Nott v. Booke, 80-406

• Decision Date: 11 September 1981
• Docket Number: No. 80-406,80-406
• Citation: 633 P.2d 678,38 St.Rep. 1507,194 Mont. 251
• Parties: Lyle B. NOTT and Odeal S. Nott, Plaintiffs and Respondents, v. Glen BOOKE and Vicky Booke, husband and wife, and Jack D. Heidema, John A. Heidema, Defendants and Appellants.
• Court: Montana Supreme Court

Page 678

633 P.2d 678

194 Mont. 251

Lyle B. NOTT and Odeal S. Nott, Plaintiffs and Respondents, v. Glen BOOKE and Vicky Booke, husband and wife, and Jack D Heidema, John A. Heidema, Defendants and Appellants.

No. 80-406.

Supreme Court of Montana.

Submitted on Briefs July 2, 1981.

Decided Sept. 11, 1981.

Swandal, Douglass & Swandal, Livingston, Berger, Sinclair & Nelson, Billings, for defendants and appellants.

Holmstrom, Dunaway & West, Billings, for plaintiffs and respondents.

SHEEHY, Justice.

Lyle and Odeal Nott, plaintiffs and respondents, brought this action to quiet title to certain property in Carbon County, Montana. A summary judgment was granted against the Notts in favor of the defendants and appellants, Glen Booke, Vicky Booke, John A. Heidema and Jack D Heidema. In Nott v. Booke (1979), Mont., 598 P.2d 1137, 36 St.Rep. 1542, this Court reversed that judgment and remanded the case to District Court for a full hearing. Pursuant to that decision, the District Court sitting with a jury returned a verdict in favor of the Notts. From that judgment the Heidemas appealed.

Appellants raise three issues:

1. Does instruction no. 8 warrant a new trial because it incorrectly states the law and prejudices defendants' rights?

Instruction no. 8 provided:

"You are instructed that if you find that an agreement existed between Lyle Nott and the defendants' predecessors in interest, John and Genevieve Shupak, that the disputed strip of land lay with an agreed upon or fixed boundary, or that an agreement existed between the Notts and Shupaks, that extended the boundary line between their properties to include the disputed portion of land up to the existing fence line, then you must find for the plaintiff."

2. Does the District Court's refusal to give defendants' proposed instruction no. 5 prejudice the defendants' rights because it is a correct statement of the law and was needed to balance the other instructions?

Defendants' proposed instruction no. 5 stated:

"Where two adjoining proprietors are divided by a fence which they suppose to be the true line, they are not bound by this supposed line, but must conform to the true line when ascertained."

3. Can plaintiffs recover all costs of a survey which covered their entire property rather than merely the disputed area?

The dispute involves the strip of land located between Notts' and Booke-Heidemas' property. They are adjacent landowners in Carbon County, Montana, their land adjoining at the Notts' southern and Booke-Heidemas' northern boundaries. The Notts' property is described according to their deed as:

"The North Half of the Southwest Quarter (N1/2 SW1/4), the Southwest Quarter of the Southwest Quarter (SW1/4 SW1/4), Lot 9 and the North 19 feet of Lots 10 and 11, all located in Section Four, Township Six South, Range 23 East, M.P.M."

The Bookes purchased their land in 1976 from the Heidemas. The land was originally owned by John and Genevieve Shupak. The legal description of the property is described as:

"Tract A of Certificate of Survey No. 885, situated in Lots 10 and 11, Section 4 and Lot 2, Section 9, Township 6 South, Range 23 East, M.P.M."

The area in dispute is approximately 1950 feet in length, 68 feet in width on the east end, 38 feet in width on the west end, and slightly over two acres in total area. It is also enclosed by a boundary line fence which was constructed by Notts in 1946.

The Notts claim title to the strip of land under a deed executed in 1946 to Lyle B. Nott and his then spouse, Rosia Nott, from the Booke-Heidemas' predecessor in interest, John and Genevieve Shupak.

In 1946, the Notts employed William Burke to conduct a survey of the boundary line between their property and the Shupak's whereupon a fence was constructed by the Notts along the line as laid out by Burke. After the construction of the fence, however, the Shupaks disagreed as to the correct placement of the fence and boundary line. This, in turn, led to the land being resurveyed by Burke, who discovered an error in his calculations and determined the proper boundary line to be 19 feet north of the fence. To settle the dispute, the Shupaks executed a deed for good consideration to the Notts conveying the north 19 feet of Lots 10 and 11.

The parties thereafter occupied their lands in accordance with the boundary fence. During this time, the Notts cultivated the land, constructed fences and corrals for livestock and built a concrete irrigation flume next to the fence and upon the land which is the subject of this dispute. Notts were also assessed and have paid taxes upon their land in accordance with the description on the deed since 1946.

Bookes purchased their land from Heidemas in 1976. To comply with the provisions of the Subdivision and Platting Act, a certificate of survey was made after the purchase. This survey, which was conducted in 1977, created a further discrepancy between the boundary fence and Burke's second survey, giving rise to the present dispute.

Notts argued that they have acquired title by satisfying all the elements of adverse possession, including the requirement to pay all taxes on the land as set out in section 70-19-411, MCA, which provides:

"OCCUPANCY AND PAYMENT OF TAXES NECESSARY TO PROVE ADVERSE POSSESSION. In no case shall adverse possessions be considered established under this code unless it be shown that the land has been occupied and claimed for a period of 5 years continuously and the party or persons, their predecessors, and grantors have during such period paid all of the taxes, state, county, or municipal, which have been legally levied and assessed upon said land."

In this Court's previous opinion, at 598 P.2d 1139, we stated:

"... where...