Andersen v. Monforton

• Decision Date: 09 December 2005
• Docket Number: No. 04-583.,04-583.
• Citation: 125 P.3d 614,2005 MT 310,329 Mont. 460
• Parties: William R. ANDERSEN, Plaintiff and Respondent, v. Remi E. MONFORTON; McCollum, LLC; Jefferson River Ranches, LLC; and Jefferson River Ranches Homeowners' Association, Inc., Defendants and Appellants.
• Court: Montana Supreme Court

125 P.3d 614

2005 MT 310

329 Mont. 460

William R. ANDERSEN, Plaintiff and Respondent, v. Remi E. MONFORTON; McCollum, LLC; Jefferson River Ranches, LLC; and Jefferson River Ranches Homeowners' Association, Inc., Defendants and Appellants.

No. 04-583.

Supreme Court of Montana.

Submitted on Briefs September 29, 2005.

Decided December 9, 2005.

Jack H. Morris, Jardine & Morris, Whitehall, Montana, for Appellants.

Robert K. Baldwin, Goetz, Gallik & Baldwin, Bozeman, Montana, for Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Appellants appeal from the grant of summary judgment to William Andersen. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Whether Andersen's deed indicates that he does not own the land adjacent to his property between the high-water and low-water lines.

¶ 4 2. Whether Andersen is bound by the prior quiet title decree adjudicating McCollum, LLC, as the owner of the disputed property.

¶ 5 3. Whether certain portions of Appellant's Reply Brief should be stricken.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 Respondent William Andersen and Appellants Doug and Valerie McCollum are neighbors. Appellants McCollum, LLC, Jefferson River Ranches, LLC, and Jefferson River Ranches Homeowners' Association, Inc., are all entities established by the McCollum family. This appeal arises from a dispute over who owns an 11.14 acre tract of land to the north of Andersen's property that sits between the high-water line (the bank of the Jefferson River) and the low-water line. Both Andersen and the McCollums claim ownership of the property.

¶ 7 Although a long line of land transfers preceded this dispute, for our purpose, the first relevant transaction took place in 1971. At this time, Taylor and May Hale granted to Remi Monforton, a present appellant, and his wife, Betty Jo, Sections 15 and 22 of the Hale Ranch in Madison County, Montana, by warranty deed, described as follows:

That certain tract of land situated in the West 1/2 of Section 22, and the SW 1/4 of Section 15, T. 1 N., R. 4 W., M.P.M. Madison County, Montana, being more particularly bounded and described as follows, to wit: Commencing at the corner common to Sections 21, 22, 27 and 28, T. 1 N., R. 4 W., M.P.M., Madison County, Montana, a brass cap monument; thence N. 00° 07' 26" W. a distance of 79.75 feet on and along the section line between Sections 21 and 22 to the Point of Beginning, a point on the North right-of-way line of a county road; thence continuing N. 00° 07' 26" W. a distance of 651.25 feet to a point on the right bank of the Jefferson River; thence meandering the right bank of the Jefferson River N. 62° 17' 28" E. a distance of 255.93 feet; N. 87° 55' 03" E. a distance of 275.18 feet; N. 39° 56' 45" E. a distance of 521.75 feet; N. 33° 18' 38" E. a distance of 209.40 feet; N. 28° 59' 45" E. a distance of 474.47 feet; N. 39° 29' 28" E. a distance of 699.73 feet; No. 44° 33' 45" E. a distance of 463.17 feet; N. 12° 48' 15" E. a distance of 225.61 feet; due North a distance of 225.00 feet; N. 34° 22' 49" W. a distance of 115.11 feet; N. 14° 02' 10" W. a distance of 247.39 feet; N. 33° 01' 26" W. a distance of 119.27 feet; N. 30° 57' 50" W. a distance of 349.86 feet; N. 31° 25' 46" W. a distance of 316.43 feet; N. 20° 36' 54" W. a distance of 97.00 feet; N. 21° 02' 15" W. a distance of 336.65 feet; N. 34° 22' 49" W. a distance of 115.11 feet; N. 06° 50' 34" W. a distance of 251.79 feet; N. 05° 56' 49" E. a distance of 281.22 feet to the point of curvature of a curve to the right having a radius of 210.00 feet; thence on and along said curve a distance of 321.06 feet; thence S. 86° 27' 19" E. a distance of 159.35 feet to the point of curvature of a curve to the left having a radius of 340.00 feet; thence on and along said curve a distance of 369.47 feet to the point of reverse curve of a curve to the right having a radius of 169.01 feet; thence on and along said curve a distance of 334.24 feet; thence S. 35° 24' 25" E. a distance of 104.08 feet to the point of curvature of a curve to the left having a radius of 170.00 feet; thence on and along said curve a distance of 243.82 feet; thence N. 62° 25' 05" E. a distance of 152.22 feet to the intersection with the north-south mid-section line of Section 15, T. 1 N., R. 4 W., M.P.M.; thence leaving the right bank of the Jefferson River on and along said north-south mid-section line of Section 15, S. 00° 26' 49" E. a distance of 198.75 feet to the one-quarter corner common to Sections 15 and 22, T. 1 N., R. 4 W., M.P.M., a brass cap monument; thence S. 00° 21' 34" E. a distance of 2985.33 feet on and along the north-south mid-section line of Section 22, to the intersection with the north right-of-way line of a county road; thence on and along said right-of-way line S. 62° 12' 12" W. a distance of 3.83 feet; thence S. 51° 19' 22" W. a distance of 230.63 feet; thence S. 30° 22' 05" W. a distance of 313.79 feet; thence S. 36° 04' 00" W. a distance of 697.76 feet; thence S. 42° 15' 58" W. a distance of 281.23 feet; thence S. 53° 53' 30" W. a distance of 533.42 feet; thence S. 55° 12' 19" W. a distance of 555.43 feet; thence S. 55° 26' 50" W. a distance of 583.96 feet; thence S. 63° 17' 28" W. a distance of 153.34 feet; thence S. 89° 57' 30" W. a distance of 204.74 feet to the Point of Beginning, said tract of land containing 123.745 gross acres, the net platted area being 120.714 acres. [See attached Map A.] [Emphasis added.]

¶ 8 The Monfortons divided this tract of land sitting on the south bank of the Jefferson River in order to sell residential lots — thus, creating the Box Lazy L Ranches Subdivision. The Monfortons had the subdivision surveyed by James Spring, instructing him to survey lots all the way to the Jefferson River; they then filed the Certificate of Survey with the Madison County Clerk and Recorder. The Monfortons sold Lots 15, 16, 17, and 18 to the Gilberts, who in turn sold those lots to Andersen in 1980 and 1987. Lots 16, 17, and 18 sit on the south shore of a bend in the Jefferson River. The disputed property consists of 11.14 acres of land sitting between the high-water line (the river bank) and the low-water line.

¶ 9 Eventually, the Monfortons sold the remainder of the original ranch, excepting out various properties, including Andersen's tracts. This remainder of land, located to the east of Andersen's property, then went through a series of owners, until Valerie McCollum acquired it in 1995. McCollum then conveyed the land to Appellant McCollum, LLC.

¶ 10 In 1999, McCollum, LLC, hired a surveyor, Donald Schauber, to survey and subdivide property in order to adjust a boundary with some neighbors, the Wisners. Schauber prepared Certificate Survey No. 1349-AE, showing property belonging to McCollum, LLC, as Tract B, and the land to the east owned by the Wisners, as Tract A. (See attached Map B.) Andersen's land sits to the west of the McCollum property. According to Schauber's survey, Tract B encompasses (in addition to land of no concern to Andersen) the disputed 11.14 acres north of Andersen's Lots 16, 17, and 18 — that is, the land between the high-water line and the low-water line on the south shore of the Jefferson River. In creating the survey, Schauber looked to the original description (from the Hales to the Monfortons), which he interpreted as granting Andersen a fixed boundary on the north side of Andersen's property along the high-water line. Andersen knew nothing of Schauber's survey at the time it was commissioned, and believed he owned the 11.14 acres that Schauber interpreted as belonging to McCollum, LLC. McCollum, LLC, on the other hand, claims it owned the 11.14 acres before commissioning Schauber's survey and therefore did not find it necessary to take action against Andersen to acquire title to the land.

¶ 11 McCollum, LLC, hired an examiner to research and determine if title problems existed with Schauber's survey of the land depicted in Certificate Survey No. 1394-AE. The examiner discovered a title problem with a small triangle-shaped piece of property that did not include the disputed 11.14 acres. Upon the examiner's recommendation, the McCollums and the Wisners brought a quiet title action against Ted Dow Lewis and Delta H. Lewis over the small triangle-shaped land. Again, this land did not include the disputed 11.14 acres. According to the McCollums, they did not take action with regard to the disputed 11.14 acres because of their belief that they already owned the land.

¶ 12 The title action for the triangle-shaped piece of land did not name Andersen, nor was he served. After performing a "diligent search and inquiry" for all possible defendants, the McCollums and the Wisners served notice of the summons and complaint to all unknown defendants through publication in the Madisonian, a newspaper published in Madison County, Montana, for five consecutive weeks. Andersen claims to have been ignorant of this quiet title action — until the advent of the present litigation. The District Court entered a judgment and decree quieting title to the property described in Certificate of Survey No. 1349-AE to McCollum, LLC, and the Wisners. This property included Tract B, encompassing the disputed 11.14 acres.

¶ 13 The legal description of the Box Lazy L Ranches Subdivision, as quoted above, describes the high-water line as the boundary of Lots 16, 17, and 18. The legal description of the remainder of the original ranch, ever since it was sold by the Monfortons, has included an identical description of the southern boundary between the ranch and Lots 16, 17, and 18. In 2000, claiming ownership of the 11.14 acres, McCollum, LLC, conveyed Tract B to Appellant Jefferson River Ranches, LLC, which then in turn conveyed Tract B to Jefferson River Ranches Homeowners' Association, Inc.

¶ 14 Andersen brought suit against Appellants claiming ownership of the disputed land. The District Court held that a...