Goodover v. Lindey's, Inc., 87-464

• Decision Date: 13 June 1988
• Docket Number: No. 87-464,87-464
• Parties: , 79 A.L.R.4th 1031 Pat M. GOODOVER, Plaintiff and Respondent, v. LINDEY'S, INC., and the Estate of William C. Forest, Deceased, et al., Defendants and Appellants.
• Court: Montana Supreme Court

Page 1290

757 P.2d 1290

232 Mont. 302, 79 A.L.R.4th 1031

Pat M. GOODOVER, Plaintiff and Respondent, v. LINDEY'S, INC., and the Estate of William C. Forest Deceased, et al., Defendants and Appellants.

No. 87-464.

Supreme Court of Montana.

Submitted on Briefs April 7, 1988.

Decided June 13, 1988.

Paul Neal Cooley, Skelton & Cooley, Missoula, Harrison, Loendorf & Poston, William Forest Estate, Helena, for defendants and appellants.

John W. Larson, Missoula, for plaintiff and respondent.

GULBRANDSON, Justice.

This is an appeal from a judgment of the Fourth Judicial District Court, Missoula County, determining a specific property line monument in favor of plaintiff/respondent Pat Goodover (Goodover). Defendant/appellant Lindey's Inc., (Lindey's), appeals the judgment and we affirm.

Appellant in this case presented eleven issues, which are more appropriately restated as follows:

1. Whether the District Court erred in allowing hearsay evidence in determining the location of the boundary monument?

2. Were the District Court's findings of fact, conclusions of law and judgment based on substantial credible evidence?

3. Whether the District Court abused its discretion in denying Lindey's motion for a new trial or in the alternative amendment of the judgment?

4. Whether the District Court abused its discretion in denying Patricia Jewell's motion to intervene?

In dispute is the location of the northeast corner of lot two, of the Seeley Lake Shores Sites which was filed as a platted unofficial subdivision with the Missoula County Clerk and Recorder in 1944. From this plat, and testimony presented at trial, it is clear that the original intent of the developers was to provide lots with 100 feet of lake frontage, except for lot one, purchased by Lindey's, which was to contain 125 feet. However, the plat is filled with errors.

Goodover, who owns lot two, filed this action for declaratory judgment and quiet title after Lindey's, by its surveyor, R. David Schurian, established a new lot corner on the northeast side of Goodover's boathouse. The complaint was filed August 21, 1984 and subsequently amended twice.

A bench trial was held April 7, 1987, and findings of fact, conclusions of law and a judgment in favor of Goodover were filed on June 15, 1987 reserving the issue of damages for a later hearing. Motions for a new trial or amendment of the judgment, along with a motion for a stay made in anticipation of filing a motion to intervene filed by Patricia Jewell (Jewell), were denied by the District Court on October 2, 1987. Jewell owns lot five which is adjacent to lot three but was not named as a party in this action. This appeal followed.

The only dispute at trial was the location of the monument for the northeast corner of lot two and the accompanying lake frontage. The lots are set around the southeast corner of the lake as follows: lot three is immediately south of lot five, lot one is south and westerly of lot three, and lot two is west of lot one. Goodover purchased lot two with Mills Folsom from Don Paddock in 1965. Paddock had purchased the property from George Meltzer who had bought the land from Jim Sullivan.

Meltzer was called at trial by Lindey's and testified that the northwest corner of lot two and lot four to the west was marked with a wooden monument. This monumentation was generally accepted by all parties, including Greg Martinsen, Goodover's surveyor, and Schurian. Meltzer stated that the northeast corner was marked both with a wooden monument and a mushroom-headed spike known as a boat spike. Meltzer was a Missoula County land and building appraiser during the time he owned lot two and testified that he measured the lake frontage of lot two as approximately 93 feet.

In deposition, Folsom testified that the east line of the property was marked by blazes on trees and that the northeast and northwest corners were marked by wooden stakes. Goodover purchased Folsom's share of the property in 1966. Both Folsom and Goodover stated a metal barrel and wooden stake marked the northeast corner of the lot in 1965. This barrel and stake were removed, and a new fence as well as an outhouse were erected by Lindey's along the property line, after Schurian re-surveyed the property. Schurian placed a new northeast corner monument near the middle of the east side of Goodover's boat house. This activity resulted in a temporary order being issued by the District Court disallowing the destruction of any of the other property markers.

Lindey's is purchasing lots one and three from William C. Forest, now deceased. Lindey's requested of Forest a Certificate of Survey of the property and hired Professional Consultants, Inc., a firm of registered surveyors including Schurian, to prepare the Certificate. Schurian and his crew found all the corners on lot five, and retraced the work done by Ainsworth and Associates, Inc., which surveyed lot five in 1970. At that time, Martinsen, who was later hired by Goodover, worked for Ainsworth and Associates, Inc., and did work on lot five. Ainsworth and Associates, Inc. later became Professional Consultants. Schurian found uniform one-inch pipes as markers for boundaries common to lots seven and five, five and three, one and three and two and four. The only monument that was not found by Schurian was that between lots one and two.

Schurian prepared the Certificate of Survey using the "compass rule" to locate the corner between lots one and two. He then placed 5/8-inch rebar with a 1 1/2-inch aluminum cap to mark where he believed the northeast corner to be. This survey shows the southeast corner of Goodover's boathouse encroaching on lot one.

The survey completed by Schurian leaves Goodover with what appears to be 89.64 feet of lake frontage, lot one with 125 feet of lake frontage and lot three with 100 feet of lake frontage. However, at trial, Schurian presented an exhibit and testified that his measurement really provided Goodover with 95.35 feet if the aluminum cap boundary was extended to the waterfront. This testimony was impeached to some extent by Martinsen when he was recalled as a rebuttal witness. Martinsen testified that the problem with Schurian's explanation was that it required the line to go straight into the lake, whereas the official manner of measuring lake frontage calls for a central point in the water to be extended back to the land at an angle.

Martinsen was hired by Goodover twice. The first time, Martinsen located a 1 1/2-inch pipe with a 1/4-inch rod sticking through it which he believed to be the original northeast corner marker. The District Court found, in its judgment of June 12, 1987, that this pipe monument was within a foot of the barrel and stake monument that Goodover relied upon and that the monument was in line with at least one of the blazed trees.

Goodover would not accept this marker originally because he found out Martinsen had worked for Ainsworth and Associates, Inc. Martinsen, however, was rehired by Goodover and on March 13, 1987 again located the 1 1/2-inch pipe with the rod sticking in it by use of a metal detector.

Martinsen also searched for and found pipe that marked the other lots on Seeley Lake. Martinsen testified that 11 of these lots were within two to three percent of the 100-foot frontage intended. By using the pipe that Martinsen located on lot two, Martinsen stated the percentage of variation was less than one percent as the distance of frontage was 99.33 feet. Percentage of variation for lots one and three were 1.12%.

At trial, Goodover testified Sullivan told him a glove and stake, located approximately four to five feet east of the boathouse, was the property marker between lots one and two. Goodover testified that Paddock had indicated a barrel and stake marked the boundary. Paddock, when he transferred the property to Folsom and Goodover, provided a plat that he said was prepared by a surveyor who had blazed the trees along the east boundary of lot two. Pictures of a number of blazed trees were presented as evidence.

Both surveyors testified that the purpose of a retracement survey is to follow in the steps of the original surveyor. The District Court made a finding of fact that the amount of lake frontage allocated by Martinsen more closely followed the original survey than that allocated by Schurian. Therefore, taking into consideration the testimony that all monumentation was second generation monumentation; that both experts acknowledged that distances on the original survey were more reliable than courses or bearings, and that monuments were superior to distances; and the degrees of variation presented, the court found the "best available evidence of the corner between Lot 1 and Lot 2 ... was the existence of the pipe monument, barrel and stake" and "there is sufficient credible testimony to locate the corner between Lot 1 and Lot 2 ... approximately five feet to the east of the existing boathouse."

In its conclusions of law the court referred to the Bureau of Land Management Manual of Survey Instructions (1973), the underlying regulations of which were discussed and approved by the Montana Supreme Court ruling of Vaught v. McClymond (1945), 116 Mont. 542, 155 P.2d 612. The District Court concluded that sufficient credible evidence existed that the original survey distance for lake frontage for lots eight through twenty-one was 100 feet with lot one containing 125 and that the most common type of secondary monumentation along the lake frontage was buried pipe. The court concluded the pipe, found at the northeast corner of lot two by Martinsen, was the best reliable evidence concerning the original intent of the surveyor. Finally, the court made a conclusion of law that sufficient credible testimony was presented to locate the corner between lot one and two at the monumentation found by Martinsen and that COS 2351, the certificate of survey completed by Schurian, should be amended to conform...