### Na. 12757 IN

### THE SUPREME COURT OF THE 

### STATE OF 

### MONTANA 1975



### STANLEY and LUELLA HORACEK, 

### husband and wife, Plaintiffsand Appellants,



### WILLIAM and VELMA 

### HUDSON, husband and wife, Defendants and Respondents.

Appeal from: District Court of theFourteenth Judicial Distrtct, Honorable Nat Allen, Judge presiding. Ceunsel of Record

### : ForAppellants: 

### Robert L. 

### Stephens argued, Billings, Montana For Respondents: Michael J. 

### Whalen argued, Billings, Montana

Submitted: April 8, 

### 1975 ~ecided : 

### AU

## G5 :975 Filed: AQG

### 5 

## 1y5Mr. Justice Gene B. Daly delivered the Opinion of the Court.

This isan appeal from a judgment of the district court, Musselshell County, Hon. Nat Allen, sittingwithout a jury. The judgment denied relief in a quiet title action to plaintiffs Stanley and LuElla Horacek, husband and wife, and quieting title in defendants William and Velma Hudson, husband and wife. The record contains a long recital of facts leadingback to the antecedents of the parties through whom each claims title to the property in question. Two lots are involved, Lots 

### 9 and 10, Block 3, Original Townsite of Farrall, an old subdivision south of Roundup, Montana. Plaintiffs claim titlethrough one Leo Sedlacek who purchased and resided on Lots 

### 5, 6, 

### 7, and 

### 8, Block 3 of the subdivision and which abut the lots involved here, Lots 

### 9 and 10. Record title to Lots 

### 9 and 10was held by Dominic Vescovi and his wife, Jennie. Defendants claim title through Dominic and Jennie Vescovi

# . Here, the controlling question is---is there evidence to support plaintiffs' claim that Leo Sedlacek acquired title tothe lots from Dominic and Jennie Vescovi through adverse possession? The property was atalltimes assessed to Dominic and Jennie Vescovi and the taxnotices were addressed to them, in

care of Sedlacek. Sedlacek paid the taxes for the required number of years. However, defendants contend that thiswas the agreed lease payment for the use of the land to grow garden products. Plaintiffs in their challenge of the district court's judgment that Sedlacek had not acquired titleto Lots 

### 9 and 10 through adverse possession, maintain sdlacek'spossession of the property met allrequirements of Montana law toestablish adverse

### possession. Plaintiffs point out there isno factual dispute that Sedlacek actually and continuously occupied the land in question for atleast fifteenyears prior tohis death. Section 93-2510, R.C.M. 

### 1947. Plaintiffs also assert Sedlacek enclosed the land in question with a substantial enclosure and cultivated it 

### annuallyby preparing and growing his truck garden. Section 93-2511, R.C.M. 

### 1947. Further, Sedlacek paid allof the property taxes. Section 93-2513, R.C.M. 

### 1947. Plaintiffs argue there has been no proof that a landlordtenant relationship ever existed except for hearsay testimony from one of defendantsf witnesses, admitted over objection of plaintiffs; that the continuous, unexplained and uninterrupted

use of the land is 

### sufficiently adverse to sustain their claim. Plaintiffs presented witnesses who testified Leo Sedlacek leased

a portion of Lots 9 and 10 tothem during his lifetime. They further argue that sedlacekfsleasing of the land and ultimately his conveying the land are clear unequivocal acts manifesting an intent to dispossess the prior owner. Finally, plaintiffs argue that Brown v. Cartwright, 163 Mont. 139, 515 P.2d 684, stands for the proposition that the question of adverse possession is one of intent of the parties tobe discovered from allthe circumstances. Further, that the trialcourt erred in finding that plaintiffs failed to carry theburden of establishing titleby adverse possession. In support they citeWilson 

### v. Chestnut, 164Mont. 484, 525 P.2d 24, 31 %.Rep. 606, as authority that the burden rests on defendants. Here, the legal title atalltimes during the alleged adverse possession was inDominic Vescovi and hiswife, Jennie. Under the provisions of section 93-2507, R.C.M. 

### 1947, occupation of property by any person other than the legal titleholder is deemed tohave been under and in subordination to the legal title.Where defendants, ashere, show they are successors tothe owner of the legal title, they have made a prima facie case on their crossclaim and theburden is then cast upon plaintiffs toestablishtheir adverse possession. Smith v. Whitney, 105 Mont. 523, 74 P.2d 450. The evidence inthe record inthe instant case atthe very best isinconflict as it relates tothe matter of hostile possession by plaintiffs. Under such circumstances this Court 

### willview the evidence ina light most favorable tothe prevailing party in the district court and uphold its finding unless the evidence preponderates against the defendants. Johnson v. Silver Bow County, 151Mont. 283, 443 P.2d 6. We do not disagree with the rationale inBrown, relied on by plaintiffs, however, a casual reading of Brown demonstrates that the facts there areclearly distinguishable from the instant

case. InWilson, citedby plaintiffs todemonstrate the burden with of proof rests on defendants, this Court was dealing/an alleged prescriptive right touse an easement and was determiningwhere theburden of proof might be from time totime in such a case. There isnothing inWilson that can be construed tohold that theburden of proving his own titledoes not fall firstto any claimant. Lunceford v. Trenk, 163Mont. 504, 518 P.2d 266, quoted with approval inWilson. There is substantial credible evidence to support the trialcourt and reviewing the evidence in a light most favorable to the prevailing party, we find it does not preponderate with any clarityagainst defendants. The judgment is affirmed. 

# /' JusticeWe concur:

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