1996 v. River Res. Outfitters Llc

• Decision Date: 21 June 2011
• Docket Number: No. DA 10–0457.,DA 10–0457.
• Citation: 1996 v. River Res. Outfitters Llc, 361 Mont. 57, 256 P.3d 913, 2011 MT 143 (Mont. 2011)
• Parties: JOHN ALEXANDER ETHEN REVOCABLE TRUST AGREEMENT DATED OCTOBER 17, 1996, John Alexander Ethen, Trustee, and Janet Ruth Ethen Revocable Trust Agreement Dated October 17, 1996, Janet Ruth Ethen, Trustee, Plaintiffs, Appellees and Cross–Appellants,v.RIVER RESOURCE OUTFITTERS, LLC, and Christine K. Fischer, Defendants and Appellants.
• Court: Montana Supreme Court

361 Mont. 57

256 P.3d 913

2011 MT 143

JOHN ALEXANDER ETHEN REVOCABLE TRUST AGREEMENT DATED OCTOBER 17, 1996, John Alexander Ethen, Trustee, and Janet Ruth Ethen Revocable Trust Agreement Dated October 17, 1996, Janet Ruth Ethen, Trustee, Plaintiffs, Appellees and Cross–Appellants,

v.RIVER RESOURCE OUTFITTERS, LLC, and Christine K. Fischer, Defendants and Appellants.

No. DA 10–0457.

Supreme Court of Montana.

Submitted on Briefs April 26, 2011.Decided June 21, 2011.

For AppellantRiver Resource Outfitters, LLC: Mark E. Jones, Attorney at Law, Hall, Montana.For AppellantChristine K. Fischer: Clinton J. Fischer, Attorney at Law, Polson, Montana.For Appellees: Jane E. Cowley, Peter S. Dayton, Worden Thane, P.C., Missoula, Montana.Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1Appellees John and Janet Ethen(Ethens) sought declaratory relief in the Third Judicial District Court, Granite County, to resolve a boundary dispute with Appellants River Resource Outfitters (Joneses) and Christine Fischer(Fischer)(collectively Neighbors).The court declared that the common boundary line between the parties' properties runs in a meander line along the west bank of Flint Creek.We affirm.

¶ 2We review the following issues on appeal:

¶ 3Whether the District Court improperly relied upon extrinsic evidence to determine legal title to the disputed property.

¶ 4Whether the District Court correctly determined that the boundary line between the parties' properties meanders along Flint Creek.

¶ 5Whether Ethens filed a timely claim for declaratory relief.

¶ 6Whether the District Court failed to join other landowners on Flint Creek.

¶ 7Whether Neighbors gained title to the disputed property through adverse possession.

¶ 8Whether the District Court abused its discretion when it declined to award attorney fees to Ethens.

FACTUAL AND PROCEDURAL HISTORY

¶ 9 Ethens purchased property in Granite County in July 2007.Neighbors own properties that border Ethens' property.James and Mary Mellen(Mellens) originally owned in one common tract Neighbors' and Ethens' properties.Mellens' tract consisted of approximately 125 acres.Flint Creek runs north and south through the property.A county road runs east and west through the property.

¶ 10 Mellens conveyed approximately 35 acres to Thelma and Warren Cummins, Sr. in 1960 through a deed titled the “Mellen–Cummins Deed.”The deed stated that Mellens intended to convey “only all of the lands which they own [w]est of Flint Creek and [s]outh of the present [c]ounty [r]oad.”Warren Cummins, Sr. quitclaimed Cummins' parcel to Thelma Cummins Brownell in 1976.The deed excluded a paragraph from the original Mellen–Cummins Deed.The relevant boundary description did not change.Thelma deeded her parcel to Warren Cummins, Jr.(Cummins) in 1996.

¶ 11Mary Mellen transferred the remainder of the original 125–acre tract that she and James had retained, approximately 90 acres, to her daughter, Frances E. Lane(Lane), in 1963.Lane created the Lane Ranch in 1977.Flint Creek served as the boundary between Cummins's property (to the west) and the Lane Ranch (to the east).The county road served as Cummins's north boundary with the Lane Ranch.

¶ 12Charles Lane commissioned surveyor William Bayer(Bayer) in 1982 to create three parcels from the approximately 90–acre parcel known as the Lane Ranch.Bayer created the first recorded certificate of survey (COS 162) involving any of these properties.Bayer referred to the Mellen–Cummins Deed to prepare the survey.Bayer surveyed the west bank of Flint Creek with a compass and set course points along the bank of the creek.Bayer did not set any pins along Flint Creek.Bayer created three parcels—two to the east of Flint Creek, and one to the north of the county road.The diagram below roughly depicts COS 162.

Image 1 (5.03" X 2.3") Available for Offline Print

¶ 13 James and Deanna Lane sold Parcel 2 of COS 162 to Fischer in 1990.Fischer later commissioned plat 45–M in order to subdivide her property.Bayer prepared plat 45–M in accordance with COS 162 and the Mellen–Cummins Deed.Fischer sold approximately ten acres of Parcel 2 along Flint Creek to Joneses.Fischer retained approximately 20 acres south of Joneses' parcel along Flint Creek.Cummins owned the parcel to the west of Flint Creek.Cummins eventually sold his parcel to Ethens in 2007.The following diagram roughly depicts the current configuration of the parcels in relation to Flint Creek.

Image 2 (4.83" X 3.58") Available for Offline Print

¶ 14 Ethens' deed from Cummins describes Ethens' property by incorporating certificate of survey 521 (COS 521).COS 521 constituted a retracement survey of the property originally created in the Mellen–Cummins Deed.Cummins commissioned COS 521 in order to resolve a dispute regarding the south boundary with a different neighbor.COS 521 incorporates most of the same course points along Flint Creek that Bayer had set forth in COS 162.

¶ 15The parties dispute ownership over a small strip of land west of Flint Creek.The contested area of land consists of .61 acres along the Joneses/Ethens boundary and 1.04 acres along the Fischer/Ethens boundary.The Mellen–Cummins Deed and the subsequent certificates of survey describe the boundary in dispute.The Mellen–Cummins Deed describes the boundary between Ethens' property and Neighbors' properties as running along the west bank of Flint Creek.The narrative descriptions in COS 162,COS 521, and plat 45–M likewise describe the boundary as running along the west bank of Flint Creek.

¶ 16COS 162 set forth fixed course points along the west bank of Flint Creek.Bayer mapped the course points in 1982 along the top of the west bank of Flint Creek.The course points now lie slightly west of the west bank of Flint Creek.A subsequent surveyor's fixing of these course points on the ground has led to the dispute over the acreage just west of Flint Creek.

¶ 17 Ethens claim that Flint Creek constitutes the property boundary between their property and Neighbors' properties.They argue that Bayer's course points in COS 162 created a meandering boundary line along Flint Creek.Ethens rely on the original Mellen–Cummins Deed and the succeeding certificates of survey to support their argument that a meandering boundary along Flint Creek provides landowners on both sides of the creek access to its waters.

¶ 18 Cummins advertised the parcel that he sold to Ethens as creek front property.Ethens became aware of the fact that Neighbors disputed the boundary while they negotiated the purchase of the property from Cummins.Ethens decided to purchase the property based on their research and subsequent belief that Cummins's parcel bordered Flint Creek.Ethens negotiated a reduced purchase price for the property in light of the potential boundary dispute with Neighbors.

¶ 19 Neighbors commissioned a new survey of their properties shortly after Ethens purchased the property from Cummins.Certificate of survey 788 (COS 788) placed fixed pins on the ground along the west bank of Flint Creek according to the course points in Bayer's 1982 survey.COS 788 depicts a boundary line that used a straight line to connect the pins, unlike the previous surveys that had drawn the boundary along Flint Creek.The boundary line in COS 788 lies just to the west of Flint Creek.This property boundary excludes Ethens' access to Flint Creek.Ethens sought declaratory relief to resolve the dispute.

¶ 20The District Court held a bench trial.The court declined Neighbors' summary judgment motion that had sought to join to the action other landowners with a property interest in parcel 3.Ty Throop(Throop) purchased parcel 3 of COS 162 from Lanes over twenty years ago.Throop owned parcel 3 at the time of trial.Throop testified on behalf of Neighbors regarding his interpretation of parcel 3's boundary with Ethens' property.

¶ 21The court agreed with Ethens that the Mellen–Cummins Deed and the subsequent certificates of survey, COS 162,COS 521, and plat 45–M, described a meandering boundary line along the west bank of Flint Creek.The parties agreed that Flint Creek qualifies as a non-navigable stream.The court declared, therefore, that Ethens' property line extended to the center of Flint Creek.The court also declared that COS 788 constituted an invalid survey and ordered it stricken from the public record.

¶ 22The court rejected Neighbors' alternative claim that they had acquired property west of Flint Creek through adverse possession.The court likewise rejected Neighbors' claims that Ethens had acquiesced to a fixed boundary line west of Flint Creek, that the doctrines of laches and equitable estoppel barred Ethens' claim, and that Ethens had failed to join an indispensible party.The court declined to award Ethens' request for attorney fees.Neighbors appeal and Ethens cross-appeal on the issue of attorney fees.

STANDARD OF REVIEW

¶ 23This Court reviews findings of facts to determine whether substantial credible evidence supports the district court's findings.Mont. Rail Link v. CUSA PRTS., LLC,2009 MT 432, ¶ 26, 354 Mont. 101, 222 P.3d 1021.We must review the evidence in the light most favorable to the plaintiff.Id.We review for correctness a district court's conclusions of law.Id.We review for an abuse of discretion a district court's decision to award attorney fees under § 27–8–313, MCA.Renville v. Farmers Ins. Exch.,2004 MT 366, ¶ 20, 324 Mont. 509, 105 P.3d 280.

DISCUSSION

¶ 24Whether the District Court improperly relied upon extrinsic evidence to determine legal title to the disputed property.

¶ 25The court must interpret the plain language of an unambiguous deed.Tester v. Tester,2000 MT 130, ¶ 25, 300 Mont. 5, 3 P.3d 109.The court cannot resort to extrinsic evidence of the grantor's intent to interpret an unambiguous deed.Id.The Mellen–Cummins Deed appears in Ethens' chain of title.Neighbors...