No. 12368 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

BENNETT L. BRADY and KATHERINE T. BRADY, husband and wife, Plaintiffs and Appellants,

THE STATE OF MONTANA, actingby and through the STATE HIGHWAY COMMISSION OF THE STATE OF MONTANA, Defendants and Respondents.

Appeal from: District Court of the Fourth Judicial District, Honorable Jack L. Green, Judge presiding. Counsel of Record: For Appellants : Mulroney, Delaney and Dalby, Missoula, Montana Stephen H. Dalby argued, Missoula, Montana For Respondents: N. A. Rotering, Helena, Montana Donald Douglas argued, Helena, Montana Leo 

### J. Kottas 

### Jr. argued, Helena, Montana

- Submitted: December 

### 3, 1973 Decided :

## f')EC28

# 1$$n
Filed:

# DE~ 2

### 81813Mr. JusticeWesley Castles delivered the Opinion of the Court.
This 

### is an appeal from a judgment entered upon findings of fact and conclusions of law after trialwithout 

### a jury. The actionwas triedby the Hon. Jack L. Green inMissoula County. At the time of trial a court reporter was not present. Subsequently, after a hearing had, Judge Green approved a final statement of evidence and proceedings. Certain procedural matters on appeal, including timeliness and the above referred to preparation of a statement of evidence and proceedings in lieuof a transcript, give rise to issues on appeal that this Court willnot discuss, since, aswillappear hereinafter, a ruling on the merits produces the same result. That 

### is, ifthe findings of fact and conclusions of law are supported by the evidence, thejudgment willbe affirmed. Plaintiff-appellants arehusband and wife and 

### willbe referred toherein as plaintiff. Defendant, respondent here, 

### is the State of Montana, acting through the Department of Highways, and willbe referred to as defendant. Plaintiff purchased 

### 0n a contract for deed from one Bakke, allof Block 54 of W. J. ~c~ormick's Addition tothe City of Missoula, Missoula County, Montana, according tothe officalrecorded plat thereof, except Lots "G" and "H" and the East 50 feet of said Block 54. The north boundary of the property isbounded on the northerly sideby a public thoroughfare known as "West 

### roadway". West Broadway has been for over thirtyyears improved and utilized as
a statehighway by defendant. When plaintiff bought the property he did not have a survey made. Plaintiff firstbecame aware that
a dispute existedwhen defendant's survey crew set survey stakes within nine inches of the front of 

### a building located upon the property. The building fronts on West Broadway. The stakes represented the southerly edge of the West Broadway right-of-way.Plaintiff's building contains a grocery store, barber shop, and fireextinguisher shop. The distancebetween the southerly edge of the traveled portion, as distinguished from the entire right-of-way, of West Broadway and thebuilding is approximately 22 feet. The area between thebuilding and the pavement has been utilized by plaintiff as parking for thebusinesses located in his building. West Broadway 

### is 99 feetwide, Everyone agrees to that, but, the location of the centerline 

### is indispute. The trial court found the centerlinewas on a straight course over city sewer manholes. The result of this finding 

### is that from the centerline a distance of 49.5 feet south to the northboundary of plaintiff's property places theboundary 9 inches from hisbuilding. Judge Green wrote a memorandumwith his findings and conclusionswhich explains the problem:



### h he official plat of McCormick Addition on file in the office of Missoula County Clerk and Recorder fails to show any lot depth for those lots located between Broadway (Cedar) and Pine Street. However, it does show that the lots directly to the east in the C,P. Higgins Addition are 138'6" deep. And further shows Broadway (Cedar) as extending ina straight line atthejuncture of the two additions. 

### he plat referred to inthe testimony asbeing located in the Missoula Public Library shows lot depth for those lots located between Broadway (Cedar) and Pine at 130 feet. However, it shows the lots directly to the east in the C.P. Higgins Addition at 130 feet deep. And further shows Broadway (Cedar) extending ina straight line atthejuncture of the two additions. "It was obvious inboth plats that the lotsbetween Pine and Broadway (Cedar) were intended tobe the same depth and Broadway (Cedar) was intended tobe a straight street. In fact, this situationhas been relied upon inconstructionboth on the north and on the south sides of Broadway until the present dispute arose. 1I In 1948, this Court had the case of City of Missoula 

### v. Bakke, 121Mont. 534, 198 P.2d 769. Interestingly, the same person who sold Block 54 toplaintiff herewas involved there. While the case involved different property on a different 

### street, the same addition, that 

### is~c~orrnick's Addition, was i-nvolved. In that case JusticeAdair noted that:

# "'*

# ** the original plat of W. J. McCormick Addition had disappeared from the files of the Clerk and Recorder of Missoula County, but they have inwhat they call Plat Book,No. I,at page 

### 9,a certified copy of the plat; and it has been the custom around Missoula for attorneys and landholders and abstracters and all to accept the plat as appears on page 

### 9 of Plat Book I,records of the Clerk and Recorder, Missoula County, as the officialplat of W.J. ~cCormick's Addition.

## "' Now in 1973,as indicated in Judge

## re en's memorandum,
a plat appears from the Missoula Public Library,not an official plat in the Clerk and ~ecorder'soffice. Plaintiffbrought the action to determine the correct northern boundary line of Block 

### 54. plaintiff's main witness was surveyor Richard Ainsworth. Defendant's main witness was an engineer,Tom Oertli. The two surveyors agreed theywere unable to locate any original monumentation onWest Broadway. They differed in their interpretations. Mr. Ainsworth testified that he could determine the boundaries of West Broadway by starting from another street,West Pine,and measuring south from there, using the distances of 130 feet for lot depths,basing such distances onwhat he termed the "official" plat found in the public library. The survey notes ofAinsworth dated August 10, 1971, are part of the record and are: "SURVEYOR'S 

### NOTES

1'

# ... This surveywas made at the request of the owner of the Northwesterly 250 feet of Block 

### 54 of W.J. McCormick Addition to the City of Missoula,Montana.



# ... The surveywas made to determine and show the true relationship between the platted and monumented centerline of West Pine Street (which are one and the same) and the platted and monumented centerline ofWest Broadway (Cedar) Street (which are from 16.3 feet 

### to 16.8 

### feet apart).



# ... At one time portions of these two additionswere recorded as one. This plat was the first subdivision plat on file for this area and is dated November 7, 1872. This plat is on file in the Missoula County Clerk & 

### recorder's Office but unfortunatly has no 

### dimensions. The plat was filed as 'Higgins & 

### McCormick Addition' and does show West Broadway (Cedar) Street running straight through fromHiggins Avenue to McCormick Street.

# ... The conflict ariseswhen W.J. ~c~ormick'saddition and C.P. Higgins Additionwere filed for record. 

### W. J. McCormick'sAddition (official copy on file in the Missoula County Library) was filed January 3, 1883 and indicated that the lots in the Blocks between West Pine Street and West Broadway

(Cedar) Streetwere intended to be 130.00 feet in depth. C.P. Higgins Additionwas filed for record on May 2, 1883 and it indicated that the same tier of lots between West Pine Street and West Broadway (Cedar) Streetswere intended to be 138 feet 

### 6 inches in depth.



# ... If this difference in lot depths does indeed exist it would make the centerline and the right-of-way lines of West Broadway (Cedar) Street jog by approximately 17 feet at a point where the two additions meet in the Block between Woody Street and Harris (Orange) Street.



# ... Existing monumentation in West Broadway (Cedar) Street as well as existing land use lines indicate that it has been assumed that this jog does not exist and it would appear that the depth of 138 feet 

### 6 inches had been assumed to run straight through from 

### C.P. Higgins Addition into W.J. McCormick's Addition. This isnot what the official plats indicate but it iswhat the existing evidence on the ground would indicate has been used for years.



# ... The official plats of these two additions indicate no originalmonuments to be set so it is therefore assumed that all monuments which now exist are second generation. A search of all available records does not indicatewhere most of them came from although the Montana State Highway Dept. indicated some of the monuments 

### inWest Broadway (Cedar) Streetwere set by their survey crews over the years.



# ... A jog in the right-of-way lines on West Broadway

(Cedar) Streetwould also affect the right-of-way lines on a portion of West Main Street and the building locations in Blocks 23, 24, 25, and 26 of W.J. McCormick's Addition which fall Southerly ofWest Broadway (Cedar) Street.



# ... The two monuments set during this survey on the Northerly boundary line of Block 54 ofW.J.McCormickls Additionwere set using platted distances from West Pine Street are were setwithout reference to existing monumentation inWest Broadway (Cedad Street or existing land use lines.



# ... It is not our intentionwith this survey to statewhere the proper location ofWest Broadway (Cedar) Street is but to show all evidence that exists.1I 

### As shownby Judge Green's memorandum and the surveynotes of surveyor Ainsworth, the depth of the lots is the problem. The burden of proof was on the plaintiff to establish the true location of the disputed boundary line. Reel v. Walter, 131Mont. 382, 309 P.2d 1027. Plaintiff's evidence did not carry

### this burden of proof. Ainsworth's testimonywas conflicting in and of itself, between his testimony,his surveynotes, and previous surveys done by his own firm. Where boundaries are lost or uncertain theymay be established by the best evidence under available circumstances. Ghoine

### v. State, 26 Wash.2d 635, 175 P.2d 955. Compare Buckley
v. Laird, 158Mont. 483, 493 P,2d 

### 1070. In 12

### Am Jur 2d,Boundaries, 54,p, 550, it is stated:

11

A 

### highway or street may be a monument, and in the absence of other controlling calls or landmarkswhich can be ascertained, the location and occupancy of a street as indicated by old buildings and fences,and by its use for many years,may be taken as practical evidence of the true location of the street,and the lines of the street may then determine the location of the boundaries of abutting lands

# ** *.I1 

### Further, in the absence of knownmonuments, the best evidence obtainable may be resorted to for the purpose of establishing a boundary line. Buckley v. Laird, supra;Coumas
v. Transcontinental Garage, 68Wyo. 99, 230 P.2d 748. In this instance, section 93-401-27(11), R.C.M. 1947, states:

11

### In conformitywith the preceding provisions, evidence may be given upon a trial of the following facts:

11

### (11) Common reputation existing previous to the controversy, respecting facts of a public or general interest more than thirty years old, and in cases of pedigree and boundary." Clark on Surveying and Boundaries, 3rd Ed., 5 

### 288,p. states part:
111

### The rule rests onnecessity, better evidence of the boundary having ceased to exist,and is justified on the theory thatwhere- persons, members of a communitymore or less extensive, are interested in a commonboundary, they

### will 

### knowwhere it is,and their common assentwill 1 

### prove what they know. This is the rule promulgated in most of the United States,and for sound reasoning. It is a matter of justice and equity." All of the above confirms that where the northerly boundary of West Broadway is uncertain or obliterated it canbe proven by tradition, customaryusage, and theway inwhich the buildingson West Broadway have been built up. Once the northerly boundary of West Broadway has been established, testimony of plaintiff's
own witness established that the distance from the northerly line of West Broadway to the southerly line 

### is 

### 99 feet. The plats inthe courthouse and the "library plat" share
some negative characteristics: (1) none indicate that respective original surveyors setmonuments ineither theW. J. McCormick Addition or the C.P. Higgins Addition; 

### (2) none indicate any distances from the purported monumented section corner and quarter
corner to any point in either addition; 

### (3) none indicate any angle from the north line of Section 21 to any interior line in either addition; and 

### (4) none indicate any angle between interior lineswithin either addition or any angle between interior lines in the respective additions. Atthe close of the testimony itwas stipulated that Judge Green could look over the plats of the additions for the area and that his observations would be accepted as evidence as though introduced atthe time of trial. He did go upon the ground and did go to the public library to look atthe plat there. Plaintiff makes one more assertion inhisbrief, that is that defendant should be estopped from asserting a claim to the property inquestion. There simply 

### isno evidence giving

### rise to any estoppel. Plaintiff asserts that he has relied on the 1883plat. However it 

### is clear that the plat found in the public library 

### isnot what has been relied upon. Having examined the record and the plats, however irregularly made a part of the record, we find that plaintiff failed inhis burden of proof; and further, that the findings and conclusions of the trialcourt are supported by the evidence. Accordingly, 

### we affirm.

### Justices.