                                 No. 87-14
               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    1987


TERRY L. STIDHAM and NORMA STIDHAM,
husband and wife,
              Plaintiffs and Respondents,
       -vs-
CITY OF WHITEFISH, MONTANA,
              Defendant, Appellant and Respondent,

CITY OF WHITEFISH, MONTANA,
              Defendant, Third-Party Plaintiff,
              Appellant and Respondent,
       -vs-
MORRISON-MAIERLE, INC.,
              Third Party Defendant and Appellant.


APPEAL FROM:      District Court of the Eleventh Judicial District,
                  In and for the County of Flathead,
                  The Honorable Nat Allen, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Keller, Reynolds, Drake, Sternhagen & Johnson;
                 Thomas Q. Johnson argued for Morrison-Maierle, Helena,
                 Montana
         For Respondent:
                 Moses Law Firm; Stephen C. Moses argued for Stidham,
                 Billings, Montana
                 Leo W. Tracy argued for City of Whitefish, Montana


                                   Submitted: June 30, 1987
                                     Decided: November 13, 1987
Filed:   Hi+!* 1 -; f987


                                   Clerk
Mr. Justice R.C.   McDonough delivered   the Opinion of   the
Court.


     Morrison-Maierle, Inc., and the City of Whitefish appeal
a judgment in favor of plaintiffs, filed and entered in the
District Court of the Eleventh Judicial District, County of
Flathead. We set aside the judgment and remand.
     This case originated as an action in trespass by plain-
tiffs and respondents      (Stidhams) against the City of
Whitefish.   The City filed a third-party complaint against
Morrison-Maierle, Inc. The City built a water pumphouse with
inlet pipes on lot 4 located on the edge of Whitefish Lake.
The property was leased from Burlington-Northern, Inc.
Morrison contracted with the City to provide the engineering
services for the pumphouse project.    Stidhams claimed that
part of the pumphouse was actually built on a part of lot 5
which is owned by them. The City denied that the pumphouse
was built on lot 5 and if it was, Morrison, as the engineer,
was responsible for the error. Morrison also denied that the
pumphouse was located on lot 5 and denied that they had the
responsibility to properly locate the pumphouse.
     The District Court on its own motion bifurcated the case
ordering that the first trial concern only the boundary line
issue.    The parties stipulated that the balance of the
issues, including the question of the City's and Morrison's
defense of estoppel and laches, would be tried at the second
trial. At the first trial the court found that Stidhams were
relying on the correct boundary, and pursuant to a motion for
summary judgment found that Morrison, and not the City, was
responsible for any damages caused by the location of the
pumphouse.   Morrison made appropriate motions relative to
such findings and conclusions which were denied.     Morrison
then asked for certification of such findings and conclusions
as final which the court refused to do.
     The case was set for the second trial and was determined
to be an inverse condemnation case on motion of the City and
Morrison. The court pursuant to Stidham's motion ruled that
the defenses of laches and estoppel were incompatible with
the theory of inverse condemnation and struck the defenses.
A jury trial was held and a verdict of $61,000 had in favor
of plaintiff.   After the usual motions, which were denied,
appeal was taken by Morrison and the City from the judgment.

     The issues for review are:
     1. Whether the City reserved its right to appeal the
boundary line and ownership issue and the estoppel and laches
issue?
     2. Whether Morrison can properly appeal the boundary
line and ownership issue, the estoppel and laches issue, and
the certification issue?
     3. Whether the District Court's findings of fact and
conclusions of law relative to the location of the boundary
line were clearly erroneous and not supported by substantial
credible evidence?
     4. Whether the District Court erred in striking the
defenses of laches and estoppel?
     5. Did the District Court err in granting judgment to
the City and against Morrison regarding their relationship
and responsibility?
     6. Did the District Court err in not certifying its
findings of fact and conclusions of law as final and thereby
allowing this matter to go up on appeal following the first
phase of the trial and in advance of the second?
     As to issues 1 and 2, the City, although they did not
present any witnesses of their own at the first trial,
through the pleadings, pre-trial order, proposed findings of
fact and conclusions took the same position as the proposed
contentions, findings and conclusFons of Morrison. The City
appealed in its notice the issues involved. Throughout the
trial, the City actively contested Stidham's boundary
contention and asserted its contention of laches and
estoppel. Thus, the City may appeal these issues.
     Neither is Morrison precluded from appealing its
boundary line and ownership issue, the laches and estoppel
issue, and certification.    Stidhams proposed that Morrison
was not a real party in interest to the boundary line and
ownership dispute or the laches and estoppel issue, but was
only involved as a third party defendant with the issues of
its contract with the City. Throughout the record, Morrison
actively opposed Stidhams' contentions and supported its own
contentions relative to these matters.      Stidhams made no
objection in the lower court to Morrison as a party, and they
are barred from raising it on appeal.        In view of the
District Court ruling that Morrison was responsible for any
and all damages recovered by Stidhams against the City,
Morrison was a real party in interest.
     The District Court's decision as to issue No. 3 is
affirmed in part and reversed in part. Lot 4 is a government
subdivision with a meander line bordering on Whitefish Lake.
Instead of the usual 4 0 acres it contains only 3 9 . 9 5 acres.
The remaining . 0 5 of an acre of lot 4 is in the lake if the
boundary lines were to be extended into the lake to make a
full 40 acre governmental subdivision.          The original
government survey cut off a small portion of the northeast
corner and surveyed a meander line along the shore of the
lake. See following plat.




                        ~ i k e dispute
                              in
The parties dispute the.location of the line dividing lots 4
and 5. None of the original government monuments material to
this case were found by the surveyors. Nor were there any
government monuments found which could be used as reference
points.
     The west line of lot 5 (also the east line of lot 4 ) , as
proposed by Stidhams, would run through the middle of the
pumphouse.   Morrison and the City proposed a line which
located the pumphouse and inlet pipe entirely within lot 4,
which is controlled by the City.    Expert opinion and other
competent and relevant evidence was offered by both sides as
to their respective positions.    The District Court in its
findings of fact found the Stidham line to be the correct
line. The court's determination is not clearly erroneous and
is supported by substantial credible evidence. We will not
disturb its findings.
     Morrison and the City contend the Stidham land,
according to the description in the deeds from Stidham's
predecessors, extends to Morrison's and the City's proposed
west line of lot 5. This is true according to Morrision and
the City because by computing the courses and the distances
of the southern boundary (railway's northeast right-of-way
boundary) along the track center line reference points of the
railway, as provided for in the deed, it can only lead to the
conclusion that their line is correct.    The description to
which they refer commences as follows:

     All that part of Lots Five (5) and Six (6) of
     Section Twenty-six (26) Township Thirty-one (31)
     North, Range Twenty-two (22) West of the Montana
     principal meridian, lying North of the following
     described boundary:
     Beginning at a point in the West line of said Lot
     Five (5) One Hundred (100) feet distant North-
     easterly, measured at right angles, from the center
     line of said main track of said railway, as now
     located and constructed; thence Southeasterly
     parallel with said center line ...
However, the land described by this wording is the land
bounded on the west by the west line of lot 5 for it begins
- - a point - - - - line" of lot 5. The west line of
"at          in the west
Stidhams' land described in the deeds is the true west line
of lot 5 wherever it may be on the ground.      The court i.s
aware that by basing the south boundary of the tract on a
course and distance description using the Stidhams' west line
as the true line leaves a gap in the south line between
Stidhams' west line of lot 5 and the east line of lot 6 (the
end of the description). However, the description states the
beginning point of the south boundary is on the west line of
lot 5, wherever it may be located, and the south boundary
ends on the east line of lot 6. The location of the south
boundary is not at issue.    The reference to these boundary
lines takes precedence over the course and distances which
might be described in between as contended by the City and
Morrison. See S 70-20-201, MCA.
       However, the District Court erred in establishing the
disputed boundary between the shoreline as shown in the
original survey and the shoreline as it is today.         The
finding assumes that the west line of lot 5 continues on the
same course north from the meander corner as produced to its
intersection with the north lot line of lot 4 as it is
produced eastward.    This is incorrect. It is only the true
line to its intersection with the low water line of the lake
at the time of the original survey, which is referenced by
the meander corner on said west line.      Some of Stidhams'
plats introduced in evidence show only a minute corner of
such lines produced and put the north line of lot 4 and the
west line of lot 5 (east line of lot 4 ) barely in the lake
and such minute portion is only a small fraction of the . 0 5
of an acre as shown to be in the lake in the original
government plat.    Some of the Stidhams' plats actually show
such produced corner to be on land and they argue in their
briefs that such corner is on land.
       Since the District Court adopted the Stidham proposed
line as the west line of lot 5, it must also be concluded
that what would be the northeast corner of lot 4 if boundary
lines are produced is on land or barely in the lake, and
thus the lake has receded. The location of corners and lines
established by the government survey is conclusive and the
true corners are where the United States surveyors in fact
established them. Stephens v. Hurley (1977), 172 Mont. 269,
5 6 3 P.2d 5 4 6 .
       If the triangular area of .05 of an acre in the water
cut off of the 4 0 acre tract in the original government
survey of lot 4, would Lave equal sides of 6 6 feet, the
length of the meander line of lot 4 would be 9 3 feet more or
less, and the length could vary slightly depending on
separate lengths of the other two sides of the triangle. The
original government field notes should have the correct
length of the meander line.      In other words, we have a
meander line of lot 4 of roughly 93 feet of shoreline. Under
the Stidhams' line there is very little shoreline if any,
adjacent to lot 4. Therefore the lake has receded. By what
means it has receded the record does not disclose.
     On the receding or reliction of a lake the law does not
extend the original boundary lines on the same courses and
directions they were on land, which has been done here. A
riparian owner has the right of access to the water and his
access cannot be destroyed by the changing of the level of
the water by gradual recession. He has the right to preserve
his contact with the water by appropriating the accretions of
the land exposed by reliction which form along the shore.
Land formed by accretion or reliction becomes part of the
shore and the riparian owner acquires title to the water.
See 78 Am. Jur. 2nd Waters 5 418 (1975); J. Grimes, Clark on
Surveying and Boundaries 5 573 (4th ed. 1976); 2 R. Patton &
C. Patton, Patton on Titles § 300 (2d ed. 1938). He has a
share in the land left exposed by the receding of the lake.
     The general principle which governs how the relicted
exposed shoreline is divided between the lot owners on the
lake is any division of the relicted land shall be equitable
and shall be proportional so far as to give each shore owner
a share of the land to be divided relative to his portion of
the original shoreline. See 2 R. Patton & C. Patton, Patton
on Titles fj 302 (2d ed. 1938); 3 H. Farnham, The Law of
Waters and Water Rights 5 841 (1904); 78 Am. Jur. 2d -Waters
                                                       -
5 422-25 (1975). For an example of how this principle could
apply to this case, see following plat:



                         possible relicted
                            nds to Lot 4


                                      possible boundary
                            .
                            .           in relicted portion




     To draw this boundary line the starting points are at
the meander corners as per the original government survey.
In this case the corners are located, one, on the north line
of lot 4 and two, on the east line of lot 4, which is the
same as the west line of lot 5. If a lake is round and not
jagged these lines are usually extended from the meander
points to an imaginary point in the center of the lake or a
cove of the lake.     If the lake is long and narrow and
somewhat jagged, the lines could be extended from the meander
corners to an imaginary base line running the long way of the
lake along the center of the lake and at right angles to the
base line.
     In this case, the boundary drawn by the District Court
ignores the reliction rule. Instead of drawing the lines so
that lot 4 would retain a proportionate share of lake front,
the lines are continued on their original path. The result
is loss of shoreline for lot 4 and a violation of the rule.
To correct this error, the lines should be drawn in a
northeasterly direction instead of a northerly direction
starting from the point where the lines intersect the
original shoreline.     The plat above shows the possible
boundary lines in the relicted portion. J. Grimes, Clark on
Surveying and Boundaries 5 s 573-75 (4th ed. 1976); 2 R.
Patton & C. Patton, Patton on Titles 5 302 (2d ed. 1938); 3
H. Farnham, The Law of Waters and Water Rights S S 841-43
(1904). See also Karterud v. Karterud (S.D. 1923), 195 N.W.
972; Scheifert v. Briegel (Minn. 1903), 96 N.W. 44; Kapp v.
Hansen (S.D. 1961), 111 N.W.2d 333.
     Therefore, the west boundary of lot 5 (east boundary of
lot 4) north of the meander corner has not been properly
established.   That leaves open the possibility that the
pumphouse lies entirely within lot 4, and a portion of what
now is thought to be part of lot 5 is actually controlled by
the City as part of lot 4.
     We therefore vacate the judgment in this action and
remand to the District Court for a proper survey of the
boundary line between lots 4 and 5 north and east of the
common meander corner in the relicted portion of the lake
pertaining to these lots. Even if a portion of the pumphouse
would still be within lot 5, a different shape and size of
land would be taken by the inverse condemnation. A survey to
establish the location of the west lot line of lot 5 north of
the common meander corner with lot 4 should be done in
accordance with the principles of law as above set forth.
     To assist the court in future actions taken by it
pertaining to this case we will discuss issues 4 and 5 raised
by the appeal.   Issue 6 by virtue of this opinion is moot.
     Did the District Court err in striking Morrison's and
the City's defenses of laches and estoppel? No.      The City
and Morrison by motion which was granted by the court,
converted this action to one of inverse condemnation. Their
defenses of estoppel and laches were then inappropriate and
had no application.
     Issue number 5 is whether or not the Court erred in
granting summary judgment in favor of the City and against
Morrison regarding their relationship.    The City moved for
summary judgment contending that co-defendant Morrison was
solely liable for any wrong committed in locating the
pumphouse and inlet pipes.    The motion was filed, briefed,
argued and submitted. The Court did not rule on it before
the first trial.    However, after the first trial the court
ruled in its findings of fact and conclusions of law that
Morrison was solely liable.      The parties had previously
stipulated that their relationship would not be an issue at
the first trial, and did not present evidence directed toward
this issue.   There is a contested question of fact of who
between the City and Morrison had the responsibility for and
who did actually locate the site for the pumphouse.       The
order is in error and such order granting the motion for
summary judgment is vacated.
     The verdict and. judgment are vacated and the case is
remanded for further proceedings in accordance with this
opinion.

We Concur:




                           ---.----------
Cistrict Judge Russell K. Fillner sitting for Justice John C.
Harrison, dissenting.



        I dissent.        "The world will little note nor long remember"              *
what I write here,            Nevertheless, I will set forth briefly my
reasons for not being able to concur with the majority opinion,
as follows:

        The   majority     holds     that the trial Judge committed plain
error     (clearly        erroneous)      because   he     failed    to    find    that
Whitefish Lake receded!            The majority "is asking for clairvoyance
not even possessed by a trial judge."                    (Justice John Harrison's
opinion in Mageli v. Daniels, 400 P.2d 896, at 898. )                       Was there
any evidence produced at the trial showing that Whitefish Lake
receded?      No.     Neither was the issue raised in the trial court,
nor   even    in this court.           The majority opinion holds that the
trial     judge's     finding      that   the    Stidham   line     is    the   correct
boundary line between Lots 4 and 5 is supported by substantial
and credible evidence; and therefore, the findings will not be
disturbed.          The   majority     then     states   that   "it must        also be
concluded that what would be the northeast corner of Lot 4 if
boundary lines are produced, is on land or barely in the lake,
and thus the lake has receded."                  The majority then attempts to
support this conclusion by indulging in assumptions that the - 0 5
of an acre in the original government survey:
           "would have equal sides of 66 feet, the
           length of the meander line of Lot 4 would
           be 93 feet more or less, and the length
           could vary slightly depending on separate
           lengths of the other two sides of the
           triangle.   The original government field
           notes should have the correct length of the
           meander line." (Emphasis supplied)
           The   point    is   that   this   is   not   part   of    the       record,
although    it   should     have   been.      While     at   first       blush,   the
majority's conclusion that Whitefish Lake has receded may appear

to be logical, if we assume that the Stidham survey is absolutely
correct, but that is not the only logical conclusion.                    It is just
as logical to assume that the shore of the lake in this area was
pushed upward.      How or by what means I am no more able to say
than the majority can state by what means the lake has receded.
Furthermore, even if the lake has receded, it is obvious that
Morrison-Maierle     must      have been aware of the need for another
survey to supplement the Stidham survey prior to trial.                        If the
trial judge is in plain error for not recognizing the need for
such additional survey, what excuse does Morrison-Maierle have?

It certainly possesses the requisite engineering and surveying
knowledge, resources and ability to have determined the proper

boundary line under the equitable principles governing relicted
exposed    shorelines.         Having   failed    to    do   so,    it    is   hardly
entitled to another bite at the apple.              Morrison-Maierle elected
to rely on the defense that Stidham didn't own the property and
that the GN survey was the correct one.
            The    problem    here    is    that    neither     party   located     the

corners      or    lines,     and    particularly       this   boundary     line,   by
reference to government surveys or monuments.*                   At oral argument,

the Defendant, Morrison-Maierle, stated that it now knew where
the true line was and would like to have an opportunity to prove
it.      If it has, in fact, gone back to some government monument
and proceeded with its survey from that point, it may very well
be that the line is otherwise than established by the Stidham
survey.       However, it had that opportunity at the trial level.
The point being        that none of the parties are contending that
Whiefish     Lake has receded or that the principles of reliction
should apply in this case.              Perhaps I can best bring into focus
what I'm trying to say by this scenario:

            Under the majority opinion as I read it, this case will
be remanded to the District Court for the parties (which one is
unclear) to make a survey based on the principles of reliction so
that Lot 4 will have its same share of the shoreline as before
the lake receded. So assume that is dutifully accomplished. This
may or may not result in changing the boundary as regards the
pumphouse. Now then, be it remembered that this boundary line is
the     boundary    between     lands      owned   by   the    Burlington   Northern
Railroad     and   the Plaintiffs          (Stidham). The Burlington Northern
Railroad is not a party to this suit.**                  So then, the Burlington



*  In the light of a majority opinion i n this case, the Legislature might want
to take a look a t enacting legislation that d d require any surveying that
involves shorelines on lakes and bodies of w a t e r i n bbntana be made w i t h
reference to government monuments, or that such survey, if based on a prior
survey, that such prior survey be shown to have been based on government
uwnments, Any plat or survey not meeting such requirements could not be f i l e d
of record, nor used in evidence.

**   although it should be.   S e e Rule 19(a) and 21, M.R.Civ.P.
Northern      Railroad, being      unsatisfied with       the Stidham   survey,
brings suit to establish the boundary line between Lots 4 and 5.
It conducts a survey based on government monuments and, lo and

behold, such survey establishes the line east of the Stidham line
and, pres-to, Whitefish Lake has not receded after all.                 So what
happens then?        But even if the Burlington Northern should not
bring    suit, what      will    be   the   effect   of   this   case on other
boundary      lines - past, present and future - on the shores of
Whitefish Lake, if the level of Whitefish Lake has not receded as
the court states it must have done?                  Finally, it is fortunate
that Montana is not a coastal state when one contemplates the
world-wide ramifications of such a decision on the shorelines of
the Atlantic or Pacific Oceans.
             I hope that it is obvious from what I have herein said
that we simply do not know whether the Stidham line is absolutely

the correct line.         All that we can say is as the majority has
stated, that the Court's determination is clearly not erroneous
and     is   supported   by     substantial   credible    evidence.     Justice
                                                        -
Morrison, speaking for an unanimous court, in Rose v. Rose, 201
Mont. 86, 651 P.2d 1018, said:
             "The proper function of the trial court is
             to assess the evidence, ascertain the
             witnesses'   credibility and render     its
             findings based upon substantial credible
             evidence.   If that is accomplished, this
             Court   cannot   overturn   its   decision.
             Crabtree v. Crabtree, (1982), 200 Mont.
             178, 651 P.2d 29, 30 St.Rep. 1668."
         The   trial      Court's       determination,      being   supported        by
substantial credible evidence, should be affirmed.

         I agree with the majority's conclusion that the District

Court did not err in striking Morrison's and the City's defenses
of laches and estoppel.           As to Issue No. 5, I would affirm the
granting of the City's motion for summary judgment.                     The motion
was filed, briefed, argued and submitted as the majority found.
While it is true that the trial court did not rule on it before
the first trial, it did make its ruling thereafter.                    The majority
just makes the conclusionary statement that "there is a contested
question of fact of who between the City and Morrison had the
responsibility for and who did actually locate the site for the
pumphouse."         The   only    "contested"       facts     presented       by    the
Defendant, Morrison-Maierle, in that regard are that an Alderman
of the City of Whitefish took one of Morrison-Maierle's employees
to the site, suggesting that it might be an appropriate place for
the   pumphouse     and   that    its    contract    with    the City does not
require it to do any survey work without additional compensation
therefor.      Those      facts   really      aren't      contested,    but    it    is
undisputed that the City leased Lot 4 from Burlington Northern
for    the     purpose      of      locating        the     pumphouse      thereon.
Morrison-Maierle contracted to put the pumphouse on Lot 4.                           It
relied upon an old survey done by the Great Northern Railway,
predecessor    in    interest     to    the   Burlington     Northern     Railroad.
It's reliance on that line was obviously mispl-aced. That did not
change its responsibility to have placed the pumphouse as agreed

in its contract with the City on Lot 4.               This it failed to do.
Accordingly,       I would   affirm the District Court's verdict        and

judgment in this case.
          In conclusion, I am convinced that the majority's opinion
is motivated by a search for truth, but what is truth?             I rather

believe that a lawsuit is a search for justice under the law.            In
that regard, see the remarks made by David Elderkin, a Cedar
Rapids attorney for 50 years, published in the Montana Lawyer,
October   1987, page 16, where he states that the claim that a
lawsuit   is   a    search for truth     is nonsense.       "While we must
proceed by truthful means, a lawsuit is a search for justice and
a timely, inexpensive system of dispute resolution is a real part
of justice."
          Here this case is being remanded to the parties to engage
in further time-consuming and expensive surveying that none of
the parties believe is necessary or warranted, which, instead of
                                                /--
discovering the truth, will only serve to obguscate it.
                                    \\      !     ,
                                                  '    7




                                                        District Judge
                                   sitting for Justice John C. Harrison
