30. i.2393 IN ChE jUPKhME :OUR1 OF THE STATE C9F WNTANA 1973

!iD(;wK G. YKOWI\I drld JOSEPHINE I, BROWN, husband and wife, plaintiffs and Respondents,

-vs

# - CLAUUE D. CP*RTWRIGHTeta1

# ., Defendants and Appellants.

.lppeal from: District Court of the FifthJudicialDistrict, Honorable Frank E. Blair, Judge presiding. Counsel of Record: For Appellants: PatrickF

# . Hooks argued, Townsend, Montana Thomas F. Dowling argued, Helena, Montana

Church, Harris, Johnson & Williams, Great Falls,

Montana Yarl J. Hanson argued, Great Falls, Montana

Submitted: September 

### 24, 1973

Decided: 

# 1 

# -1973

### Mr. JusticeWesley Castles delivered the Opinion of the Court.

This isan appeal from ajudgment entered upon findings of fact and conclusions of law made by the court sittingwithout a jury. Plaintiffs Brown, husband and wife, brought an action to quiet titletocertainranch property inJefferson County. Defendants Cartwright, husband and wife, filed a counterclaim to quiet titleto the land inthemselves; and defendants Swain, husband and wife, crossclaimed against defendants Cartwright for breach of warranty title. Trialwas had in the district court inJefferson County. The trialjudge made findings of fact and conclusions of law and filed an opinion in favor of plaintiffs and against alldefendants. Defendants Swain were awarded money damages by virtue of their crossclaim against defendants Cartwright forbreach of warranty of title. Judgment was entered for plaintiffs and alldefendants appeal. Hereafter in this opinion, the parties

### willbe referred tointhe singular. The action involves a tract of land containing 

### 8.8 acres. This 

### 8.8 acre tractwas a part of a larger pasture area constihtingabout 700 acres. Prior to 1961, Brown was the record

owner of the 700 acres which was under fence and used as pasture land. The 

### 8.8 acre tract had a fence, atthat time, along the easterly edge on the railroad right-of-way and a fence along the north section line. The tract isa triangular piece measuring 657' along the section lineeast and west, 1057' along the quarter section linenorth and south, and bounded on the easterly and southerly sideby the railroad right-of-way. There was a gate

on the railroad fence and a railroad crossingwhich afforded access toBrown ingoing toand from the 700 acre pasture with his cattle. There was alsoa gate on the north fencewhich afforded

access to land in the adjoining section owned by FJinslows. A few years prior to 1961, Cartwright bought a neighboring ranch from one Herbert Marks. The basis of the controversybeganwhen the estare or hlrred L. >larkswas ~robated and rhe administrator incorrectly included the 8.8 acre tract in the inventory and appraisement and deeded the tract to Cartwright through an administrator's deed. As to this transaction, the trialcourt described it inits "Basis of Decision and Opinion" inthis way:

rl

The Estate of Alfred I. Marks had no interest in the land involved here. When it attempted to take it into the Inventory, the attempt was a nullity. When it tried to distribute this property described as TRACT ?/I,exhibit 2, for plaintiff and as the property described asdefendants' exhibit A, the nullitywas compounded and then when later an attempt to sellthe same property to the Cartwrights by deed dated June 16, 1954, thenullitywas stillfurther compounded, a veritable comedy of errors, but without any legal effect upon theproperty we are talking about in this action; the record titleof which was in the plaintiffs atallof those times. 11 In 1961, Cartwright purchased the Winslow ranch immediately north of the 8.8 acre tract, After buying the Winslow ranch, Cartwright continuously drove cattleacross the 8.8 acre tract entering from the railroad gate and then through the gate on the north section line. Atthe time therewas no fence between the 8.8 acre tract and thebalance of the 700 acre pasture to thewest. Also in 1961, Cartwright was approached by a right-of-way agent for Montana Power Company who wanted toprocure an easement for a natural gas transmission lineacross the 8.8 acre tract. Cartwright first told him to double check the titletobe sure itwas Cartwright ground. The Montana Power agent came back later and told Cartwright that he was the legal owner, although Brown had tried toclaim title. Cartwright then executed an easement, received $800, and the Montana Power Company built 

### its gas line. .3ignificantly, Brown not only knew of the Cartwright easement to the Power Company, but watched them build the line across the ~ract; he could "see them from the house. II Brown testified that in 1961--after the Cartwright-Power Company easement-- he went to the Jefferson County Assessor to check the assessment list. He was told the tractwas assessedtoCartwright. Brown took no steps tochange the assessment and the evidence 

### isuncontroverted that Brown didnot pay any taxes

on the 8.8 acre tract from 1961until 1971--after the lawsuit was filed. The record islikewise clear that Cartwright did pay the taxes frombefore 1961to 1968, when the property was sold to Swain under a contract requiring Swain tomake tax payments. Both Brown and Cartwright testified to a conversationbetween them ineither 1961or 1962. Both agreed that Cartwright offered to sellBrown the 8.8 acre tract for $800. Brown wanted tobuy itatthat price and the only conflict inthe testimony 

### is as to why the deal fellthrough. The trialjudge asked Brown why he wanted tobuy his own property and elicited this response: "THE COURT: Yes, sustained. Why were you trying tobuy your own property from this man 

### iswhat he's asking you really. A. I don't know how toanswer the question. We had thought itwas ours, and thenwhen Montana Power went through the area they said that itbelonged to Claude Cartwright and they had paid him the easement for the right of way through the property. 

### I checked the Assessor's office to seewho itwas assessed with and they had assessed it toClaude Cartwright." From 1961to 1966, Cartwright continued touse the 8.8 acre tract ingoing to and from theWinslow place. On occasion he left theWinslow gate open sohis cattlecould graze and water. Brown admitted he saw Cartwright stock on the tract and the gate open. During this same time, Brown had access to the tract in the absence of a fence along thewest boundary. Cartwright testifiedhe made no objectionbecause he knew Brown could not keep cattleoff without fence and he didnot turn his cattle in because they would "have been on ~rown". According toCartwright,

a director of the Bozeman Production Credit Association for some twenty years, the 8.8 acre tract would only graze one cow. In 1964, Cartwright hired a Mr. Bandy to survey thewest boundary of the 8.8 acre tract. Bandy did not complete thejob and another surveyor, Mr. Erickson, completed it in 1966. That fall--1966--Cartwright hired Bud Swann tobuild a fence along thewest boundary. Cartwright went up to tellBrown about it andtu be sure that the location of the gate--to allow Brown access tohis acreage--met ~rown's approval. Both Brown and Swann testified that Brown came down during fencing and made no objection toanyone. After fencing inOctober 1966, Cartwright occupied the tract exclusively. However, Cartwright recognized then, and does now recognize, the right of Brown to go across the tract for access to~rown's pasture. In August 1967, Cartwright sold the 

### 8.8 acre tract to Swain under a standard contract for deed. That same fall Swain widened the road into the premises, dug a basement and then moved a house onto the tract. A picture of the house, which isnow the Swain family home, was received inevidence asExhibit D. Brown admitted he observed these improvements being made and made no objection toanyone. Then, inJuly 1970, nine years after theMontana Power easement and three years after the Swain house, Brown retained an attorneywho made a title search and Brown made his firstobjection to the Cartwright title. In July 1970, Brown's attorney gave notice todefendants Cartwright and Swain to vacate thepremises. The complaint was filed September 

### 18, 1970, some three years and ten months after Cartwright cut off Brown's use by fencing the tract. ~rown's complaint sounds in two counts. In the firstcount, he alleges that he is, and for twenty years last past, has been the owner of the 

### 8.8 acre tract, is entitled topossession thereof, and seeks a decree quieting titleto the premises. In the second count, Brown alleges that after October 1966, defendants "wilfully and forcefully" trespassed upon the premises. He alleges that as

a result of this trespass he has been deprived of theuse of the d.8 acre tract forboth grazing and passage. He seeks damages under the second count for $5,000 as and fordamage tothe remainder of the ranch; and the sum of $2,000 as and for the reasonable value of the use of the 

### 8.8 acre tract during the period defendants occupied it, and for the further sum of $2,000 as ~rown's costs of recovering possession of the property.In answer to Brown's firstcount (quiet title), Cartwright denied the material allegations of the complaint. Additionally, Cartwright alleged as a third defense that Brown was not possessed

ar seized of the 8.8 acre tractwithin fiveyears prior to the filingof the complaint and the action 

### isbarred by sections 93-2504 and 93-2505, R.C.M. 1947. As a fourth defense Cartwright alleged that Brown has been guilty of such laches and unreasonable delays as toestopand preclude him from prevailing on the first count. In answer tothe second count, Cartwright denied the material allegations of trespass and setup the affirmative defenses of laches and the statute of limitations, section 93-2607, R.C.M. 1947. Finally, Cartwright asserted a counterclaim for quiet title to the 

### 8.8 acre tract inhis name, subject to the rights of Swain under the contract. ~rown's reply generally denied the counterclaim. swain's answer generally denied the material allegations

II of the Brown complaint. Then, as an affirmative defense" Swain alleged that he entered into the Cartwright contract ingood faith and alleged:

'I* 

# ** should the Court find that the [Cartwrights] arenot the owners 9; 

# ** [Swains] should be entitled torecover allsums of money paid under this contract together with damages which they suffer asa result of this action together with costs, interest and attorney fees. ?I The trialcourt made no findings on the Brown trespass claim. Ln its opinion the trialcourtheld that Brown had failed to prove the amount of damages, and therefore, no recovery could be had. Brown has not filed a cross appeal so the trespass action 

### is out of the lawsuit. The determinative issue on appeal iswhether Brown lost legal title to Cartwright by adverse possession or, more specifically here, who had possession of the 8.8 acre tract for the fiveyears immediately preceding September 18, 1970?In order to obtain legal titleunder the doctrine of adverse possession, Cartwright must prove that he possessed and occupied the land pursuant to the requirements of sections 93-2508 and 93- 2509, R.C.M. 1947, which provide: "93-2508. Occupation under written instrument orjudgment 

# - when deemed adverse. When it appears that the occupant, or those under whom he claims, entered into the possession of the property, under claim of title, exclusive of other right, founding such claimupon a written instrument, asbeing a conveyance of the property inquestion, orupon the decree orjudgment of a competent court, and that there has been a continued occupation and possession of the nroperty included in such instrument, decree, orjudgment, or of some part of the property, under such claim, for five 

### (5) years, the property so included isdeemed tohave been held adversely, except that when it consists of a tract divided into lots, the possession of one (1) lot isnot deemed a possession of any other lot of the same tract.II "93-2509. What constitutes adverse possession under written instrument orjudgment, For the purpose of constituting an adverse possession by any person claiming a titlefounded upon a written instrument, or a judgment or decree, land is deemed tohave been possessed and occupied in the following cases: "1. Where ithas been usually cultivated or improved.

II2. Where ithas been protected by a substantial inclosure. 

### "3. Where, althoughnot inclosed, ithas been used for the supply of fuel, or of fencing timber, either for the purpose of husbandry, or for pasturage, or for the ordinary use of the occupant. "4. Where a known farm ora single lothas been partly improved, the portion of such farm or Lot that has been leftnot cleared ornot inclosed, according tothe usual course and custom of the adjoining country, shallbe deemed to have been occupied for the same length of time as the part improved and cultivated." The term "claim of title" asused in section 93-2508, was discussed in Sullivan v. Neel, 105 Mont. 253, 257, 73 P.2d 206,



### h he phrase 'claim of title' as used in the foregoing section of the statuteissynonymous t with that of 'color of title. (Morrison v. Linn, 50 Mont. 396, 147 Pac. 166; Fitschen Bros. Com.Co. v. Noyes' Estate, 76 Mont. 175, 

### 246 Pac. 773.)"1t 

### is argued that the quitclaim deeds were insufficient to vest inthe plaintiff a color of titlewithin the meaning of the statute. The second deed correctly described the entire tract of land, and the firstdeed correctly described one-half of the area. Color of title does not depend upon the validity or effect of the instrument, but entirelyupon itsintent and meaning. (Fitschen Bros. Com.Co. v. ~oyes' Estate, supra.) "Pn the case of Morrison v. Linn, above cited, this court quoted with approval the definition of 'color of title' from the case of Beverly v. Burke, 9 Ga. 440, 54 Am.Dec. 351, reading as follows: 'What 

### is meant by color of title? It may be defined tobe a writing, upon 

### its face

rofessing topass title, but which does not o it,either from a want 

### ot titleinthe person making it, or from the defective conveyance that 

### isused

# - a titlethat is imperfect, but not so obviously so that itwould be apparent toone not 

## - skilled in the law.' And in the case of Fitschen Rros. Com. Co. v. Noyes' Estate thiscourt said: 'And color of title

### is that which is titlein appearance, but not inreality. As a basis of claimby adverse possession, color of titlemay be shown by any instrument purporting toconvey the land or the right to 

### itspossession provided claim ismade thereunder ingood faith.1 "~hese statements are in accord with the current authority generally. " (Emphasis supplied.) Here, Cartwright, a rancher and not a lawyer, received two deeds in his chain of title, which purported toconvey land west oi the railroad tract. Cartwright testified that he had two attorneys review his titleand they apparently failed tonote the discrepancy inthe two Marks deeds. From the evidence, it isclear that the error or erroneous descriptionnot only fooled Cartwright,

a layman, but also misled the right-of-way department for the Xontana Power Company and the County Assessor of Jefferson County. Under these circumstances, when an occupant 

### is paying taxes on a tract of land and when a public utility pays him 

### $800 for an underground pipeline easement across that tract, the occupancy isunder claim or color of titlewithin the meaning of the statute. Section 93-2513, R.C.M. 1947, applicable toany claim of adversepossession, provides:sIOccupancy and payment of taxes necessary to prove adverse possession. Inno case shall adverse possessionsbe considered established under the provisions of any section or sections of this code unless it shall be shown that the land has been occupied and claimed for a period of five 

### (5) years continuously, and the party or persons, their predecessors and grantors, have, during such period,paid allthe taxes, state, county, or municipal, which have been legally levied and assessed upon said land." (Emphasis supplied). Applying this statute, it isapparent that there are two time spans involved. First, there is the period from October 1966 (completion of the fence) until the filingof the complaint (September 18, 1970). Second, there is the period from 1961 unril October 1966. Dealing firstwith the period of time, October 1966 to September 1970, there can be no question raised as to the actual, exclusive and notorious possession of the tractby Cartwright and Swain after the fencewas completed

# - a period of three years and ten months before the filingof the complaint. Before discussing the evidence as to the period before completion of the fence inOctober 1966, we notewhat this and other courtshave said inconstruing the nature and type of possessionrequired. It is clear that the type, nature and character of the land involved must be considered. In Sullivan atp. 259, this Court held: "Thus, it

### willbe observed that the foundation of the claim of plaintiff and the character of the land inquestion determine the degree and character of possession or occupancy necessary to satisfythe II statutes. (Emphasis supplied.) Tn 3 Am.Jur.2d Adverse Possession 14, p. 94, it 

### is said:

11%- 

# * 9: The rule of actualpossession 

### is tobe applied reasonably inview of the location and character of the land claimed. It is sufficient, if the acts of ownership are of such a character as toopenly and publicly indicate an assumed control or use such as 

### is consistentwith the character of the premises in question. 

# ** *I' (Emphasis supplied,) From 1961until October 1966, the 8.8 acre tract did not have

a west fence and immediately adjoined the 692 or so acres Brown used ashis pasturage. The 8.8 acre tractwould only graze one

cow. Obviously, as Cartwright testified, he could not put a coworcows on the tract forhe well knew, as an experienced cattleman, that his animals would trespass on Brown. Likewise, Cartwright was obviously well aware of his obligation to "fence out", forhe had Mr. Bandy on the property to survey the fence lineas early as 1964. InMagewssen v. Atwell, 152Mont. 409, 414, 451 P.2d 103, this Court pointed out that the question of adverse possession or occupancy isone of the intention of the parties: "The law of this state

### is that: 'The question of adverse possession 

### is one of intention. The intentionmust be discovered from allthe circum1 stances of the-case. Lamrne v. Dodson, 

### 4 Mont. 560, 591, 2 P. 298, 303 (1883); Stetson v. Youngquist, 76 Mont. 600, 248 P. 196, 198 (1926)

# ."
3Am.Jur.2d Adverse Possession 513, p. 91, puts the rule ina slightlydifferent fashion: 

# "*

# ** While there 

### isno fixed rulewhereby the actual possession of real property by an adverse claimant may be determined inallcases, itmay be stated as a general rule that the claimant's possession must be such as toindicatehis exclusive ownership of the property. Not only must this possession be without subserviency to, orrecognition of, the titleof the true owner, but it must be hostile thereto, and tothewhole I world. It has been declared that the disseisor must unfurl his flag on the land, and keep it flying, so that the owner may see, ifhe will, that an enemy has invaded his domains, and planted the standard of conquest.'& (Emphasis supplied.) Did Cartwright intent toclaim and occupy the 8.8 acre tract prior toOctober 1966? It is difficult to imagine any act indicating that intent more clearly than acceptance of consideration from theMontana Power Company for the granting of the easement, particularlywhen Cartwright was advised that Brown claimed some titleto the tract. However, if therewas any doubt, Cartwright then put the question of intentbeyond argument when hewent to Brown and offered to sellhim the very tracthere involved. Brown didnot dispute that obvious claim of ownership forhe admitted that he offered tobuy it. The "flag of conquest" was not only flyinghigh over the 8.8 acre tract, but was also firmiy implanted atBrown's barn door where this conversation took place.Following thenegotiations in 1961or 1962, Cartwright continued his use of the 8.8 acre tract in getting toand from the Winslow place, and it isuncontradicted that he employed Bandy to startthe survey in 1964, which was finallycompleted in 1966. The only claim of possession during the period from 1961to 1966 that Brown can possibly advance 

### is that of pasturage by his cattle in the absence of a fence. ~rown's argument that he was grazing the 8.8 acre tract as

a matter of right from 1961until 1966 collapseswhen one considershis testimony that he was stillwaiting for Cartwright to give him a deed to the tract, Additionally, if that were ~rown's intent atthat time, why did he remain silentwhen he visited the premises, atCartwright's suggestion, to observe Bud Swann erect the fence which would end his grazing privileges on the tract. If Brown did indeed claim ownership and right of possession of the 8.8 acre tract prior to the fencing, why didhe, with full knowledge of the assessment situation inJefferson County, allow Cartwright topay the taxes on the tract in 1961through 1966? There can be only one answer: Brown knew that Cartwright claimed ownership of the tract and Brown, inhis own mind, thought Cartwright owned it. The only thing that Brown did with respect to the 8.8 acre tractwas to turn his cattle out on his own 700 acre pasture, and let them graze on the tract ifthey so desired. The trialcourt failed to give any consideration to the nature

or character of the tract of land here inquestion or the multiple acts and statements of the parties which evidenced the clear intention of Cartwright to claim possession and ownership of this tract from 1961to 1966. The trialcourt abused its discretion in entering findings rejecting the defense of the statute of limitations, denying Cartwright's counterclaimand enteringjudgment which is not supported by any substantialevidence. 

### As to the payment of taxes, it is admitted that Cartwright paid allof the real property taxes levied and assessed against this 8.8 acre tract for the years 1954 through 1967, a period offourteen years. During seven of these years, 1961through 1967, Brown had personal knowledge that the tractwas being assessed toCartwright. Under the contract for deed between Cartwright and Swain, August 9, 1967, Swain was obligated topay the real property taxes for the year 1968, and succeeding yearswhile the contract remained inforce and effect. Swain breached his contract by failingtopay the taxes levied and assessed for the years 1968 and 1969. The taxnotices for these years, received in evidence over objection, show that the property was assessed to Cartwright "in care of" Mr. and Mrs, Swain. This lawsuit was commenced on September 18, 1970, before any taxes were due and payable for that year. More than four months after the commencement of this lawsuit,

on January 29, 1971, 

### Mrs. Brown went to the county treasurer of Jefferson County and paid the taxes for the years 1968, 1969 and 1970, which Swain had allowed to go delinquent. Mrs. Brown testified that she paid the taxes on the advice of one of their attorneys inthis litigation. InNovember 1971, Mrs. Brown went .inand paid the taxes, assessed against Cartwright and Swain, for that year. Allof the Brown testimony as tothe payment of the taxes,

aswell as the tax receipts, was admitted by the trialjudge over repeated objections of alldefendants. While the trialcourt indicated the objectionswere being overruled "pro forma", the presidingjudge did indicate that he would study thematter further. However Finding of Fact I1 takenwith the general findings and conclusions and opinion, indicates the trialjudge considered the evidence of these payments and atleast inferentially found that Cartwright and Swain had not complied with section 93-2513, R.C.M. 1947, with respect to the obligation topay the taxes. While this Court has never passed on this precise question, the Court has clearlyheld that the filingof a quiet titleaction freezes the respectiverights of the parties atthe time of commencement of the action. InFlathead Lumber Corp. v. Everett, 127Mont.291, 295, 2b3 P.2d 376, this Court was presented with the reverse of the situationhere. In Flathead Lumber Corp., defendant sought to utilize the time between the filing of the action and the trial

as possession time for computation of the statutory period of adverse possession. The Court flatlyrejected this contention: "The rule isthat thebringing of an action against one in adverse possession disputing his titlearrests the running of the statute. [Citingcases] "During the pendency of the action defendants can acquire no new right as against plaintiffs by the mere fact that they remain inpossession.

[Citingcases]." (Emphasis supplied.) The statute, section 93-2513, R.C.M. 1947, merely states that the adverse possessor must have occupied and claimed the land for a period of fiveyears continuously and "during such period, paid alltaxes f: 

# * which have been legally levied and assessed upon said land." Cartwright complied with that statute, even without regard tothe "after the fact" payments. Having found that the evidence does not uphold the trial court's findings of fact on adverse possession, defendant's contentions on laches need not be discussed. We do comment though that fornine years plaintiff not only stood by with full knowledge of Cartwright's claim of ownership and aggressive acts of possession, but even discussed purchasing the property. The findings, conclusions and judgment of the trialcourt

arereversed and the cause remanded with directions to enter judgment for Cartwright. The judgment infavor of Swain against Cartwright is likewisereversed.Chief Justic



# u /

Justices



# ............................. Hon. 

### M. James Sorte, District Judge, sitting for Justice John Conway Harrison.