Stephens v. Hurly

• Citation: 172 Mont. 269,563 P.2d 546,34 St.Rep. 243
• Decision Date: 20 April 1977
• Docket Number: No. 13402,13402
• Parties: Gary F. STEPHENS and Nancy L. Stephens, husband and wife, Plaintiffs and Counter-Defendants, v. Dr. John T. HURLY, as Trustee, and Robert Hurly, Defendants and Counter-Claimants, and Appellants.
• Court: United States State Supreme Court of Montana

Page 546

563 P.2d 546

172 Mont. 269

Gary F. STEPHENS and Nancy L. Stephens, husband and wife Plaintiffs and Counter-Defendants, v. Dr. John T. HURLY, as Trustee, and Robert Hurly, Defendants and Counter-Claimants, and Appellants.

No. 13402.

Supreme Court of Montana.

Submitted March 23, 1977.

Decided April 20, 1977.

Robert Hurly argued, Glasgow, Murphy Robinson, Heckathorn & Phillips, Kalispell, for defendants and counter-claimants, and appellants.

Warden, Walterskirchen & Christiansen, Kalispell, Gary R. Christiansen argued, Kalispell, for plaintiffs and counter-defendants.

HASWELL, Justice.

This case concerns a dispute over the location of the boundary separating two parcels of lake front property. Gary F. Stephens and Nancy L. Stephens (his wife) brought the action in the district court, Flathead County, seeking determination that their survey correctly established the boundary line between their property and the adjoining property of appellants Hurly. Stephens also sought a decree quieting title to their property; removal of certain encroachments; reimbursement of the cost of their survey; compensatory and punitive damages; and permanently enjoining the Hurlys or their successors in interest from interfering with their property. Hurlys counterclaimed for quiet title.

The case was tried before Hon. Robert S. Keller, district judge, sitting without a jury. Judgment was entered for the Stephens, quieting title and establishing the boundary as set forth in their survey. In addition, the court permanently enjoined Hurlys or their successors from interfering with the Stephens' property, ordered the encroachments removed, and awarded costs of the survey to the Stephens. From this judgment the Hurlys appeal.

The two parcels of property in question were part of a larger tract originally owned by one George E. Barkley. This tract was located on the shore of Whitefish Lake in Government Lot 4, Section 24, Township 31 North, Range 22 West M.P.M. On August 10, 1934, Barkley conveyed the Stephens property to their predecessors in interest. About a year later, Barkley conveyed the Hurly property to their predecessors in interest. The legal descriptions for each parcel have remained the same from the time of the initial Barkley conveyances to the present time.

In 1959, one John Thumma sold the Hurlys a tract of land 160 feet wide bounded on the west by Whitefish Lake, on the north by what is now the Viking Motel property, bounded on the east by the Big Mountain highway, and bounded on the south by the Stephens property. The Hurly property was at the time of the sale, and ever since, has been bounded by the waters of Whitefish Lake on one side, and enclosed by fences on the remaining three sides.

In 1973, Stephens purchased the parcel adjoining the Hurly property on the south, with the intent of constructing a residence thereon. Stephens staked out the location of the house on the ground. The house was custom designed by an architect for that particular parcel of land, taking into careful consideration the width of the lot. While staking out the residence, it became apparent that although the deed provided for 80 feet in width, there was not actually 80 feet between the Stephens' south boundary and the Hurly fence on the north.

At that point Stephens contacted Dean Marquardt, a certified civil engineer and land surveyor, and requested a survey to determine the location of the common boundary line between the Stephens and Hurly tracts. Marquardt prepared the survey and staked the dimensions of the Stephens' lot using the existing controlling corners and information from previous surveys of the tracts nearby. The original government survey notes which were compiled on the area in question in 1893 were not used by Marquardt.

The Marquardt survey established the Hurly fence was in fact encroaching upon the northern portion of the Stephens' property. The encroachment is a pie-shaped strip running the entire length of the Stephens' lot from the lake shore to the Big Mountain highway. It is approximately 10 feet wide at the lake shore and tapers down to 2 feet at the highway. An 8 42 mobile home, water and sewer lines, and various other improvements are located upon this pie-shaped piece of property.

Stephens notified Hurlys of the encroachment and attempted to negotiate a resolution of the problem. They were totally unsuccessful; in fact the Stephens were advised by the Hurlys that the courts were their only alrernative. Thereafter the complaint was filed on July 18, 1974.

Three issues are presented for review:

I. Is the Stephens' action barred because they were not in possession of the property within five years of the commencement of their action?

II. Are Hurlys entitled to a decree quieting title to the disputed tract by adverse possession?

III. Is the Marquardt survey correct?

Issue I. As an affirmative defense, the Hurlys claim the Stephens are barred from commencing an action for quiet title by the provisions of sections 93-2504 and 93-2505, R.C.M.1947, which provide:

Section 93-2504. 'No action for the recovery of real property or for the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question within five years before the commencement of the action.'

Section 93-2505. 'No cause of action, or defense to an action, arising out of the title to real property, or to rents or profits out of the same, can be effectual, unless it appear that the person prosecuting the action, or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor of such person, was seized or possessed of the premises in question within five (5) years before the commencement of the act in respect to which such action is prosecuted or defense made.'

The record clearly shows that the Stephens and their predecessors were not in actual possession of the disputed property for the five years immediately prior to the commencement of this action. The record reflects this testimony at the trial:

'Q. (to Mr. Stephens) Have you and your wife ever been on and had possession of the property which was enclosed by the fence and includes the trailer? A. We sure haven't.'

'Q. (to Mr. Hurly) Since you have been there, has anyone ever been in possession of the land north of your south fence. A. No one.

'Q. Other than yourself and your family? A. No one else.'

The quoted statutes both use the words 'seized or possessed of the property in question within five (5) years before the commencement of the action.' This language is clearly in the alternative-'seized or possessed.' Thus seisin alone by the Stephens meets the statutory requirements.

In Hanley v. Stewart, 155 Pa.Super. 535, 39 A.2d 323, 326, the court said:

'* * * there is substantial competent authority for the position that 'seized', used by itself, commonly refers to a possession in fee simple.'

The court in Altschul v. O'Neill, 35 Or. 202, 58 P. 95, 96, said:

"The law deems every man to be in the legal seisin and possession of land to which he has a perfect and complete title. This seisin and possession is co-extensive with the right, and continues till he is ousted thereof by an actual adverse possession."

A general discussion of the concept of 'seisin' is found in 63 Am.Jur. 2d, Property § 40, p. 324:

'By the ancient law of England, the title, that is, full and complete dominion of land, could be conveyed only by the solemn act of livery of seisin, and no deed or charter was necessary. Deeds and charters came into use at a later period. At first they were held not to convey the estate itself but only to evidence, the nature of the coneyance; gradually, however, the rule of actual seisin or seisin in deed came to be regarded as the equivalent of livery of seisin, and it has long since been the rule that livery of seisin is not necessary to perfect a fee simple title to land. Seisin in a legal sense means possession of land coupled with the right to possess it and a freehold estate therein; it is practically the same thing as ownership. The law deems every man to be in the legal seisin and possession of land to which he has a perfect and complete title. This seisin and possession is coextensive with his right, and continues until he is ousted therefrom by an actual adverse possession. Actual occupancy is not essential to a lawful seisin, although it is to a tortious or unlawful seisin.

'* * * When a man is once seised of land, his seisin is presumed to continue until a disseisin is proved.' (Emphasis added.)

This quotation makes it clear the Stephens and their predecessors in interest were seized of the property in question. There is no contention that the Stephens' title is not complete. The property was conveyed to them as defined by the legal description. The Marquardt survey, using this description, established the Hurly fence is in fact encroaching upon the Stephens' property. We hold the Stephens and their predecessors were seized of the property in question and therefore entitled to bring this action to quiet title.

We also find the provisions of section 93-2507, R.C.M.1947, are applicable. This section states:

'In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and...