Tiffany v. Uhde

• Court: Montana Supreme Court
• Writing for the Court: ADAIR
• Citation: Tiffany v. Uhde, 216 P.2d 375, 123 Mont. 507 (Mont. 1950)
• Decision Date: 21 March 1950
• Docket Number: No. 8940,8940
• Parties: TIFFANY v. UHDE et al.

Page 375

216 P.2d 375

123 Mont. 507

TIFFANY v. UHDE et al.

No. 8940.

Supreme Court of Montana.

March 21, 1950.

Mark H. Derr, Polson, John D. French, Polson, for appellants.

Lloyd I. Wallace, Polson, F. N. Hamman, Polson, for respondent.

ADAIR, Chief Justice.

Appeal from a judgment.

This suit involves lands bordering on Flathead lake in Lake county, Montana. The tract claimed by the plaintiff, Nellie Tiffany, is described in her complaint by metes and bounds.

The complaint, filed June 6, 1949, alleges: That plaintiff has been and is the owner, in possession of and entitled to the exclusive possession of the described tract; that neither the defendant F. R. Uhde nor the defendant James Uhde has any right, interest, estate or title in or to said real estate; that shortly prior to the commencement of this action plaintiff had the lands surveyed and the boundary lines marked with stakes by the county surveyor of Lake county; that thereafter plaintiff employed workmen to dig post holes and set fence posts on her own land along and within the surveyed boundary line; that on May 29, 1949, while plaintiff's workmen were so engaged in setting fence posts on her land and while a picnic was in progress on plaintiff's land, the defendants, driving a large truck upon plaintiff's land, ran over and knocked down plaintiff's fence posts and informed her that they 'would continue so to do and plaintiff could not so build her fence;' that because of such oppressive and malicious conduct and threats on the part of defendants and because of plaintiff's fears that defendants will execute their threats and continue to HARASS and annoy her, she is precluded from constructing her fence; that irreparable damage has resulted to plaintiff from such acts which have interfered in her use and occupation of her property; that she has no plain, speedy and adequate remedy at law; and that she 'brings this action to enjoin the defendants from interfering with her use and occupation of her own property, and erecting necessary fences thereon, and to avoid a multiplicity of lawsuits.' The prayer is that defendants be temporarily enjoined and restrained from in any manner interfering with her and her use and occupation of her property, or the building of necessary fences thereon; that upon final hearing the defendants be permanently enjoined and that she have judgment for $200 actual damages and $400 exempary damages 'and such other and further relief as may be proper in the premises.'

Citation, directed to defendants and an order to show cause, issued upon the filing of the complaint in response to which defendants filed certain affidavits wherein they claim title to the described real property by adverse possession. Following the hearing on the citation and order to show cause, the court issued a temporary restraining order enjoining defendants from interfering with plaintiff's use and occupation of her property or with the building of fences thereon.

Defendants then interposed a general demurrer to the complaint. The demurrer was overruled and defendants answered denying all the allegations of the complaint. Also by way of a separate defense and counterclaim, defendants alleged that in the year 1932 the defendant, Fred R. Uhde, and Faith M. Uhde, his wife, entered into a contract to purchase another described tract of land; that before purchasing such property their predecessor in interest caused same to be surveyed and the boundary line between such property and that claimed by plaintiff be fixed by one Salzman, then county surveyor of Lake county; that in 1932 the defendant, Fred R. Uhde, as contracting purchaser, and plaintiff's predecessor in interest 'erected a fence on said boundary line so surveyed for the purpose of marking the dividing line between and separating' the two tracts; that at all times since a fence has been maintained on said boundary line and that since June 1932 defendant Fred R. Uhde and wife and their predecessor in interest have kept their premises enclosed by a fence and 'have been in the open, notorious, exclusive and continuous, uninterrupted, and adverse possession of all said premises * * * and said defendant and his wife have paid all taxes which were levied and assessed against said premises.' The prayer is 'that plaintiff take nothing by her action, that the Court decree that the plaintiff has no estate, right, title or interest in any property lying northeasterly of the present fence between the properties * * * and enclosed by the fence of said defendant and his wife; that the defendants have in recovery the costs of suit herein and for other and further equitable relief as to the Court may seem proper.'

The plaintiff replied, denying the allegations of the answer, and upon the issues so presented the cause was tried to the court sitting without a jury.

The judgment roll sets for the minutes of the court which disclose: That sixteen witnesses testified on behalf of plaintiff; that twelve witnesses testified on behalf of defendants; that plaintiff introduced in evidence two maps of three surveys of the boundary lines made by the county surveyor of Lake county and an abstract of title and that defendants introduced in evidence a deed and four photographs of the fence and buildings on the premises.

At the close of all the evidence plaintiff's counsel announced that he did not care to submit proposed findings and conclusions but was agreeable for the court to make its own findings and conclusions, while defendants offered proposed findings and conclusions.

The trial court, declining to adopt those proposed by defendants, made its own findings of fact and conclusions of law, indicating that plaintiff's proof established the allegations of her complaint and specifically found plaintiff to be the owner of...