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*RTWRIGHT et a1 . , 

Defendants and Appellants. 

.lppeal from: District Court of the Fifth Judicial District, 

Honorable Frank E. Blair, Judge presiding. 

Counsel of Record: 

For Appellants : 

Pa trick F . 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. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a judgment entered upon findings of 

fact and conclusions of law made by the court sitting without a 

jury. Plaintiffs Brown, husband and wife, brought an action to 

quiet title to certain ranch property in Jefferson County. 

Defendants Cartwright, husband and wife, filed a counterclaim 

to quiet title to the land in themselves; and defendants Swain, 

husband and wife, crossclaimed against defendants Cartwright for 

breach of warranty title. Trial was had in the district court 

in Jefferson County. The trial judge made findings of fact and 

conclusions of law and filed an opinion in favor of plaintiffs 

and against all defendants. Defendants Swain were awarded money 

damages by virtue of their crossclaim against defendants Cartwright for breach of warranty of title. Judgment was entered 

for plaintiffs and all defendants appeal. 

Hereafter in this opinion, the parties will be referred 

to in the singular. 

The action involves a tract of land containing 8.8 acres. 

This 8.8 acre tract was a part of a larger pasture area constihting about 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, at that time, along the 

easterly edge on the railroad right-of-way and a fence along 

the north section line. The tract is a triangular piece measuring 

657' along the section line east and west, 1057' along the quarter 

section line north and south, and bounded on the easterly and 

southerly side by the railroad right-of-way. There was a gate 

on the railroad fence and a railroad crossing which afforded access 

to Brown in going to and from the 700 acre pasture with his 

cattle. There was also a gate on the north fence which 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 controversy began 
when the estare or hlrred L. >larks was ~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 trial court described it in its 

"Basis of Decision and Opinion" in this way: 

r l 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 as defendants' exhibit A, the nullity was compounded and then when later an attempt to sell the 

same property to the Cartwrights by deed dated June 16, 

1954, the nullity was still further compounded, a 

veritable comedy of errors, but without any legal 

effect upon the property we are talking about in this 

action; the record title of which was in the plaintiffs 

at all of 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 cattle across the 8.8 acre tract 

entering from the railroad gate and then through the gate on 

the north section line. At the time there was no fence between 

the 8.8 acre tract and the balance of the 700 acre pasture to 

the west. 

Also in 1961, Cartwright was approached by a right-of-way 

agent for Montana Power Company who wanted to procure an easement 

for a natural gas transmission line across the 8.8 acre tract. 

Cartwright first told him to double check the title to be sure 

it was Cartwright ground. The Montana Power agent came back later 

and told Cartwright that he was the legal owner, although Brown 

had tried to claim 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. I I 

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 tract was assessed 
to Cartwright. Brown took no steps to change the assessment and 

the evidence is uncontroverted that Brown did not pay any taxes 

on the 8.8 acre tract from 1961 until 1971--after the lawsuit was 

filed. The record is likewise clear that Cartwright did pay the 

taxes from before 1961 to 1968, when the property was sold to 

Swain under a contract requiring Swain to make tax payments. 

Both Brown and Cartwright testified to a conversation between 

them in either 1961 or 1962. Both agreed that Cartwright offered 

to sell Brown the 8.8 acre tract for $800. Brown wanted to buy 

it at that price and the only conflict in the testimony is as to 

why the deal fell through. The trial judge asked Brown why he 

wanted to buy his own property and elicited this response: 

"THE COURT: Yes, sustained. Why were you trying 

to buy your own property from this man is what he's 

asking you really. 

A. I don't know how to answer the question. We 

had thought it was ours, and then when Montana Power 

went through the area they said that it belonged 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 see who it was assessed with 

and they had assessed it to Claude Cartwright." 

From 1961 to 1966, Cartwright continued to use the 8.8 acre 

tract in going to and from the Winslow place. On occasion he 

left the Winslow gate open so his cattle could 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 the west boundary. Cartwright 

testified he made no objection because he knew Brown could not 

keep cattle off without fence and he did not turn his cattle in 

because they would "have been on ~rown". According to Cartwright, 

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 the west 

boundary of the 8.8 acre tract. Bandy did not complete the job 

and another surveyor, Mr. Erickson, completed it in 1966. That 

fall--1966--Cartwright hired Bud Swann to build a fence along 

the west boundary. Cartwright went up to tell Brown about it and 
tu be sure that the location of the gate--to allow Brown access 

to his acreage--met ~rown's approval. Both Brown and Swann 

testified that Brown came down during fencing and made no objection to anyone. After fencing in October 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 is now the Swain 

family home, was received in evidence as Exhibit D. Brown 

admitted he observed these improvements being made and made no 

objection to anyone. 

Then, in July 1970, nine years after the Montana Power easement and three years after the Swain house, Brown retained an 

attorney who made a title search and Brown made his first objection 

to the Cartwright title. In July 1970, Brown's attorney gave 

notice to defendants Cartwright and Swain to vacate the premises. 

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 first count, 

he alleges that he is, and for twenty years last past, has been 

the owner of the 8.8 acre tract, is entitled to possession thereof, 

and seeks a decree quieting title to 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 the use of the 

d.8 acre tract for both grazing and passage. He seeks damages 

under the second count for $5,000 as and for damage to the 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 first count (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 tract within five years prior to the 

filing of the complaint and the action is barred 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 to estopand preclude him from prevailing on the first 

count. 

In answer to the second count, Cartwright denied the material 

allegations of trespass and set up 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 in his 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 

I I of the Brown complaint. Then, as an affirmative defense" Swain 

alleged that he entered into the Cartwright contract in good faith 

and alleged: 

'I* * * should the Court find that the [Cartwrights] 

are not the owners 9; * * [Swains] should be entitled 

to recover all sums of money paid under this contract 

together with damages which they suffer as a result 

of this action together with costs, interest and 

attorney fees. ?I 

The trial court made no findings on the Brown trespass claim. 

Ln its opinion the trial court held 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 is whether Brown lost legal 

title to Cartwright by adverse possession or, more specifically 

here, who had possession of the 8.8 acre tract for the five years 

immediately preceding September 18, 1970? 
In order to obtain legal title under 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 

or judgment - 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 claim upon a written 

instrument, as being a conveyance of the property 

in question, or upon the decree or judgment of 

a competent court, and that there has been a 

continued occupation and possession of the 

nroperty included in such instrument, decree, 

or judgment, or of some part of the property, under such claim, for five (5) years, the 

property so included is deemed to have been held 

adversely, except that when it consists of a 

tract divided into lots, the possession of one 

(1) lot is not deemed a possession of any other 

lot of the same tract. I I 

"93-2509. What constitutes adverse possession 

under written instrument or judgment, For the 

purpose of constituting an adverse possession by 

any person claiming a title founded upon a written 

instrument, or a judgment or decree, land is 

deemed to have been possessed and occupied in the 

following cases: 

"1. Where it has been usually cultivated or 

improved. 

I I 2. Where it has been protected by a substantial inclosure. 

"3. Where, although not inclosed, it has 

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 or a single lot has 

been partly improved, the portion of such farm or 

Lot that has been left not cleared or not inclosed, 

according to the usual course and custom of the 

adjoining country, shall be deemed to have been 

occupied for the same length of time as the part 

improved and cultivated." 

The term "claim of title" as used 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 statute is synonymous 

with t 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 in the plaintiff a color 

of title within the meaning of the statute. 

The second deed correctly described the entire 

tract of land, and the first deed correctly 

described one-half of the area. Color of title 

does not depend upon the validity or effect 

of the instrument, but entirely upon its intent 

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 to be a writing, upon its face 

rofessing to pass title, but which does not 

o it, either from a want ot title in the person 

making it, or from the defective conveyance that 

is used - a title that is imperfect, but not so 

- obviously so that it would be apparent to one not 

skilled in the law.' And in the case of Fitschen 

Rros. Com. Co. v. Noyes' Estate this court said: 

'And color of title is that which is title in 

appearance, but not in reality. As a basis of 

claim by adverse possession, color of title may 

be shown by any instrument purporting to convey 

the land or the right to its possession provided 

claim is made thereunder in good 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 to convey land west 

oi the railroad tract. Cartwright testified that he had two 

attorneys review his title and they apparently failed to note the 

discrepancy in the two Marks deeds. From the evidence, it is clear 

that the error or erroneous description not 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 is under 

claim or color of title within the meaning of the statute. 

Section 93-2513, R.C.M. 1947, applicable to any claim of 

adverse possession, provides: 
s I Occupancy and payment of taxes necessary to prove 

adverse possession. In no case shall adverse possessions be 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 all the taxes, state, county, 

or municipal, which have been legally levied and assessed 

upon said land." (Emphasis supplied). 

Applying this statute, it is apparent that there are two 

time spans involved. First, there is the period from October 

1966 (completion of the fence) until the filing of the complaint 

(September 18, 1970). Second, there is the period from 1961 

unril October 1966. 

Dealing first with 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 tract by Cartwright 

and Swain after the fence was completed - a period of three years 

and ten months before the filing of the complaint. 

Before discussing the evidence as to the period before 

completion of the fence in October 1966, we note what this and 

other courts have said in construing the nature and type of possession required. It is clear that the type, nature and character 

of the land involved must be considered. In Sullivan at p. 259, 

this Court held: 

"Thus, it will be observed that the foundation of 

the claim of plaintiff and the character of the land 

in question determine the degree and character of 

possession or occupancy necessary to satisfy the 

I I statutes. (Emphasis supplied.) 

Tn 3 Am.Jur.2d Adverse Possession 14, p. 94, it is said: 

11%- * 9: The rule of actual possession is to be applied 

reasonably in view of the location and character of 

the land claimed. It is sufficient, if the acts of 

ownership are of such a character as to openly and 

publicly indicate an assumed control or use such as 

is consistent with the character of the premises in 

question. * * *I' (Emphasis supplied,) 

From 1961 until October 1966, the 8.8 acre tract did not have 

a west fence and immediately adjoined the 692 or so acres Brown 

used as his pasturage. The 8.8 acre tract would only graze one 

cow. Obviously, as Cartwright testified, he could not put a cow 
or cows on the tract for he 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", 

for he had Mr. Bandy on the property to survey the fence line as 

early as 1964. 

In Magewssen v. Atwell, 152 Mont. 409, 414, 451 P.2d 103, 

this Court pointed out that the question of adverse possession or 

occupancy is one of the intention of the parties: 

"The law of this state is that: 'The question of 

adverse possession is one of intention. The 

intention must be discovered from all the 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) ." 

3 Am.Jur.2d Adverse Possession 513, p. 91, puts the rule 

in a slightly different fashion: 

"* * * While there is no fixed rule whereby the actual 

possession of real property by an adverse claimant may 

be determined in all cases, it may be stated as a 

general rule that the claimant's possession must be such 

as to indicate his exclusive ownership of the property. 

Not only must this possession be without subserviency 

to, or recognition of, the title of the true owner, but 

it must be hostile thereto, and to the whole 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, if he will, that an enemy has invaded 

his domains, and planted the standard of conquest.'& 

(Emphasis supplied.) 

Did Cartwright intent to claim and occupy the 8.8 acre tract 

prior to October 1966? It is difficult to imagine any act indicating that intent more clearly than acceptance of consideration 

from the Montana Power Company for the granting of the easement, 

particularly when Cartwright was advised that Brown claimed some 

title to the tract. However, if there was any doubt, Cartwright 

then put the question of intent beyond argument when he went to 

Brown and offered to sell him the very tract here involved. Brown 

did not dispute that obvious claim of ownership for he admitted 

that he offered to buy it. The "flag of conquest" was not only 

flying high over the 8.8 acre tract, but was also firmiy implanted 

at Brown's barn door where this conversation took place. 
Following the negotiations in 1961 or 1962, Cartwright continued his use of the 8.8 acre tract in getting to and from the 

Winslow place, and it is uncontradicted that he employed Bandy to 

start the survey in 1964, which was finally completed in 1966. The 

only claim of possession during the period from 1961 to 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 1961 until 1966 collapses when one considers his testimony that he was still waiting for Cartwright to 

give him a deed to the tract, Additionally, if that were ~rown's 

intent at that time, why did he remain silent when he visited the 

premises, at Cartwright'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 did he, with full 

knowledge of the assessment situation in Jefferson County, allow 

Cartwright to pay the taxes on the tract in 1961 through 1966? 

There can be only one answer: Brown knew that Cartwright claimed 

ownership of the tract and Brown, in his own mind, thought Cartwright owned it. The only thing that Brown did with respect to 

the 8.8 acre tract was to turn his cattle out on his own 700 acre 

pasture, and let them graze on the tract if they so desired. 

The trial court failed to give any consideration to the nature 

or character of the tract of land here in question 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 1961 to 1966. The trial court abused its discretion in 

entering findings rejecting the defense of the statute of limitations, 

denying Cartwright's counterclaim and entering judgment which is 

not supported by any substantial evidence. 

As to the payment of taxes, it is admitted that Cartwright 

paid all of the real property taxes levied and assessed against 

this 8.8 acre tract for the years 1954 through 1967, a period of 
fourteen years. During seven of these years, 1961 through 1967, 

Brown had personal knowledge that the tract was being assessed 

to Cartwright. Under the contract for deed between Cartwright 

and Swain, August 9, 1967, Swain was obligated to pay the real 

property taxes for the year 1968, and succeeding years while the 

contract remained in force and effect. Swain breached his contract 

by failing to pay the taxes levied and assessed for the years 

1968 and 1969. The tax notices 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 in this litigation. In November 1971, Mrs. Brown went 

.in and paid the taxes, assessed against Cartwright and Swain, for 

that year. 

All of the Brown testimony as to the payment of the taxes, 

as well as the tax receipts, was admitted by the trial judge over 

repeated objections of all defendants. While the trial court 

indicated the objections were being overruled "pro forma", the 

presiding judge did indicate that he would study the matter further. 

However Finding of Fact I1 taken with the general findings and 

conclusions and opinion, indicates the trial judge considered 

the evidence of these payments and at least inferentially found 

that Cartwright and Swain had not complied with section 93-2513, 

R.C.M. 1947, with respect to the obligation to pay the taxes. 

While this Court has never passed on this precise question, 

the Court has clearly held that the filing of a quiet title action 

freezes the respective rights of the parties at the time of commencement of the action. In Flathead Lumber Corp. v. Everett, 127 Mont. 
291, 295, 2b3 P.2d 376, this Court was presented with the reverse 

of the situation here. 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 flatly rejected this contention: 

"The rule is that the bringing of an action 

against one in adverse possession disputing 

his title arrests the running of the statute. 

[Citing cases] 

"During the pendency of the action defendants 

can acquire no new right as against plaintiffs 

by the mere fact that they remain in possession. 

[Citing cases]." (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 five years continuously and "during such 

period, paid all taxes f: * which have been legally levied 

and assessed upon said land." Cartwright complied with that 

statute, even without regard to the "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 for nine 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 trial court 

are reversed and the cause remanded with directions to enter 

judgment for Cartwright. The judgment in favor of Swain against 

Cartwright is likewise reversed. 
Chief Justic 

u / 

Justices 

............................. Hon. M. James Sorte, District 

Judge, sitting for Justice John 

Conway Harrison.