DA 19
- 0379



### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 20 MT 157N DEREK HARBOUR and BETHANY HARBOUR,

Plaintiffs and Appellants,
v. JESSE A. WANSKASMITH,

Defendant and Appellee.
APP EAL FROM : D istrict Court of the Fourth Judicial District ,

In and For the County

of Missoula , Cause No. DV
- 17
- 913 Honorable Shane A. Vannatta, Presiding Judge COUNSEL OF RECORD:

For Appellant s : Dale R. Cockrell , Jay T. Johnson, Moore, Cockrell, Go ico echea & Johns on , P C, Kalispell, Montana For Appellee : Michael D
. Bybee , Liesel D
. Shoquist , Milo dragovich, Dale & Steinbrenner, P.C., Missoula, Montana Submitted on Briefs: December 18, 2019

Decided: June 16, 2020 Filed:

_____________________________ _____________ Clerk 

# sr---6ma•—•f 06/16/2020

Case Number: DA 19-03792

Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Purs uant to Section I, Paragraph 3 (c ), Montana Supreme Court Internal Operating Rules, this case is decided by me morandum opinion and shall not be cited and does not
serve a s precedent
. Its case title, cause number, and disposition shall be inc luded in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Derek and Bethany Har bo ur (H arbour) appeal an order for summary judgment issued on Jun e 3 , 2019, by the Fourth Judicial District Court, Missoula County , in favor of the A ppellee, Jess e Wans kasmith (Wanskasmith). We affirm. ¶3 This dispute involves the proper location of the dividing boundary line (Common Boundary) between Harbour ’ s property ( H ar bour Tract) and Wanska smith ’ s property (W an skasmith Tract). The Tracts are l ocated in Lot 75 of the Dins more ’ s Orchard Homes Addition No. 5 sub division plat ( 1901 Plat). The 1901 P lat was recorded on September 5, 1901, by developer Samu e l Dinsmore . Th e dedication for th e 1901 Plat provided: I , Samu el Dinsmore, do hereby certi fy that I have caused to b e surveyed subdivided and platted, into lots and streets, the following described tract of land, to wit: The So uth half (1/ 2) of Section Tw enty - four (24) an d the North half (1/2) of the North east Q uarter ( 1/4 ) of Section Twenty five (25), Township Thirteen (13) North, Range Twenty (20) West of the Principal Meridi an of Montana, to be known as “ DISMORE ’ S ORCHARD HOMES ADDITION NO. 5 , ” and the streets shown o n the annexed plan, to b e and hereby are gran ted and donated to the use of the public forever. (emph asis added). Both the dedication language and the 1901 Plat depiction identi f y the 60
- f oot streets in the subdivision separate from the lo ts. Unlike mo re modern plats, the3

1 90 1 Plat does not contain a proposed lot legal description, instead relying upon the overall dimensions of the subdivision and depiction of each lot. The engineer who oversaw the survey and plan for the 1901 Plat further provided: O. C
. Finkelnburg, being first duly sw orn, according to law, deposes and says that
. . . the annexed plan is a correct representation and di agram , and that said addition is laid out according to the law and that the width of the streets, a nd the measurements o f the lots, and the posts for reference poin ts are correctly represented on said pla n . (emphasis adde d). ¶4 Dinsmore sold Lot 75 on February 2, 1906 , and cited the 1901 Plat for the legal description of the property in the deed (1906 D eed)
. The property w as subsequently transferre d to other parties by reference to “ Lot 75 , ” until o wnership in the relevant portion of Lot 75 became vested in Constance Niemeyer (Niemeyer). O n September 8, 1972, Niemeyer created the ke y subdivision of Lot 75 re levant to this
ac tion , by transferring a portion of the property to Walter and Twil a Yost (Yost) via deed (1972 Deed) . The conveyance pro vided: Beginning at the NE corner of Lot 75 , thence South along the Eastern bound [ a ] ry of Lot 75, 224 feet; thence Wes t parallel to the Northern bound[a]ry of Lot 75, 193 feet ; thence North parallel to the Eastern bound[a]ry of Lot 75, approxi mately 224 feet to the Northern bound[a]ry of Lot 75; th ence East along the Northern bound[a]ry of Lot 75 to the point of beginning , in Orchard H o me s #5. (emphasis added)
. This subdivided parcel came to be known as the Harbour Tract. The H arbour Tract within Lot 75 is bordered to the east by Tower S treet. The legal desc ription used in the transfer expressed in general and simple terms that the bo undary of the conveyance s tarts in the northeast corner of Lot 75 , and this description in the4

1972 D eed creates the present issue. The 1972 Deed ’ s le gal descripti on mentioning

“the NE corner of Lot 75 ” and “ 193 feet” still exists in both the deed conveyi ng title to Harbour and the deed conveying title to Wan ska smith. The origin of th e 1972 Dee d ’ s legal desc ription is unknown and has no relationship to a survey or other instrument depicting th e boundaries, and more importantly, the starting point. ¶5 In May 1973, surveyor William Bayer (Bayer) completed a survey of Lot 75, and the Bayer survey and legal description wa s used in two subse quent documents , the first of whi ch was a Partial Release of Mortgage obtained b y Niemeyer on the Wanskasmith Tract, rec o rded May 31, 1973
. The Partial Release of Mortgage and its attached plat (1973 Mortgage Plat) indicat e d the starting point for Lot 75 as the cent erline of Tower Street
. O n June 13, 1 973, after the mortgage was li fted on the Wan skasmith Tra ct by Niemeyer , Y ost transferred the Harbour Tract back to Nie meyer using the legal description in the 1972 Deed , rather than the Bay er survey description. Later that same day

—June 13, 1973

—the parties executed an agreement whereby Niemeyer transferred bo th the Har bour Tract an d the Wanskasmith Tract to Yost ; this deed was not recorded until 1976. ¶6 Almost one year after this conveyance, on June 1 7, 1974, Yost recorded Certificate of Survey 335 (COS 335) , the second document using the Bayer survey and legal description. C OS 335 depicts Yost as the owner of the com bined Harbour and Wanskasmith Tract s and depicts the Comm on Boundary between the properties as a dashed line
. A

p art from this dashed line, the legal description ’ s measurements and calls in the Partial Release o f Mortgage and COS 335 are identical. B oth the 1973 Mortgage5

Plat and COS 335 reference a corner monument composed of a “ 1 1/2 " diameter brass cap ” set at the north end of the C ommon B oundary, and a like corner monument set at the south end o f the Common Bo undary. Both documents depict the Wanskasmith Tract as varying between 158 feet at the north end to 159 feet at the south end , and both documents rep resent the Harbour Tra ct ’ s northern and southern boundaries a s 163 feet wide from the wes tern edge of T o we r S treet ( or 193 feet from the centerline of Tower Street). Both the Harbour Tract and the Wanskasmith Tract remained in Yost ’ s ownership for a number of years, and in 1996 Yost commissi oned an unrecorded survey of the Har

bour Tract (199 6 Survey)
. The 19 96 Survey depicted the Common Boundary between the Har

bour Tract and the Wanskasmith Tract as 163 fe et from the western edge of Tower Street. The District Court held that th e 1996 Survey demonstrate d that Yost maintained the Common Boundary depicted in th e 1973 Mortga ge Plat and CO S 335 , and evidence d Yost ’ s intent that the C ommon Boundary remain as m onumented in the 1973 Mortgage Plat and COS 33 5
. ¶7 In 2003 , Yost errantly transferred the Harbour Tract to SAMCO, LLC (SAMCO ) , by and through its managing mem ber, Sam Martin, Sr. ; the transfer was errant because, based on the parties ’ subsequent filings and actions , it appears Yost intended to transfer the Wan ska smith Tract, and not the Harbour Tract, to S AMCO. 1 The lan guage of this

1 After acqui

ring what itthought to be the Wans kasmit h Tract, S AMCO obtained a permit to mo ve a lo g ho me on

to the Wanskasmit h Tract . The permi t conta ined a si

te plan which r e flected the same dimensions of

the Wanskas mit h Tract as depicted on the 1973 Mort gage Plat and CO S 335. SAMCO also obtained a building permi t f or a detached garage, a sewer permit , and an approach permit, all of which show the Co mmon Boundary at the same lo cat io n as indicated in C OS 335.6

errant conveyance held th e same legal description created in the 1 9 72 Deed

—“Beginning at the NE corner of Lot 75 ” and “ 193 feet”

—with some additional language referencing COS 335. The error created by the 2003 transfer was not discovered until 2006 , and upon dis covery of the faulty transfer, Yost conveyed the Wanskasmith Tract to Sam Martin , Jr. 2 The 200 6 transfer ag ain refer enc ed both the l eg al description f rom the 19 72 Deed and COS 33 5. ¶8 Harb our purchased the Harbour Tract in 2007. The “recording reference ” in H arbour ’ s deed re fers to the 1972 Deed. S am Martin , Jr. eventually lost ownership to the Wanskasmith Tract through a trustee ’ s sale in April 200 8. Five y ears later, in 2013, Wanskasmith acquire d the Wanskasmith Tract via quitclaim deed containing the follo wing legal des c ription: CERTIFICATE OF SURVEY NO. 335 , BEING A PARCEL OF LAND LOCATED IN LOT 75 DINSMORES ORCHARD HO MES ADDITION NO. 5,
. . . AND EXCEPTING THAT C ERTAIN PROPERTY BEGINNING AT THE N E CORNER OF LOT 75 , THENCE SOUTH ALONG THE EASTERN BOUNDARY OF LOT 75; 22 4 F EET; THENCE WEST PARALLEL TO THE NORTHERN BOUNDARY OF LOT 75; 193 FEET
. . . . ( e mphasis added). ¶9 At the summary judgment hearing, the District Co urt was faced with deciding the proper location of the Common Boundary b etween the Wanska smith Tract and th e H arbour Tract. The parties presented tw o alternatives for the locatio n of the Common Boundary
. Harb our argued that the point of beginning for Lot 75 is the western edge of T ower Street , running 193 feet from this starting point westward to the

2 Sam Mart in, Jr. acquired the Harb our Tract through transfer s originating wit h SAMCO.7

Common B o un dary
. Harbour conten ded that Dinsmore ’ s de dic ation lan guage for the 1901 Plat , “the streets sho wn o n the annexed plan . . . are granted and donat ed to the use of the public forever, ” create d a fee simple ownership in Tower Street for Miss o ula County
. H ar

bour further argues that , be cause of this fee simple ownership and the 1901 Plat ’ s depiction of the streets separate from the lots , Dins more inten ded the northeast corner of Lot 75 to be placed on the west side of Tow er Street, rather than in the center of Tower Street as Montana law would conventionally hold. Wanskasmith, on the other hand, argued that Lot 75 begins at the centerline of the Tower Street right
- of
- way, as created in the 1901 Plat, and runs 30 feet to th e western edge of Tow er Street, and th en another 1 63 feet to the Common Boundary. ¶10 The District Court di sagreed with Harbour ’ s argument that Dinsmore intended to convey fee si mple title in Tower Street to Missoula County, and instead held that the law in effect at the time of the dedicatio n and grant, and th e language used in the 1901 Plat , clearly indicated conveyance of a public right
- of
- way easement. As for confusion
created in the chain of title by the language used in the 1972 Deed, the District Court found that , “ [w]ith out an attendant survey and proper boundary line monumentation for the 1972 Deed, both the starting point for the legal description and the Common Boundary created thereby is ambiguous. ” The dual references to the 1972 Deed and COS 33 5 in the deeds convey ing the propertie s to each respective party

“ further [ed] the amb iguity. ” This finding of ambiguity in the 1972 Deed , and subsequent deeds using the 1972 Deed description, led the Distri ct Court to consider extrinsic evidence outside the document itself to determine the intent behind the legal description.8

From this evidence, and with the support of case law, the court concluded that the starting point for the 1972 Deed was intended to be the centerline of Tower Street , stating,

“ The proper starting point for a legal de s cription in Montana is the center line of an adjacent public right
- of
- way, rather than th e edge of a r ight
- of
- way as Harbour proposes. ” As a result, the District Court granted summary judgment in favor of Wanskasmith. ¶11 We review a district court ’ s grant or denial of summary judgment de novo , applying the criteria of M. R. Civ. P. 56. Ale xander v. Mont. Dev ’l Ctr

. , 2018 MT 271, ¶ 10 , 393 Mont. 272, 430 P.3d 90
. We review conclusions of law by determining whether a district court ’ s interpre tation and app l ic ation of the law was c orrect
. Alexander , ¶ 10. ¶12 Harbour appeals the District Court ’ s ruling , arguing that the District Court erred
when it concluded that Lot 75 extended to the center of Tower Stre et and COS 335 correctly depicted the C o mmon Boundary betwe en the Tracts
. We hold that the District Court correctly determin ed from the facts presented that the Common Boundary is located 193 feet west of the centerline of To wer Street a s mo numented, and as p rovi ded in COS 335 and a retracement survey recorde d as C ertificate of S urvey 660 7 (COS 6607 )
. ¶13 In order for Harbour ’ s arguments regarding the legal descripti on of the 1972 Deed to be valid, a court would first have to hold that Dins more ’ s languag e in the 1901 Plat intended to convey fee simp le title in To wer S treet to Missoula County
. The District Co urt held that an analysis of Montana law and the language of the 1901 Plat9

indicate the conveyance of an easement , and not a fee simple interest, in Tower Street at the time of the recording
. T h e l an guage use d by Dins more in the 1901 Plat ,

“ granted and donated to the use of the public forever, ” was directly quote d from Mont. P o l. Code § 5005 (1895). Other stat utes in effect at the time of the dedication include Mont. Pol . Code § 2620 (1895 ) ( “By taking or acc eptin g land for a highway, the pub lic acquire only the right of way, and the incidents necessary to enjoyin g and maintaining the same . . . . ” ) , and Mont. Civ. Code § 1292 (1895) (recodi fi ed as § 70
- 16
- 202, MCA) ( “ An owner of land bo unded by a road or stre et is p resumed to own to the center there of, but the contrary may be shown. ” )
. These statutes, together with our
case law, support the District Court ’ s conclusions regarding the grant of Tower Street in the 1901 Plat. ¶14 Harbour argues that the District C ourt mis applied this Court ’ s holding in McPherson v. Monegan , 120 Mont. 454, 457 , 187 P.2d 542 , 543 (1947), be cause the plain language of the 1901 Plat and 1906 Deed conveyed a different intent , thereby rebutting the statutory presumption that “the owner of l and b o unded by a road or s treet
owns to the center thereof. ” The District Court considered all of the argume nts that Harbour re iterate s to this C ourt, and spec ific ally concluded that , “ [s]imply put, there is no comp elling argument that the l anguage of the [190 1 Plat] created a trans fer of the fee simple interest in Tower Street to the County (or City) of Misso ula. ” ¶15 After a review of the record, we agree with the District Court ’ s conclusion
.

“ [A] boundary to and with the side of a street carries the fee to th e center of the street unl ess the contrary intent appears from the deed
. . . . ” McPher son , 120 Mont. at 458,10

187 P. 2d at 544. The language of the dedication of the roads in the 1901 Plat is limited

“to the use of the public forever
. ” ( e mphasis adde d). Th e grant of a use right clearly denotes an easement , and not a fee simpl e title
. Harbour owns to the centerline of Tower Street, although the 30 feet comprising Harbour ’ s half of the road is encumbered by a public right
- of

- way. Mont. Pol . Code §§ 2 620 , 50 05 (1895) and Mont. Civ. Code § 1 292, (1895), make clear that the effect of Dinsmore ’ s grant was to p rovide a public
right
- of
- way easement in Tow er Street , and nothing more. ¶16 In relation to the 197 2 Deed, Harbour argues that the District Court erre d when it held that the title chain became confused with an ambiguity introduc ed by the 1972 Deed. They argue that the court used extrinsic evidence to create an ambiguity by adding terms to the property description in the 1 901 Plat
. We dis agree. ¶17 The co nstruction of a writing granting an interest in real property is governed by the rules of contract interpre tation. Mary J. Baker Revocable Trust v. Cenex Harvest States, C oops. , 2007 MT 159, ¶ 18, 338 Mont. 41, 164 P.3d 851. A determination of whether an ambi guity exists in a contract is a question of law. Ma ry J. Baker , ¶ 19. I f the language of a contract i s unambiguous

—i. e., reasonably sus ceptible to only one construction

—the duty of the court is to apply the language as written
. However, if the language of a contract is am biguous , a f

ac tual determination must be made as to the parties ’ intent in entering into the contract. Mary J. Ba ker , ¶ 19. Extrin sic evid ence is admissible under certain circumstances to resolve an ambiguity in the property descriptio n or to apply the deed to its p roper subject matter. Section 70
- 20
- 202 (1), M CA ; Blazer v. Wall, 2008 M T 145, ¶ 70, 343 Mont. 173, 183 P.3d 84.11

¶18 The meaning of “Beginning at the NE co rner of Lot 75 ” was s hown by the parties to be rea son ably su sceptib le to at least two conflicting meanings. The language was uncertain about whether it was conveying the 30 f eet encum

bered by the Tower Street right
- of
- way, by starting at the centerline of Tower Street, or simply starting at the edge of Tower Street. W ithout an attendant survey and proper boundary line monumentation for the 19 72 D eed, both the starting p oint f or the legal description, and the Common Boundary created thereby, is ambiguous. Additionally, the deeds conveying the Harbour Tract and the Wanska smith Tract e ach reference the 1972 Deed langua ge and COS 335 , creating a further discrepancy in th e Dee d l anguage . ¶19 The District Court relied upon § 70
- 20
- 201 (2), (6) , MCA, whic h provides rules of construction for interpreting the descripti ve part of a conveyan ce of real property , to resolve the am

biguity created in the 1972 Deed. Section 70
- 2
- 201 (2), (6), MCA , provides: (2) When permanent and visible or ascertained boundaries or monuments are incon sistent with the measurement, either of lin es, angles, or surf ac es, the boundaries o r monuments are paramo unt.

. . . (6) When the description refer s to a map and that reference is inconsistent with other particulars, it controls them i f it appears that the parties acted with reference to the map; otherwise , the map is subordinate to other definite and ascertained particular s. The survey and monumentation of the Common Boundary in COS 335 provide s the operative intention of Yost when later conveying the separate Harbour and Wanskasmith Tracts , as COS 335 gives the firs t indicatio n and monumentation of the two separate12

tracts and is thereafter used , o r referenced, in subsequent conveyances. COS 335 depicts the Harbour Tract as 16 3 feet wi de from the edge of Tower Street, and 193 feet wide from the cent erlin e of Tower Street. This interpre tation of the intention of Yost and Niemeyer in the 1972 Deed is supp ort ed by the subse quent use of the two parcels prior to the conveyances to Harbo ur and Wanskasmith. The description of the parcels and Common Boundary in C OS3 3 5 was later used in building permits, septic permit s, and similar documents , and was also confirme d by the retracement survey, COS 6607
. Given the foregoing , we determine that the District Court ’ s conclusion that an ambiguity exi sted in the 19 72 De ed , and its resolution of that am biguity, was a correct interpretation and application of the law. ¶20 Final ly, Harbour advances an extraneous argument that COS 335 “ did not create two s eparate tracts, ” and cites the dashed line representin g the Common B oun dary between the Harbour Tract and the Wanskasmith Tract in support of its po sition. We will not addres s this argument beyond clarifying that the District Court did not hold that COS 335 cre ated the Harbo ur and Wanskasmith Tracts. The tw o tracts were creat ed through Niemeyer ’ s s eparating of the estate into two tracts, and subsequent conveyance of one o f th ose tracts to Yost
. COS 335 merely surveye d and documented the measurements of those lots in compliance with Montana law and the langu ag e of the 190 1 Plat
. ¶21 We have determined to decide this case pursuant to Sectio n I, Paragraph 3(c ) of
our Int ernal Operating Rules , which provides for me morandum opinions
. This appeal presents no constitutional issues, no issues of first impression , an d does not estab lish new precedent or mo dify existing precedent.13

¶22 Affirmed
. /S/ LAURIE McKINNON
We concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ INGRID GUSTAFSON /S/ JIM RICE