Pilgrim v. Kuipers ( 1984 )

No. 83-212
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
JAIWS NEDROW PILGRIM,
Plaintiff and Appellant,
-vs-
JOHN KUIPERS, et al.,
Defendants and Respondents.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Nat Allen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas Dooling, Dillon, Montana
For Respondents:
W. G. Gilbert, 111, Dillon, Montana
Submitted on Briefs: February 2, 1984
Decided: April 9, 1984
Filed:
~284
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
James Medrow Pilgrim appeals from an order of the Fifth
District Court, Beaverhead County, quieting title to two
separate tracts of land in Pilgrim and defendant John
Kuipers. We affirm.
The disputed property line originated when Pilgrim sold
a portion of his property to one of Kuipers' pred-ecessors in
interest (Brooks), retaining the remaining tract to himself.
The property description in this deed (Pilgrim to
Brooks) contained at least one error and is demonstrably
unreliable in that it does not close. The relevant part of
the description is set forth as follows:
" (c) Beginning a.t quarter corner on East and West
line between Sections 7 and 18, Township 7 South,
Range 8 West; thence North 11" 45' East 715 feet;
thence North 69" 30' East 602 feet; thence South
19" 00' West 675 feet to approximate center of
channel of Beaverhead River South 68" 09' West 253
feet; thence South 86" 30' West 230 feet, more or
less to easterly right-of-way line of Federal Aid
Project No. 241 D (3) at approximate center of
channel of said river; running thence Southerly
along said right-of-way line 190 feet more or less;
thence South 89" 07' West 96.2 feet, more or less,
to point of beginning, comprising 7.57 acres, more
or less, in the Southwest Quarter of Southeast
Quarter of Section 7, Township 7 South, Range 8
West, M.P.M."
At the time of the Pilgrim to Brooks conveyance, a "fox
farm" fence existed in the approximate area of the line
dividing the two properties. The deed, however, makes no
reference to the fence; the conveyed property is described
only by the metes and bounds description referred to above.
This description originated with a survey made of the
property at the time of the Pilgrim to Brooks sale.
A dispute arose when Kuipers removed part of the "fox
farm" fence and began to build a garage partially on
Pilgrim's side of the fence. During the dispute, the
difficulties with the property description were discovered.
Roger Pierce, a surveyor, attempted to reconcile, to the
extent possible, the property description with the undisputed
boundaries and monuments on the land. The trial court
concluded that "the Pierce survey, when modified according to
correct surveying practices and the provisions of section
70-20-201, MCA not only will close, but will describe a tract
of land retained by the grantor, Pilgrim, containing an
acreage within 20/100th of an acre of the amount stated in
his deed". The court also noted that the boundary in the
"Pierce survey" varies from another survey of the disputed
boundary by only 39 feet at the northern end, and is
effectively coincident at the southern point.
The court ordered that the titles to the respective
properties be quieted in accordance with the Pierce survey.
Pilgrim appeals from the final judgment.
The following issues are raised on appeal:
1. Whether the trial court erroneously excluded
evidence under the par01 evidence rule.
2. Whether the surveying practices used in the Pierce
survey are proper and in accordance with section 70-20-201,
MCA .
3. Whether the findings and conclusions of the trial
court are "clearly erroneous?"
Appellant argues that it is "impossible to reconcile the
written legal description of the property with its admitted
boundaries on the ground." Appellant reasons that extrinsic
evidence is therefore competent and necessary to establish
the true boundary of the property conveyed by the deed. We
disagree.
Sections 70-20-201 and 70-20-202, MCA are to be read
together. The rules of construction in section 70-20-201,
MCA resolve inconsistencies in the descriptive part of a
conveyance. The effect of this section cannot be
circumvented by resort to extrinsic evidence under the
"ambiguity" clause of section 70-20-202, MCA. If the
description in the written conveyance can be reasonably
construed pursuant to such rules, extrinsic evidence cannot
be used to contradict such a construction. That is the case
here.
Appellant argues that the proper surveying practices and
rules of construction were not used in this case. The
relevant statute is section 70-20-201, MCA which provides:
"Rules for construing description. The following
are the rules for construing the descriptive part
of a conveyance of real property when the
construction is doubtful and there are no other
sufficient circumstances to determine it:
" (1) Where there are certain definite and
ascertained particulars in the description, the
addition of others which are indefinite, unknown,
or false does not frustrate the conveyance, but it
is to be construed by the first mentioned
particulars.
" (2) When permanent and visible or ascertained
boundaries or monuments are inconsistent with the
measurement, either of lines, angles, or surfaces,
the boundaries or monuments are paramount.
" (3) Between different measurements which are
inconsistent with each other, that of angles is
paramount to that of surfaces and that of lines
paramount to both. . . ."
Appellant concedes that Highway 91 is a monument which
establishes the western boundary of the Pilqrim property, and
that the Stahl fence is also a monument correctly located on
the northern boundary of the tract. Appellant cannot contest
that a third monument establishes the southern boundary of
the tract: the Beaverhead River.
The final boundary is prescribed by these "definite and
ascertained" boundaries using the rules of construction.
Section 70-20-201 (I), (2), MCA. Section 70-20-201 ( 2 ) , (31,
MCA sets the heirarchy of particulars to be considered.
Monuments are superior to lines (distances) which are
superior to angles which are superior to surfaces. Since
there are no monuments establishing the final boundary,
reference must be made to the distances along the other
boundaries. These distances, from the deed, are 602 feet
along the northern boundary and 230 plus 253 feet along lines
following the thread of the Beaverhead River.
The Pierce survey correctly used these distances to
establish the location of the final boundary. The
reasonableness of this construction finds support in the fact
that the Pierce survey encloses 7.37 acres as compared with
7.57 called for in the deed.
I KUIPERS
I
Appellant argues that the old "fox farm" fence is also a
monument which establishes the final boundary. We disagree.
There is a critical distinction between a fence which
establishes a boundary line, and a fence that merely
separates one side of the fence from the other. The former
is a monument as well as a fence, while the latter is merely
a fence. Unlike the highway right-of-way and the Beaverhead
River, there are no calls in the legal description to the
"fox farm" fence. There is no evidence that the fence line
was surveyed or that the fence was built to conform to a
surveyed line. One witness testified that the fence was
built zig-zag apparently around trees and without any pattern
at all. Another said it "jogged" by as much as 20 feet. In
contrast, the legal description calls for a straight line.
There simply is no evidence to support the fence as a
monument.
Nor does a fence establish a boundary line when it does
not conform to the true line, even though the property owners
thought it was the boundary.
"Where two adjoining properties are divided by a
fence, which both owners suppose to be on the line,
such fence is a division fence, as between them,
until the true line is ascertained, when they must
conform to the true line."
Schmuck v. Beck (1925), 72 Mont. 606, 616, 234 P. 477,
481; Tillinger v. Frisbie (1957), 132 Mont. 583, 586, 318
P.2d 1079, 1083; Reel v. Walter (1957), 131 Mont. 382, 309
P.2d 1027, Myrick v. Peet (1919), 56 Mont. 13, 180 P. 574.
From the facts and argument above, it is clear that the
trial court's judgment to establish the disputed boundary in
accordance with the Pierce survey was not "clearly
erroneous," but was a well supported and reasoned decision.
Affirmed.
We concur: