Karlson v. Rosich, 05-305.

• Decision Date: 08 November 2006
• Docket Number: No. 05-305.,05-305.
• Citation: 147 P.3d 196,2006 MT 290,334 Mont. 370
• Parties: Allene K. KARLSON, Plaintiff, Counterdefendant and Respondent, v. Ludvik ROSICH, Defendant, Counterclaimant and Appellant.
• Court: Montana Supreme Court

147 P.3d 196

2006 MT 290

334 Mont. 370

Allene K. KARLSON, Plaintiff, Counterdefendant and Respondent, v. Ludvik ROSICH, Defendant, Counterclaimant and Appellant.

No. 05-305.

Supreme Court of Montana.

Submitted on Briefs February 23, 2006.

Decided November 8, 2006.

For Appellant: Keith W. McCurdy, McCurdy Law Firm, P.C., Polson, Montana.

For Respondent: Darrel L. Moss, Sullivan, Tabaracci & Rhoades, P.C., Missoula, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Ludvik Rosich (Rosich) appeals from the findings of fact, conclusions of law and order entered by the Twentieth Judicial District Court, Lake County, declaring the boundary line between properties owned by Rosich and Allene K. Karlson (Karlson). We reverse and remand.

¶ 2 We address the following issue on appeal:

¶ 3 Did the District Court err in determining the boundary line between the parties' properties?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 Clyde and Myrtle Norman (Normans) owned a parcel of real property on the east lakeshore of Flathead Lake, being a part or portion of Government Lot 4, Section 16, Township 24 North, Range 19 West, Lake County, Montana. In December 1971, Clyde Norman marked off a proposed division of the property into two parcels, a northern parcel and southern parcel, for the purpose of granting the southern parcel to their daughter and son-in-law, Gladys and Ludvik Rosich. A road surveyor, Ludvik prepared a survey of the divided lots using a third order ground survey method (i.e., transit, Dietzger, and steel tape). However, because Ludvik was not a registered land surveyor, the survey was signed off on June 4, 1973, by Gordon Sorenson, a registered land surveyor. The completed survey, denominated as Certificate of Survey H-2131, and a deed conveying the southern parcel to Gladys and Ludvik was recorded on November 9, 1973. The northern parcel was retained by the Normans, who transferred the parcel to other family members. The parcel was ultimately transferred to Karlson.

¶ 5 Rosich remains the owner of the southern parcel. A dispute arose between Karlson and Rosich regarding the location of the common property line between their respective properties, and, as a result, Karlson filed an action requesting the District Court to declare and adjudicate the correct and proper location of the boundary line between the two tracts of land pursuant to the Montana Uniform Declaratory Judgments Act, § 27-8-101, et seq., MCA. Karlson asserted that the boundary line was properly identified by the survey prepared by surveyor Jane Eby (Eby survey). Rosich denied that the Eby survey correctly identified the dividing line and filed a counterclaim asserting the boundary line was properly shown on the survey prepared by surveyor Greg Marengo (Marengo survey).

¶ 6 The case was tried before the District Court without a jury. On February 1, 2005, the court entered judgment in favor of Karlson. The court found that the property had been divided pursuant to a family transfer exemption under the Subdivision and Platting Act, and declared the true and correct property line was as depicted by the Eby survey. Rosich filed a motion to amend and supplement the court's findings of fact and conclusions of law and to alter or amend the order, which Karlson opposed and the District Court denied. Rosich appeals.

STANDARD OF REVIEW

¶ 7 "Declaratory relief is an equitable remedy." Oregon ex rel. Dept. of Transp. v. Heavy Vehicle, 198 F.Supp.2d 1202, 1206 (D.Or.2002). "Section 3-2-204(5), MCA, in combination with Rule 52(a), M.R.Civ.P., control this Court's standard for reviewing equitable cases and require that findings of fact be upheld unless they are clearly erroneous." Hansen v. 75 Ranch Co., 1998 MT 77, ¶ 20, 288 Mont. 310, ¶ 20, 957 P.2d 32, ¶ 20 (citing McCann Ranch, Inc. v. Quigley-McCann, 276 Mont. 205, 208, 915 P.2d 239, 241 (1996)). "Our standard of review pertaining to a district court's conclusions of law, in rendering a declaratory judgment, is to determine if the court's interpretation of the law is correct." Skinner v. Allstate Ins. Co., 2005 MT 323, ¶ 10, 329 Mont. 511, ¶ 10, 127 P.3d 359, ¶ 10 (quoting City of Great Falls v. DPHHS, 2002 MT 108, ¶ 10, 309 Mont. 467, ¶ 10, 47 P.3d 836, ¶ 10).

DISCUSSION

¶ 8 Did the District Court err in determining the boundary line between the parties' properties?

¶ 9 In order to determine the proper surveying standards to be applied to the disputed boundary line, the District Court first considered whether this division of property qualified as an exemption under the Montana Subdivision and Platting Act (Act). We note that, in undertaking this issue, it appears¹ the District Court applied the 2003 version of the Act. Although we ultimately determine herein that the 2003 version of the Act is not applicable to this division, we nonetheless initially undertake consideration of the District Court's analysis under the 2003 statutes, in order to address other pertinent issues raised in its order and to provide guidance upon remand.

¶ 10 If the property division here was not exempted and, therefore, subject to the Act's review and regulation, then the survey standards to be applied would be those provided by § 76-3-402, MCA (2003), entitled "Survey and platting requirements for subdivided lands."² On the other hand, if the property division qualified as an exemption under the Act, then the survey would be governed by § 76-3-401, MCA (2003), entitled "Survey requirements for lands other than subdivisions."

¶ 11 In addressing the exemption issue, the District Court concluded the Normans' division of the property was "for the benefit of their children" and, therefore, was "a division of land not considered a subdivision under § 76-3-207(1)(a), MCA." However, this statute provides that "divisions made outside of platted subdivisions for the purpose of relocating common boundary lines between adjoining properties" are "not subdivisions under this chapter." The problem here is apparent: although the District Court concluded that the division qualified for a family exemption, it nonetheless cited the provision governing a common boundary exemption. This division could not have qualified as a common boundary relocation, because the land divided was wholly owned by the Normans—there was no common boundary line between multiple owners at the time of the division that could have been relocated. Thus, the exemption provided under § 76-3-207(1)(a), MCA (2003), could not have been applicable.

¶ 12 The District Court may have intended to refer to § 76-3-207(1)(b), MCA (2003), which provides an exemption from subdivision review for divisions made "for the purpose of a single gift or sale in each county to each member of the landowner's immediate family." This supposition arises from the District Court's finding that the Normans' division was for the benefit of their children.

¶ 13 However, even if this Court's conjecture is correct, and the District Court intended to rely on § 76-3-207(1)(b), MCA (2003), in concluding that the division was exempted under the Act by virtue of a family transfer, the court's order was unclear about the surveying criteria it was applying to the division. The District Court concluded that "this is not a subdivision under § 76-3-207(1)(a) M.C.A., so § 76-3-402 M.C.A., does not apply," but nonetheless found that the Eby survey, which it ruled was the correct survey, "utilized, conformed to, and adhered to the U.S. Bureau of Land Management instructions"— the criteria required by § 76-3-402, MCA (2003).

¶ 14 Though we raise the above-referenced concerns to assist in analyzing the matter upon remand, the greater question is which version of the Act is applicable herein. Obviously, before questions about the Act, its exemptions, and the proper survey criteria can be taken up, the applicable version of the Act must be determined. The issue here involves an element of time, that is, the intention when the property was originally divided. "The object of all rules for the establishment of boundaries is to ascertain the actual location of the boundary as made at the time." Rogers Bros. Coal Co. v. Roberts, 216 Ky. 214, 287 S.W. 725, 726 (App. 1926) (emphasis added). "As to boundary disputes, the primary purpose is to track the footsteps of the original surveyor, to locate the survey as it was intended to be located on the ground by him." State v. Pennsylvania Railroad Company, 228 A.2d 587, 595 (Del.Super.1967) (citing Moore v. Campbell, 254 S.W.2d 1018, 1024 (Tex.Civ.App.1953)).

¶ 15 Thus, the law governing survey criteria at the time of the transaction must be applied. "[Courts] have long held that parties to a conveyance have a right to rely upon the law as it was at that time." Ark. Presbytery of Cumberland v. Hudson, 344 Ark. 332, 40 S.W.3d 301, 310 (2001), cert denied, 534 U.S. 945, 122 S.Ct. 329, 151 L.Ed.2d 243 (2001); see generally 23 Am.Jur.2d Deeds § 9 (2002) (a court evaluates a conveyance "[f]rom the standpoint of time, the law in effect at the time of the execution of a deed governs its validity and interpretation"). The Supreme Court of...