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 0 1992 

APPEAL FROM: District Court 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) are Montana corporations engaged 

in the development and sale of real property in Montana. 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 

2 
services 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 Survey and Corner Recordations with 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 (in R.9E between T.2S and T.3S). The 

corner common to Sections 3, 4, 9 and 10 (in R.9E, T.35) and the 

west quarter corner to Section 3 (in R.9E, T.3S) are also involved. 

These corners were originally surveyed and monumented in the 1870s 

by United States government suwey crews. 

The evidence presented at trial established the following 

general surveying practices: 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 field notes obtained from the Bureau of Land Management, 

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 such 
evidence is found, surveyors term the corner as "lost" and position 

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 States government surveyors from the Forest Service and 

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 surveyors testified that they had resurveyed Section 4 but 

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 the preliminary resurvey had not been approved prior 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 from BLM, there was a probable encroachment. 

As a result, they purchased the acreage necessary 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 in his dealings with clients. YBP and CSR appeal the 

District Court's decision that Burgess and Suwco's other surveyors 

did not breach their standard of care. 

I. 

Did the District Court correctly determine that defendants did 

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 the proper standard of care and failing to state 

how the defendants met 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 

fact unless 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 
are not clearly erroneous. Interstate Production Credit Assfn, 820 

P.2d at 1287. Substantial evidence is evidence that a reasonable 

mind might accept as adequate to support a conclusion; it consists 

of more 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. In surveying property in Sect ions 3 1, 32, and 33 for 

YBP in 1983 Survco utilized and relied upon Ron Burgess1 

corner recordation (for the common corner 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. 

(Emphasis added.) 

YBP and CSR contend that this finding shows a 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 

significant here. 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 the Wineglass area in 

an effort to locate and establish the "originall1 common 

corner for sections 33, 34, 4, and 3, and the SW corner 

of Section 33 and the SW corner of Section 32, along the 
southern 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 

Service had 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 6 were 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 Service had 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 officially rnonumented (nor remonumented), 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 BLM1s dependent 

resurvey if the government is required to conduct future surveying 

in the area. Despite plaintiffs1 argument about the effect of the 
government survey, the record clearly demonstrates that BLM did not 

officially remonument the corners of Section 4 and that BLMvs 

preliminary resurvey had absolutely no legal effect here. 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 is no question but that the dependent resurvey 

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, (and acquisition of property to do so), were 

accomplished by Plaintiffs on a "preliminary" dependent 

resurvey made by BLM. Except as noted in Finding of Fact 

18, the dependent resurvey was never officially 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 (except the SW corners of these 

sections), 33, 34, 3, 4, and 5, Townships 2 and 3, Range 

9 East remain, after the BLM dependent resuwey and after 

trial, as they were before trial. 

On May 19, 1988, David Albert, plaintiffs' in-house surveyor, filed 

Certificate of Suwey Addenda to those filed earlier by Burgess and 

Mike Foley. On these Certificate of Suwey Addenda, Albert used 

the BLM's corner location from the preliminary dependent resurvey, 

which was never approved for Section 4. Albert certified that he 

had performed no field work nor was he making a determination as 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 

do with either survey and filed documents without doing field work. 

There is substantial evidence in the record to support the 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: 

9 
23. The establishment of corners and the filing of 

Certificates of Survey, as involved in this case, 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 is that it took the Forest Service 

and BLM about five years to complete only a minor part of 

what Baker and Thomas claimed to have accomplished in two 

days. 

YBP and CSR contend that the District Court's finding that the 

original government survey could not have been done with reasonable 

accuracy suggests that the defendants' surveys and corner positions 

are more 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 conclusive and the 

true corner of a government subdivision of a section is 

where the United States surveyors in fact established it, 

whether such location is right or wrong, as may be shown 

by a subsequent survey. 

Again, this contention of error relates to the true location of the 

corner which was not addressed in the plaintiffs' complaint. 

Finding No. 23 includes nothing contrary to Goodover, which held 

that right or wrong, the original corners and lines are conclusive. 

YBP and CSR also contend that Finding No. 27 is erroneous. It 

provides: 

27. Defendant Ron Burgess, prior to trial erroneously 

assumed that BLM personnel had officially completed and 

filed a survey based upon known monuments, in accordance 

with accepted standards of practice. For this reason he 

wrote the letters marked as Plaintiffs' Exhibits 18 and 

22. 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. 

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, and without such surveyor conducting 

any field work. 

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 for themselves. However, the record 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 (4th ed. 

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 

corner recordation and 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 

certificates of survey and 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' 

complaint by concluding that each theory of liability (negligence, 

breach of contract and breach of warranty) depended on the ultimate 

issue here--whether or not 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 the course of the trial, seven surveyors testified with 

regard to the standard of care for surveyors. The District Court 

effectively consolidated the testimony of these surveyors in 

Findings No. 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. If a modern surveyor fails to find the ancient 

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. In such process, the surveyor is held 

to certify that he followed all of the rules and 

regulations in monumenting 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 ancient 
corner locations is not an exact science, and mere 

location of a corner, or approval or disapproval of a 

particular survey does not automatically establish either 

compliance of [sic] non-compliance with a surveyor's 

standard of care. 

At the close of the trial, the ~istrict Court 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 former plat 

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 the ground. 

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 

prescribing the rules regulating the survey of government 

lands and in accordance with instructions and regulations 

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-have been lost 

Vausht, 116 Mont. at 559, 155 

The defendants presented 

or obliterated. 

P.2d at 620. 

extensive evidence to establish that 

13 
they complied with rules and regulations as set forth in Bureau of 

Land Management, US. Department of the Interior, Manual of 

Survevins Instructions (1973). Testimony by 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 in detail as to 

what was considered the "best evidence obtainable." The best 

evidence includes original government field notes, county records 

and field notes from other surveyors who have surveyed the land, if 

available. We conclude that a surveyor who complies with rules and 

regulations as set forth in the approved source, currently the 1973 

Manual of Survevinq Instructions, and who uses the best evidence 

obtainable meets the standard of care required for Registered 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 confirms the presence 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 facts by assessing the demeanor of the witnesses, 

the testimony presented and the totality of the evidence before the 
court. 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 findings all of the testimony presented 

at the trial. McConnell-Cherewick v. Cherewick (1983), 205 Mont. 

75, 83-84, 666 P.2d 742, 746. The court concluded that YBP and CSR 

failed to establish by a preponderance of the evidence that the 

defendants were negligent or that they did not perform their duties 

with a reasonable degree of care and skill. Plaintiffs contend 

that to uphold the District Courtts analysis would overturn decades 

of established law governing 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 correctly determined that the 

defendants did not breach the standard of care they owed as 

Registered Land Surveyors. 

11. 

Did the District Court correctly refuse to award damages based 

on plaintiffs' reliance upon defendantst admissions of erroneous 

surveys? 

YBP and CSR contend that they relied on defendant Burgess' 

admissions in two letters discussing the possibility that Survcols 

survey was erroneous and, therefore, Burgess "must be estopped from 

reneging on these admissions upon which Plaintiffs detrimentally 

relied." Burgess wrote two letters--one to his attorney and the 
other 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 only viable solution that had been discovered. In his 

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 

surveyors had followed their own regulations, when in fact they may 

not have done so, The evidence presented during the trial revealed 

that no one had found the original corner monument for Sections 3, 

4, 33 and 34. 

The District Court found, and the testimony confirms, that 

surveying is not an exact science and surveyors are not insurers of 

their work. Burgess' commendable attempts to assist YBP in finding 

a solution to the possible encroachment illustrate his good faith 

efforts to correct problems which arose after Survcols survey. At 

the time, he believed that government surveyors had found the 

original corner monument to Sections 3, 4, 33 and 34. Admissions 

such as those made by Burgess, even if they subsequently are proven 

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 a dependent resurvey in the area of Sections 

4 and 6 of Township 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." The plaintiffs 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 the 
resurvey." 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 

admissions has no relation to liability. As noted above, surveyors 

are not insurers--their duty is to complete a survey using the best 

evidence available to them according to the accepted rules and 

regulations. Plaintiffs are sophisticated businesses who employed 

an in-house surveyor who was licensed as 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 the 
original corner location to 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 is monetary damages based upon any 

of three theories: breach of contract, breach of 

warranty, and negligence. 

Plaintiffs1 in-house surveyor, David Albert, relied on the 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 

19 
eachtheory advanced by Plaintiffs requires establishment 

of the same basis for liability, (summarized very nicely 

in Plaintiffsi Complaint, 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 activities were neither haphazard or arbitrary, 

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 

criteria of the applicable standard of care, prudence and 

skill upon which Defendantst liability 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 Survco provided competent surveys of twenty-acre 

lots, whether or not those lots encroached upon Section 4. 

Plaintiffst three-paragraph argument on this issue is unconvincing 

and fails to set forth any authority to support this theory for a 

breach of contract. We conclude that the contract was not 
breached. 

We hold that the District Court did not err because it did in 

fact determine that Burgess and Survco did not breach the contracts 

to provide YBP and CSR with surveys of twenty-plus acre tracts. 

We affirm the District Court on all issues presented. 

vstice 
December 10, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

foIlowing named: 

R. Mark Josephson 

JOSEPHSON & FREDRICKS 

P.O. Box 1047 

Big Timber, MT 5901 1 

KARL KNUCHEL 

Attorney at Law 

P.O. Box 953 

Livingston, MT 59047 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA