No. 83-519 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

BRUCE E. FUNK, as the Personal 

~epresentative of the Estates 

of Kenneth E. Funk and Alice 

M. Funk, Deceased, 

Plaintiff and Appellant, 

RANDOLPH K. ROBBIN, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Robert M. Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Warden, Christiansen, Johnson & Berg, Kalispell, 

Montana 

For Respondent : 

Murray, Kaufman, Vidal & Gordon, Kalispell, Montana 

Submitted on Briefs: May 3, 1984 

I Decided: October 9, 1984 

ij t;1 0 

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-. 

Filed: 

Clerk 
Nr. Justice Fred J. Weber delivered the Opinion of the Court. 

Kenneth E. Funk and Alice M. Funk brought a quiet title 

action against Randolph K. Robbin in the District Court of 

Flathead County, asking to quiet title according to a 

Certificate of Survey. Defendant Robbin counterclaimed. 

Kenneth Funk died during the pendency of the action and Alice 

Funk died following the trial of the case to a 6-person jury. 

Bruce Funk, personal representative of his parents' estates, 

appeals from the judgment in favor of defendant and from the 

denial of his motion for a judgment N.O.V. or a new trial. We 

af f irm. 

The issues are: 

1. Was there substantial evidence to support the 

verdict against the plaintiff on his complaint to quiet title 

in accordance with Certificate of Survey No. 6056? 

2. Does substantial evidence support the verdict 

quieting title in favor of defendant on his counterclaim? 

3. Did the trial court commit reversible error in 

ma-king certain evidentiary rulings? 

4. Did the trial court err in giving and refusing 

certain jury instructions? 

5. Did the trial court err in denying the plaintiff 's 

motion to quash defendant's costs? 

The basic question is the location of the boundary lines 

between the plaintiff's and defendant's real property in 

Section 3, Township 27 North, Range 20 West, M.P.M. The 

plaintiff owns the SE% and the E+SW%, while defendant owns 

the NW%SW%, the S+N$ and the NE%NE%. The parties purchased 

the property in 1963 or earlier. 

The fences which run along the north/south and east/west 

boundaries between the plaintiff's and defendant's property 

have been in the same locations for more than 39 years. In 
1958 defendant cleared the timber from 20 acres in the 

disputed area immediately west of the fence. After preparing 

the ground for several years, defendant has continuously 

cropped the la.nd since that time. In addition, a member of 

the defendant's family carved images in the rock face on a 

ledge of rock located in the disputed area. 

In 1980 plaintiff decided to sell a portion of his 

property located in Section 3. Plaintiff hired a Registered 

Land Surveyor, who prepared Certificate of Survey No. 6056, 

which was filed in Flathead County. Survey 6056 showed that 

the fences between the plaintiff1 s and defendant I s real 

property were not located on the 1/16th section line on the 

west side, or the 1/4 line on the north side. The area in 

dispute is west of the north/south fence running from a rock 

formation in a northerly direction in the NE%SW% in Section 

3. 

Nr. Hersman, the Registered Land Surveyor who prepared 

Survey 6056, testified in behalf of the plaintiff. Surveyors 

Smith and Lautern testified in behalf of the defendant. Many 

documents were admitted into evidence. There was extensive 

testimony with regard to the accuracy of Survey 6056. The 

plaintiff contended that the survey was accurate and that 

title to the disputed property described in Survey 6056 

should be quieted in the plaintiff. The surveyors testifying 

for the defendant testified that Survey 6056 was not accura.te 

and that there were lost corners, which made it impossible to 

survey exactly where the 1/4 line and 1/16th line were located 

in Section 3. The defendant submitted testimony and evidence 

to substantiate its theory that the fence lines constitute 

the agreed boundaries whether or not located on the 1/16th 

and 1/4 line of Section 3. The evidence was sharply 

contradictory. 
In its verdict, the jury held against plaintiff on its 

complaint to quiet title and for the defendant on his 

counterclaim of title. The District Court entered judgment 

that plaintiff was not entitled to have title quieted against 

the defendant and in accordance with Certificate of Survey 

6056. Judgment was entered holding that the fences 

constituted the boundary line between the parties1 property 

and that the title to the disputed area was quieted. in 

defendant. In addition, the District Court determined costs 

and disbursements in the sum of $5,618.65. The plaintiff 

appeals. 

Was there substantial evidence to support the verdict 

against the plaintiff on his complaint to quiet title in 

accordance with Survey 6056? 

In substance the plaintiff contends there was no 

evidence that Survey 6056 was not properly and accurately 

made, and that no other survey was produced to prove the 

boundaries were anywhere other than shown in that survey. 

Defendant contends that the evidence is not sufficient to 

meet plaintiff's burden of proof. 

In reviewing the sufficiency of the evidence in a jury 

case, we apply the standards set forth in Gunnels v. Hoyt 

(Mont. 1981), 633 P.2d 1187, 1191, 38 St.Rep. 1492, 1495: 

"Plaintiff's first issue disputes the sufficiency 

of the evidence to support the verdict. In 

considering the sufficiency of evidence, we apply a 

limited standard of review. Where a fact issue is 

presented before a court sitting with a jury, and 

there is substantial evidence to support the jury 

verdict, the verdict will stand . . . 

"We review the evidence in a light most favorable 

to the prevailing party. We will reverse only 

where there is a lack of substantial evidence to 

support the judgment . . . 
"If there is conflicting evidence in the record, 

the credibility and weight given to such 

conflicting evidence is the province of the jury 

and not this Court . . . 

"If there is substantial evidence in the record to 

support the finding of the jury, then we must 

sustain the trial court's action in denying the 

plaintiff's motion for a directed verdict . . ." 

In addition in an action to quiet title, plaintiff must 

succeed on the strength of his own title and not on the 

weakness of the defendant's title. McAlpin v. Smith (1950), 

123 Mont. 391, 395, 213 P.2d 602, 603. 

+In substance, plaintiff contends that his surveyor used 

previous surveys and did not make a retracement survey of the 

original general land office survey. As a result, plaintiff 

contends Survey 6056 is entitled to be treated as correct in 

all respects. While there is some factual basis in the 

record for these contentions, that argument disregards the 

standard of review applied by this Court. Our first step is 

to determine if there is substantial evidence to support the 

verdict of the jury. 

With the aim of confirming the accuracy or inaccuracy of 

Survey 6056, Surveyor Smith made an extended study of the 

records in the county and an extended search on the ground 

for the location of the various township lines, section 

Lines, and other survey points. Smith, who was engaged by 

the defendant, testified to the significant conflict in 

distances between two original surveys prepared by surveyors 

employed by the general land office in early years. The 

result was a difference in one direction of measured 

distances up to 320 feet and in the other direction between 

150 and 200 feet. Smith also testified that he could not 

determine the survey points used as a basis for various 

I-ocations by Surveyor Hersman, who prepared Survey 6056 for 

plaintiff, and Mr. Medland, a previous surveyor upon whom 
Hersman had relied. Smith testified that the northwest 

corner of Section 3 was a "lost corner," which means that the 

monument and its accessories were destroyed and cannot be 

replaced by anything other than proportional measurement from 

other points. Smith also testified that he found errors in 

Survey 6056 and that the corner used as a basic point in 

Survey 6056 was incorrect. Smith concluded that Survey 6056 

did not correctly reflect the boundary line between the 

plaintiff's and defendant's property. He also testified that 

the evidence failed to show that the existing fence was - not 

the proper boundary between plaintiff and defendant. 

Surveyor Lautern affirmed Smith's testimony in part. 

Based upon information furnished by both Hersman and Smith, 

Lautern testified that he was unable to locate the 

appropriate corners. 

The record shows there is substantial evidence to 

support the jury verdict against the plaintiff. While there 

is conflicting evidence, the credibility and weight of the 

evidence is the province of the jury. We therefore affirm 

the verdict and judgment with regard to the sufficiency of 

the evidence to support the verdict against the plaintiff on 

his complaint to quiet title according to Survey 6056. 

Does substantial evidence support the verdict quieting 

title in favor of defendant on his counterclaim? 

Plaintiff argues that there is insufficient evidence to 

establish that the boundary fence, which existed for more 

than 39 years, was the agreed boundary between the plaintiff 

and defendant. Defendant contends to the contrary. 

We stated the law regard.ing the establishment of an 

agreed boundary line in a similar case, Christie v. Papke 

(Mont. 1983), 657 P.2d 88, 88-89, 39 St.Rep. 2054, 2055-56: 
"Although we have recognized the right of adjoining 

- property - owners to establish an agreed boundary 

line (Myrick v. Peet (1919) 56 Mont. 13, 180 P. 

574), under Townsend v. Kuokol the parties are 

required to prove by clear and convincing evidence 

all elements of an implied agreed boundary. In 

Townsend, 148 Mont. 1, at 6, 416 P.2d 532, at 535, 

we stated: 

"i]n order to establish an agreed boundary line, 

the evidence must show more than mere acquiescence 

and occupancy for the time prescribed by the 

statute of limitations; it must go further and show 

that there was uncertainty in the location of the 

line, that there was an agreement among the 

coterminus owners, express or implied, fixing the 

line, and that there was an actual designation of 

the line upon the ground and occupation in 

accordance therewith.'" 

The facts in evidence here are sufficient to meet the 

standard of Townsend. 

(1) Uncerta.inty - of boundary line. This uncertainty is 

clearly established by the evidence which, as previously 

mentioned, was directly contradictory as to whether it had 

been possible to establish a boundary line by Survey 6056. 

There was substantial evidence showing that it was impossible 

to establish such a boundary line by surveying measurement. 

In addition, the defendant testified with regard to the 

uncertainty as to the line over a span of years. 

(2) Express - or implied agreement between owners. There 

are a number of facts which establish an agreement between 

plaintiff and defendant. As previously mentioned, the 

boundary fences in question have been in place for more than 

39 years and prior to plaintiff Is ownership of the property. 

There is no conflict in the evidence that defendant cleared 

timber frcn 20 acres in the disputed area in 1958 and 

thereafter continuously cropped the land, without objection 

or question on the part of plaintiff. The carving on the 

rock fa.ce of the large rock formation in the disputed area 

also constitutes evidence of agreement. The evidence also 

shows that in 1975 plaintiff asked defendant's permission to 
complete a drainage ditch across defendant's land. Before 

the plaintiff was allowed to proceed with work on the ditch, 

he was required to obtain agreement on the part of the 

defendant. After a discussion regarding the agreement, 

defendant prepared, and defendant and plaintiff signed the 

following written agreement: 

"Permission is hereby granted to Kenneth and Alice 

Funk whereby they may drain water from ditched 

portions of their farm across that part of the 

Robbin Hereford. Ranch known as the 'Big Rock' area. 

(An already existing ditch.) 

"It is understood that the Robbin portion of the 

ditch is to be cleaned and improved with a backhoe 

in such a way as to provide good drainage into Rose 

Creek and at the same time minimize any barriers 

which the ditch may cause to livestock. 

"Robbin Hereford Ranch reserves the right to revoke 

the use of the ditch in the event that future 

flooding or water damage is determined to be 

excessive." 

Testimony established that the "Big Rock" area was a. 

massive rock outcropping located in the disputed area and 

constituted the southerly end of the boundary fence between 

plaintiff and defendant. While it is true that the agreement 

was obtained to meet the requirements of the soil 

conservation service, it established that plaintiff and 

defendant agreed that the "Big Rock" area was a part of the 

defendant s ranch. The parties agreed that permission was 

given by the defendant to plaintiff to drain water across 

defendant's ranch, with defendant reserving the right to 

revoke the use of the ditch in the event of flooding or water 

damage. 

The evidence establishes that following execution of the 

agreement, plaintiff proceeded with the ditch work. As a 

part of that ditch work, plaintiff took down the boundary 

fence in question. Thereafter, at plaintiff's expense, he 

erected the fence again in its same location. In the course 
of the ditch work, a very large tree stump was pulled out of 

the ground and left in the disputed area. Removal of the 

stump required major equipment work. Pursuant to defendant's 

request, the plaintiff moved this stump off of the disputed 

area and on to plaintiff's land. 

All of these facts together are sufficient to show there 

was an agreement between the plaintiff and defendant fixing 

the boundary line at the location of the north/south boundary 

fence and that there was an actual designation of that line. 

(3) Occupation of the ground in - accordance with 

Agreement. The evidence as previously summarized clearly 

establishes that for many years the defendant occupied, 

farmed and used the land in question for livestock and 

farming purposes. 

We conclude that there is substantial evidence to 

support the conclusion that the boundary fence constituted 

the actual boundary by agreement between plaintiff and 

defendant. We affirm the verdict and judgment in that 

regard. 

111 

Did the trial court commit reversible error in making 

certain evidentiary rulings? 

Plaintiff objects to a number of evidentiary rulings by 

the District Court. The majority of these contentions do not 

meet the requirement of Rule 103, M.R.Evid. which in 

pertinent part states: 

" (a) Effect of erroneous ruling. Error may not be 

predicated upon a rulinq which admits or excludes 

evidence unless a substantial right of the party is 

affected . . ." 

In most instances the plaintiff has failed to show where a 

substantial right was affected by the rulings. 
Mrs. Funk wa.s asked in the course of her direct 

examination if there was any intention of recognizing the old 

fence line as the true boundary when the Agreement regarding 

the ditch line was executed. The court sustained the 

objection to the answer to that question. At that time the 

Agreement had not been admitted into evidence. When it was 

subsequently admitted, no rebuttal testimony was offered by 

the plaintiff . We find no abuse of discretion by the 

District Court and no substantial right of the plaintiff 

affected. 

Plaintiff objects to the court's refusal to allow 

Hersman to testify as to whether he knew of any other surveys 

in the area. The question was not whether he had relied on 

any other surveys, but rather whether he knew of any other 

surveys. Under that circumstance, the existence of other 

surveys is irrelevant and the ruling of the District Court 

was correct. 

The plaintiffs also objected to the introduction of the 

Agreement regarding the drainage ditch, the defendant's 

photograph of his carving on the rock and certain newspaper 

articles. These exhibits were relevant as defined in Rule 

401, M.R.Evid. They each tended to prove the relevant facts 

for which they were offered. In addition, plaintiff failed 

to demonstrate how the admission of the exhibits affected any 

substantial right. We affirm these rulings of the District 

Court. 

IV 

Did the trial court err in giving and refusing certain 

instructions? 

Plaintiff contends the District Court erred in refusing 

plaintiff's proposed Jury Instruction No. 7. That 

instruction was adequately covered by the court's 
Instructions Nos. 16 and 17. There was no error in such 

refusal. 

Plaintiff objects to Instruction No. 16 for the reason 

that there was allegedly no evidence of a boundary line by 

acquiescence or implied agreement so that the reference to 

"five years" was improper and misleading. As previously 

held, there was evidence of a boundary line by agreement of 

the parties, so this argument is inappropriate. 

Plaintiff objects to Instructions Nos. 11 and 18, 

contending that they are contrary or inconsistent. 

Instruction No. 11 instructs that the original survey must, 

whenever possible, he retraced, since it cannot be 

disregarded or needlessly altered after property rights have 

been acquired in reliance upon it. Instruction No. 18 

instructs that in making its decision the jury is not to 

consider or conjecture as to the affect of the decision on 

the boundaries or corners of adjacent lands owned by persons 

not parties to this suit. We find no inconsistency between 

these instructions. 

Plaintiff argues that Instruction No. 6 should not have 

been given because there was no admissible evidence as to an 

agreement of a boundary line. We have held to the contrary. 

v 

Did the trial court err in denying the plaintiff's 

motion to quash defendant's costs? 

Plaintiff first objects to defendant's memorandum of 

costs as not being timely filed. The verdict of the jury was 

rendered June 23, 1983. The memorandum of costs and 

disbursements was filed July 8, 1983. Notice of entry of 

judgment was given on July 14, 1983. 

Section 25-10-501, MCA provides that the party who 

claims costs must deliver a memorandum to the clerk and serve 
it upon the adverse party "within 5 days after the verdict or 

notice of the decision of the court . . . or, if the entry of 

the judgment on the verdict or decision be stayed, then 

before such entry is made . . .." This section was construed 

iri Poeppel v. Fisher (1977), 175 Mont. 136, 142, 572 P.2d 

"This Court has held that the five day period 

allowed for filing of a memorandum of costs and 

disbursements 'is compu.ted from the day the court 

enters judgment, not from the day the court orally 

announces its decision.'. . . The District Court's 

ruling on post-trial motions delayed entry of 

judgment until June 24, 1976. Plaintiff filed his 

memorandum of costs and disbursements prior to 

entry of judgment, on April 26, 1976, and such 

filing was timely." 

Applying this rule, we hold that the memorandum of costs and 

disbursements was timely filed and served. 

Plaintiff objects to allowing expenses claimed for 

copies of public documents and for the preparation of maps 

and surveys by Mr. Smith and preparation of maps charged by 

Mr. Lautern. Section 25-10-201, MCA in pertinent part 

provides : 

"A party to whom costs are awarded . . . is 

entitled to include in his bill of costs his 

necessary disbursements, as follows: 

" (4) the legal fees paid for filing and recording 

papers and certified copies thereof necessarily 

used in the action or in the trial; 

"(8) the reasonable expenses for making a map or 

maps if required and necessary to be used on trial 

or hearing; . . ." 

In Johnson v. Jarrett (1976), 169 Mont. 408, 417, 548 

P.2d 144, 149, this Court held that the cost of preparation 

of maps and surveys are allowed where necessary to explain 

the facts and location in issue. The record shows that 

surveyors Smith and Lautern prepared maps, surveys and charts 
bearing on the boundaries in question and demonstrating the 

lack of accuracy of Survey 6056. These were properly 

prepared for the express purpose of explaining the factual 

situation to the jury and court. 

Plaintiff also objected to the allowance of costs where 

they were not actually certified copies of public documents. 

There was no issue made of the necessity for certification 

and the instruments were therefore a.dmitted to be copies of 

public documents. 

The costs were properly allowed. 

A£ firmed. 

We concur: