                               No. 82-103
              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       1983



WESLEY CASTLES and
RUTH B. CASTLES,
                        Plaintiffs and Respondents,


VIOLA LAWRENCE, sometimes written
Viola R. Arnundson; SHARON DONOVAN
WHEATLEY, sometimes writken Sharon
Lee Donovan; VICTORIA FAE ROSBARSKY:
CLEBER ALLEN AMUNDSON, et al,
                        DefendaAhs and Appellants.




Appeal from:     District Court of the First Judicial District,
                 In and for the County of Lewis and Clark
                 Honorable Peter G. Meloy, Judge presidkng.
Counsel of Record :
    For Plaintiffs:
          Smith Law Firm, Helena, Montana
    For Defendants:
          Galt and Swanberg; Robert Swanberg, Helena, Montana


                               -   -    -   -




                                Submitted on briefs:     August 19, 1982

                                                Decided: April 14, 1983


Filed:   &PR 1 4 1983



                                Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.


     This is a quiet-title action in the District Court of
Lewis     and    Clark   County    covering   Tract   C,   a    tract    of
approximately 5 acres in Lewis and Clark County.               Plaintiffs,
and the answering defendants (defendants), claimed title by
deeds and also by adverse possession.                 The trial court,
sitting without a jury, entered a decree quieting title in
the plaintiffs.       We affirm.
     The following are the issues which we will discuss:
        (1)     Is there sufficient evidence to establish title by
adverse possession in the plaintiffs?
        (2)     Are the boundaries of Tract C correctly described
in the decree?
     The evidence shows that after receiving a deed in 1963,
the plaintiffs entered into the possession of                   the   land.
Their 1963 deed was based upon the following description
contained in the chain of title:
     "Part of Placer Survey No. 99, Sec. 35, T.llN.,
     R.2W, containing 3 acres more or less; and Part of
     Placer Survey No. 99, Sec. 35, T.llN, Range 2W,
     containing 5.25 acres more or less; said surveys
        ...being in Lewis and Clark County, Montana."
Defendan.tscontend this description is legally defective, and
could not pass title to plaintiffs.            We need not determine
whether the description in the deed was sufficient to pass
title, because we conclude that plaintiffs hold title by
adverse       possession.    The   District Court      found     that   the
plaintiffs occupied Tract C under a claim of title arising
from the 1963 deed.         The court also found that plaintiffs
possessed the land for more than five years.               The evidence
supporting these findings is unrebutted.              As a result, the
plaintiffs met the adverse possession requirements of section
70-19-407, MCA:
      "70-19-407.    Occupancy under claim founded on
      instrument or judgment -- when considered adverse.
      When it appears that the occupant or those under
      whom he claims entered into the possession of the
      property under claim of title, exclusive of other
      right, founding such claim upon a written
      instrument as being a conveyance of the property in
      question or upon the decree or iudgment of a
      competent court and that there has been a continued
      occupation and possession of the property included
      in such instrument, decree, or judgment or of some
      part of the property under such claim for 5 years,
      the property so included is deemed to have been
      held adversely, except that when it consists of a
      tract divided into lots, the possession of one lot
      is not deemed a possession of any other lot of the
      same tract."
      The defendants argue that the plaintiffs did not have
possession of Tract C, but the evidence does not support this
contention.    Possession is defined in section 70-19-408, MCA,
as follows:
      "70-19-408.     Claim founded on instrument or
      judgment--what     considered   possession    and
      occupation.   (1) For the purpose of constituting
      an adverse possession by any person claiming a
      title founded upon a written instrument or a
      judgment or decree, land is deemed to have been
      possessed and occupied in the following cases:
      " (a.) where    it has been usually       cultivated or
      improved ;
      "(b) where - has been protected by - substantial
                  it                     a
      enclosure;.    ..
                     "(~mphasis added. )
The   1963    deed   was   sufficient   to   constitute   a   written
instrument on which plaintiffs' claim of title was founded.
The record shows that the plaintiffs completed an enclosure
of Tract C in 1964.        At that time, they completed a fence
around all portions of the property which were not bordered
by Hauser Lake.      The lake boundary is the only enclosure for
the balance of the property.      We hold that the lake boundary
constitutes a substantial enclosure as referred to in section
70-19-408.     This is consistent with the holdings in other
jurisdictions.     Springer v. Durette (19591, 217 Or. 196, 342
P.2d 132; Trask v. Success Mining Co. (1916), 28 Ida.ho 483,
155 P. 288.      See generally, 2 C.J.S.     696 Adverse Possession,
S 36.
      The     foregoing holding      is   also   consistent with     the
holding of this Court in Swecker v. Dorn (1979), 181 Mont.
436, 593 P.2d 1055, in which this Court held that an adverse
claimant need only prove his possession has been evidenced by
a   substantial enclosure, and need not prove any              further
occupation,      cultivation    or    use.       This   conclusion    is
strengthened by the evidence which shows the plaintiffs made
a number of improvements to Tract C.               These improvements
included erecting fences in relation to McGuire Creek; the
exclusion of trespassers; the removal of "no trespassing"
signs the defendants placed on the lands; grazing livestock;
leasing the tract to others for grazing; hunting on the
property; and using the tract in mining operations.
      In addition, section 70-19-411, MCA, requires that a
claimant pay the taxes levied during the five year period of
adverse possession.      Section 70-19-411, states:
      "70-19-411.     Occupancy and payment of taxes
      necessary to prove adverse possession. In no case
      shall adverse possession be considered established
      under this code unless it shall be shown that the
      land has been occupied and claimed for a period of
      5 years continuously and the party or persons,
      their predecessors, and grantors have during such
      period paid all the taxes, state, county, or
      municipal, which have been legally levied and
      assessed upon said land."
The   court    found   that   the    plaintiffs paid    taxes on     the
property for the years 1975 through 1980, based upon the
county assessment.        The defendants, on the other hand, did
not pay any taxes on the tract.
       The    conclusion of        the District Court was              that the
pla.intiffs ha.d been in actual, exclusive, hostile and adverse
possession of Tract C, continuously for more than five years
prior to the filing of the complaint, claiming title as joint
tenants with right of survivorship, and that the plaintiffs
had paid all taxes of every kind levied and assessed during
that five year period.              The record contains substantial,
credible      evidence     to    support    the     findings    of     fact   and
conclusions of         the District Court.             Cameron v.       Cameron
(1978), 179 Mont. 219, 587 P.2d 939.
       Finally,     defendants       argue     that     the     trial     court
erroneously      awarded    plaintiffs       more    land     than     they   had
adversely possessed.            We a-greewith this contention.           In its
decree quieting title, the trial court used the following
description of Tract C:
       ". . .  thence North 2 4 ' 30' West, a distance of
       415.0 feet - - o
                   to a      n - - center of McGuire
                                 in the
       Creek; thence down the center of ~ c ~ u i r e ~ r eto k
                                                            e
       the point where it empties into Hauser Lake;.                   . ."
       (Emphasis added.)
Since the plaintiffs obtained title to Tra.ct C by enclosing
it with a fence, it is clear that they should receive title
only    to    that portion that they actually enclosed.                       The
evidence shows that the creek has shifted its course since
1964 when plaintiffs erected their fences and completed their
enclosure of the land.            Consequently, in granting plaintiffs
the land to the middle of McGuire Creek, the trial court gave
them land which their fences did not enclose.                   As plaintiffs
had not enclosed that land, they cannot claim title under
section 70-19-408 (b), MCA.
       In addition, the record shows that plaintiffs only paid
taxes    on    those   portions within        their     fenceline.        Under
section       70-19-411,    MCA,     they    could     not     prove    adverse
possession of any of the land on which they did not pay
taxes.     Since they did not p . taxes on any portions outside
                               ay

of their fenceline, they cannot claim the land between their
fenceline and the middle of McGuire Creek.
    We therefore return this matter to the District Court
for modification of the property description in this decree
to include only that property within the fenceline along
McGuire Creek; and with      that exception, the judgment is
affirmed.




We Concur:


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         Chief J & s t i s
