Olson v. Jude
| Decision Date | 15 July 2003 |
| Docket Number | No. 01-169.,01-169. |
| Citation | 2003 MT 186,316 Mont. 438,73 P.3d 809 |
| Parties | Robert W. OLSON, Plaintiff and Appellant, v. James R. JUDE, Sallye Jude, Big Horn Properties, L.P., and Christopher Jude, Defendants and Respondents. |
| Court | Montana Supreme Court |
Lisa A. Banick, Alfred F. Avignone, Garrity, Avignone, Banick & Whetstone, Bozeman, Montana, For Appellant.
Christopher Williams, Bozeman, Montana; Peter M. Kirwan, Kirwan & Barrett, Bozeman, Montana, For Respondents. Justice JAMES C. NELSON delivered the Opinion of the Court.
¶ 1 Robert W. Olson appeals a judgment of the District Court for the Eighteenth Judicial District, Gallatin County, quieting title of the property in question to James R. Jude, Sallye Jude, Big Horn Properties, L.P., and Christopher Jude (collectively, "the Judes"). We affirm.
¶ 2 While Olson raised a number of issues on appeal, we have consolidated them into the following three issues:
¶ 3 1. Whether the District Court correctly determined that the Big Horn Tract's northern boundary is along the east-west quarter section line of Section 32.
¶ 4 2. Whether the District Court correctly awarded the relief sought by the Judes.
¶ 5 3. Whether the District Court correctly denied the relief sought by Olson.
¶ 6 Because we affirm on Issues 1 and 2, we do not address Issue 3.
¶ 7 On October 27, 1995, Boyne USA, Inc., filed a complaint against James and Sallye Jude seeking to quiet title to the property known as Tract 1, Certificate of Survey 1898 (COS 1898), located in the NE¼ of the SE¼ of Section 32, Township 6 South, Range 4 East, Gallatin County, Montana. Tract 1, COS 1898 is a 2.997 acre parcel located on Highway 191 just north of the intersection of Highway 191 and the access road to Big Sky Resort. (See Diagram.) Boyne also sought to quiet title to improvements on Tract 1, COS 1898 made by the Judes as well as damages for the Judes' allegedly wrongful occupation of Tract 1, COS 1898.
¶ 8 The Judes own property referred to as the Big Horn Tract. Resolution of this dispute depends on whether the northern boundary line of the Big Horn Tract is located where the surveyor of that subdivision set the monuments marking that line or whether the northern boundary line of the Big Horn Tract is located at the east-west quarter section line of Section 32. Olson asserted at trial that the monuments placed by surveyor Earl Best in 1957 control the northern boundary of the Big Horn Tract and that Olson owns the land north of those monuments (Tract 1, COS 1898). The Judes asserted at trial that the east-west quarter section line of Section 32 controls the northern boundary of the Big Horn Tract and that the Judes own the land up to the east-west quarter section line, which would include Tract 1, COS 1898. The United States Government owns the land north of the east-west quarter section line of Section 32.
¶ 9 Thomas Cahill, title examiner and manager of American Land Title Company in Bozeman examined the title to Tract 1, COS 1898 and the Big Horn Tract in 1995 and again prior to trial. Cahill provided his testimony by affidavit in which he identified the following chain of title for Tract 1, COS 1898 and the Big Horn Tract.
¶ 10 On June 3, 1916, the United States Government conveyed the NE¼ of the SE¼ of Section 32, Township 6 South, Range 4 East, Gallatin County, Montana, to Andrew Lewinski. During the time that Lewinski owned this parcel of land, a county road was created that ran through the property. This road was called the West Gallatin Road.
¶ 11 In 1917, Lewinski conveyed the property to Charles Anceny and, on June 22, 1992, Anceny conveyed to Gallatin County approximately 3.43 acres of the property for a highway right of way. On December 18, 1922, Anceny conveyed that portion of the property lying west of West Gallatin Road to Gertrude Collett. That parcel was described as all that part of the NE¼ of the SE¼ of Sec. 32, T6S, R4E lying west of the West Gallatin Road, "the land hereby conveyed containing 26.5 acres, more or less." Between 1922 and 1953, the property changed hands several times. During that time, the deeds transferring this parcel contained a description similar to that in the Anceny-to-Collett deed.
¶ 12 On July 12, 1953, Adelaid McMullen, the owner of the property at that time, conveyed to the State of Montana an additional.71 acres for a highway right of way. This conveyance changed the size and location of the West Gallatin Road to the existing Highway 191 right of way. On November 6, 1953, McMullen conveyed to Earl Dawes all that part of the NE¼ of the SE¼ of Section 32, Township 6 South, Range 4 East, lying west of the West Gallatin Road and west of Highway 191.
¶ 13 On December 19, 1953, Dawes conveyed to L.G. and Ruth Zollinger all that part of the NE¼ of the SE¼ of Section 32, Township 6 South, Range 4 East, lying west of the West Gallatin Road and west of Highway 191, reserving a parcel 300 feet by 260 feet in size. The reserved parcel was later known as "the Dawes-Fishbaugh parcel." The Zollingers later conveyed an additional.05 acres to the State of Montana for a highway right of way.
¶ 14 In 1957, the Zollingers decided to subdivide their property. They hired Earl Best to survey and prepare a subdivision plat for a portion of the property. This subdivision became known as the Big Horn Tract and was recorded on June 7, 1957, in Plat Book E, page 52 (), in the offices of the Gallatin County Clerk and Recorder.
¶ 15 The Zollingers subsequently conveyed the property, other than the Big Horn Tract and the Dawes-Fishbaugh parcel to Swenson Furniture & Distributing Co., who later conveyed the property to O.K. Swenson. On February 26, 1970, Swenson conveyed the property to Sam Smeding who, on June 8, 1976, conveyed the property to Big Sky of Montana, Inc. (Big Sky). Thereafter, Big Sky conveyed to the State of Montana another 1.9 acres for a highway right of way.
¶ 16 The Judes began purchasing the Big Horn Tract lots in 1985 for investment purposes. By the time Boyne (who is the successor by merger to Big Sky) filed its lawsuit in 1995, the Judes owned lots F through Q of the Big Horn Tract. The property description portion of each of the deeds of conveyance for these lots refers to "the official plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana" (Plat E-52).
¶ 17 On July 7, 1995, almost four months prior to the commencement of this action, Boyne had COS 1898 recorded in the offices of the Gallatin County Clerk and Recorder. COS 189, shows a tract of land lying north of the Big Horn Tract and south of the east-west quarter section line of Section 32. This tract is referred to on COS 1898 as Tract 1 and is the property at issue in this action.
¶ 18 On February 24, 1997, Boyne sold and conveyed Tract 1, COS 1898 to Robert Olson. As part of the purchase agreement for Tract 1, COS 1898, Boyne transferred and assigned all of its right, title and interest in this lawsuit to Olson. Thereafter, Olson was joined as a plaintiff in this action.
¶ 19 On November 21, 1997, the Judes conveyed lots F through P of the Big Horn Tract to Big Horn Properties, L.P., and lot Q of the Big Horn Tract to their son, Christopher Jude. The Judes are the controlling partners of Big Horn Properties. After these conveyances, Big Horn Properties and Christopher Jude were added as defendants.
¶ 20 Leland Dawes and the Trustees of the Donaldine Fishbaugh Revocable Trust were the owners of the Dawes-Fishbaugh parcel reserved in 1953. This parcel is located south of Lot G of the Big Horn Tract. On December 3, 1997, Dawes and the Trustees transferred their property and all of their right, title and interest in this lawsuit to Boyne. Thereafter, Boyne, the Judes and Olson entered into a stipulation for dismissal in which the claims by and against Boyne were dismissed with prejudice.
¶ 21 In 1905, Ralph and Howard Bushnell surveyed Section 32, Township 6 South, Range 4 East, Gallatin County, Montana, under contract to the United States Government. The Bushnells established corners at half-mile intervals for creating sections and quarter sections. They started from the corner of Sections 4, 5, 32 and 33, and proceeded north 0 degrees 4 feet west between Sections 32 and 33. At 40 chains, or halfway between section lines, they placed a 16 inch by 9 inch by 5 inch granite stone 11 inches into the ground. The inscription "¼" was marked on its west face. The stone monumented the east quarter corner of Section 32 and denotes the eastern terminus of the east-west quarter section line through Section 32. This quarter section corner lies at the center of Highway 191.
¶ 22 In 1953, the Montana State Highway Commission surveyed a portion of Section 32 near what later became the Big Horn Tract. The Commission's survey located the center line for Highway 191. This survey also depicted the east quarter corner of Section 32 close to the center line of Highway 191.
¶ 23 In 1957, the Zollingers hired Earl Best to survey and prepare the subdivision plat for the Big Horn Tract. In his "Certificate of Surveyor" on Plat E-52, Best certified that iron pin monuments were set at all external and lot corners of the Big Horn Tract. The "Certificate of Dedication" on Plat E-52 described the Big Horn Tract's boundaries by reference to the ten corners where Best set monuments and it identified the total acreage of the tract as "14.494 acres, more or less." However, none of the Big Horn Tract's corners are identified as being coincident with any government corner or government monument. Plat E-52 also identifies the acreage for each lot. The Dawes-Fishbaugh parcel is shown on Plat E-52 as Lot D even though it was not part of the Big Horn Tract.
¶ 24 Testimony at the trial in this matter showed that Best committed...
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