                                                  No.    86-15

                  I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                      1986




THOMAS J . HELEHAN,

                      P l a i n t i f f and A p p e l l a n t ,

          -vs-

0. M.    UELAND,

                      D e f e n d a n t and R e s p o n d e n t .




APPEAL FROM:          D i s t r i c t C o u r t of t h e Second J u d i c i a l D i s t r i c t ,
                      I n and f o r t h e C o u n t y of S i l v e r BOW,
                      T h e H o n o r a b l e M a r k S u l l i v a n , Judge p r e s i d i n g .


COUNSEL OF RECORD:


          For A p p e l l a n t :

                      John L e s l i e H a m n e r , B u t t e , M o n t a n a


          For R e s p o n d e n t :

                     M a u r i c e A.    Maffei, Butte, Montana




                                                     S u b m i t t e d on B r i e f s :   July 10, 1986
                                                         Decided:          September 1 6 , 1986



Filed:
          SEP 1 6 1986



                                                     Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.


      This is an appeal from an order of the District Court
of the Second Judicial District in and for the County of
Silver Bow, Montana.        Plaintiff brought the action seeking
determination that his survey correctly established the true
boundary     and   asking   for     trespass    damages.        Defendant
counterclaimed requesting similar relief.             Following a bench
trial, the District Court accepted defendant's survey and
off-set damages.     We affirm in part and remand in part.
      This    case   concerns a dispute between two adjacent
landowners    over    the   exact    location    of    their    boundary.
Plaintiff, Thomas J. Helehan, owns two patented mining claims
in Silver Bow County, several miles west of Butte.                He also
has interests in four unpatented mining claims located on
public domain just north of his patented claims.               Defendant,
0 M. Ueland, owns the property immediately to the west of
 .

Helehanls patented claims.
      The dispute between the two men apparently began in the
early 1960's.      Horses which Helehan permitted to graze on his
land began to wander off his land onto Ueland's.                   At the
time, the only       semblance of a division line was an old
dilapidated        wooden fence which     ran roughly          north   and
south between the parties' properties.                 This fence had
evidently been built long before either party had acquired
his property and neither felt obligated to repair or maintain
it.   Consequently, it had long since ceased to function as a
barrier.
      Ueland complained to Helehan of the horses, but Helehan
replied that their properties were open range and that he
therefore had no responsibility to fence in the animals.                  So
in 1969, Ueland decided to fence out the horses and built a
new fence over the site of the old wooden one.               Also, in an
effort to more fully fence out the horses, Ueland added to
his fence an additional segment on the public domain north of
Helehan's patented claims.          This segment, running generally
east     and   west, was     apparently   placed     between      Helehan's
patented and unpatented claims.
         Helehan objected to Ueland's fence, claiming first that
it was     located east of the true boundary and therefore
encroached upon his land and second, that it barred access to
his unpatented claims.       In 1970 he hired a licensed surveyor,
Jack     Hendrickson,   to    determine   the      exact   line    of    the
boundary.          Hendrickson's     survey     supported       Helehan's
allegations that the fence intruded upon Helehan's property;
it indicated that the true border was located west of the
fence.
         Helehan   filed     this   action    in     1975,     seeking    a
determination of the boundary as established by Hendrickson's
survey, removal of Ueland's           fence and      trespass damages.
Ueland counterclaimed, seeking grazing damages caused by the
horses stationed on Helehan's land and one-half the cost of
the fence.
         In 1976, before the case was heard, Ueland hired his
own licensed surveyor, Walter Everly.              Everly's survey, in
direct contrast to Hendrickson's, indicated that the fence
was entirely within Ueland's property and that the boundary
line was in fact well to the east of the location of the
fence.     Ueland accordingly dismantled his fence and rebuilt
it along the line shown by Everly's survey.
       Helehan responded by hiring Matt Vranish to resurvey
the boundary lines in 1 9 8 3 or 1 9 8 4 and by hiring David Albert
to   retrace Jack        Hendrickson's        1970    survey.        Both    these
licensed          surveyors      generally        confirmed        Hendrickson's
findings   .
       The parties finally brought the case to trial in 1 9 8 5 .
As to the proper location of the boundary between Ueland's
land   and     Helehan's patented           claims, the court held             for
Ueland, establishing the border                   line in conformance with
Everly's survey.              As to the stretch of fence separating
Helehan's patented and unpatented mining claims, the District
Court held that since the fence was located on public domain,
Helehan first had to exhaust his administrative remedies with
the proper agency.              As to damages, the court held that
Helehan was liable for grazing damages but that Ueland was
not entitled to any reimbursement for the cost of his fence.
The court concluded, however, that the grazing damages and
the fence construction were off-setting.
       We face three issues on appeal:
       (1)        Whether the District Court erred in establishing
the boundary in accordance with Everly's survey.
       (2) Whether the District Court erred in ruling that
plaintiff had failed to exhaust his administrative remedies
as to the alleged trespass of his unpatented claims.
       (3)     Whether the District Court's damage awards were
correct.
       Issue       1:   The    tracts of property           in question were
originally         surveyed     in   1877    by    official     United      States
surveyors.          Pursuant to the practices of the time, the
government surveyors often marked section corners and quarter
corners      by    embedding     a   large    stone    in    the    ground    and
surrounding it with smaller stones.        The large stone was then
usually engraved with an appropriate identification.               These
original monuments remain important for they still determine
exact locations of section corners and lines.           Indeed, the
true corner of a government section is where the original
surveyor in fact established it, whether such location is
right or wrong as shown by subsequent surveys.               Vaught v.
McClymond (1945), 116 Mont. 542, 550, 155 P.2d 612, 616.              So
when   surveyors    use    corner   sections   and   lines    to   base
measurement   and   plot    tracts,   it   is essential that        they
properly identify and authenticate the original monument.
       In the course of their survey, appellant's surveyors
Hendrickson and vranishl located what they perceived to be a
stone monument.      This unmarked "monument" was located in
roughly the same area as the southeast corner of Section 24.
Hendrickson and Vranish ultimately accepted this stone as the
survey marker for the southeast corner and included this
location in their measurement.
       Surveyor Everly also spotted this stone but rejected it
as the southeast corner marker.        Everly had had occasion to
survey the same section line in 1949 and, according to his
map and notes of that time, had failed to find any monument
marking the southeast corner despite a considerable search.
Everly further testified that the stone marker relied upon by
Hendrickson and Vranish was not present in 1949.             He stated
that given his lengthy search for this corner in 1949 and the
marker's highly visible location in the same general area as




1.     Appellant's third surveyor, David Albert, undertook
       merely a retracement of Hendrickson's survey. We find
       Albert's results to be of little probative value.
the southeast corner, he could not but have noticed the
marker had it been present.                 Instead, Everly placed the
southeast corner in the same location he had placed it in
1949--nearly two hundred            feet to the east of the stone
marker.    This discrepancy is the principal basis for the
conflicting surveys.
      Defendant also introduced into evidence a 1929 highway
map which indicated that the southeast corner had likewise
not been found at that date.
      Upon review of this evidence, we hold that the District
Court did not err in establishing this boundary in accordance
with Everly's survey.         The scope of this Court's review when
considering the findings and conclusions of a district court
sitting without a jury is by now well settled.                        We are
confined to determining whether there is substantial credible
evidence   to       support   the     District      Court's     findings    and
conclusions.     General Mills, Inc. v. Zerbe Bros., Inc. (Mont.
1983), 672 P.2d 1109, 1111, 40 St.Rep. 1830, 1832.                       In so
determining, we must view the evidence in the light most
favorable to         the   prevailing party.          Cameron v.     Cameron
(1978), 179 Mont. 219, 228, 587 P.2d 939, 944.                  Further, the
evidence may conflict with other evidence and still be deemed
"substantial."        Cameron, at 945.
      We     find     that    the   District     Court    had    substantial
credible evidence to support its ruling.                 Walter Everly was
not only an experienced surveyor but also an experienced
surveyor   of       the    property    in    question.        His   detailed
testimony,      in     connection     with    the     highway     map,     lend
sufficient support to the court's decision.                A trial judge's
finding based on substantial though conflicting evidence will
not be disturbed unless there is a clear preponderance of
evidence against such a finding.                   Cameron, supra at 944.
This has not been shown.
        Issue 2:        Appellant argues that             the District Court
erred     in    ruling    that    if Ueland's       fence interfered with
Helehan' s enjoyment of his unpatented mining claims, he must
first exhaust his administrative remedies through the proper
agency.        Though Helehan stated that this was an issue on
appeal, his           counsel has      failed to present        a persuasive
argument in the two paragraphs addressing the issue.                    We find
no merit in this issue.
        Issue 3:        The District Court ruled that Helehan was
liable for overgrazing damages caused to Ueland's property by
the horses allowed on Helehan's land.                     The court estimated
this damage at $3,000.            The court further ruled that Ueland
was not entitled to any reimbursement from Helehan for the
cost of the fence, the total cost of which was also estimated
at $3,000.       The court then off-set these amounts.
        We note initially that these costs do not off-set.
There are damages flowing from Helehan to Ueland but none
flowing        from    Ueland    to    Helehan.       The     correct    award,
consistent with the court's                  findings, would have been a
damage award in favor of Ueland.
        We find, however, that this error is harmless, as we
find no evidence in the record supporting the lower court's
award to defendant for grazing damages.                     Montana has long
recognized an open range law whereby landowners must fence
out intruding livestock.              See Jenkins v. Valley Garden Ranch,
Inc. (1968), 151 Mont. 463, 443 P.2d 753; Bartsch v. Irvine
Co.     (1967), 149       Mont.       405,   427   P.2d    302; Thompson    v.
Mattuschek (1959), 134 Mont. 500, 333 P.2d 1022.
        The record is barren of any evidence indicating grazing
damages done to defendant's property after 1969, the date
Ueland built his fence.             Before 1969, Helehan could not be
legally obligated to restrain the horses and cannot be held
liable for damages occurring during this time.              Because we so
hold,     we    decline   to    discuss        Helehan's   liability   for
trespassing horses which he neither owns nor agisters.                  We
therefore remand this case and instruct the District Court to
enter judgment consistent with this opinion.
        In     conclusion,     we     a£firm     the   District   Court ' s
determination of the true boundary line and remand the damage
awards.




We concur:       A




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