Larsen v. Richardson
| Decision Date | 21 September 2011 |
| Docket Number | No. DA 10–0210.,DA 10–0210. |
| Citation | 2011 MT 195,260 P.3d 103,361 Mont. 344 |
| Parties | Clifford G. LARSEN and Patricia P. Larsen, Plaintiffs, Counterdefendants, Appellees, and Cross–Appellants,v.Kenneth RICHARDSON, Jr., Lorna Richardson, Dennis Ruana, Joyce Ruana and all other persons, unknown, claiming or who might claim any right, title, estate or interest in or lien or encumbrance upon the real property described in the complaint adverse to the Plaintiffs' ownership or any cloud upon Plaintiffs' title thereto, whether such claim or possible claim be present or contingent, Defendants, Counterclaimants, Appellants, and Cross–Appellees. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
For Appellants: Christopher W. Froines, Geiszler & Froines, P.C., Missoula, Montana.For Appellees: Christopher B. Swartley, Attorney at Law, Missoula, Montana Zane K. Sullivan, Sullivan, Tabaracci & Rhoades, P.C., Missoula, Montana.Justice JAMES C. NELSON delivered the Opinion of the Court.
[361 Mont. 346] ¶ 1 Plaintiffs Clifford G. Larsen and Patricia P. Larsen (the Larsens) commenced this action in the Fourth Judicial District Court, Missoula County, seeking to quiet title to a 26.96–acre parcel of land. Defendants Kenneth Richardson Jr., Lorna Richardson, Dennis Ruana, and Joyce Ruana (collectively, the Richardsons) counterclaimed that they hold an easement by prescription over a portion of that land. Subsequently, the Richardsons amended their counterclaim to allege they own the northernmost 9.74 acres of the parcel outright, retaining their easement theory as an alternative ground for relief. Following a bench trial, the District Court ruled that the Larsens own the entire 26.96 acres and that the Richardsons do not hold a prescriptive easement. The District Court granted in part, and denied in part, the Larsens' request for costs and attorney's fees.
¶ 2 The Richardsons appeal and the Larsens cross-appeal, raising the following issues:
1. Did the District Court err in determining that the Larsens own the disputed 9.74 acres?
2. Did the District Court err in determining that the Richardsons do not hold a prescriptive easement?
3. Did the District Court err in denying the Larsens' request for attorney's fees?
4. Did the District Court err in denying the Larsens' request for certain costs?
We affirm as to Issues 1, 2, and 3. We reverse and remand as to Issue 4.
¶ 3 In August 2003, the Larsens purchased approximately 400 acres of land enclosed by the bold line and designated “Parcel 1” on Diagram I below. (The diagrams displayed herein are included in the record, with some labeling added and editorial modification for clarity.) This land is located northwest of the City of Missoula and is bounded along its east edge by LaValle Creek Road. The Richardsons own adjacent property (roughly 1,500 acres) to the north and west. Dougherty Ranch owns adjacent property to the east.
¶ 4 Parcel 1 is situated primarily in Section 23 of Township 14 North, Range 20 West, Principal Meridian, Montana. It also extends east into Section 24 and then north into Section 13. When the Larsens filed this action, they sought to quiet title to the portion of Parcel 1 jutting up into Section 13, which is the shaded 26.96–acre finger of land on Diagram I above and the area enclosed by the letters C, F, E, and D on Diagram II below. The Richardsons did not contest the Larsens' ownership of the southern 17.22 acres. Rather, the dispute centered on the northern 9.74 acres, represented by crosshatching and enclosed by the letters B, F, E, and A on Diagram II.
¶ 5 The Richardsons' land to the west is used for pasturing cattle annually from May to October. Since the 1940s, the Richardson family and, in later years, the Richardsons' lessees have used some old corrals, a loading chute, and fences within the disputed 9.74 acres to move cattle to and from the Richardsons' land. Thus, the Richardsons claimed an easement to continue using the corrals and adjacent area (roughly 1.5 acres in total) as they had for the previous 60 years.
¶ 6 As noted, the Richardsons later added a claim of outright ownership of the 9.74 acres. This claim was premised on the fact that various deeds, dating back to 1910, describe the boundary between what is now the Larsens' property and the Richardsons' property within Section 13 as a “line offence” that proceeds northeasterly from Point C ( see Diagram II) to a point where said fence “jogs” to the east across LaValle Creek to LaValle Creek Road. (The approximate course of LaValle Creek has been added to Diagram II.) This “jog” represents the northern boundary of the Larsens' finger of land. The Richardsons claimed that the existing fence from Point B to Point A is the “jog” referenced in the deeds. If correct, then they own the disputed 9.74 acres north of that fence. But if the “jog” is located further north, from Point F to Point E as the Larsens contend, then the Larsens own the 9.74 acres.
¶ 7 At the end of 1909, all of Section 13 was owned by John R. Latimer. Latimer conveyed his ownership of Section 13 in three separate transactions. First, in 1910, he sold the portion of Section 13 now owned by the Richardsons, referred to herein as “the Richardson property,” which is the area west of LaValle Creek Road except the finger of land. Second, in 1913, Latimer sold the portion of Section 13 now owned by Dougherty, referred to herein as “the Dougherty property,” which is the area east of LaValle Creek Road. Third, in 1933, Latimer sold the portion of Section 13 now owned by the Larsens, referred to herein as “the Larsen property,” which is the finger of land.
¶ 8 The subsequent deeds conveying the Dougherty property and the Larsen property contain boundary descriptions that are identical, in material respects, to the 1913 and 1933 deeds, respectively. As for the Richardson property, the 1910 deed describes the boundary without specific measurements, but the 1943 deed of that property, by which it was conveyed to the Richardson family, includes specific bearings and distances.
¶ 9 The synopsis of the deed language is as follows. Diagram II is displayed again here for reader convenience.
First, the boundary between the Richardson property and the Larsen property (within Section 13) begins at Point C and proceeds in a northeasterly direction along a line of fence to a point where said fence jogs to the east across LaValle Creek, thence easterly along the jog in the fence to LaValle Creek Road. The 1910 deed of the Richardson property and all deeds of the Larsen property state that the “jog” is “near the center” of Section 13. The courses provided in the 1943 deed of the Richardson property likewise indicate that the jog is near Section 13's east-west midsection line ( see Diagram II). The 1943 deed further states that the jog is 350 feet in length. The deeds to the Dougherty property and the Larsen property establish that the jog ends at the point where LaValle Creek Road crosses the east-west midsection line, which is therefore the northeast corner of the finger of land. All of this leads to the conclusion that the jog began approximately at Point F (which is 350 feet west of LaValle Creek Road on the midsection line) and ran east to Point E. In fact, there is no dispute that the deeds, “as they are written,” place the jog from Point F to Point E. The Larsens' expert (James R. Weatherly, a licensed professional engineer with WGM Group, Inc.) and the Richardsons' expert (Ronald D. Milam, a professional land surveyor with DJ & A, P.C.) agreed on this point.
¶ 10 Nevertheless, Weatherly and Milam ultimately disagreed about the location of the jog. Weatherly maintained that it was from Point F to Point E, while Milam insisted that it was from Point B to Point A. This disagreement was based on existing conditions in the field. On one hand, there presently is a fence from Point C to Point B, which seemingly “jogs” over to Point A. In contrast, there is no fence presently running north from Point B to Point F to Point E. Furthermore, while there is evidence of old fencing north of Point B, it is unclear whether these remains were part of a prior boundary fence. On the other hand, however, there is no evidence that the B–to–A fence existed when the 1910 deed was written, and language in the various deeds indisputably puts the “jog” in the vicinity of Points F and E. Moreover, evidence introduced at trial indicates that the finger of land was understood to be 30 acres in size. If the jog is from Point F to Point E, then the finger works out to be 26.96 acres. But if the jog is from Point B to Point A, then the finger works out to be only 17.22 acres.
¶ 11 As fleshed out at trial, Milam's conclusion that the jog is from Point B to Point A is grounded in two propositions. The first is that the writers of the 1910, 1913, 1933, and 1943 deeds “did not know where [Section 13's] east-west midsection line was located upon the ground.” Milam opined that there in fact was a fence from Point B to Point A in 1910, which the deed writers mistakenly thought was situated approximately on the midsection line; therefore, when they referred to a jog “near the center” of Section 13, they meant this fence. Essentially, Milam posited that the deed writers understood the midsection line to be 1,150 feet south of where it actually is, nearly halfway between the true midsection line and Section 13's southern boundary.
¶ 12 Milam conceded, however, that surveyors of the era could have established an accurate east-west midsection line. Weatherly testified to the same effect and noted that even if the deed writers got it wrong, “[w]e certainly wouldn't expect them to be eleven hundred and...
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