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No. 99-279 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 130 

300 Mont. 5

3 P. 3d 109

WILLIAM D. TESTER, STEPHEN F. 

TESTER, and PATRICIA A. WALCH, 

Plaintiffs and Respondents, 

v. 

JOHN J. TESTER; EDITH NORA TESTER, 

and E.T. RICH; 360 RANCH, INC., 

DELANEY AND COMPANY, INC.; DONALD

and SARAH HAMMERSMARK; ERIK and ANNA

HAMMERSMARK; VIRGIL and ANN MAE 

TERRY; CARL L. STUCKY; JOHN CLARK 

ADAMS; SIFFERT; J. J. and EDNA TRACY 

WHITE; ERMA A. and H.R. REID; NELLIE W. 

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RICH; JAMES O. and GLADYS FUNK; FLOYD D. 

BUTLER; GEORGE R. McCARTY; ANNE M. HOLMES

unknown heirs or unknown devisees of any deceased person;

and all other persons unknown, claiming or who claim any 

right, title, or interest in, or lien or encumbrance upon, 

the real property described in the Complaint, adverse

to the Plaintiffs' title thereto, whether such claim be 

present or contingent,

Defendants and Appellants.

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin,

The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Michael E. Wheat, Julieann McGarry, Cok, Wheat, Brown & McGarry, Bozeman, 

Montana

For Respondent:

Charles F. Angel, Angel Law Firm, Bozeman, Montana

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Submitted on Briefs: December 2, 1999 

Decided: May 18, 2000

Filed:

__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

¶1 Appellant 360 Ranch, Inc. (360) appeals from the March 18, 1999 Findings of Fact, 

Conclusions of Law, and Order of the Eighteenth Judicial District Court, Gallatin County, 

quieting title to certain property in favor of Respondents William Tester, Stephen Tester, 

and Patricia Walch (the Testers), and against 360. We reverse.

¶2 360 raises the following issues on appeal: 

I Did the District Court err in awarding judgment quieting title to the disputed property in 

favor of Testers and against 360? 

II Did the District Court err in awarding costs of suit to the Testers? 

STATEMENT OF FACTS 

¶3 At the heart of this quiet title action lies a boundary dispute. The Testers and 360 each 

own property in Section 17, Township 1 North, Range 7 East of the Montana Principal 

Meridian. The property is located in Bridger Canyon, just north of Bozeman, Montana. 

Generally speaking, the Testers own land in the east half of the Section while 360 owns 

land in the west half. Two roads of public record run through the Section in a north-south 

direction. One is the 1891 County Road (County Road), the other is the 1948 State 

Highway (State Highway). 

¶4 In 1891, the Gallatin County Commissioners adopted as the official County Road an 

existing road which ran in a north-south direction through Bridger Canyon. The official 

location of the County Road remains as it existed when it was originally surveyed by the 

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County Surveyor in 1891, but at some point thereafter there were "realignments" in 

portions of the road creating a separate "traveled way." No evidence in the record indicates 

that the realignments were official, who made them, or when they occurred, and the 

original County Road remained the only official public road in the Section until the 

establishment of the State Highway in 1948. At some point the County Road was 

realigned approximately 200 feet to the west creating an isolated parcel of land bordered 

on the east by the official County Road, and on the west by the newly created "traveled 

way," but the County Road has never been officially abandoned by the County. 

[NOTE: SEE HARD COPY OF OPINION FOR MAP 

INSERTED AT THIS POINT IN OPINION 

¶5 In 1948, the State Highway Commission built and graveled a state highway through 

Bridger Canyon. In some places the highway was constructed directly on top of the 

County Road while in other places, it was constructed on top of the existing "traveled 

way." In the southern part of the Section, the State Highway and the County Road run 

parallel to one another, with the State Highway running to the west of the County Road. 

However, toward the middle of Section 17, the State Highway crosses over and runs on 

the east of the County Road for a stretch. In the north end of the Section, the State 

Highway once again crosses back to the west side of the County Road. It is the ownership 

of the island of property in the south end of the Section bordered on the west by the State 

Highway and on the east by the County Road which is in dispute. Evidence in the record 

indicates that the importance of the parcel is that 360 plans a subdivision on its property 

west of the Highway and the property in question would add acreage and therefore density 

rights to the property.

¶6 360 asserts the Testers' predecessors-in-interest intended the County Road to be the 

boundary line between the parties' property, thereby placing ownership of the disputed 

parcel with 360. The Testers contend the grantors in their chain intended the State 

Highway (or the traveled way beneath it) to be the boundary line, making the Testers the 

rightful owners of the disputed parcel.

¶7 On October 15, 1996, the Testers commenced an action to quiet title to all land in the 

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Section lying east of the center line of the County road, on the basis of both legal title and 

adverse possession. The Testers later stated their claim as "all land lying east of the center 

line of a public road." 360 denied the Testers' claims and asserted it owned the disputed 

property. Trial was held in October, 1998, and in March, 1999, the District Court issued its 

Findings of Fact, Conclusions of Law, and Order quieting title in favor of the Testers and 

awarding them the costs of the suit.

¶8 I Did the District Court err in awarding judgment quieting title to the disputed property 

in favor of Testers and against 360? 

STANDARD OF REVIEW

¶9 We review a district court's findings of fact to determine whether they are clearly 

erroneous. State v. Wooster, 1999 MT 22, ¶ 2, 293 Mont. 195, ¶ 2, 974 P.2d 640, ¶ 2 

(citing Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 

1287). We review a district court's conclusions of law to determine whether the 

interpretation is correct. Cenex Pipeline L.L.C. v. Fly Creek Angus, Inc., 1998 MT 334, ¶ 

22 , 292 Mont. 300, ¶ 22, 971 P.2d 781, ¶ 22 (citing Carbon County v. Union Reserve 

Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686).

¶10 This Court has adopted a three-part test to determine whether a district court's finding 

of fact is clearly erroneous. "A finding of fact is clearly erroneous if it is not supported by 

substantial evidence, if the district court misapprehended the effect of the evidence, or if, 

after reviewing the record, this Court is left with a definite and firm conviction that a 

mistake has been made." Matter of Estate of Hunsaker, 1998 MT 279, ¶ 26, 291 Mont. 

412, ¶ 26, 968 P.2d 281, ¶ 26 (citing DeSaye, 250 Mont. at 323, 820 P.2d at 1287). 

¶11 The District Court found that the resolution of the parties' dispute depended on 

whether the County Road or the State Highway serves as the boundary line between the 

parties' property. The District Court concluded that the State Highway is the legal 

boundary, and that the Testers own the disputed property through legal title and adverse 

possession. 360 claims the District Court's decision is not supported by substantial 

evidence and is incorrect.

¶12 The parties agree ownership of legal title to the disputed property turns on whether the 

grantors in the Testers' chain of title intended the County Road or the State Highway to 

serve as the western boundary of the Testers' property. 360 asserts that in determining 

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whether the Testers have legal title to the land in question, this Court must examine the 

deeds in the Testers' chain of title to determine what was granted to them. In construing 

such deeds, 360 contends we should rely on the plain language which has repeatedly 

described the property as lying either east of the "public road," "country road," or "old 

county road" not east of the "State Highway" or east of the "traveled way" which later 

became the State Highway. Therefore, 360 argues that according to the plain language of 

the deeds, the County Road and not the State Highway is the proper boundary between the 

properties.

¶13 The Testers claim the District Court correctly determined they own legal title to the 

disputed property because the State Highway and not the County Road has been 

consistently treated as their western boundary. They maintain the evidence clearly shows 

that all parties except 360, including both parties predecessors-in-interest, considered the 

road which became the State Highway to be the dividing line between the properties. As a 

result, they assert that references in the deeds in their chain of title to the "public road" or 

"county road" actually refer to the "traveled way" which is today the State Highway. 

Furthermore, the Testers assert that the District Court correctly determined they owned the 

property in question by way of adverse possession.

¶14 The District Court concluded that the Testers proved their legal title to the disputed 

property with "clear and satisfactory proof of title," that the center line of the State 

Highway is the boundary line between the properties. The court stated, 

[t]he testimony of the three plaintiffs, the deeds in plaintiffs' chain of title, the plats 

of Section 17 from the County Clerk and Recorder's Office, the County tax records 

and the State Highway records support plaintiffs' claim to all property east of the 

Highway because the evidence shows that the "Public Road as the same is now 

constructed" was consistently treated as the western boundary of the plaintiffs' 

property.

The court also concluded as a matter of law that the Testers established adverse possession 

by claiming the property under color of title and showing that their possession of the 

disputed property has been "actual, visible, exclusive, hostile, and continuous" for the 

period of five years immediately before the complaint was filed. 

Legal Title 

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¶15 In order to determine whether the District Court was correct in concluding that the 

Testers had legal title to the disputed property, we begin by examining the Testers' chain 

of title. In 1903, the entirety of Section 17, containing 640 acres and owned by the United 

States Government, was granted to the Northern Pacific Railway Co. In 1907 Northern 

Pacific conveyed the entire section to Norris Davies subject to "an easement in the public 

for any public road or roads heretofore laid out or established, and now existing over and 

across any part of said described land." In 1916, Davies conveyed to Antone Tester "all 

that part of Section 17. . . lying east of the public road as the same now crosses said 

section, . . . containing three hundred and twenty acres of land, more or less. . . ." In 1920, 

Davies conveyed to John and Logan Tester all that part of the west half of Section 17 

"lying west of the County Road, as the same is now located through said land." The 

Testers are successors-in-interest to Antone Tester while 360 is the successor-in-interest to 

John and Logan Tester. 

¶16 Throughout the Testers' chain of title, there are many inconsistencies including the 

unclear use of the terms "public road" and "county road" in reference to the property 

boundary, the contradictory conveyance of easements, conveyances of differing amounts 

of acreage, and references to an unrecorded survey. However, the parties contend that the 

Funk deed is the key point of confusion in the Testers' chain of title.

¶17 In March of 1951, James Funk conveyed by Warranty Deed to Logan Tester, who has 

since conveyed away his interest in the west half of Section 17, and Floyd Butler, all that 

part of Section 17, "lying East of the old County Road as existing over and across said 

Section prior to the year 1950, according to the map and plat thereof on file and of record 

in the office of the County Clerk and Recorder of Gallatin County, Montana." 

¶18 In August of 1951, Butler conveyed to Logan Tester his portion of the land "lying 

East of the Old County Road as existing over and across said section prior to the year 

1950, according to the map and plat thereof on file and of record in the office of the 

County Clerk and Recorder of Gallatin County, Montana . . . ."

¶19 In 1982, Logan Tester conveyed a Highway Right-of-Way Easement to the State of 

Montana on the east side of the Highway. Also in 1982, Donald and Sandra 

Hammersmark conveyed a Highway Right-of-Way Easement to the State of Montana on 

the west side of the Highway.

¶20 In 1992, Following Logan Tester's death, a Deed of Distribution was recorded with 

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the Gallatin County Clerk and Recorder conveying to the Testers all that part of Section 

17, "lying East of the old County Road as existing over and across said Section prior to the 

year 1950, according to the map and plat thereof on file and of record in the office of the 

County Clerk and Recorder of Gallatin County, Montana." 

¶21 360 does not dispute the District Court's Findings of Fact, but argues that the court 

reached the wrong legal conclusion based on those facts by holding that (1) the Testers 

proved their legal title with clear and satisfactory proof, and (2) the Testers established 

that the State Highway is the western boundary of the Testers' property rather than the 

County Road. 

¶22 360 argues that Funk explicitly stated in the deed to Tester and Butler that he was 

transferring all land "lying East of the old County Road as existing over and across said 

Section prior to the year 1950, according to the map and plat thereof on file and of record 

in the office of the County Clerk and Recorder of Gallatin County" and that we must 

therefore interpret the unambiguous language as written. The parties claim it is this 

transfer which is decisive in this action as the first to describe the boundary between the 

properties as "the County Road as existing . . . prior to 1950." The Testers claim the 

traveled way beneath the highway has consistently been treated as their boundary, and that 

Funk intended not the County Road but the traveled way to be the boundary. 360 contends 

that if Funk intended to transfer all land east of the State Highway, as the Testers suggest, 

he would have used the words "all land lying East of the State Highway. . . ," rather than 

distinguishing the boundary as "east of the old County Road."

¶23 The burden in a quiet title action is on the plaintiff on all issues arising upon the 

essential allegations of the complaint. The plaintiff must prove title in himself if the 

answer denies his title. McAlpin v. Smith (1950), 123 Mont. 391, 394, 213 P.2d 602, 603. 

Want of title in plaintiff renders it unnecessary to examine that of defendant. McAlpin, 123 

Mont. at 395, 213 P.2d at 603-04. Furthermore, the burden of proof is on the plaintiff to 

establish the true location of a disputed boundary line. Brady v. State Highway 

Commission (1973), 163 Mont. 416, 421, 517 P.2d 738, 741. 

¶24 Neither party contends that the District Court erred in its Findings of Fact. 360 merely 

argues the court erred in concluding that based on those findings the State Highway was 

the boundary point between the parties. We agree. 

¶25 The plain language of the Funk deed is unambiguous. An unambiguous deed must be 

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interpreted according to its language as written, without resort to extrinsic evidence of the 

grantor's intent. Ferriter v. Bartmess (1997), 281 Mont. 100, 103, 931 P.2d 709, 711. For 

proper construction of an instrument § 1-4-102, MCA, allows us to examine the 

"circumstances under which it was made, including the situation of the subject of the 

instrument and of the parties to it." The record indicates that the County Road was the 

only official road in the Section from 1891 to 1948 and was recorded as being in its 

original location until the State Highway was constructed in 1948. 

¶26 In a similar quite title action the boundary between properties was in question where 

an earlier deed had conveyed property "east of the wagon road . . . ." Defendant's alleged 

the "wagon road" was the present county road while Plaintiffs alleged that the "wagon 

road" was a certain wagon road shown on a US Government Survey map of 1886. The 

district court found that the wagon road was the same "wagon road" as described in the 

1899 and 1903 deeds. Upholding the district court's finding on appeal, we stated 

[t]he record indicates county roads were so named in all plats, surveys, and road 

books offered into evidence. If the scrivener intended the road designated in the 

deeds to be the present county road, or a dedicated county road at roughly the 

present road's location, he would have said county road in the deeds.

Johnson v. Jarrett (1976), 169 Mont. 408, 414, 548 P.2d 144, 148. 

¶27 If Funk intended to convey east of the State Highway which was constructed only 

three years earlier, he certainly could have done so. Instead, he explicitly conveyed east of 

the old County Road. To conclude that Funk's language is ambiguous and that he really 

meant to convey east of the State Highway would be to read an intent into his language 

which is simply not justified. 

¶28 We conclude that based on the unambiguous language of the deed, and the 

circumstances under which it was made, including the plats of Section 17, and the State 

Highway records, the District Court's conclusion that the State Highway is the legal 

boundary between the properties was incorrect.

Adverse Possession

¶29 In concluding that the Testers had proved their claim to the disputed property with 

clear and satisfactory proof of legal title the District Court stated they had proved that "the 

Public Road as the same is now constructed" was consistently treated as the western 

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boundary of their property. The court also found that the Testers established an adverse 

possession claim. Under the adverse possession doctrine, property must be claimed under 

a color of title, or by possession which is actual, visible, exclusive, hostile, and continuous 

for the statutory period. Burlingame v. Majerrison (1983), 204 Mont, 464, 470, 665 P.2d 

1136, 1139; § 70-19-411, MCA. Additionally, the claimant cannot prove adverse 

possession of any land on which he did not pay taxes. Castles v. Lawrence (1983), 203 

Mont. 421, 425, 662 P.2d 589, 591.

¶30 360 claims that the District Court's conclusion that the Testers have paid taxes on the 

property which is located east of the State Highway for the full statutory period of five 

years is error. 360 asserts the tax assessments show that the County assessed taxes to the 

Testers for property "east of the road" not east of the State Highway. Furthermore, they 

claim that their own records show that they have paid the taxes on the disputed property 

for the appropriate five years. 

¶31 The Testers contend that § 70-19-411, MCA, does not require payment of taxes on all 

property to which they claim adverse possession, but only all taxes legally levied and 

assessed. They further assert they have been assessed taxes on 345 acres, and since 1989 

no one but the Testers have paid taxes east of the highway. Section 70-19-411, MCA 

states:

[i]n no case shall adverse possessions be considered established under this code 

unless it shall be shown that the land has been occupied and claimed for a period of 

5 years continuously and the party or persons, their predecessors, and grantors have 

during such period paid all the taxes, state, county, or municipal, which have been 

legally assessed upon said land.

Section 70-19-411, MCA.

¶32 The county tax assessments show that the Testers paid taxes as assessed on "all E of 

RD less HW 17 in 7E 345.30 acres. . . ." 360 paid taxes as assessed on "W 1/2 NW 1/4 & 

SE 1/4 NW 1/4 W of Road less HW & SW 1/4 W of Road less HW 17 in 7E 244.08 

acres. . . ." Arletta Derleth, Office Supervisor of the Gallatin County assessment office 

stated that she could say only that the Testers are "paying taxes on the property that's east 

of that road, whatever that road is."

¶33 The tax assessments indicate that the Testers have been assessed and paid taxes on all 

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property east of "the road," 360 has been assessed and paid taxes on all property west of 

"the road." The record shows only two roads in existence in the area of dispute and the 

State Highway is referred to by name in the assessment. In the south of Section 17, the 

County Road runs to the east of the State Highway. Toward the middle of the Section, the 

two roads cross and the County Road runs on the west of the State Highway. Finally, 

toward the north of the Section, the roads cross again and the County road returns to the 

east side of the Highway forming a rough "figure 8." The tax assessments show that the 

Testers have been assessed and paid taxes on the property east of the road not including 

the highway (which runs to the east of the County Road in the northern part of the 

section), and 360 has been assessed and paid taxes on the property west of the road minus 

the Highway (which runs to the west of the Old County road in the south of the Section). 

Where the record is not clear regarding the land on which the plaintiff has paid taxes, the 

claimant cannot prove adverse possession. Castles, 203 Mont. at 425, 662 P.2d at 591.

¶34 There is insufficient evidence to show that the Testers have paid taxes on the property 

in question which is to the west of the County Road and to the east of the State Highway. 

Therefore, because the evidence does not support the finding that the Testers have paid 

taxes on the property at issue, the District Court's conclusion that the Testers had proven a 

claim for adverse possession is incorrect.

¶35 II Because the Testers did not succeed in their action to quiet title in the property, the 

District Court improperly assessed the costs of suit to 360.

¶36 Reversed. 

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE

/S/ TERRY N. TRIEWEILER 

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

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/S/ JIM REGNIER 

/S/ JAMES C. NELSON

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