets the standard of care required forRegistered Land Surveyors. The District Court found that the evidence and testimony established that Survco's survey was performed and completed in accordance with standard survey practices and, therefore, was consistent with the standard of care. The defendant Burgess was called as a witness and he confirmed the standard of care as being the same as outlined above by the plaintiffs' witnesses. Our review of the record confirmsthepresence of substantial evidence to establish that the survey work of the defendants was performed

as described in Finding No. 24. The District Court, as trier of fact, is in the best position to determine the factsby assessing the demeanor of thewitnesses, the testimony presented and the totality of the evidencebefore thecourt. General Mills, Inc. v. Zerbe Bros., Inc. (1983), 207 Mont. 19, 23, 672 P.2d 1109, 1111. Further, the ~istrict Court is not obligated to outline in its findingsall of the testimonypresented at the trial. McConnell-Cherewick v. Cherewick (1983), 205 Mont. 75, 83-84, 666P.2d 742, 746. The court concluded that YBP and CSR failed to establish by a preponderance of the evidence that the defendantswerenegligent or that they did notperform their duties with a reasonable degree of care and skill. Plaintiffs contend that touphold theDistrictCourtts analysis would overturndecades of established lawgoverning surveyor conduct. This contention is not supported by the court's findings and conclusions. The record contains substantial evidence to support the ultimate conclusion made by the District Court that the defendants did not breach the standard of care. We hold that the District Court correctlydetermined that the defendants did not breach the standard of care they owed as Registered Land Surveyors. 11. Did theDistrictCourtcorrectlyrefusetoawarddamagesbased

on plaintiffs' reliance upon defendantstadmissions of erroneous surveys? YBP and CSR contend that they relied on defendant Burgess' admissions in two letters discussing thepossibility that Survcols surveywas erroneousand, therefore,Burgess "mustbe estopped from reneging on these admissions upon which Plaintiffs detrimentally relied." Burgess wrote two letters--one to his attorney and theother to Howard Zeman, 

### a ELM employee. 

### In his letter to his attorney, Burgess noted: "It 

### is generally agreed, the line is incorrect 

### and 

### a great number of Yellowstone 

### Basin Propertiesf tracts erroneously encroach 

### on about 31.6 acres in Section 4 and 6.7 acres in Section 6.It Burgess1 letter states that he felt a moral obligation to try 

### and resolve the problem created by the erroneous survey done by Survco. He also noted that YBP had blocked the onlyviable solution thathad been discovered. 

### Inhis letter to Howard Zeman, Burgess stated that Suwco failed to find some original stones which BLM surveyors later found. However, Burgess testified that he 

### was led to believe that the government surveyorshad followedtheir own regulations,when in fact theymay not have done so, The evidence presented during the trial revealed that no onehad found the original corner monument for Sections 3, 4, 33 and 34. The District Court found, and the testimony confirms, that surveying 

### isnot an exact scienceand surveyorsarenot insurersof theirwork. Burgess' commendableattemptsto assistYBP in finding



### a solution to the possible encroachment illustratehis good faith efforts 

### to correctproblems which arose after Survcolssurvey. At the time, he believed that government surveyors had found the original corner monument to Sections 3, 4, 33 and 34. Admissions such asthosemade by Burgess, even if they subsequently areproven to be supportable by evidence at a trial, do not conclusively establish a breach of 

### the standard of care. 

### The testimony established that two surveyors,both meeting surveying standards,may find different corner locations for obliterated corners with neither of them being negligent. The BLM conducted adependent resurvey in the area of Sections 4 and 6ofTownship 3 South,Range 9 East. A dependent resurvey is a retracement and reestablishment of the original survey lines in their true original positions according to the best available evidence of the positions of the original corners. Manual of Surveyins Instructions, at 145. A dependent resurvey is not official or binding on the United States government until and unless it is approved by the Director of the BLM. Manual of Survevinq Instructions, at 149. The government's dependent resurvey did not ultimately encompass the corner for either Sections 3, 4, 33 and 34 or Sections 3, 4, 9 and 10. The District Court found that federal regulations "prohibit reliance on preliminary surveys to alter property boundary lines and disputes arising between government surveyors and private surveyors cannot be decided solely by a federal agency." Theplaintiffs purchased additional land to correct a possible encroachment without a reliable determination of the accuracy of Survco's survey or a judicial determination of the corner monument location. They purchased this additional land from a private party after the government no longer owned Section 4. They relied upon representations made by government surveyors prior to an official, binding government resurvey. The regulations state: "No alteration in the position of improvements or claim boundaries should be made in advance of the official acceptance of theresurvey." Manual of Surveyinq Instructions, at 149. We cannot say that plaintiffs' decision to purchase more property was justified as long as the correct corner location remained in dispute. 

### We also cannot say that plaintiffs were justified in relying on admissions made by Burgess without confirmation from the BLM. Whether or not defendants should be estopped from retracting admissionshas no relation to liability. As noted above, surveyors

arenot insurers--theirduty is to complete

### a survey using thebest evidence available to them according to the accepted rules and regulations. Plaintiffs are sophisticated businesses who employed

an in-house surveyor who was licensedas a Registered Land Surveyor and familiar with the 1973 Manual of Survevins Instructions. Plaintiffs made a business decision to purchase additional land. We conclude that their reliance upon Burgess1 admissions was not justified and they are not entitled to equitable damages based on such reliance. We hold that the District Court did not err in refusing to award damages to YBP and CSR based on justifiable reliance upon Burgess' admissions of erroneous surveys. 111. Did the District Court err in declining to determine the true locations of section corners despite the parties' express request that it make the determinations? YBP and CSR contend that the District Court erred by not determining which of the two surveys should be accepted as theoriginal corner locationto Sections 3, 4, 33 and 34. The District Court expressly declined to rule on this issue, stating: The Complaint filed by Plaintiffs does not seek judicial determination of any survey, or any corner location. Rather, it reflects that the sole relief desired by Plaintiffs ismonetary damagesbased upon any of three theories: breach of contract, breach of warranty, and negligence. Plaintiffs1in-house surveyor,DavidAlbert,relied onthe BLM survey and did no field work prior to filing his addenda to Burgess1 Certificates of Survey. Substantial evidence was presented which cast doubt on the BLM preliminary resurvey. From the record, it does not appear that BLM surveyors followed surveying rules and regulations. Therefore, the District Court only had evidence of one survey which conformed to the required standards--that of Survco. We conclude that the District Court correctly refused to adjudicate the corner location based on the totality of the evidence presented during the trial. We hold that the District Court did not err by declining to determine the true locations of section corners despite the parties1 express request that it make those determinations. IV. Did the District Court fail to determine whether defendants breached their contracts with YBP and CSR to provide YBP and CSR with surveys of twenty-plus acre tracts? YBP and CSR contend that the District Court failed to rule on whether the defendants breached their contracts to survey the property. The District Court expressly stated:



# . 

# . . Interestingly enough, to [recover damages] under 19eachtheoryadvancedbyPlaintiffs requires establishment of the samebasis for liability, (summarizedvery nicely 

### in PlaintiffsiComplaint, paragraph 20, page 5): "Defendants 

# . 

# . . failed to follow regular accepted survey standards in failing to exercise accepted standards 

### of care, prudence and skill." The District Court held that YBP and CSR failed to produce sufficient evidence for liability based on this standard. YBP and CSR contracted with Survco to provide surveys of twenty-acre tracts. This is what they received. The District Court stated that YBP and CSR failed to produce, consistent with the noted basis for liability, sufficient evidence upon 

### which Defendantsg liability may be established. The Court views the totality of the evidence as indicating that Defendants1 surveying activitieswereneitherhaphazard orarbitrary, 

### nor were they precipitous or based upon a lack of diligence. Rather, the record reflects that Defendants made a 

### careful and studied 

### analysis of circumstances encountered in the course of rendering surveying services,and based decisions upon this same careful and studied analysis, fully consistent with surveyors1 accepted standards of "care, prudence and skill.tt The fact that Defendant Burgess may have admitted 

### errors in surveying

# .. . is,essentially, irrelevant to the issue of whether Defendants1 performance met 

### the relevant criteriaof theapplicablestandard of care,prudence and skill upon which Defendantstliability must be based. 

### YBP and CSR contend that 

### if the corners are located where the BLM survey located them, there is a breach because some of the lots will be less than the twenty-acre lots they contracted for. The fact remains that Survcoprovided competent surveys of 

### twenty-acre lots, whether or not those lots encroached upon Section 4. Plaintiffstthree-paragraph argumenton this issue isunconvincing and 

### fails to set forth any authority to support 

### this theory for 

### a breach of contract. We conclude 

### that the contract was 

### notbreached. Wehold thatthe DistrictCourt did not err because it did in factdetermine thatBurgess and Survcodidnotbreach thecontracts toprovide YBP and CSR with surveys of twenty-plus acre tracts. We affirm the DistrictCourt on all issues presented.

vsticeDecember 10,1992 

### CERTIFICATEOFSERVICE 

### Iherebycertifythatthefollowingorderwas sentby UnitedStatesmail,prepaid,tothe foIlowingnamed:



### R.MarkJosephson 

### JOSEPHSON&

### FREDRICKS 

### P.O.Box 

### 1047 BigTimber,MT59011 KARLKNUCHEL AttorneyatLaw P.O.

### Box953 Livingston, 

### MT59047



### EDSMITH 

### CLERK

### OF

### THESUPREME

### COURT STATEOF

### MONTANA