                                               No.      95-022
                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                     1995


NFC PARTNERS,           a partnership,
                 Plaintiff          and Appellant,

         v.
STANCHFIELD CATTLE COMPANY, a Montana
corporation;       ROSALEE RICHARDSON,
Clerk    and Recorder    of Beaverhead
County,      Montana;  DEK KETCHUM; RENEE
BERENSON; BILL MARKOVICH; SIDNI
MARKOVICH; LANNY M. BEATY; SUE A.
BEATY; DENNIS OSSELLO; BRENDA OSSELLO;
JACK McCLOSKEY; HELEN McCLOSKEY; MARK
MATTIOLI,      LISA LOVELL; MAX MATTIOLI;
and MADISON MATTIOLI,
                 Defendants            and Respondents


APPEAL        FROM:          District  Court of the Fifth    Judicial                     District,
                             In and for the County of Beaver-head,
                             The Honorable   Frank M. Davis,    Judge                   presiding.


COUNSEL OF RECORD:
                 For    Appellant:
                             James H. Goetz          and Robert Baldwin,              Goetz,          Madden
                             and Dunn, P.C.,          Bozeman, Montana
                 For    Respondent:
                             Ross   P. Richardson,          Attorney      at Law,       Butte,         Montana
                             Richard     J. Orizotti,         Poore,     Roth   & Robinson,             Butte,
                             Montana
                             Thomas     R. Scott,        County     Attorney,        Dillon,          Montana


                                                        Submitted      on Briefs:              June    1,   1995
                                                                          Decided:         November         14,    1995
Filed:
The Honorable   Jeffrey                             M. Sherlock,                           District               Judge,               delivered                the
Opinion  of the Court.

           NFC Partners,                     a partnership,                            appeals                 an order                 of      the          Fifth
Judicial            District                 Court,             Beaverhead                        County,             which              held           that          a
certain          Certificate                 of Survey                  filed             in the           office          of      the        Beaverhead

County           Clerk         and         Recorder              was properly                           filed         so        as       to        effect             a

division           of        land      pursuant                 to      the         Montana             Subdivision                      and Platting
Act.         We reverse                the       decision                  of       the         District             Court.

           We state             the        issue         on appeal                    as follows:

           Did     the        District             Court             err        when it             determined                  that          a Certifi-

cate        of      Survey               that           was           filed            before               the        internal                     property

monuments            were            set     and         before               the          corner           records              were           filed           was

"properly           filed"            so as to             create               a legal             division               of      land            under        the

Montana           Subdivision                   and Platting                      Act?

                                                         FACTUAL BACKGROUND

           Respondent                  Stanchfield                         Cattle               Company               (Stanchfield)                           owns

certain           real        property              in      Beaverhead                      County,               Montana.                    In     June            of

1989,        Stanchfield                   and appellant                        NFC Partners                        (NFC)         entered               into          a

"Timber           Sales         Agreement                and Right                    of        First        Refusal."                       Pursuant                to

the     right       of       first         refusal,              if        Stanchfield                     ever       desired                to sell            its

property           and         received             a bona                 fide        offer             for        the        purchase                 of      the

property,               it     would            provide               notice               to     NFC.              NFC would                  then           have

forty-five               days        in which              to        exercise               its         right        of        first          refusal                to

purchase           the        property             on identical                        terms            as the            offer.

           Sometime            after         signing                 the      right             of first            refusal,                 Stanchfield

began           taking           steps             to      subdivide                        a      portion                of       its          property.

Stanchfield                  attempted              this         subdivision                       by preparing                        a Certificate
                                                                                2
Of Survey              (COS) pursuant                    to    the          provisions             of         the       Montana          Subdivi-

SiOn      and         Platting            Act,       §§ 76-3-101                        through              -614,        MCA (the              Act).

This      COS, designated                     COS 792,            depicts               nineteen              parcels            of property,

each      being            over       twenty        acres             in     size         and encompassing                            a total           of

approximately                     491 acres.

          Stanchfield                     retained              Bill              Anderson,                   a         registered               land
surveyor,               to        prepare           COS         792           during          the             winter             of      1992-93.
Anderson              completed              the      field                survey         work          in        the      early          part          of

January          1993,            and had the             survey             reviewed             for        errors            and certified

by      an examining                  land        surveyor             on February                  11,           1993.           COS 792 was
filed      in        the     office          of    the        Beaverhead                  County         Clerk            and Recorder                  on

February             12,      1993.

          At     the       time       COS 792 was filed,                            however,             the         internal            property

monuments             had not            been set             and Anderson                 made the               following              notation

on the          face         of    the       COS:         "NOTE:                 Prove&v            Corners               will         be set           by

July      1,         1993.            Snow        conditions                  vrevent            settinq                corners           at     this

time."          Anderson              physically               set         the     internal             monuments                on March           23,

24 and          25,        1993.          Additionally,                      while         preparing                    COS 792 Anderson

found          and     used        four        brass-capped                       monuments              set         by     the        Bureau           of

Land      Management                  which         designated                    the      exterior                 boundaries              of      the

surveyed             property.               Anderson             described                 these            monuments                as "public

land      survey              corners"             and        filed              corner       cards               on      the         corners           on

August          31,        1994.

          After            COS 792 was filed                      and the                property             monuments                were       set,

respondents                Ketchum,           Berenson,               Markovich,              Beaty,                Ossello,           McCloskey

and Mattioli                  submitted             offers             to        purchase           various               of      the     parcels


                                                                             3
created               by      COS 792.                 Stanchfield                      provided             NFC with                 notice            of      the
offers,               pursuant                 to     the      right          of        first          refusal.                   NFC then                   filed
this           action          in      Beaverhead                County               requesting                the         District              Court              to

declare                 COS 792                invalid               and      enjoin              any         sales              of         the        parcels

depicted                in       the       COS.             NFC also               sought             an injunction                         to    restrain

respondent                     Rosalee                 Richardson,                       Beaverhead                    County                 Clerk             and
Recorder,                  from        accepting               for      recordation                    any instrument                         purporting

to     transfer                any        interest             in      the        properties.

           The District                         Court        held          that         physically                 setting              the       property

monuments                    after         filing             the       COS did                 not         violate              the          spirit            and

intent           of the             Montana            Subdivision                    and Platting                    Act        and thus              did      not

invalidate                    the      survey.               The District                       Court         therefore                 denied              NFC's

petition                for       injunctive                 relief.               It     is      from        this          decision              that          NFC

appeals.                 The District                    Court         also           concluded              that       the           right       of        first
refusal               granted             to        NFC by Stanchfield                           continued                  to    be a valid                    and

enforceable                    property               right.               This          conclusion                   was not               appealed                 by

any party                  and       is    not        an issue              before              us.

                                                                       DISCUSSION

           At         the        time          COS 792           was         filed,             the         Montana              Subdivision                    and

Platting                Act      provided               that         a "subdivision"                         was "a division                           of     land

or     land           so       divided               which       creates                one       or        more       parcels                containing

less           than        20 acres                            in      order            that          the     title          to        or     possession

of     the       parcels               may be sold,                    rented,             leased,              or      otherwise                 conveyed

           .       II         Section               76-3-103(15),                     MCA (1991).                      Thus,            the       nineteen

parcels            that          Stanchfield                   wished          to create                in     1992-93                would        not        have




                                                                                  4
been      considered                    to      be a subdivision                             because               each      parcel              was     over
twenty       acres            in     size.

          The Act             defines                 "division                of     land"          as

          the segregation                          of one or more parcels            of land from a
          larger      tract                   held    in single     or undivided        ownership         by
          transferring                        or contracting        to transfer         title       to or
          possession        of                 a portion      of the tract    or properlv          filinq
          a certificate                        of survev or subdivision         plat     establishing
          the identity                       of the      segregated   parcels     pursuant       to this
          chapter.

Section         763-103(3),                           MCA (emphasis                    added).

          Because             the        division                  of    land         that         Stanchfield                   wished           to     make

was not       considered                      to be a subdivision,                                 Stanchfield                  did        not    need to

comply       with        the         requirements                        of     the     Act        pertaining                   to     the       creation

of    a formal           subdivision                            plat     and subdivision                           review.                 Pursuant         to

the       above       definition                           of      "division                 of      land,"           Stanchfield                       opted

instead         to    create                 the         parcels              through             the     filing           of        a certificate

of    survey.

          Stanchfield                     was          aware,            however,                 when        it      hired                Anderson         to

prepare           cos          792,             that              the         1993         Legislature                     was             considering

amendments               to         the              Act         including                 an       amendment                   to         change         the

definition               of         a        subdivision.                            The          Legislature                   did          amend        the

definition            of           subdivision                     to     include               any parcel                 of        less        than     160

acres,       rather                than         only            twenty          acres.              Section               76-3-103(14),                   MCA

(1993).           This         amendment                        became         effective                on April                6,     1993.

          Anderson                 testified                      that          Stanchfield                    was          concerned                   about

getting         the      COS filed                    before            any amendments                     to the           Act        changing           the

twenty-acre              maximum                   for          a subdivision                     would       become             effective.                 If

the      COS was              not            filed          before             the      changes               in      the            Act     went        into


                                                                                5
effect,           Stanchfield                          would           have        to     go        through                   formal           subdivision
procedures              to        create               the       parcels              he intended                        to    create.

           Anderson               also           testified                that          because             of      the         amount          of     snow on

the      ground         at        the           time     he did              the        survey             work          he could              not     set      the

internal          monuments                      on the             property             right             away.              Therefore,               because
of     the       time             constraints                        of       getting               the           COS filed                    before           any

amendments                  to            the     Act            were         effective,                    Anderson                   filed          COS 792
without          setting                  the     monuments                  and made the                   notation                  on the         COS that

the       monuments                   would            be        set      before               July         1,       1993.                  According            to

Anderson,              this               was     a common                   practice               among           surveyors                  because           of
poor       weather               conditions                    in      the     winter            months

           The        Act         provides                   that         a division                       of       land             may       be     made       by

"properly              filing                  a certificate                     of      survey             .                  _I'      Section              76-3-

103(3),          MCA.             Part           of      the        requirements                      of        filing           a COS is              that      it

"shall           be     legibly                   drawn,               printed,                or          reproduced                   by      a      process

guaranteeing                     a permanent                     record          and shall                  conform              to monumentation

and        surveyins                       requirements                       promulgated                        under               this           chapter."

Section          76-3-404(3),                          MCA.          Pursuant             to     5 76-3-403,                     MCA, the              Depart-

ment       of    Commerce                      has promulgated                        regulations                    regarding                  monumenta-

tion       and surveying                         requirements.

           The Department                          of       Commerce               has     set         out         uniform              standards               for

Certificates                     of        Survey           in      Rule       8.94.3002,                    ARM, which                     provides,            in

part

           A certificate      of                         survey   may not be filed                                            by the county
           clerk    and recorder                           unless  it complies  with                                           the following
           requirements:

                                      .    .
           (4)    The certificate  of survey   shall    show or contain                                                                    on
          its face or on separate     sheets referenced     on its face                                                                  the
          following    information   only:



           (f)   All monuments found,      set,                                 reset,           replaced   or removed
          describing    their     kind, size,                                   location            and giving    other
          data related     thereto.

           (g) The location      of                       any corners  of sections                                   or divisions
          of sections    pertinent                          to the survey.

          Additionally,                     the uniform             standards                 for      monumentation                     provide,

in     part,      as follows:
          All monuments must be set                                   urior     to the filing       of a plat
          or certificate           of survey                          except       those    monuments      which
          will    be disturbed        by the                         installation          of improvements.
          Such monuments           may be set                           subsequent        to filing     if    the
          surveyor       certifies      that                           they     will     be set     before        a
          specified      date.

Rule      8.94.3001(l)                    (d),     ARM (emphasis                   added).

          Thus,             under           the      mandatory                language                    of         the      Act        and        the
regulations                  promulgated                thereunder,                a COS may not                           be filed           unless

it     shows          all       of        the      monuments             that           are         set         during          the       survey.

These          monuments             must         be set        e             to        the         filing            of     the        COS.        The

a          exception                 to     this        requirement                 is        when             the      construction                  of

improvements                   on     the         property           would          disturb                  the        location              of    the

monuments.                    There         is     no     exception                to     this            requirement                   for        when
weather          conditions                      make     it     difficult                or          impossible                   to     set       the

monuments.                   Anderson             and Stanchfield                   did        not             state,        however,              that

the     monuments               were        not     set        due to        construction                        activity.               The only

reason          set         forth         on the        face        of   COS 792 was that                                  snow conditions

prevented             setting              the     monuments.                The statutes                          and regulations                    do
not        provide                   this            reason              as         an     exception                   to         the          monumentation
requirements.

           The District                             Court          relied           in part            on Anderson's                          testimony               that

it     was a common practice                                           among surveyors                       to set            property                    monuments

after                filing              a      COS when                      the        weather               conditions                      are          poor         in
determining                       that         such             action         did        not        violate            the        spirit             and intent

of       the         Act.            This            is         not,      however,                what         the          statutes                and regula-

tions               state.               The         Act         contains                several             specific                  requirements                    for

filing               a COS and we cannot                                      allow        what          might          be a common practice

among surveyors                               to override                   the       clearly            stated             laws         and regulations

as       set           out        by          the         legislature                    and         the       Department                      of          Commerce.

Common                practice                  in         an          industry              or        profession                      may       be         of        some

guidance                 when            there             is      no stated                   law      or     the          law         is      unclear,               but

this           is      not         the         situation                 here.             We must              enforce                 the         laws         of    the

State           as enacted                      and cannot                    insert            into         them           what        is      not         there        to

begin           with.               Section                 l-2-101,                MCA.
           The Montana                         Subdivision                     and Platting                    Act          states             that         in    order

to       create               a division                    of         land       by the             COS process,                       the         COS must             be

"properly"                     filed.               The Act              and its           regulations                      further             provide               that

the       proper                  filing             of          a COS requires                         that          all         internal                  property

monumentation                           must          be         set      prior           to      the        filing               of     the          COS.            When

Stanchfield,                        through                 surveyor                Anderson,                filed           COS 792,                 it     had not

set       the          internal                 property                 monuments.                     The      reason                 for         not      setting

the       monuments                     did         not         meet        the       only        exception                  to        this         requirement

provided                    for          in         the          regulations.                           Thus,           Stanchfield                         did        not
"properly"           file      COS 792 and did               not    create           a valid           division           of     land
under       the    Act.

          This      Court       reviews         a District           Court's               conclusions              of      law     to

determine           if       those       conclusions               are          correct.                Steer,           Inc.       v.
Department           of     Revenue        (1990),         245 Mont.             470,      474-75,           803 P.2d            601,

603.        We hold           that      the     District           Court           erred         in     concluding               that

Stanchfield               "properly"          filed     COS 792 and created                            a valid       division
of   land        when the       internal          property          monuments              were        not    set        prior      to

filing       the     COS.

          Based      on the          above,      this      matter         is      reversed             and remanded               for

further          proceedings           consistent           with         this       Opinion.




                                                                                           rey        M. Sherlock,




We concur:




                    Justices

                                                              9
Justice         W. William                       Leaphart,              dissenting.


          I     dissent               from          the         Court's             opinion               and       I     would             affirm             the

judgment             of      the       District                 Court.               It        appears            that         Stanchfield                     was
trying         to     complete                   the      Certificate                     of     Survey            (COS) before                       the      new

law      went         into           effect             on PApril              6,         1993.           To meet                   that         deadline,
Stanchfield                  filed          the         COS before                 the         monuments            had been                    set     on the

property.                 However,                the     internal                monuments               were          set     in March                before

the      new law             took          effect              and before                 any         sales        had been                 made.              The
ARMS contemplate                           that         monuments              can be set                  after          the         filing             of    the

COS if         the        installation                    of      improvements                        would       interfere                 with            their

placement.                   8.94.3001(l)                      cd),     ARM.

          In this            case,              according              to industry                    custom,            the        monuments                 were

not      set        because                of      the         snow      and         weather              conditions.                           The       Court

asserts         that          improvements                       are     the        only          recognized                  exception                  to    the

requirement                that        monuments                  be set            prior             to filing               the     COS.            Even          if

improvements                  are      the         only         exception,                 the District                   Court            found          that:

          while    the regulations            and statutes       generally      requir[el
          monuments      to be set prior           to filing      the certificate          of
          survey,     they clearly        recognize       that   conditions       may make
          that     impractical.              Here,     because       of     weather       and
          uncertainty        as to the construction               of roads       or other
          imorovements,         etc.,    the surveyor         was unable      to set the
          monuments       prior       to filing      the     COS . . . .[Emphasis
          added.1

This      finding,               which            the     majority                fails          to address,                  brings             this         case

within          the        improvements                         exception.                       The      parties               agree             that         the

purpose          of        the        COS is              to     disclose                 "facts           pertaining                      to     boundary

locations"                 and        to        "allow           others             to         find       the      boundaries                     depicted

thereon."                  Given            that          the         COS and               the         monuments               were             completed

before         the        sale        in question,                     the     agreed             upon purpose                      was satisfied.


                                                                             10
          To satisfy               the        majority,                all      that       Stanchfield             would         have      been

required             to do is              refile            the     COS after             the      monuments            had been          set.
Here,          the     monuments               were           set      before           the      new law          went      into        effect

and before              any        sales            had been              made.          In      this      case,      the        fact      that

monuments             were        not       set       until          approximately                  six     weeks        after      COS 792

was filed             does        not       harm the                public       or NFC.                To require          Stanchfield

to    refile          the       COS after                  the      monuments            had been           set    would         have      been

to    require          a useless                    act.

          Furthermore,                     the penalty                for      violating            the Montana             Subdivision

and Platting                Act       is     a criminal                   sanction.              The action          can be brought

by the          county           attorney.                   Section           76-3-105,            MCA, provides:

          Any person who violates           any provision        of this   chapter    or
          any local       regulations     adopted     pursuant     thereto   shall    be
          guilty    of a misdemeanor         and punishable        by a fine    of not
          less than $100 or more than $500 or by imprisonment                      in a
          county    jail      for not more than 3 months or by both fine
          and imprisonment.           Each sale,     lease,    or transfer     of each
          separate       parcel    of land in violation        of any provision       of
          this    chapter       or any local      regulation       adopted   pursuant
          thereto     shall     be deemed a separate         and distinct    offense.


The appropriate                    remedy             would          have been a possible                         criminal          action,

not     an action                by NFC to                  invalidate             the        COS.         The     Court‘s          opinion

ignores          the        reality             of         the      situation             and       permits         NFC to          prevail

based          upon         a     technicality                       that        did          not       impair       NFC's          rights.

Accordingly,                    I would             affirm          the      District            Court.




                                                                          11
