NO. 80-10 INTHE 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 : 

## AUG1 3 1980

Filed:Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. Plaintiff appeals from a judgment infavor of defendants granted by the DistrictCourt of the Second Judicial District, inand for the County of Silver Bow. InFebruary 1940, Helen C. Hodapp, one of the respondents, received legal 

### title toa one-half interest inLots 5, 6, 7, 8 and 9 inBlock 5 of McQueeney's Subdivision to the City of Butte, Montana, by distribution from the 

### estate of her mother, EstelleConroy. The other one-half interest

was distributed toJohn 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 certificatespertaining to the lots from Silver Bow County and thereafter paid allreal property taxes levied on the lotsuntil 1978. On April 20, 1978, appellant filed an action inthe District Court of the Second Judicial Districtfor the purpose of quieting title to the lots, basing his action on adverse possession. In addition toasking that the 

### title to the property be quieted tohim, appellant asked that in the event of any redemption of the property appellant be allowed his costs, including but not limited to thepayment of taxes, penalties and interest, 

### title search, management fees, reasonable attorney fees and costs of suit. The court entered a judgment quieting title inthe

names of Helen C. Hodapp, Lois P. Conroy and Nancy C. ~011, finding that appellant had notprotected the lotsby a substantial enclosure or cultivated or improved the same as required by section 70-19-410, MCA, touphold 

### a claim of adverse possession.Appellant presents two issues for review on appeal: 1. Did the 

### District Court 

### err ingranting judgment in favor of respondents? 2. If thisCourt finds that the DistrictCourt did not

err ingranting the judgment, did the court 

### err innot awarding appellant his costs expended including reasonable attorney fees? Section 70-19-410, MCA, provides as follows: "For thepurpose of constituting an adverse possession by 

### a person claiming titlenot founded upon a written instrument, judgment or decree, land 

### isdeemed tohave been possessed and occupied inthe following cases only: 

### "(1)Where 

### it has been protected by a substantial enclosure; 

### "(2) Where 

### ithas been unusually cultivated or improved." As appellant does not claim titlebased upon any written instrument ordecree, he must comply with the provisions of section 70-19-410, MCA, tobe considered ashaving any possession of the property sufficient toripen into titleby adverse possession. Johnson v. SilverBow County (1968), 151Mont. 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 tohave satisfied the applicable statutory 

### requirement for adverse possession by "improving" the land in question. Appellant basis thisclaim on evidence that the nature and character of the area inquestion isidentical, and that adjoining property owners treat their land inthe

same way ashe. In effect appellant isarguing that the Court should equatemaintenance of the property for 

### its ordinary use with the requirement of "improve," that so long as any claimantmaintains the land inthe same condition as the surrounding property, a 

### claimfor adverse possession can be upheld. In support of his argument, appellant relies on two



### cases. Kenny v. Bridges (1949), 123Mont. 95, 208 P.2d 475, and Sullivanv. Nee1 (1937), 105Mont. 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 orjudgment, which 

### isnot the situationhere. When dealing with such a claim aspresented inKenny and Sullivan, the Court 

### will look to section 70-19-408, MCA. Under this statute, the land 

### isdeemed to be possessed for thepurpose of constituting adverse possession where the land "althoughnot enclosed has been used 

# . 

# . . for the ordinary use of the occupant." However, inthat appellant 

### isnot claiming title founded on an instrument or judgment, this statute

### isnot 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 inby appellant inregard to the land was thathe 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, appellantdid notmake any attempt to improve the property but was willing to 

### let the property 

### rest as it was found. Suffice it to say thisdoes not fulfill the requirements of the statute. Finding that appellant did not establish adverse possession, we must consider the second issue raised on thisappeal: Did the court err innot awarding costs to appellant? Had appellantprevailed inhis adverse possession claim, 

### itwould have been proper toaward him his costs. Section 25-10-101(5), MCA. However, respondents received a decree intheir favor. In such a case, the court has authority toaward 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 factthat the DistrictCourt in this instance decreed each party to assume and pay costs expended was not an abuse of 

### its discretion. Judgment of the DistrictCourt in favor of respondents 

### isaffirmed.

Justice

We concur: 

# 4;44~ih/,4 Chief Justice