Na. 12757 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

STANLEY and LUELLA HORACEK, 

husband and wife, 

Plaintiffs and Appellants, 

WILLIAM and VELMA HUDSON, 

husband and wife, 

Defendants and Respondents. 

Appeal from: District Court of the Fourteenth Judicial Distrtct, 

Honorable Nat Allen, Judge presiding. 

Ceunsel of Record : 

For Appellants : 

Robert L. Stephens argued, Billings, Montana 

For Respondents: 

Michael J. Whalen argued, Billings, Montana 

Submitted: April 8, 1975 

~ecided : AU G 5 :975 

Filed: AQG 5 1y5 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from a judgment of the district court, 

Musselshell County, Hon. Nat Allen, sitting without 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 leading back 

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 title through 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 10 was 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 

to the lots from Dominic and Jennie Vescovi through adverse 

possession? 

The property was at all times assessed to Dominic and 

Jennie Vescovi and the tax notices were addressed to them, in 

care of Sedlacek. Sedlacek paid the taxes for the required 

number of years. However, defendants contend that this was 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 title to Lots 9 and 10 

through adverse possession, maintain sdlacek's possession of the 

property met all requirements of Montana law to establish adverse 
possession. Plaintiffs point out there is no factual dispute 

that Sedlacek actually and continuously occupied the land in 

question for at least fifteen years prior to his death. Section 

93-2510, R.C.M. 1947. Plaintiffs also assert Sedlacek enclosed 

the land in question with a substantial enclosure and cultivated 

it annually by preparing and growing his truck garden. Section 

93-2511, R.C.M. 1947. Further, Sedlacek paid all of 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 to them during his lifetime. They 

further argue that sedlacekfs leasing 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 

to be discovered from all the circumstances. Further, that 

the trial court erred in finding that plaintiffs failed to 

carry the burden of establishing title by adverse possession. 

In support they cite Wilson v. Chestnut, 164 Mont. 484, 525 P.2d 

24, 31 %.Rep. 606, as authority that the burden rests on 

defendants. 

Here, the legal title at all times during the alleged 

adverse possession was in Dominic Vescovi and his wife, Jennie. 

Under the provisions of section 93-2507, R.C.M. 1947, occupation 

of property by any person other than the legal title holder is 

deemed to have been under and in subordination to the legal title. 
Where defendants, as here, show they are successors to the owner 

of the legal title, they have made a prima facie case on their 

crossclaim and the burden is then cast upon plaintiffs to establish their adverse possession. Smith v. Whitney, 105 Mont. 523, 

74 P.2d 450. 

The evidence in the record in the instant case at the 

very best is in conflict as it relates to the matter of hostile 

possession by plaintiffs. Under such circumstances this Court 

will view the evidence in a light most favorable to the prevailing 

party in the district court and uphold its finding unless the 

evidence preponderates against the defendants. Johnson v. Silver 

Bow County, 151 Mont. 283, 443 P.2d 6. 

We do not disagree with the rationale in Brown, relied on 

by plaintiffs, however, a casual reading of Brown demonstrates 

that the facts there are clearly distinguishable from the instant 

case. 

In Wilson, cited by plaintiffs to demonstrate the burden 

with 

of proof rests on defendants, this Court was dealing/an alleged 

prescriptive right to use an easement and was determining where 

the burden of proof might be from time to time in such a case. 

There is nothing in Wilson that can be construed to hold 

that the burden of proving his own title does not fall first to 

any claimant. Lunceford v. Trenk, 163 Mont. 504, 518 P.2d 266, 

quoted with approval in Wilson. 

There is substantial credible evidence to support the 

trial court and reviewing the evidence in a light most favorable 

to the prevailing party, we find it does not preponderate with 

any clarity against defendants. 

The judgment is affirmed. 

/' Justice 
We concur: 

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