                                                                                             06/16/2020


                                            DA 19-0379
                                                                                        Case Number: DA 19-0379

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2020 MT 157N


DEREK HARBOUR and BETHANY HARBOUR,

               Plaintiffs and Appellants,

         v.

JESSE A. WANSKASMITH,

               Defendant and Appellee.

APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DV-17-913
                       Honorable Shane A. Vannatta, Presiding Judge

COUNSEL OF RECORD:

                For Appellants:

                       Dale R. Cockrell, Jay T. Johnson, Moore, Cockrell, Goicoechea &
                       Johnson, PC, Kalispell, Montana

                For Appellee:

                       Michael D. Bybee, Liesel D. Shoquist, Milodragovich, Dale &
                       Steinbrenner, P.C., Missoula, Montana


                                                    Submitted on Briefs: December 18, 2019

                                                              Decided: June 16, 2020


Filed:

                                  sr---6ma•—•f
                       __________________________________________
                                         Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), 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     Derek and Bethany Harbour (Harbour) appeal an order for summary judgment

issued on June 3, 2019, by the Fourth Judicial District Court, Missoula County, in favor

of the Appellee, Jesse Wanskasmith (Wanskasmith). We affirm.

¶3     This dispute involves the proper location of the dividing boundary line

(Common Boundary) between Harbour’s property (Harbour Tract) and Wanskasmith’s

property (Wanskasmith Tract). The Tracts are located in Lot 75 of the Dinsmore’s

Orchard Homes Addition No. 5 subdivision plat (1901 Plat). The 1901 Plat was recorded

on September 5, 1901, by developer Samuel Dinsmore. The dedication for the 1901 Plat

provided:

       I, Samuel Dinsmore, do hereby certify that I have caused to be surveyed
       subdivided and platted, into lots and streets, the following described tract of
       land, to wit: The South half (1/2) of Section Twenty-four (24) and the
       North half (1/2) of the North east Quarter (1/4) of Section Twenty five (25),
       Township Thirteen (13) North, Range Twenty (20) West of the Principal
       Meridian of Montana, to be known as “DISMORE’S ORCHARD HOMES
       ADDITION NO. 5,” and the streets shown on the annexed plan, to be and
       hereby are granted and donated to the use of the public forever.

(emphasis added). Both the dedication language and the 1901 Plat depiction identify the

60-foot streets in the subdivision separate from the lots. Unlike more modern plats, the


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1901 Plat does not contain a proposed lot legal description, instead relying upon the

overall dimensions of the subdivision and depiction of each lot. The engineer who

oversaw the survey and plan for the 1901 Plat further provided:

      O.C. Finkelnburg, being first duly sworn, according to law, deposes and
      says that . . . the annexed plan is a correct representation and diagram, and
      that said addition is laid out according to the law and that the width of the
      streets, and the measurements of the lots, and the posts for reference points
      are correctly represented on said plan.

(emphasis added).

¶4    Dinsmore sold Lot 75 on February 2, 1906, and cited the 1901 Plat for the legal

description of the property in the deed (1906 Deed). The property was subsequently

transferred to other parties by reference to “Lot 75,” until ownership in the relevant

portion of Lot 75 became vested in Constance Niemeyer (Niemeyer).                     On

September 8, 1972, Niemeyer created the key subdivision of Lot 75 relevant to this

action, by transferring a portion of the property to Walter and Twila Yost (Yost) via deed

(1972 Deed). The conveyance provided:

      Beginning at the NE corner of Lot 75, thence South along the Eastern
      bound[a]ry of Lot 75, 224 feet; thence West parallel to the Northern
      bound[a]ry of Lot 75, 193 feet; thence North parallel to the Eastern
      bound[a]ry of Lot 75, approximately 224 feet to the Northern bound[a]ry of
      Lot 75; thence East along the Northern bound[a]ry of Lot 75 to the point of
      beginning, in Orchard Homes #5.

(emphasis added). This subdivided parcel came to be known as the Harbour Tract. The

Harbour Tract within Lot 75 is bordered to the east by Tower Street.           The legal

description used in the transfer expressed in general and simple terms that the boundary

of the conveyance starts in the northeast corner of Lot 75, and this description in the


                                            3
1972 Deed creates the present issue. The 1972 Deed’s legal description mentioning

“the NE corner of Lot 75” and “193 feet” still exists in both the deed conveying title to

Harbour and the deed conveying title to Wanskasmith. The origin of the 1972 Deed’s

legal description is unknown and has no relationship to a survey or other instrument

depicting the boundaries, and more importantly, the starting point.

¶5     In May 1973, surveyor William Bayer (Bayer) completed a survey of Lot 75, and

the Bayer survey and legal description was used in two subsequent documents, the first of

which was a Partial Release of Mortgage obtained by Niemeyer on the

Wanskasmith Tract, recorded May 31, 1973. The Partial Release of Mortgage and its

attached plat (1973 Mortgage Plat) indicated the starting point for Lot 75 as the centerline

of Tower Street.       On June 13, 1973, after the mortgage was lifted on the

Wanskasmith Tract by Niemeyer, Yost transferred the Harbour Tract back to Niemeyer

using the legal description in the 1972 Deed, rather than the Bayer survey description.

Later that same day—June 13, 1973—the parties executed an agreement whereby

Niemeyer transferred both the Harbour Tract and the Wanskasmith Tract to Yost; this

deed was not recorded until 1976.

¶6     Almost one year after this conveyance, on June 17, 1974, Yost recorded

Certificate of Survey 335 (COS 335), the second document using the Bayer survey and

legal description. COS 335 depicts Yost as the owner of the combined Harbour and

Wanskasmith Tracts and depicts the Common Boundary between the properties as a

dashed line. Apart from this dashed line, the legal description’s measurements and calls

in the Partial Release of Mortgage and COS 335 are identical. Both the 1973 Mortgage

                                             4
Plat and COS 335 reference a corner monument composed of a “1 1/2" diameter brass

cap” set at the north end of the Common Boundary, and a like corner monument set at the

south end of the Common Boundary. Both documents depict the Wanskasmith Tract as

varying between 158 feet at the north end to 159 feet at the south end, and both

documents represent the Harbour Tract’s northern and southern boundaries as

163 feet wide from the western edge of Tower Street (or 193 feet from the centerline of

Tower Street). Both the Harbour Tract and the Wanskasmith Tract remained in Yost’s

ownership for a number of years, and in 1996 Yost commissioned an unrecorded survey

of the Harbour Tract (1996 Survey). The 1996 Survey depicted the Common Boundary

between the Harbour Tract and the Wanskasmith Tract as 163 feet from the western edge

of Tower Street. The District Court held that the 1996 Survey demonstrated that Yost

maintained the Common Boundary depicted in the 1973 Mortgage Plat and COS 335, and

evidenced Yost’s intent that the Common Boundary remain as monumented in the

1973 Mortgage Plat and COS 335.

¶7     In 2003, Yost errantly transferred the Harbour Tract to SAMCO, LLC (SAMCO),

by and through its managing member, Sam Martin, Sr.; the transfer was errant because,

based on the parties’ subsequent filings and actions, it appears Yost intended to transfer

the Wanskasmith Tract, and not the Harbour Tract, to SAMCO.1 The language of this


1
  After acquiring what it thought to be the Wanskasmith Tract, SAMCO obtained a permit to
move a log home onto the Wanskasmith Tract. The permit contained a site plan which reflected
the same dimensions of the Wanskasmith Tract as depicted on the 1973 Mortgage Plat and
COS 335. SAMCO also obtained a building permit for a detached garage, a sewer permit, and
an approach permit, all of which show the Common Boundary at the same location as indicated
in COS 335.
                                             5
errant conveyance held the same legal description created in the 1972 Deed—“Beginning

at the NE corner of Lot 75” and “193 feet”—with some additional language referencing

COS 335. The error created by the 2003 transfer was not discovered until 2006, and

upon discovery of the faulty transfer, Yost conveyed the Wanskasmith Tract to

Sam Martin, Jr.2 The 2006 transfer again referenced both the legal description from the

1972 Deed and COS 335.

¶8       Harbour purchased the Harbour Tract in 2007. The “recording reference” in

Harbour’s deed refers to the 1972 Deed. Sam Martin, Jr. eventually lost ownership to the

Wanskasmith Tract through a trustee’s sale in April 2008. Five years later, in 2013,

Wanskasmith acquired the Wanskasmith Tract via quitclaim deed containing the

following legal description:

         CERTIFICATE OF SURVEY NO. 335, BEING A PARCEL OF LAND
         LOCATED IN LOT 75 DINSMORES ORCHARD HOMES ADDITION
         NO. 5, . . . AND EXCEPTING THAT CERTAIN PROPERTY
         BEGINNING AT THE NE CORNER OF LOT 75, THENCE SOUTH
         ALONG THE EASTERN BOUNDARY OF LOT 75; 224 FEET;
         THENCE WEST PARALLEL TO THE NORTHERN BOUNDARY OF
         LOT 75; 193 FEET . . . .

(emphasis added).

¶9       At the summary judgment hearing, the District Court was faced with deciding the

proper location of the Common Boundary between the Wanskasmith Tract and the

Harbour Tract.        The parties presented two alternatives for the location of the

Common Boundary. Harbour argued that the point of beginning for Lot 75 is the western

edge of Tower Street, running 193 feet from this starting point westward to the

2
    Sam Martin, Jr. acquired the Harbour Tract through transfers originating with SAMCO.
                                                6
Common Boundary. Harbour contended that Dinsmore’s dedication language for the

1901 Plat, “the streets shown on the annexed plan . . . are granted and donated to the use

of the public forever,” created a fee simple ownership in Tower Street for

Missoula County. Harbour further argues that, because of this fee simple ownership and

the 1901 Plat’s depiction of the streets separate from the lots, Dinsmore intended the

northeast corner of Lot 75 to be placed on the west side of Tower Street, rather than in

the center of Tower Street as Montana law would conventionally hold. Wanskasmith, on

the other hand, argued that Lot 75 begins at the centerline of the Tower Street

right-of-way, as created in the 1901 Plat, and runs 30 feet to the western edge of

Tower Street, and then another 163 feet to the Common Boundary.

¶10   The District Court disagreed with Harbour’s argument that Dinsmore intended to

convey fee simple title in Tower Street to Missoula County, and instead held that the law

in effect at the time of the dedication and grant, and the language used in the 1901 Plat,

clearly indicated conveyance of a public right-of-way easement.        As for confusion

created in the chain of title by the language used in the 1972 Deed, the District Court

found that, “[w]ithout an attendant survey and proper boundary line monumentation for

the 1972 Deed, both the starting point for the legal description and the

Common Boundary created thereby is ambiguous.”             The dual references to the

1972 Deed and COS 335 in the deeds conveying the properties to each respective party

“further[ed] the ambiguity.” This finding of ambiguity in the 1972 Deed, and subsequent

deeds using the 1972 Deed description, led the District Court to consider extrinsic

evidence outside the document itself to determine the intent behind the legal description.

                                            7
From this evidence, and with the support of case law, the court concluded that the starting

point for the 1972 Deed was intended to be the centerline of Tower Street, stating,

“The proper starting point for a legal description in Montana is the center line of an

adjacent public right-of-way, rather than the edge of a right-of-way as Harbour

proposes.”    As a result, the District Court granted summary judgment in favor of

Wanskasmith.

¶11    We review a district court’s grant or denial of summary judgment de novo,

applying the criteria of M. R. Civ. P. 56. Alexander v. Mont. Dev’l Ctr., 2018 MT 271,

¶ 10, 393 Mont. 272, 430 P.3d 90.       We review conclusions of law by determining

whether a district court’s interpretation and application of the law was correct.

Alexander, ¶ 10.

¶12    Harbour appeals the District Court’s ruling, arguing that the District Court erred

when it concluded that Lot 75 extended to the center of Tower Street and COS 335

correctly depicted the Common Boundary between the Tracts.             We hold that the

District Court correctly determined from the facts presented that the Common Boundary

is located 193 feet west of the centerline of Tower Street as monumented, and as

provided in COS 335 and a retracement survey recorded as Certificate of Survey 6607

(COS 6607).

¶13    In order for Harbour’s arguments regarding the legal description of the 1972 Deed

to be valid, a court would first have to hold that Dinsmore’s language in the 1901 Plat

intended to convey fee simple title in Tower Street to Missoula County.                The

District Court held that an analysis of Montana law and the language of the 1901 Plat

                                            8
indicate the conveyance of an easement, and not a fee simple interest, in Tower Street at

the time of the recording.       The language used by Dinsmore in the 1901 Plat,

“granted and donated to the use of the public forever,” was directly quoted from

Mont. Pol. Code § 5005 (1895). Other statutes in effect at the time of the dedication

include Mont. Pol. Code § 2620 (1895) (“By taking or accepting land for a highway, the

public acquire only the right of way, and the incidents necessary to enjoying and

maintaining the same . . . .”), and Mont. Civ. Code § 1292 (1895) (recodified as

§ 70-16-202, MCA) (“An owner of land bounded by a road or street is presumed to own

to the center thereof, but the contrary may be shown.”). These statutes, together with our

case law, support the District Court’s conclusions regarding the grant of Tower Street in

the 1901 Plat.

¶14    Harbour argues that the District Court misapplied this Court’s holding in

McPherson v. Monegan, 120 Mont. 454, 457, 187 P.2d 542, 543 (1947), because the

plain language of the 1901 Plat and 1906 Deed conveyed a different intent, thereby

rebutting the statutory presumption that “the owner of land bounded by a road or street

owns to the center thereof.” The District Court considered all of the arguments that

Harbour reiterates to this Court, and specifically concluded that, “[s]imply put, there is no

compelling argument that the language of the [1901 Plat] created a transfer of the

fee simple interest in Tower Street to the County (or City) of Missoula.”

¶15    After a review of the record, we agree with the District Court’s conclusion.

“[A] boundary to and with the side of a street carries the fee to the center of the street

unless the contrary intent appears from the deed . . . .” McPherson, 120 Mont. at 458,

                                             9
187 P.2d at 544. The language of the dedication of the roads in the 1901 Plat is limited

“to the use of the public forever.” (emphasis added). The grant of a use right clearly

denotes an easement, and not a fee simple title. Harbour owns to the centerline of Tower

Street, although the 30 feet comprising Harbour’s half of the road is encumbered by a

public right-of-way. Mont. Pol. Code §§ 2620, 5005 (1895) and Mont. Civ. Code § 1292,

(1895), make clear that the effect of Dinsmore’s grant was to provide a public

right-of-way easement in Tower Street, and nothing more.

¶16   In relation to the 1972 Deed, Harbour argues that the District Court erred when it

held that the title chain became confused with an ambiguity introduced by the 1972 Deed.

They argue that the court used extrinsic evidence to create an ambiguity by adding terms

to the property description in the 1901 Plat. We disagree.

¶17   The construction of a writing granting an interest in real property is governed by

the rules of contract interpretation. Mary J. Baker Revocable Trust v. Cenex Harvest

States, Coops., 2007 MT 159, ¶ 18, 338 Mont. 41, 164 P.3d 851. A determination of

whether an ambiguity exists in a contract is a question of law. Mary J. Baker, ¶ 19. If

the language of a contract is unambiguous—i.e., reasonably susceptible to only one

construction—the duty of the court is to apply the language as written. However, if the

language of a contract is ambiguous, a factual determination must be made as to the

parties’ intent in entering into the contract. Mary J. Baker, ¶ 19. Extrinsic evidence is

admissible under certain circumstances to resolve an ambiguity in the property

description or to apply the deed to its proper subject matter. Section 70-20-202(1), MCA;

Blazer v. Wall, 2008 MT 145, ¶ 70, 343 Mont. 173, 183 P.3d 84.

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¶18    The meaning of “Beginning at the NE corner of Lot 75” was shown by the parties

to be reasonably susceptible to at least two conflicting meanings. The language was

uncertain about whether it was conveying the 30 feet encumbered by the Tower Street

right-of-way, by starting at the centerline of Tower Street, or simply starting at the edge

of Tower Street. Without an attendant survey and proper boundary line monumentation

for the 1972 Deed, both the starting point for the legal description, and the Common

Boundary created thereby, is ambiguous. Additionally, the deeds conveying the Harbour

Tract and the Wanskasmith Tract each reference the 1972 Deed language and COS 335,

creating a further discrepancy in the Deed language.

¶19    The District Court relied upon § 70-20-201(2), (6), MCA, which provides rules of

construction for interpreting the descriptive part of a conveyance of real property, to

resolve the ambiguity created in the 1972 Deed.         Section 70-2-201(2), (6), MCA,

provides:

       (2) When permanent and visible or ascertained boundaries or monuments
       are inconsistent with the measurement, either of lines, angles, or surfaces,
       the boundaries or monuments are paramount.

                                         .   .    .

       (6) When the description refers to a map and that reference is inconsistent
       with other particulars, it controls them if it appears that the parties acted
       with reference to the map; otherwise, the map is subordinate to other
       definite and ascertained particulars.

The survey and monumentation of the Common Boundary in COS 335 provides the

operative intention of Yost when later conveying the separate Harbour and Wanskasmith

Tracts, as COS 335 gives the first indication and monumentation of the two separate


                                             11
tracts and is thereafter used, or referenced, in subsequent conveyances. COS 335 depicts

the Harbour Tract as 163 feet wide from the edge of Tower Street, and 193 feet wide

from the centerline of Tower Street. This interpretation of the intention of Yost and

Niemeyer in the 1972 Deed is supported by the subsequent use of the two parcels prior to

the conveyances to Harbour and Wanskasmith.           The description of the parcels and

Common Boundary in COS 335 was later used in building permits, septic permits, and

similar documents, and was also confirmed by the retracement survey, COS 6607. Given

the foregoing, we determine that the District Court’s conclusion that an ambiguity existed

in the 1972 Deed, and its resolution of that ambiguity, was a correct interpretation and

application of the law.

¶20    Finally, Harbour advances an extraneous argument that COS 335 “did not create

two separate tracts,” and cites the dashed line representing the Common Boundary

between the Harbour Tract and the Wanskasmith Tract in support of its position. We will

not address this argument beyond clarifying that the District Court did not hold that COS

335 created the Harbour and Wanskasmith Tracts. The two tracts were created through

Niemeyer’s separating of the estate into two tracts, and subsequent conveyance of one of

those tracts to Yost. COS 335 merely surveyed and documented the measurements of

those lots in compliance with Montana law and the language of the 1901 Plat.

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

our Internal Operating Rules, which provides for memorandum opinions. This appeal

presents no constitutional issues, no issues of first impression, and does not establish new

precedent or modify existing precedent.

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¶22   Affirmed.


                               /S/ LAURIE McKINNON


We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ JIM RICE




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