NO. 80-10 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

LAWRENCE C. STIMATZ, 

Plaintiff and Appellant, 

-vsTHE STATE OF MONTANA, DEPARTMENT OF REVENUE, 

et al., 

Defendants and Respondents. 

Appeal from: The District Court of the Second Judicial District, 

In and for the County of Silver BOW, the Honorable 

James Freebourn, Judge presiding. 

Counsel of Record: 

For Appellant: 

Maurice A. Maffei, Butte, Montana 

For Respondent: 

Poore, Roth, Robischon and Robinson, Butte, 

Montana 

Submitted on Briefs: June 5, 1980 

oecided : AUG 1 3 1980 

Filed: 
Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. 

Plaintiff appeals from a judgment in favor of defendants 

granted by the District Court of the Second Judicial District, 

in and for the County of Silver Bow. 

In February 1940, Helen C. Hodapp, one of the respondents, received legal title to a one-half interest in Lots 

5, 6, 7, 8 and 9 in Block 5 of McQueeney's Subdivision to 

the City of Butte, Montana, by distribution from the estate 

of her mother, Estelle Conroy. The other one-half interest 

was distributed to John H. Conroy. Lois P. Conroy and Nancy 

C. Boll each inherited an undivided one-fourth interest in 

the lots from John H. Conroy when he died in 1958. 

In 1965 and 1970, Lawrence G. Stimatz, appellant, 

obtained tax assignment certificates pertaining to the lots 

from Silver Bow County and thereafter paid all real property 

taxes levied on the lots until 1978. 

On April 20, 1978, appellant filed an action in the 

District Court of the Second Judicial District for the 

purpose of quieting title to the lots, basing his action on 

adverse possession. 

In addition to asking that the title to the property be 

quieted to him, appellant asked that in the event of any 

redemption of the property appellant be allowed his costs, 

including but not limited to the payment of taxes, penalties 

and interest, title search, management fees, reasonable 

attorney fees and costs of suit. 

The court entered a judgment quieting title in the 

names of Helen C. Hodapp, Lois P. Conroy and Nancy C. ~011, 

finding that appellant had not protected the lots by a 

substantial enclosure or cultivated or improved the same as 

required by section 70-19-410, MCA, to uphold a claim of 

adverse possession. 
Appellant presents two issues for review on appeal: 

1. Did the District Court err in granting judgment in 

favor of respondents? 

2. If this Court finds that the District Court did not 

err in granting the judgment, did the court err in not 

awarding appellant his costs expended including reasonable 

attorney fees? 

Section 70-19-410, MCA, provides as follows: 

"For the purpose of constituting an adverse 

possession by a person claiming title not 

founded upon a written instrument, judgment 

or decree, land is deemed to have been possessed and occupied in the following cases 

only: 

" (1) Where it has been protected by a substantial enclosure; 

" (2) Where it has been unusually cultivated 

or improved." 

As appellant does not claim title based upon any written 

instrument or decree, he must comply with the provisions of 

section 70-19-410, MCA, to be considered as having any 

possession of the property sufficient to ripen into title by 

adverse possession. Johnson v. Silver Bow County (1968), 

151 Mont. 283, 443 P.2d 6; Martin v. Randono (1978), 175 

Mont. 321, 573 P. 2d 1156. 

Appellant admits he did not "enclose" or "cultivate" 

but claims to have satisfied the applicable statutory requirement for adverse possession by "improving" the land in 

question. Appellant basis this claim on evidence that the 

nature and character of the area in question is identical, 

and that adjoining property owners treat their land in the 

same way as he. 

In effect appellant is arguing that the Court should 

equate maintenance of the property for its ordinary use with 

the requirement of "improve," that so long as any claimant 
maintains the land in the same condition as the surrounding 

property, a claim for adverse possession can be upheld. 

In support of his argument, appellant relies on two 

cases. Kenny v. Bridges (1949), 123 Mont. 95, 208 P.2d 475, 

and Sullivan v. Nee1 (1937), 105 Mont. 253, 73 P.2d 206. In 

both cases the Court upheld a claim for adverse possession 

based on an occupancy which maintained the ordinary use of 

the land. It should be noted, however, these cases deal 

with a plaintiff claiming title founded upon a written 

instrument or judgment, which is not the situation here. 

When dealing with such a claim as presented in Kenny 

and Sullivan, the Court will look to section 70-19-408, MCA. 

Under this statute, the land is deemed to be possessed for 

the purpose of constituting adverse possession where the 

land "although not enclosed has been used . . . for the 

ordinary use of the occupant." However, in that appellant 

is not claiming title founded on an instrument or judgment, 

this statute is not applicable. A claim for adverse possession by appellant is specifically limited to those instances 

listed in section 70-19-410, MCA. 

Appellant did not enclose or cultivate the property. 

The only activity engaged in by appellant in regard to the 

land was that he looked it over, paced it out, paid the 

taxes, sketched it, visited it approximately every three 

months, and entertained purchase inquiries. As the evidence 

shows, appellant did not make any attempt to improve the 

property but was willing to let the property rest as it was 

found. Suffice it to say this does not fulfill the requirements of the statute. 

Finding that appellant did not establish adverse possession, we must consider the second issue raised on this 
appeal: Did the court err in not awarding costs to appellant? 

Had appellant prevailed in his adverse possession 

claim, it would have been proper to award him his costs. 

Section 25-10-101(5), MCA. However, respondents received a 

decree in their favor. In such a case, the court has authority to award the respondents their costs. Section 25- 

10-102, MCA; section 25-10-101(5), MCA; Medhus v. Dutter 

(1979) I - Mont. , 603 P.2d 669, 36 St.Rep. 2044. The 

fact that the District Court in this instance decreed each 

party to assume and pay costs expended was not an abuse of 

its discretion. 

Judgment of the District Court in favor of respondents 

is affirmed. 

Justice 

We concur: 

4;44~ih/,4 Chief Justice