No. 14362 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

ALICE E. JACKSON et al., 

Plaintiffs and Appellants, 

-vsSTATE OF MONTANA: HOLLY SUGAR CORPORATION, et al., 

Defendants and Respondents. 

Appeal from: District Court of the Seventh Judicial District, 

Hon. L. C. Gulbrandson, Judge presiding. 

Counsel of Record: 

For Appellants: 

Moses, Tolliver and Wright, Billings, Montana 

Joel Guthals argued, Billings, Montana 

For Respondents: 

Habedank, Cumming & Best, Sidney, Montana 

Otto Habedank argued, Sidney, Montana 

David W. Woodgerd argued, Helena, Montana 

Submitted: February 8, 1979 

Decided: MAR 16 llylg 

Filed: bjAR l?.' 1979 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal from a quiet title action involving 

certain land lying west of the Yellowstone River in Section 

36, adjacent to Section 35, Township 23 North, Range 59 

East, County of Richland, Montana. After a nonjury trial, 

the Honorable Leslie G. Gulbrandson entered a judgment for 

defendants. Plaintiffs appeal. 

The diagram below is for illustrative purposes, assisting in the explanation of a complicated fact situation. 

Ye //OWS fo e r A R~cord,'~ 904-,yna 1 

survey ih 1g8~ 
In 1923 Andrew Jackson, Sr., and his wife Alice began 

purchasing land in the S1/4 of Section 35, Township 23 

North, Range 59 East, of Richland County. During the next 

15 years they acquired 240 deeded acres in Section 35. In 

1933 they acquired, by quiet claim deed, a piece of property, hereinafter referred to as the "Meadors Property," 

located in the southeast corner of Section 35. Immediately 

north of the Jacksons' property in Section 35 are two lots 

now known as the "Steinbeisser Property." 

When the Jacksons acquired the Meadors Property, the 

Yellowstone River, at high water, overlapped the Steinbeisser Property and crossed at a diagonal into the Meadors 

Property. At this time only a small corner, Lot 2, was high 

and dry. This lot was leased to the Jacksons by the State 

of Montana. Since 1933 the Yellowstone River has gradually 

moved east, exposing land in Section 35, filling in the 

Meadors Property to the section line, and exposing land in 

Section 36 which adjoins the eastern section line of Section 

35. By 1976, a survey indicated that land created by the 

eastward movement of the river totals some 171 acres in 

Section 36. As the river moved eastward and more land 

became usable, the Jacksons fenced the area and began farming it. It is the title to this "accreted" land that is in 

dispute. 

The lease between the Jacksons and the State of Montana 

was renewed every ten years. It was modified in 1951 to 

show that the Jacksons had become a business entity known as 

Andrew Jackson and Sons. In 1961 the description of the 

lands was changed from the five acres of Lot 2 to 153 acres 

described as Lot 2 and all the land west of the ell ow stone 
River in Section 36. The Jacksons signed the lease but 

allege that they continued to pay taxes on the same. 

Section 36 belongs to the State of Montana. It is set 

aside for public education and is administered by the Montana 

Department of State Lands. In 1931 the Jacksons began 

leasing Lot 2, Section 36, from the State. As the years 

passed, they renewed the lease, including the lands that 

were accreting. The Jacksons argue that except for Lot 2, 

all the land that accreted in Section 36 belongs to them 

since they were the owners of adjoining property in Section 

35. 

In 1963 Andrew Jackson, Sr., died. In the distribution 

of his estate no mention was made of the accreted land now 

claimed, although Alice Jackson testified it was discussed 

with their attorney. The property was distributed by sections and lots according to the county records. 

In 1964 the Jackson heirs conveyed Section 35 and Lot 

5, Section 25, to Andrew Jackson, Jr., and his wife Marjorie. 

No mention was made to the accreted lands although Andrew, 

Jr., and his mother continued to run cattle on the land east 

of the section line to the river. 

In 1964 the description of the land along the river was 

changed by the county assessor, and the Jacksons were taxed 

for three lots and 65 acres along the river. No protest was 

made as to the payment of these taxes. 

In 1974, following Andrew, Jr.'s death, his wife Marjorie conveyed the property which had been sold to her and 

Andrew, Jr., to the Holly Sugar corporation (Holly sugar). 

The land was advertised as including accretions only to Lot 

5 in Section 25 and those filling in the remaining portion 

of the SE1/4 of Section 35. However, the contract for deed 
to Holly Sugar, dated March 1974, gave the legal description 

of Lot 5 of Section 25 and the E1/2 SW1/4 and SE1/4 of 

Section 35 together with accretions of approximately 343.3 

acres. The accreted land between the river bank and the 

eastern section line of Section 35 was not included in the 

conveyance to Holly Sugar. However, after the sale, the 

business entity of Andrew Jackson and Sons and Alice Jackson 

continued to utilize the property for farm purposes. 

In 1975 Andrew Jackson and Sons began a quiet title 

action to determine who had the leasehold interest in Section 36. The court found the leasehold interest in favor of 

Andrew Jackson and Sons and against Holly Sugar. However, 

the court was not asked, nor did it determine, what land 

along the river constituted the leasehold or who owned that 

land. Thereafter, Holly Sugar demanded that Andrew Jackson 

and Sons move their fence to the section line and to conduct 

their activities only in Section 36. Jackson and Sons 

complied with this request. 

At about the same time the Jacksons learned that Steinbeisser was claiming ownership to some of the accreted lands 

through the State of Montana. The Jacksons corresponded 

with the Attorney General of the State of Montana, and that 

office disclaimed any claim of title to the property by 

adverse possession even though the Department of Lands had 

been leasing the property for a number of years. 

In May 1976 the State of Montana, Joseph Steinbeisser, 

and Holly Sugar entered into a boundary agreement dividing 

the accreted land into four tracts: A, B, C and D. Tract A 

corresponded to Lot 2, Section 36, originally leased to the 

Jacksons by the State plus accretions thereto. Tract B 

described the accreted land adjacent to the Steinbeisser 
Property. Tracts C and D corresponded to the accreted land 

adjacent to the Meadors Property, now owned by Holly Sugar. 

This was done without the Jacksons' knowledge, and no public 

auction was held. On learning of the agreement, Jacksons 

brought an action to quiet title to the accreted land which 

had been divided up by the State, Holly Sugar, and Steinbeisser. The Jacksons did not claim title to Tract A, which 

they were leasing from the State, but claimed they owned the 

remaining tracts through adverse possession and accretion, 

having improved, utilized, and paid taxes on same. 

The trial court in its findings of fact, conclusions of 

law and judgment found for defendants. Certain findings are 

important to our discussion and decision. They are: 

"2. The Jacksons acquired, by Quit Claim Deed 

dated December 12, 1933, the E1/2 E1/2 of the 

SE1/4, Section 35, from John P. Meadors and 

Katheryn Meadors. 

"4. The title to all lands previously owned by 

Joseph Steinbeisser, and the title to Tract B 

as described in boundary agreement recorded Book 

E-125, page 939 of the records of Richland County, 

Montana, which boundary agreement was entered 

into between Joseph Steinbeisser and the State 

of Montana acting through its Board of Land Commissioners, dated May 24, 1976, recorded Book 

E-125, page 939 of the records of Richland 

County, Montana, became vested in Joseph Steinbeisser and Christine Steinbeisser, husband and 

wife, as joint tenants, by virtue of ratification of boundary agreement dated May 12, 1977, 

filed May 12, 1977, and recorded in Book E-130, 

pages 506-507 of the Misc. records of Richland 

County, Montana. 

"5. Joseph Steinbeisser at all times protested 

ownership by the State of Montana of that portion 

of the N1/2 of Section 36 West of the Yellowstone 

River lying South of Lot 2 of Section 36, which 

Lot had a river boundary of approximately 720 

feet. He protested ownership of this land by the 

State of Montana on many occasions to the State 

Land Board, but at no time undertook legal proceedings to quiet title against the State of Montana, and the land attributable as accretion to 

his Lots 1 and 2 was by the boundary agreement, 
consolidated into what is now Tract B of the plat 

attached to the boundary agreement hereinbefore 

referred to. Said accreted land has never been 

specifically described as being lands within Section 36 on the tax records of Richland County, 

and Joseph Steinbeisser has paid all taxes levied 

and assessed against said Lots 1 and 2 of Section 

35. No taxes have been paid by any party to this 

action on lands described as being within Section 

36, Township 23 North, Range 59 East. 

"6. Insofar as the claim of Joseph Steinbeisser 

is concerned, the land situated within Section 

36 and enclosed within a fence constructed by 

Andrew Jackson was held adversely by Jacksons 

only as a Lessee of the State of Montana, and 

Jacksons never, at any time, made any public claim 

to this land except as a Lessee of the State of 

Montana. 

"7. Albert Jackson and his successors-in-interest 

have claimed the right to fence, use and control, 

the lands in Section 36 West of the Yellowstone 

River under consecutive leases of State lands, 

commencing February 28, 1951, and at no time until 

the commencement of this action, have contested 

the ownership of all lands involved in this case 

in Section 36, by the State of Montana. 

"8. The tax records covering payment of taxes by 

Andrew Jackson and his successors-in-interest, 

specifically limit taxes levied to lands within 

Section 35, and the payment of taxes on the lands 

as assessed in Section 35, does not include any 

of the acreaqe - in Section 36 West of the Yellowstone River. Ownership, if any, on the part of 

the plaintiffs, results from plaintiffs being 

heirs-at-law and surviving next of kin of Andrew 

Jackson, Sr. No acreage situated within Section 

36 was included in the Inventory and Appraisal 

dated June 19, 1963, filed in the probate of the 

Estate of Andrew Jackson, Sr., in the above-entitled Court. The Inventory and Appraisal was 

signed and sworn to by Alice E. Jackson as containing a true statement of all of the estate of 

said deceased which has come to the knowledge and 

possession of said Alice E. Jackson, and was filed 

with the State of Montana as a basis for determination of inheritance taxes. Andrew W. Jackson, 

Jr., and his wife, Marjorie Ann Jackson, now 

Marjorie Ann Carter, except for minerals reserved 

in and under the lands owned by Andrew W. Jackson, 

Jr., are the successors-in-interest of all lands 

which were owned by Andrew Jackson, Sr., and his 

widow, Alice E. Jackson, said properties having been purchased for the sum of $40,000.00 under a 

Contract for Deed between all of the plaintiffs 

other than Marjorie Ann Jackson as Sellers, and 

Andrew W. Jackson, Jr., and Marjorie Ann Jackson 

as Purchasers, as joint tenants with right of 
survivorship. This Contract for Deed is dated 

January 14, 1964, filed May 7, 1965, recorded 

Book A-98, page 38 of the records of County Recorder of Richland County. Warranty Deed executed 

pursuant to said Contract and dated February 1, 

1965, was delivered and filed January 7, 1974, and 

recorded Book A-110, page 210 of the records of 

Richland County, Montana. 

"10. Marjorie Ann Carter as plaintiff, brought an 

action to quiet title to the State Grazing Leases 

standing of record in the name of Andrew Jackson 

and Sons, being Case No. 10785 of the records of 

this Court. Defendants proof resulted in entry 

of Findings of Fact, Conclusions of Law, and Judgment of this Court dated March 27, 1975, and in 

which the Court made the following Finding of Fact: 

"'5. That the "home" place of the Jackson family 

consisting of lands other than the aforesaid State 

lands, was sold to Andrew Jackson, Jr., on or 

about- January 14, 1964, but the land owned the 

State of Montana described in Paragraph 2 above 

was notincluded in the sale to Andrew Jackson, 

Jr . ' (emphasis added) " 

Seven issues are presented on appeal: 

1. Whether the disputed land was formed by accretion 

requiring the law of accretion to be applied in determining 

its ownership. 

2. Whether under the law of accretion the land belongs 

to appellants. 

3. Whether appellants acquired the accreted land 

ajacent to the Steinbeisser Property by adverse possession. 

4. Whether the State lease bars appellants' claims to 

the land. 

5. Whether the doctrine of laches bars appellants' 

claims to the property. 

6. Whether the State's claim is barred by the disclaimer of interest. 

7. Whether the State's claim is barred by the statute 

of limitations. 
For the purposes of this opinion, we will combine 

certain issues in our discussion. 

It is agreed by the parties that the trial court 

properly found that the law of accretion applied and must 

therefore be followed in determining ownership. They disagree as to the law in Montana, however. Appellants argue 

that this Court should enlarge our holding in Smith v. 

Whitney (1937), 105 Mont. 523, 74 P.2d 450, the prevailing 

law on accretion. In Smith we held that, "Unless excepted 

or reserved, accretions or the right thereto pass to a 

purchaser or a patentee although not described in the deed 

or other instrument of conveyance, if the conveyance describes the adjoining riparian land. (Citations omitted.)" 

105 Mont. at 528. This principle of retention by a seller 

of accreted land specifically by reservation in the deed has 

been the law of this State. 

Appellants ask us to consider significant a grantor's 

failure to include any accreted land in the legal description of the land he conveys, citing Jones v. Johnston (1855), 

59 U.S. 150, 15 L.ed. 320; Jefferis v. East Omaha Land Co. 

(1890), 134 U.S. 178, 10 S.Ct. 518, 33 L.ed. 872; and Stevens 

v. Arnold (1923), 262 U.S. 266, 43 S.Ct. 567, 67 L.ed. 965. 

See also 78 Am Jur 2d, Water, S414. 

We find our holding in Smith v. Whitney, supra, controls here and that accreted lands pass with the riparian 

upland property unless excepted or reserved. Therefore, the 

Jacksons, by their conveyances in 1964 and 1974, which did 

not except or reserve any accretions in Section 36, conveyed 

the accretions to Andrew Jackson, Jr., and his wife ~arjorie, 

who then conveyed them to Holly Sugar. The 1976 boundary 

agreement and quit claim deed then conveyed Tract D to the 

State of Montana. 
We next address appellants' claim of acquiring accreted 

land by adverse possession. To obtain adverse possession of 

accreted land in Montana, where the adverse claim is not 

founded on a written instrument, the claimant must occupy, 

improve, enclose, and pay taxes on the property in question 

for a period of not less than five years in a hostile and 

continuous manner. Townsend v. Koukol (1966), 148 Mont. 1, 

416 P.2d 532. Here, appellants do not meet the requirements. Their claim of hostile possession, by keeping Steinbeisser off the property, was based on the fact they leased 

the property from the State. The hostile and continuous 

occupancy of the land in Section 36 must also fail for there 

was no proof of taxes paid, although the Jacksons claim that 

they thought they were paying taxes. Section 36 is tax 

exempt school trust land and no taxes are paid on such land. 

These school trust lands are leased to help raise school 

funds. 

Appellants raise the question of whether the State 

lease bars their claims. The District Court held that it 

did, and we agree. Section 93-2512, R.C.M. 1947, now section 70-19-412 MCA, provides that possession of a tenant is 

deemed possession of the landlord. Here, the uncontradicted 

testimony of Steinbeisser is that the Jacksons relied on the 

lease to keep him off the land. Too, the lease clearly 

stated that it covered all land west of the Yellowstone 

River in Section 36. Further, in the lawsuit against ~olly 

Sugar in 1975, they defended their ownership of the lease in 

Section 36 against Holly Sugar. The Court ruled that they 

were the owners of the lease. 

We next direct our consideration to whether laches bars 

the Jacksons' claims. From 1961, when the lease was rewritten 
to cover the added acreage on the west bank of the river in 

Section 36, the Jacksons have accepted the terms of the 

lease and have not notified the State of any adverse claims 

against the State. The trial court found it would be inequitable to claim property they have continuously leased for 15 

years without notifying the lessor that they claimed ownership of the property. We agree with the trial court in 

applying the doctrine of laches to the facts here. 

We held in Montgomery v. Bank of Dillon (1943), 114 

Mont. 395, 408-09, 136 P.2d 760, quoting from Riley v. 

Blacker (1915), 51 Mont. 364, 370, 152 P. 758, 759: 

". . . '"Equity aids only the vigilant;" and it 

[laches] exists when there has been unexplained 

delay of such duration or character as to render 

the enforcement of the asserted claim inequitable.' . . ." 

Next raised is whether the State of Montana's claim is 

barred by the disclaimer of interest by the State Department 

of Revenue. The disclaimer of interest was filed by an 

attorney in the Department of Revenue. The disclaimer was 

intended to indicate that no taxes were owed on the land. 

It was never signed. The State was allowed to amend its 

pleadings under Rule 15, M.R.Civ.P., to withdraw the consent 

due to mistake. No default of the State was entered. The 

waiver was not given appellants prior to this action. There 

was no showing made that they were misled into believing the 

State had no interest in their action. The applications to 

withdraw the disclaimer and file an answer was made long 

before trial. The trial judge properly decided this issue 

in favor of the State. 

The final issue raised is whether the State of Montana's 

claim is barred by the statute of limitations. The State 

gained ownership to Tract D through the 1976 boundary agree- 
ment and quit claim deed from Holly Sugar. The trial court 

correctly found that section 93-2501, R.C.M. 1947, now 

section 70-19-302 MCA, did not apply to this claim. 

The District Court's award of the property according to 

the 1976 boundary agreement is affirmed. 

We concur: 

Chief Justice 

Justices 
Mr. Justice John C. Sheehy specially concurring: 

Under Section 14, 1867 Organic Act, the United 

States entrusted every tract numbered Section 16 or 36 

inviolable from any tricks by deed or ruse, lawless or 

statutory, when it created the Montana Territory. 

Likewise, our Enabling Act states in Section 10 

and 11, for education of our children, the same traCts 

shall not be conveyed, deeded or lost, unless the permanent 

school fund gets full market cost. 

Our duty then is to guard against depletion of trusted 

lands by any means, and that includes accretion. Here 

the result is just by reason of the trade completed by 

the state which cannot be unmade. 

I concur in the result.