                                                                                        December 27 2012


                                           DA 12-0153

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2012 MT 310N



PAUL W. JONES and MARCIA B. JONES,

              Plaintiffs and Appellees,

         v.

JAMES D. SHAURETTE,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Nineteenth Judicial District,
                      In and For the County of Lincoln, Cause No. DV-04-20
                      Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Karl K. Rudbach; Ramlow & Rudbach, PLLP, Whitefish, Montana

               For Appellees:

                      Richard De Jana; Richard De Jana & Associates, PLLC, Kalispell,
                      Montana



                                                  Submitted on Briefs: December 12, 2012

                                                             Decided: December 27, 2012


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1      Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2      James D. Shaurette appeals from the District Court’s Findings of Fact,

Conclusions of Law and Order, dated January 18, 2012. We affirm in part and reverse in

part.

¶3      The parties own adjacent lots on Bull Lake in Lincoln County. The Joneses

acquired Lot 8 in 2000 from family members and had a survey done in 2002. That

survey showed that three of Shaurette’s buildings located near the lake shore on Lot 9

encroached from 12 to 24 feet onto the Joneses’ Lot 8. In the area of the encroachment

near the lake each lot is approximately 75 feet wide and Lot 8 is undeveloped apart from

Shaurette’s buildings. The Joneses sued Shaurette seeking an order to require removal of

the encroaching buildings from Lot 8. The District Court conducted a bench trial on

November 8, 2011.

¶4      The District Court found that Shaurette’s buildings have been in place for 25 to 30

years and that no one had sought or obtained permission for the encroachments from any

owner of Lot 8. Shaurette has never paid property taxes on the portion of Lot 8 occupied

by his buildings. Neither the Joneses nor their predecessors in interest knew of the


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encroachment until after the 2002 survey. The District Court further found that neither

the Joneses nor their predecessors in interest had engaged in any activity that would estop

them from maintaining this action, or that would equitably entitle Shaurette to continue

the encroachment. The District Court concluded that under the facts the Joneses’ action

was not barred by the statute of limitation or by laches.

¶5     The District Court concluded that while Shaurette claimed a prescriptive easement

for the buildings encroaching on Lot 8, because the encroaching buildings effectively

enclosed portions of Lot 8 to the exclusion of entry by others, Shaurette’s only recourse

was to claim title by adverse possession. That claim was precluded by the fact that

Shaurette never paid taxes on the Lot 8 property as required by § 70-19-411, MCA.

Therefore, the District Court concluded that Shaurette’s claim of right to use Lot 8 is

subordinate to the Joneses’ legal title and ordered Shaurette to remove the encroaching

buildings.

¶6     On appeal Shaurette argues that the District Court erred in denying his claim for a

prescriptive easement for his encroaching buildings; that the District Court erred in

holding that the Joneses’ claims were not precluded by laches or the statute of limitations;

that the District Court should have applied a “relative hardship doctrine” to allow the

buildings to stay; and that the District Court erred in awarding costs to the Joneses.

¶7     A party seeking a claim of adverse possession must prove the claim--open,

notorious, exclusive, adverse, continuous and uninterrupted use--by clear and convincing

evidence. Meadow Lake Estates v. Shoemaker, 2008 MT 41, ¶¶ 36-37, 341 Mont. 345,

178 P.3d 81. The requisite open and notorious use is a “distinct and positive assertion of

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a right hostile to the rights of the owner and brought to the attention of the owner.”

Combs-Demaio Living Trust v. Kilby Butte Colony, 2005 MT 71, ¶ 14, 326 Mont. 334,

109 P.3d 252. This Court reviews findings of fact entered after a civil bench trial to

determine if they are supported by substantial credible evidence, viewed in a light most

favorable to the prevailing party and leaving the credibility of witnesses and the weight to

be given to testimony to the district court. Kurtzenacker v. Davis Surveying, 2012 MT

105, ¶ 14, 365 Mont. 71, 278 P.3d 1002. The District Court decided the issues properly

brought on for trial, based its findings of fact upon substantial evidence in the record, and

properly applied its conclusions of law to those facts.

¶8     Shaurette also contends that the District Court erred in awarding certain costs to

the Joneses. We affirm the District Court’s award of costs except as related to the survey

of Lot 8. One of the Joneses’ claimed costs allowed by the District Court was for “Expert

witness fee for preparation of survey and time testifying $250.00.” The parties agree that

the Joneses commissioned the survey of Lot 8 prior to the commencement of the

litigation, and prior to their knowledge that there was even a basis for commencing

litigation. In filings before the District Court the Joneses stated that the $250 they sought

for the survey item did not include the statutory fee for a witness’ trial testimony. Witty

v. Pluid, 220 Mont. 272, 714 P.2d 169 (1986) (a district court cannot award more than the

statutory $10 per day as costs for an expert’s testimony). Because the survey was

commissioned prior to the litigation and not for purposes of the litigation, the Joneses

may not recover the costs of the survey. Hitshew v. Butte-Silver Bow County, 1999 MT

26, ¶¶ 31-34, 293 Mont. 212, 974 P.2d 650.

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¶9     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for memorandum opinions. The District

Court’s findings of fact are supported by substantial evidence and the legal issues are

controlled by settled Montana law, which the District Court correctly interpreted. We

reverse the award of costs to the Joneses for “Expert witness fee for preparation of survey

and time testifying $250.00” and remand to the District Court for the sole purpose of

entry of a revised order of costs.

¶10    Affirmed in part and reversed in part.




                                                    /S/ MIKE McGRATH


We concur:


/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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