BRADY v STATE HIGHWAY COMM N

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No. 12368 I N T E SUPREME COURT O THE STATE O MONTANA H F F 1973 BENNETT L. BRADY and KATHERINE T. BRADY, husband and w i f e , P l a i n t i f f s and A p p e l l a n t s , T E STATE O MONTANA, a c t i n g by and through H F t h e STATE HIGHWAY COMMISSION OF THE STATE O MONTANA, F Defendants and Respondents. Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t , Honorable Jack L. Green, Judge p r e s i d i n g . Counsel o f Record: For Appellants : Mulroney, Delaney and Dalby, Missoula, Montana Stephen H. Dalby argued, Missoula, Montana For Respondents: N. A . R o t e r i n g , Helena, Montana Donald Douglas argued, Helena, Montana Leo J. K o t t a s Jr. argued, Helena, Montana - Submitted : Decided : Filed : D E 2~8 1813 December 3 , 1973 f')EC 2 8 1$$n M r . J u s t i c e Wesley C a s t l e s d e l i v e r e d t h e Opinion of t h e Court. This i s an appeal from a judgment entered upon f i n d i n g s of f a c t and conclusions of law a f t e r t r i a l without a jury. The a c t i o n was t r i e d by t h e Hon. Jack L. Green i n Missoula County. A t t h e time of t r i a l a c o u r t r e p o r t e r was n o t present. Subse- quently, a f t e r a hearing had, Judge Green approved a f i n a l s t a t e ment of evidence and proceedings. Certain procedural matters on appeal, including t i m e l i n e s s and t h e above r e f e r r e d t o preparation of a statement of evidence and proceedings i n l i e u of a t r a n s c r i p t , give r i s e t o i s s u e s on appeal t h a t t h i s Court w i l l n o t d i s c u s s , s i n c e , a s w i l l appear h e r e i n a f t e r , a r u l i n g on t h e m e r i t s produces t h e same r e s u l t . That i s , i f t h e f i n d i n g s of f a c t and conclusions of law a r e supported by t h e evidence, t h e judgment w i l l be affirmed. P l a i n t i f f - a p p e l l a n t s a r e husband and w i f e and w i l l be referred t o herein a s p l a i n t i f f . Defendant, respondent h e r e , i s t h e S t a t e of Montana, a c t i n g through t h e Department of Highways, and w i l l be r e f e r r e d t o a s defendant. P l a i n t i f f purchased 0n a c o n t r a c t f o r deed from one Bakke, 's a l l of Block 54 of W. J . ~ c ~ o r m i c k Addition t o t h e C i t y of Missoula, Missoula County, Montana, according t o t h e o f f i c a l r e corded p l a t t h e r e o f , except Lots "G" and "H" and t h e East 50 f e e t of s a i d Block 54. The n o r t h boundary of t h e property i s bounded on t h e n o r t h e r l y s i d e by a public thoroughfare known a s "West roadway". West Broadway has been f o r over t h i r t y years improved and u t i l i z e d a s a s t a t e highway by defendant. he d i d n o t have a survey made. When p l a i n t i f f bought t h e property P l a i n t i f f f i r s t became aware t h a t a d i s p u t e e x i s t e d when defendant's survey crew s e t survey s t a k e s w i t h i n n i n e inches of t h e f r o n t of a b u i l d i n g located upon t h e property. The b u i l d i n g f r o n t s on West Broadway. The s t a k e s r e - presented t h e southerly edge of t h e West Broadway right-of-way. P l a i n t i f f ' s b u i l d i n g c o n t a i n s a grocery s t o r e , b a r b e r shop, and f i r e e x t i n g u i s h e r shop. edge of t h e t r a v e l e d right-of-way, 22 f e e t . The d i s t a n c e between t h e s o u t h e r l y p o r t i o n , a s d i s t i n g u i s h e d from t h e e n t i r e of West Broadway and t h e b u i l d i n g i s approximately The a r e a between t h e b u i l d i n g and t h e pavement has been u t i l i z e d by p l a i n t i f f a s parking f o r t h e b u s i n e s s e s l o c a t e d i n h i s building. West Broadway i s 99 f e e t wide, Everyone a g r e e s t o t h a t , b u t , t h e l o c a t i o n of t h e c e n t e r l i n e i s i n d i s p u t e . The t r i a l c o u r t found t h e c e n t e r l i n e was on a s t r a i g h t c o u r s e over c i t y sewer manholes. The r e s u l t of t h i s f i n d i n g i s t h a t from t h e c e n t e r l i n e a d i s t a n c e of 49.5 f e e t south t o t h e n o r t h boundary of p l a i n t i f f ' s p r o p e r t y p l a c e s t h e boundary 9 inches from h i s b u i l d i n g . Judge Green wrote a memorandum w i t h h i s f i n d i n g s and conc l u s i o n s which e x p l a i n s t h e problem: h he o f f i c i a l p l a t of McCormick Addition on f i l e i n t h e o f f i c e of Missoula County Clerk and Recorder f a i l s t o show any l o t depth f o r t h o s e l o t s l o c a t e d between Broadway (Cedar) and Pine S t r e e t . However, i t does show t h a t t h e l o t s d i r e c t l y t o t h e e a s t i n t h e C,P. Higgins Addition a r e 138'6" deep. And f u r t h e r shows Broadway (Cedar) a s extending i n a s t r a i g h t l i n e a t t h e j u n c t u r e of t h e two a d d i t i o n s . he p l a t r e f e r r e d t o i n t h e testimony a s b e i n g l o c a t e d i n t h e Missoula Public L i b r a r y shows l o t depth f o r t h o s e l o t s l o c a t e d between Broadway (Cedar) and Pine a t 130 f e e t . However, i t shows t h e l o t s d i r e c t l y t o t h e e a s t i n t h e C.P. Higgins Addition a t 130 f e e t deep. And f u r t h e r shows Broadway (Cedar) extending i n a s t r a i g h t l i n e a t t h e j u n c t u r e of t h e two a d d i t i o n s . "It was obvious i n b o t h p l a t s t h a t t h e l o t s between Pine and Broadway (Cedar) were intended t o be t h e same depth and Broadway (Cedar) was intended t o be a s t r a i g h t s t r e e t . I n f a c t , t h i s s i t u a t i o n h a s been r e l i e d upon i n c o n s t r u c t i o n both on t h e n o r t h and on t h e south s i d e s of Broadway u n t i l t h e p r e s e n t d i s p u t e a r o s e . 1I I n 1948, t h i s Court had t h e c a s e of C i t y of Missoula v. Bakke, 121 Mont. 534, 198 P.2d 7 6 9 . I n t e r e s t i n g l y , t h e same person who s o l d Block 5 4 t o p l a i n t i f f h e r e was involved t h e r e . While t h e c a s e involved d i f f e r e n t p r o p e r t y on a d i f f e r e n t s t r e e t , t h e same a d d i t i o n , t h a t i s ~ c ~ o r r n i c k Addition, was i-nvolved. 's I n t h a t c a s e J u s t i c e Adair noted t h a t : "'* * * the original plat of W. J. McCormick Addition had disappeared from the files of the Clerk and Recorder of Missoula County, but they have in what they call Plat Book, No. I, at page 9, a certified copy of the plat; and it has been the custom around Missoula for attorneys and landholders and abstracters and all to accept the plat as appears on page 9 of Plat Book I, records of the Clerk and Recorder, Missoula County, as the official plat of W.J. ~cCormick's Addition. "' Now in 1973, as indicated in Judge re en's memorandum, a plat appears from the Missoula Public Library, not an official plat in the Clerk and ~ecorder's office. Plaintiff brought the action to determine the correct northern boundary line of Block 54. surveyor Richard Ainsworth. engineer, Tom Oertli. plaintiff's main witness was Defendant's main witness was an The two surveyors agreed they were unable to locate any original monumentation on West Broadway. They differed in their interpretations. Mr. Ainsworth testified that he could determine the boundaries of West Broadway by starting from another street, West Pine, and measuring south from there, using the distances of 130 feet for lot depths, basing such distances on what he termed the "official" plat found in the public library. The survey notes of Ainsworth dated August 10, 1971, are part of the record and are: "SURVEYOR' S NOTES 1' the owner ...This survey was made at the request of 54 of W.J. of the Northwesterly 250 feet of Block McCormick Addition to the City of Missoula, Montana. ...The survey was made to determine and monumented show the true relationship between the platted and centerline of West Pine Street (which are one and the same) and the platted and monumented centerline of West Broadway (Cedar) Street (which are from 16.3 feet to 16.8 feet apart). ...At one time portions of plat was the first subthese two additions were recorded as one. This division plat on file for this area and is dated November 7, 1872. This plat is on file in the Missoula County Clerk & recorder's Office but unfortunatly has no dimensions. The plat was filed as 'Higgins & McCormick Addition' and does show West Broadway (Cedar) Street running straight through from Higgins Avenue to McCormick Street. ...The conflict arises when W.J. ~c~ormick's addition and C.P. Higgins Addition were filed for record. W. J. McCormick' s Addition (official copy on file in the Missoula County Library) was filed January 3, 1883 and indicated that the lots in the Blocks between West Pine Street and West Broadway (Cedar) Street were intended to be 130.00 feet in depth. C.P. Higgins Addition was filed for record on May 2, 1883 and it indicated that the same tier of lots between West Pine Street and West Broadway (Cedar) Streets were intended to be 138 feet 6 inches in depth. ...would make the centerline depths does indeed exist it If this difference in lot and the right-of-way lines of West Broadway (Cedar) Street jog by approximately 17 feet at a point where the two additions meet in the Block between Woody Street and Harris (Orange) Street. ...as well as existing land use lines indicate thatStreet Existing monumentation in West Broadway (Cedar) it has been assumed that this jog does not exist and it would appear that the depth of 138 feet 6 inches had been assumed to run straight through from C.P. Higgins Addition into W.J. McCormick's Addition. This is not what the official plats indicate but it is what the existing evidence on the ground would indicate has been used for years. ...Theoriginal monuments to be two additionstherefore official plats of these indicate no set so it is assumed that all monuments which now exist are second generation. A search of all available records does not indicate where most of them came from although the Montana State Highway Dept. indicated some of the monuments in West Broadway (Cedar) Street were set by their survey crews over the years. ...A jog inStreet would also affecton West Broadway the right-of-way lines (Cedar) the right-of-way lines on a portion of West Main Street and the building locations in Blocks 23, 24, 25, and 26 of W.J. McCormick's Addition which fall Southerly of West Broadway (Cedar) Street. ...The two monuments set during this54 of W.J.McCormickls survey on the Northerly boundary line of Block Addition were set using platted distances from West Pine Street are were set without reference to existing monumentation in West Broadway (Cedad Street or existing land use lines. ...It is not our intentionWest Broadway (Cedar) state where with this survey to Street is the proper location of but to show all evidence that exists. 1 I As shown by Judge Green's memorandum and the survey notes of surveyor Ainsworth, the depth of the lots is the problem. The burden of proof was on the plaintiff to establish the true location of the disputed boundary line. 131 Mont. 382, 309 P.2d 1027. Reel v. Walter, Plaintiff's evidence did not carry this burden of proof. Ainsworth's testimony was conflicting in and of itself, between his testimony, his survey notes, and previous surveys done by his own firm. Where boundaries are lost or uncertain they may be established by the best evidence under available circumstances. Ghoine v. State, 26 Wash.2d 635, 175 P.2d 955. Compare Buckley v. Laird, 158 Mont. 483, 493 P,2d 1070. In 12 Am Jur 2d, Boundaries, 54, p, 550, it is stated: 11 A highway or street may be a monument, and in the absence of other controlling calls or landmarks which can be ascertained, the location and occupancy of a street as indicated by old buildings and fences, and by its use for many years, may be taken as practical evidence of the true location of the street, and the lines of the street may then determine the location of the boundaries of abutting lands * * *.I1 Further, in the absence of known monuments, the best evidence obtainable may be resorted to for the purpose of establishing a boundary line. Buckley v. Laird, supra; Coumas v. Transcontinental Garage, 68 Wyo. 99, 230 P.2d 748. instance, section 93-401-27(11), R.C.M. In this 1947, states: 11 In conformity with the preceding provisions, evidence may be given upon a trial of the following facts: 11 (11) Common reputation existing previous to the controversy, respecting facts of a public or general interest more than thirty years old, and in cases of pedigree and boundary." Clark on Surveying and Boundaries, 3rd Ed., 5 288, p. states part : 11 1 The rule rests on necessity, better evidence of the boundary having ceased to exist, and is justified on the theory that wherepersons, members of a community more or less extensive, are interested in a common boundary, they will know where it is, and 1 their common assent will prove what they know. This is the rule promulgated in most of the United States, and for sound reasoning. It is a matter of justice and equity." All of the above confirms that where the northerly boundary of West Broadway is uncertain or obliterated it can be proven by tradition, customary usage, and the way in which the buildings on West Broadway have been b u i l t up. Once t h e n o r t h e r l y boundary of West Broadway has been e s t a b l i s h e d , testimony of p l a i n t i f f ' s own witness e s t a b l i s h e d t h a t t h e d i s t a n c e from t h e n o r t h e r l y l i n e of West Broadway t o t h e s o u t h e r l y l i n e i s 99 f e e t . The p l a t s i n t h e courthouse and t h e " l i b r a r y p l a t " s h a r e some negative c h a r a c t e r i s t i c s : (1) none i n d i c a t e t h a t r e s p e c t i v e o r i g i n a l surveyors s e t monuments i n e i t h e r t h e W. Addition o r t h e C.P. J. McCormick Higgins Addition; (2) none i n d i c a t e any d i s t a n c e s from t h e purported monumented s e c t i o n corner and q u a r t e r corner t o any point i n e i t h e r a d d i t i o n ; (3) none i n d i c a t e any angle from t h e n o r t h l i n e of Section 21 t o any i n t e r i o r l i n e i n e i t h e r a d d i t i o n ; and (4) none i n d i c a t e any angle between i n t e r i o r l i n e s w i t h i n e i t h e r a d d i t i o n o r any angle between i n t e r i o r l i n e s i n the respective additions. A t t h e c l o s e of t h e testimony i t was s t i p u l a t e d t h a t Judge Green could look over t h e p l a t s of t h e a d d i t i o n s f o r t h e a r e a and t h a t h i s observations would be accepted a s evidence a s though introduced a t t h e time of t r i a l . He did go upon t h e ground and d i d go t o t h e public l i b r a r y t o look a t t h e p l a t t h e r e . P l a i n t i f f makes one more a s s e r t i o n i n h i s b r i e f , t h a t i s t h a t defendant should be estopped from a s s e r t i n g a claim t o t h e property i n question. t o any estoppel. 1883 p l a t . There simply i s no evidence g i v i n g r i s e P l a i n t i f f a s s e r t s t h a t he has r e l i e d on t h e However i t i s c l e a r t h a t t h e p l a t found i n t h e public l i b r a r y i s n o t what has been r e l i e d upon. Having examined t h e record and t h e p l a t s , however i r r e g u l a r l y made a p a r t of t h e r e c o r d , we f i n d t h a t p l a i n t i f f f a i l e d i n h i s burden of proof; and f u r t h e r , t h a t t h e f i n d i n g s and conclusions of t h e t r i a l c o u r t a r e supported by t h e evidence. Accordingly, w e a f f i r m . Justices.

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