No. 87-34 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

ARTHUR D. BOLLINGER and DALLAS 

BOLLINGER, husband and wife, 

Plaintiffs and Respondents, 

-vsRAYMOND HOLLINGSWORTH and GINGER 

LYNN HOLLINGSWORTH, husband and wife; 

et al. , Defendants and Appellants. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Sverdrup & Spencer; Scott B Spencer, Libby, Montana 

For Respondent: 

Warden, Christiansen, Johnson & Berg; Gary R. 

Christiansen, Kalispell, Montana 

Submitted on Briefs: May 22, 1987 

Decided: July 21, 1987 

Filed: JUL 1 1987 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The Hollingsworths appeal a judgment entered by the 

District Court, Nineteenth Judicial District, Lincoln County, 

quieting title to a strip of land and establishing the 

boundary line between their property and that of the 

Bollingers. We affirm the judgment of the District Court. 

This action involves a dispute over the location of a 

boundary line in Section 10, Township 26 North, Range 29 

West, Lincoln County. The boundary lies on the north-south 

quarter section line. When the section was originally 

surveyed by the Government Land Office (GLO) in 1903, a 

quarter-corner monument was placed at the mid-section point 

on the north boundary line of Section 10. Unfortunately, 

this monument was buried by the reconstruction of Highway 2 

during the 1930's. Since this monument is lost, proper 

location of the quarter section boundary must be determined 

by reference to the other corners. 

The parties' specific point of disagreement is the 

proper location of the northeast corner of Section 10. The 

Bollingers' position, upheld by the District Court, is that 

the northeast corner is marked by the original sandstone 

monument, which was found by the surveyor commissioned by the 

Bollingers to resurvey the property. The Hollingsworths' 

position is that a brass cap, set by the Bureau of Land 

Management (BLM) in a 1964 resurvey of the area, is the 

proper location of the northeast corner. On appeal, the 

Hollingsworths argue the District Court's acceptance of the 

Bollinger survey was clearly erroneous and unsupported by the 

evidence. They also appeal the court's award of compensatory 

and punitive damages against them. 
Section 10 was originally surveyed by the GLO in 1903. 

Around 1912, Mr. Fosseum, the original homesteader of the 

Hollingsworths' property, built a rail fence on the 

north-south quarter section line which divided the upper 

portion of Section 10. This fence separated the Fosseum 

property from the Manicke property. The Manickes were 

predecessors-in-interest to the Bollingers, and were the 

parents of Mrs. Bollinger. The rail fence remained in this 

location until 1982, when the Bollingers replaced it with a 

new barbed wire fence. 

The Hollingsworths purchased the Fosseum property in 

1982 from the Shelleys, Mr. Fosseum's successors-in-interest. 

In 1984, Mr. Hollingsworth told Mr. Bollinger he was going to 

build a fence and a road 50 feet west of the old rail fence 

line (and 50 feet in toward the Bollingers' property) . The 

Bollingers contacted an attorney who wrote the Hollingsworths 

a letter asking them to contact him and discuss the matter. 

The Hollingsworths did not respond to this letter. 

In the spring of 1985, the Hollingsworths removed the 

Bollingers' fence and installed a new fence approximately 50 

feet to the west. The Bollingers' attorney sent a second 

letter to the Hollingsworths demanding an explanation of 

their actions and requesting they or their attorney contact 

him. The Hollingsworths again did not respond. The 

Bollingers then hired a surveyor to survey their property. 

By using the original GLO survey notes and locating the 

original northeast corner monument, the surveyor set the lost 

north quarter corner (now buried under Highway 2) by single 

proportion measurement and established the quarter section 

boundary eight feet to the west of the old rail fence line. 

The Bollingers built a second fence on this re-established 

boundary line. In the fall of 1985, the Bollingers 
discovered their new fence had again been cut. They filed 

their complaint in this action January 2, 1986. 

The first issue raised by the Hollingsworths is whether 

the District Court's judgment which located the quarter 

section boundary was clear error of law and unsupported by 

the evidence. The standard of review in considering a 

judgment rendered in a civil action before the District Court 

without a jury is whether the findings of fact are clearly 

erroneous. Rule 52(a) M.R.Civ.P.; Roberts v. ~ission Valley 

Concrete Industries, Inc. (Mont. 19861, 721 P.2d 355, 357, 43 

St.Rep. 1254, 1257. 

This Court has had the opportunity to examine the law of 

boundaries on several occasions. As we first stated in 

Vaught v. McClymond (1945), 116 Mont. 542, 549-50, 155 P.2d 

612, 616, "[tlhe location of corners and lines established by 

the government survey, when identified, is conclusive . . .." 

Whether that original location is right or wrong as shown by 

later surveys is immaterial; the true corner of a section or 

quarter section is where the GLO surveyors in fact 

established it. Stephens v. Hurly (1977), 172 Mont. 269, 

278, 563 P.2d 546, 551. "The best evidence is the corners 

actually fixed upon the ground by the government surveyor, in 

default of which the filed notes and plats come next . . .." 

Vaught v. McClymond, 116 Mont. at 557, 155 P.2d at 620 

(emphasis in original). 

The original 1903 GLO survey notes for Section 10 state 

that a 16"xlO"x6" sandstone, carved with two notches on one 

side and five notches on the other side, was used as a 

monument for the northeast corner of Section 10. This stone 

was not located when the BLM resurveyed the section in 1964 

and relocated the section corners. However, a piece of 

sandstone meeting this exact description was located by Mr. 

Bollinger's surveyor, and its existence was corroborated by 
the testimony and exhibits of Mr. Hollingworth's surveyor. 

The District Court also conducted an on-the-ground inspection 

of the boundary location and observed the sandstone monument. 

As we stated in Buckley v. Laird (1972), 158 Mont. 483, 491, 

493 P.2d 1070, 1074: 

The object of a resurvey is to furnish proof of the 

location of the lost lines or monuments, not to 

dispute the correctness of or to control the 

original survey. The original survey in all cases 

must, whenever possible, be retraced, since it 

cannot be disregarded or needlessly altered after 

property rights have been acquired in reliance upon 

it. On a resurvey to establish lost boundaries, if 

the original corners can be found, the places where 

they were originally established are conclusive 

without regard to whether they were in fact 

correctly located . . .. 

The testimony of the Bollingers' surveyor, his field 

notes and the 1903 GLO field notes introduced at trial all 

indicate that the resurvey "followed in the footsteps" of the 

original survey and was based upon location of the original 

corner monuments for Section 10. The Hollingsworths have 

argued that courses and distances based upon the BLM resurvey 

are more consistent with the original GLO notes than those of 

the Bollingers' surveyor. However, the general rule is that 

courses and distances must yield to natural or artificial 

monuments. Buckley v. Laird, 158 Mont. at 492, 493 P.2d at 

1075. We therefore hold that the District Court correctly 

determined the boundary line between the parties' properties 

based upon the Bollinger resurvey which located the original 

corner monuments. 

The second issue raised by the Hollingsworths is whether 

the District Court erred in awarding compensatory and 

punitive damages against them. The District Court found the 

Bollingers had sustained the following losses: 
1. Lost pasturage for July, August and September, 

1985 at a value of $192.00; 

2. Replacement of the fence destroyed by 

Hollingsworths at a value of $1,057.00; 

3. Cost of the survey to establish the property 

boundary at $3,020.20 

The court awarded the Bollingers $4,371.10 for actual 

damages and $4,000.00 for punitive damages based upon Mr. 

Hollingsworth's malicious and oppressive actions in 

destroying two of the Bollingers' fences. The difference in 

the amount awarded for actual damages and the losses set 

forth in the court's findings is $101.90. This discrepancy 

is accounted for by the following calculations: 

1. The Bollingers testified that they incurred a 

$100.00 expense in purchasing hay. The District 

Court included this expense without listing it as a 

loss in the findings of fact. 

2. The Bollingers' cost to rebuild the fence was 

$1,057.90. The court awarded $1,057.00 

3. The Bollingers' cost of the survey was 

$3,021.20. The court awarded $3,020.20. 

The $101.90 error is clerical in nature and we amend the 

District Court's findings nunc pro tunc in order to conform 

to the judgment for actual damages of $4,371.10 

Punitive damages may be recovered for tortious acts of 

malice and oppression. Section 27-1-222, MCA. The testimony 

at trial indicated the Hollingsworths ignored the Bollingers' 

request to negotiate the boundary dispute, and that Mr. 

Hollingsworth destroyed two of the Bollingers' fences. This 

evidence was substantial and credible so as to support the 

District Court's award of punitive damages. 

The judgment of the District Court is affirmed. 
We Concur: 

/ 

Chief Justice