Buckley v. Laird

• Decision Date: 07 February 1972
• Docket Number: No. 12038,12038
• Citation: 493 P.2d 1070,158 Mont. 483
• Parties: George D. BUCKLEY et al., Plaintiffs and Respondents, v. James V. LAIRD et al., Defendants and Appellants.
• Court: Montana Supreme Court

Page 1070

493 P.2d 1070

158 Mont. 483

George D. BUCKLEY et al., Plaintiffs and Respondents, v. James V. LAIRD et al., Defendants and Appellants.

No. 12038.

Supreme Court of Montana.

Submitted Dec. 1, 1971.

Decided Feb. 7, 1972.

Morrow, Nash & Sedivy, Bozeman, Edmund P. Sedivy, argued, Bozeman, for appellants.

McKinley T. Anderson, Jr., argued, Bozeman, for respondents.

CASTLES, Justice.

Mr. and Mrs. Buckley and Mr. and Mrs. Helppie brought this action in the district court of the eighteenth judicial district, county of Gallatin, to quiet title to a certain strip of land, as against Mr. and Mrs. Laird and Mr. and Mrs. Hull, and all other persons claiming an interest therein. The trial court, sitting without a jury, made findings of fact and conclusions of law and entered judgment for the plaintiffs, and later, judgment nunc pro tunc. The trial court by order denied defendants' exceptions to the findings of fact and conclusions of law, judgment and judgment nunc pro tunc. Defendants appeal.

Plaintiffs Helppie and Buckley own certain land near West Yellowstone, in Gallatin County, Montana, situate in the South Half of Section 21, Township 13 South, Range 4 East. Buckley had purchased the south half of Section 21 from McCracken in 1944. Immediately thereafter, they hired Mr. Papke, a surveyor, and subdivided a portion of the property into Lazy Acres Subdivision. Beginning in 1960 through 1963, Helppie purchased certain lots in Lazy Acres from Buckley, in three separate transactions.

At the time Buckley purchased the property from McCracken, there was a fence on the north boundary of the property. This fence was mostly down but the posts and wire were visible and Buckley showed Papke the fence, prior to his survey. The plat of Lazy Acres as prepared by Papke was filed with the clerk and recorder of Gallatin County in 1948. Papke determined and set forth in his plat that the east-west center line of Section 21 was the north boundary of Lazy Acres. This north line of Lazy Acres corresponds with the previous fence line.

Defendants, Laird and Hull, at the time of trial, claimed to own all the land south of U.S. Highway 191 and north of the north line of Lazy Acres Subdivision. James V. Laird, and his sister Mrs. Hull, acquired their interest in the land after the death of their father in 1951. Their father had acquired the land by deed in 1926, from Mr. and Mrs. Wakefield. The deed described the land so acquired as being the 'East half of the northwest quarter (E 1/2, NW 1/4) and the west half of the northeast quarter (W 1/2, NE 1/4.) all located in the North Half of Section 21, of Township 13 South, Range 4 East.' The Laird family had been on the property since 1904, and Laird had been familiar with the land since 1917.

After Helppie completed purchase of the last of Lazy Acres in 1963, they hired a surveyor, Thomas J. Hallin, to survey the lands concerning their boundary line between their property and Lairds' property. Hallin completed his survey in 1965, and delivered the plat to Helppie. The plat has never been recorded. Hallin concluded that, in his opinion, the true east-west center line of Section 21 was about forty feet north of the north boundary of Lazy Acres, as surveyed and platted by Papke. A total of about two acres of land is in dispute.

Since about 1940, there has been a cabin home on the Laird property. There has been an outhouse on the two acre strip of land in dispute which was built by the Lairds in 1942, and used by them ever since in conjunction with the cabin home. Laird had also used the strip of land, now in question, for cutting green trees and firewood, walking, planting trees, and other general use. Dad Laird had told both his daughter Mrs. Hull, and her husband Mr. Hull, in 1937, that the south boundary of his property was at the fence line.

Laird and Hull offered as evidence tax receipts showing that since 1954, through 1967, they had paid all the taxes on the Laird land known as Tract H. Laird paid the taxes on four-fifths of the land and Hull paid the taxes on one-fifth. Track H is that portion of the land in the north half of Section 21, lying south of the current U.S. Highway 191, and north of the north line of Lazy Acres, which includes the two acres now in dispute. Tract H was surveyed out by Laird on August 1, 1951, and the survey was filed for record along with deed dated November 17, 1953, from Mrs. Vella E. Laird to James V. Laird, of Tract H, consisting of 13.35 acres.

Thereafter, the tax receipts recite the payment of taxes by Laird and Hull on land in the north half of Section 21 'South of Highway Desig. on Assessor's Plats as Tract H'. Laird was originally paying the taxes on 10.68 acres of the land and Hull was paying on 2.67 acres. Later, after 1960, when approximately 2.8 acres of Tract H was deeded to the State Highway Commission for right-of-way, Laird paid the taxes on 8.42 acres and Hull paid the taxes on 2.10 acres.

Buckley admitted that the two acre strip of land had never been used by him for any purpose. Mr. Buckley thought that the fence had been built in 1935, and described it as a barbed wire fence on posts. The fence was in such shape that anyone could still follow the line today. Buckley, after selling Lazy Acres Subdivision to Helppie, retained only a tract of land of approximately two acres, which was also platted by Mr. Papke in August 1961, using his previously determined center line. The Buckley land is located west of Lazy Acres. Mrs. Buckley admitted that they at no time ever made claim for or went beyond the fence line, which corresponded with the Papke survey, as they assumed the fence line was the boundary line between the properties. Although tax receipts were offered by Buckley to show payment of taxes on land in the south half of Section 21, Mrs. Buckley admitted that they assumed they were only paying taxes to the fence line.

Helppie claims title to the two acres of land in dispute, which lies between the northern boundary of Lazy Acres Subdivision and the east-west center line of Section 21, as found by surveyor Hallin. Helppie claims to have paid taxes on the two acre strip. However, the tax receipts offered by Helppie reveal that from the period 1960 to 1965, they only paid taxes on 'Lazy Acres Subdivision Lots 2 in SW 1/4, less HW 21 13S 4E 14.35'. No 28 and 29.' In 1966, receipts were offered by Helppie which reveal that in addition to the Lazy Acre lots, they paid taxes on 'Tract B as Design. Assessor's Plat being in SW1/4, less HW 21 13S 4E 14.35'. No evidence was ever offered to show where Tract B was, other than on its face; this 14.35 acre tract is in the south half of Section 21, and hence has nothing to do with the two acres in dispute.

In 1967, Helppie offered their receipt to show that they also had paid taxes on property described as 'That portion E 1/2-NE 1/2-SW 1/4 lying W of Lazy A.Sub & S. of W.Y. HW. 21 13S 4E 15.46'. Again, this land is clearly located in the south half of Section 21, and also west of the Lazy Acres Subdivision, and hence does not cover the two acres in dispute.

The tax receipts offered by Buckley similarly show that Buckley paid taxes on various lots in Lazy Acres Subdivision during periods from 1954-1956, and in 1960, and from 1963-1967. Buckley also paid some taxes on the 14.35 acre Tract B, beginning in 1954, and on Tract W, described as 'being 150 150 in NW 1/4-SW 1/4, IND. SITE'. No evidence was offered that either Tract W or Tract B had anything to do with the two acre tract of land in dispute.

Mr. Helppie admitted that when he first purchased the property from Buckley in 1960, he observed the wire fence. After receiving the Hallin survey, Helppie built a jack-log fence along the Hallin east-west center line of Section 21, but by the next spring someone had moved it back to the original fence line on the east-west center line previously established by surveyor Papke. Helppie never consulted Laird about the new fence, prior to building it. Mr. Helppie admitted that they had made no other use of the two acre strip in dispute.

Appellants set up three issues on appeal.

(1) Are defendants Laird entitled to the two acre strip in dispute by adverse possession?

(2) Are defendants Laird entitled to the two acre strip by acquiescence?

(3) Are defendants Laird entitled to the two acre strip because the Papke survey line is the true and correct east-west center line of Section 21?

Respondents approach the problem from Issue No. 3. Basically, respondents assert that all the parties intended to claim only to the true east-west center line of Section 21, when it was established by a proper survey. They then reject the Papke survey as indicated on their own official plat, hire a new surveyor Hallin and assert Hallin's survey as the only 'proper' survey.

Hallin's critical points in his survey were the quarter corners on the north-south section lines of Section 21. On the west section line, between Sections 20 and 21, Hallin made some independent judgments and reestablished the quarter corner. He admitted that his reestablished quarter corner was about 50 feet north of a point equi-distant between the section corners.

The 1901 U.S. government survey plat shows the quarter corner to have been established equi-distant. In the 1930 resurvey, the resurvey notes show no evidence of a quarter corner at 40 chains north of the SW corner of Section 21. In reestablishing the quarter corner, the true point for the quarter corner was 39.75 chains. This was noted to 'fall in middle of highway to West Yellowstone, bears N.W. & S.E., impracticable to set cor.' A witness corner was set at 40.20 chains and marked with an iron post and brass cap. This same witness corner was used to witness the 1/4 corner of Section 20, which was 40.59 chains from the SW corner of Section 21. The notes show the witness corner to be in feet, 29.7 feet north of the 1/4 corner of Section 21 and 25.74 feet south of...