Cremer v. Cremer Rodeo Land and Livestock Co.

MR. CHIEF JUSTICE HASWELL

concurring in part and dissenting in part.

I concur with the majority in granting a new trial. I dissent from that part of the opinion holding that the case should have been submitted to the jury on the theory of adverse possession.

All the evidence in this case indicates a permissive occupancy and use of the land whether it be based on a construction trust, a lost deed, or otherwise. There is no evidence of open, notorious and hostile possession of the land. In my view, section 93-2510, R.C.M. 1947, now section 70-19-409 MCA, does not supply the missing evidence by way of presumption under these circumstances.