No. 12368 

IN THE 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, acting by 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')EC 2 8 1$$n 

Filed : DE~ 2 8 1813 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a judgment entered upon findings 

of fact and conclusions of law after trial without a jury. The 

action was tried by the Hon. Jack L. Green in Missoula 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 lieu of a transcript, give rise to issues on 

appeal that this Court will not discuss, since, as will appear 

hereinafter, a ruling on the merits produces the same result. 

That is, if the findings of fact and conclusions of law are 

supported by the evidence, the judgment will be affirmed. 

Plaintiff-appellants are husband and wife and will be 

referred to herein as plaintiff. Defendant, respondent here, 

is the State of Montana, acting through the Department of Highways, 

and will be referred to as defendant. 

Plaintiff purchased 0n a contract for deed from one Bakke, 

all of Block 54 of W. J. ~c~ormick's Addition to the City of 

Missoula, Missoula County, Montana, according to the offical recorded plat thereof, except Lots "G" and "H" and the East 50 feet 

of said Block 54. 

The north boundary of the property is bounded on the northerly 

side by a public thoroughfare known as "West roadway". West 

Broadway has been for over thirty years improved and utilized as 

a state highway by defendant. When plaintiff bought the property 

he did not have a survey made. Plaintiff first became aware that 

a dispute existed when 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 fire extinguisher shop. The distance between the southerly 

edge of the traveled portion, as distinguished from the entire 

right-of-way, of West Broadway and the building is approximately 

22 feet. The area between the building and the pavement has been 

utilized by plaintiff as parking for the businesses located in 

his building. 

West Broadway is 99 feet wide, Everyone agrees to that, 

but, the location of the centerline is in dispute. The trial 

court found the centerline was 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 north boundary of 

plaintiff's property places the boundary 9 inches from his building. 

Judge Green wrote a memorandum with his findings and conclusions which 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 in a 

straight line at the juncture of the two additions. 

 he plat referred to in the testimony as being 

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 in a straight line at the juncture of the 

two additions. 

"It was obvious in both plats that the lots between 

Pine and Broadway (Cedar) were intended to be the 

same depth and Broadway (Cedar) was intended to be 

a straight street. In fact, this situation has been 

relied upon in construction both on the north and 

on the south sides of Broadway until the present 

dispute arose. 1 I 

In 1948, this Court had the case of City of Missoula v. 

Bakke, 121 Mont. 534, 198 P.2d 769. Interestingly, the same 

person who sold Block 54 to plaintiff here was 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 Justice Adair 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 in what 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 official plat 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's office. 

Plaintiff brought 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 they were unable 

to locate any original monumentation on West 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 on what he termed the "official" plat found in the public 

library. 

The survey notes of Ainsworth dated August 10, 1971, are 

part of the record and are: 

"SURVEYOR' S NOTES 

1' ... This survey was 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 survey was 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 

of West Broadway (Cedar) Street (which are from 

16.3 feet to 16.8 feet apart). 

... At one time portions of these two additions were 

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 

from Higgins Avenue to McCormick Street. 
... The conflict arises when W.J. ~c~ormick's addition and C.P. Higgins Addition were filed for 

record. W. J. McCormick' s Addition (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) Street were intended to be 130.00 feet in 

depth. C.P. Higgins Addition was filed for record 

on May 2, 1883 and it indicated that the same tier 

of lots between West Pine Street and West Broadway 

(Cedar) Streets were 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 is not 

what the official plats indicate but it is what the 

existing evidence on the ground would indicate has 

been used for years. 

... The official plats of these two additions indicate 

no original monuments 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 indicate where most of them came from although 

the Montana State Highway Dept. indicated some of the 

monuments in West Broadway (Cedar) Street were set 

by their survey crews over the years. 

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

(Cedar) Street would 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 of West Broadway (Cedar) Street. 

... The two monuments set during this survey on the 

Northerly boundary line of Block 54 of W.J.McCormickls 

Addition were set using platted distances from West 

Pine Street are were set without reference to existing 

monumentation in West Broadway (Cedad Street or existing land use lines. 

... It is not our intention with this survey to state where 

the proper location of West Broadway (Cedar) Street is 

but to show all evidence that exists. 1 I 

As shown by Judge Green's memorandum and the survey notes 

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, 

131 Mont. 382, 309 P.2d 1027. Plaintiff's evidence did not carry 
this burden of proof. Ainsworth's testimony was conflicting in 

and of itself, between his testimony, his survey notes, and 

previous surveys done by his own firm. 

Where boundaries are lost or uncertain they may be established by the best evidence under available circumstances. 

Ghoine v. State, 26 Wash.2d 635, 175 P.2d 955. Compare Buckley 

v. Laird, 158 Mont. 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 

landmarks which 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 known monuments, the best 

evidence obtainable may be resorted to for the purpose of establishing a boundary line. Buckley v. Laird, supra; Coumas 

v. Transcontinental Garage, 68 Wyo. 99, 230 P.2d 748. In this 

instance, section 93-401-27(11), R.C.M. 1947, states: 

11 In conformity with 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 : 

11 1 The rule rests on necessity, better evidence 

of the boundary having ceased to exist, and is 

justified on the theory that where- persons, 

members of a community more or less extensive, 

are interested in a common boundary, they will 

know where it is, and their common assent will 

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 can be proven by 

tradition, customary usage, and the way in which the buildings 
on 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 in the courthouse and the "library plat" share 

some negative characteristics: (1) none indicate that respective 

original surveyors set monuments in either the W. 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 

lines within either addition or any angle between interior lines 

in the respective additions. 

At the close of the testimony it was 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 at the time of trial. He did go upon the ground and 

did go to the public library to look at the plat there. 

Plaintiff makes one more assertion in his brief, that is 

that defendant should be estopped from asserting a claim to the 

property in question. There simply is no evidence giving rise 

to any estoppel. Plaintiff asserts that he has relied on the 

1883 plat. However it is clear that the plat found in the public 

library is not 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 in his 

burden of proof; and further, that the findings and conclusions 

of the trial court are supported by the evidence. 

Accordingly, we affirm. 
Justices.