                                                  No.    87-196

                     I N THE SUPREME COURT O F T H E S T A T E O F MONTANA

                                                        1987




W I L L I A M M. P E R U S I C H and MARGERY
E. PERUSICH,
                       P l a i n t i f f s and R e s p o n d e n t s ,
            -vs-

DAVID E.       MEIER,

                        D e f e n d a n t and A p p e l l a n t   ,



A P P E A L FROM:       D i s t r i c t C o u r t of t h e Second J u d i c i a l D i s t r i c t ,
                        I n and f o r t h e C o u n t y of S i l v e r B o w ,
                        T h e H o n o r a b l e Mark S u l l i v a n , Judge p r e s i d i n g .

COUNSEL O F RECORD:

            For A p p e l l a n t :

                        John L .        Hamner,     B u t t e , Montana

            For R e s p o n d e n t :

                        Richardson & Richardson;                      G e o r g e W.   Richardson,     Butte,
                        Montana




                                                        Submitted:            Oct.     16,   1987

                                                          Decided:           December 22,       1987

Filed:
              n u 2 :?1987
Mr. Justice L. C. Gulbrandson delivered the Opinion. of the
Court.
      In this action involving disputed ownership of land the
District Court for the Second Judicial District, Silver Bow
County, Montana, granted plaintiffs William and Margery
Perusich (Perusichs) all right, title and interest in the
disputed parcel of land.    Defendant David E. Meier (Meier)
appeals.
      We affirm.
      The issues presented by the parties can be addressed in
one statement:
      Whether there was sufficient evidence to allow the
District Court to find the Perusichs had acquired all right,
title and interest in the disputed property by adverse
possession?
      This case involves a land dispute between two Butte,
Montana, neighbors over the ownership of land described as
Tract Two on Certificate of Survey 224 (Cos 224) and the
southern portion of lots 19, 20, and 21 on Certificate of
Survey 119B (Cos 119B).      The land lies within property
claimed by Meier, who lives on lot 18, and the Perusichs, who
own Tract One. This area is commonly known as the "Crosby"
home and consists of 0.36 acres of a 160-acre patented Speir
& Bauer Placer Mining Claim.     The Perusichs purchased the
property from the conservator of the estate of Mae Crosby in
September, 1980. The Perusichs claim they and the previous
"Crosbys" have been in uninterrupted possession of the home
for more than twenty-five years. Evidence was presented that
for over fifty years the Perusichs and their predecessors in
interest, have occupied the land.
      The Meier home and Crosby home are separated by a
vacant lot.    Both Tract One and Two have been fenced for
approximately twenty-five years. The Perusichs, and before
them, the Crosbys, had built and maintained improvements on
Tract Two.   After a trial was held September 4, 1986, the
District Court determined the Perusichs had acquired title to
Tract Two by adverse possession.
      In August, 1982, the Perusichs had a survey, Cos 224,
prepared and filed. It shows the Crosby home semi-enclosed
in a fence. The property is comprised of two parcels, Tract
One and Tract Two and an undedicated alleyway. Cos 224 was
based on an unrecorded drawing entitled the "Rocker Townsite"
of which the source and date are unknown.      It is further
unknown whether the Rocker Townsite originated from an actual
survey.   However, the Rocker Townsite was never formally
dedicated and much of the property was acquired by squatters.
Because no formal plat ever existed most of the property was
described by metes and bounds.
      Meier had Cos 119B completed on December 6, 19?8.
According to 119B lots 19, 20 and 21, claimed by Meier,
overlap the Perusichs' land, described as Tract Two in Cos
224, and it is this 30.74 feet-wide, 98.10 feet-long, piece
of property which is in dispute. The Perusichs and previous
owners maintained a fence around this property, including
Tract Two and the alleyway, that was obvious to Meier, yet he
never questioned their occupancy until the Perusichs com-
menced a quiet title action on November 8, 1985.        Meier
contends that the Perusich fence and buildings are encroach-
ments as shown on Cos 119B.
      The title for the Spier & Bauer Placer Mining Claim for
both surface and mineral interests was given by the United
States government by original patent. A quiet title action
was brought by the predecessors in interest in 1970 in which
the court decree stated the mineral and surface interest was
vested in Frank Benich and James Driscoll as Trustees for
West Butte Development, the Anaconda Company, and the Butte,
Anaconda and Pacific Railway Company. All of these parties
were named in the Perusichs' quiet title action and dismissed
after execution of quitclaim deeds.
       The Silver Bow County Assessor regularly assessed the
Crosby property as lot 3, block 3 of the Rocker Townsite and
included all of the improvements within the enclosure. Pat
Callaghan (Callaghan), Supervisor of Delinquent Tax Sales for
Silver Row County, testified that Tract Two, as stated in Cos
224, was included in lot 3 and was taxed to the Crosbys and
later to the Perusichs. According to Callaghan's notes and
tax receipts, submitted as evidence, all tax assessments were
paid by the Perusichs and Mae Crosby from 1978 through 1985.
Further, the Perusichs presented the tabulation diagram used
by the county assessor which showed that the tax valuation
included all the improvements on Tract Two. Meier also paid
taxes assessed against lots 15 through 23 of block 3 from
1978 through the trial date.    The District Court stated in
its findings of fact, paragraph 16, that Meier I' [mlay also
have paid taxes on property which included Tract Two, but
that such tax was improperly assessed .    ..   - - -
                                                 and did not
include improvements thereon." (Emphasis added.)
      Meier testified that the Crosbys were in possession of
the property when he moved to Rocker as a three-year-old in
1935. From the record, it is clear the Perusichs and their
predecessors in interest have built fences surrounding the
property and have made improvements on the land. Both par-
ties exhibit color of title and submitted proof of payment of
taxes.
       The District Court, after consideration of evidence
raised. at hearing and supplemental evidence allowed to per-
fect the record, made the following paraphrased findings:
      1. That the Rocker Townsite is an unrecorded plat that
overlies portions of the Spier & Bauer Placer in Section 21
T3N R9W MPM Silver Bow County.
      2. That Tracts One and Two constituted. the Crosby home
and were within the boundaries of the Spier & Bauer Placer
and separated by an undedicated alleyway as described in Cos
224 filed for record on August 13, 1981.
      3. All surface rights in the Spier & Bauer Placer
contained in Section 21 which were unconveyed by deed prior
to February 20, 1970 are inferior to the titles of the
Anaconda Company, Frank Benich and James Driscoll, as Trust-
ees for West Butte Land and Development, and the Butte,
Anaconda and Pacific Railway Company by court decree, Cause
No. 56-309.
      4. The Perusichs continuously occupied Tracts One and
Two from August 1981 through 1986 and that prior to that
time, Steven J. and Mae Crosby had possession of the property
well in excess of twenty-five years sufficient to confer
title by prescription upon the Crosbys.
      5. Tract One, Two and the alleyway were enclosed by a
woven wire fence and regularly assessed by the Silver Bow
County Assessor under the incomplete designation of lot 3 of
block 3 of the Rocker Townsite.
      6. The Perusichs paid all taxes legally assessed and
levied against Tracts One and Two and the alleyway under the
erroneous designation of lot 3 block 3 of the Rocker Townsite
for the years 1981 through 1985 and the Crosbys paid all
taxes assessed and levied for the years 1976 through 1980.
      7. The Perusichs acquired all claims of right, title
and interest in Tracts One and Two by quitclaim deeds from:
The Blue Bird Company, Atlantic Richfield, successors of the
Anaconda Company, and the Butte, Anaconda and Pacific Railway
Company; Rudy E. Endresse and Frank Benich, Trustees for West
Butte Land and Development, and the Crosbys and that all of
these parties were dismissed as defendants in the quiet title
action.
      8. The Perusichs and their predecessors held the
property openly, notoriously and adversely and only Meier
protested the quiet title action even though he was aware of
the adverse possession as early as December 6, 1978 when he
had Cos 119B done and was therefore estopped pursuant to
§ 70-19-402, MCA.

      9. That Meier may have also paid improperly assessed
taxes on the property which included Tract Two.
      The court decreed that the Perusichs were entitled to
the entire title to surface rights of Tract Two by adverse
possession.
      We will uphold the District Court unless it is shown
there was insufficient evidence to support the court and it
abused its discretion in its determination:
            This Court will not overturn the findings
            of fact of a District Court where they
            are supported by substantial, though
            conflicting, evidence unless there is a
            clear preponderance of the evidence
            against the findings.       State ex rel.
           Wilson v. Department of Natural Resources
            and Conservation of State of Montana,
           Water Resources Div. (19821, Mont., 648
            P.2d 766, 772, 39 St.Rep. 1294, 1302. We
            view the evidence in the light most
            favorable   to  the     prevailing   party.
            Cameron & Jenkins v. Cameron (1978), 179
           Mont. 219, 228, 587 P . 2 d 939, 944.
Burlingame v. Marjerrison (Mont. 1983), 665 P.2d 1136, 1139,
40 St.Rep. 1005, 1007.
      In this case, the evidence supports the finding of the
District Court that Perusichs adversely possessed the proper-
ty at issue in this case.
      The     requirements to establish title by adverse
possession    have been addressed by this Court on numerous
occasions.     Castles v. Lawrence (Mont. 1983), 662 P.2d 589,
40 St.Rep.    545; Rrannon v. Lewis & Clark County (19641, 143
Mont. 200,     387 P.2d 706.   Section 70-19-407, MCA, states:
             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 in-
             strument as being a conveyance of the
             property in question or upon the decree
             or judgment 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 in-
             cluded is deemed to have been held ad-
             versely, 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.
      For adverse possession to occur, property must be
claimed under color of title or by actual, visible, exclu-
sive, hostile and continuous possession during the statutory
period of five years.     Additionally, the party claiming
adverse possession must also have paid the taxes on the
property   for the full statutory period pursuant to
§ 70-19-411, MCA.  Burlingame, supra, 665 P.2d at 1139-1140;
Swecker v. Dorn (1979), 181 Mont. 436, 441, 593 P.2d 1055,

      It is clear from the record that the Perusichs an2
their predecessors had possession of the property in ques-
tion. Section 70-19-408, MCA, defines possession as follows:
           (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 - - -
                       it has been    rotected b
           substantial     enclosure-
                                  s              :i
           added. )
      The Perusichs presented evidence that showed the estate
of Mae Crosby conveyed to them Tract One, Tract Two and the
alleyway. Although there was conflicting evidence presented
by Meier, the Perusichs still had legitimate "claim of title
...   upon a written insturment as being a conveyance." The
document, a quitclaim deed, was sufficient to create color of
title. Sullivan v. Nee1 (1937), 105 Mont. 253, 73 P.2d 206.
Further, there was no evidence that the conveyance was done
without good faith.
           Adverse possession under color of title
           is possession based on a written instru-
           ment which purports to pass title but
           which in reality does not. The Court has
           stated:
           ". ..  for one who holds a land under a
           written instrument, a statute or a judg-
           ment or decree of court which appears to
           convey or confirm title, but does not do
           so in fact, holds und.er 'color of title';
           that is to say he holds by virtue of
           something which gives him a colorable
           title only ...   "
           "'What is meant by color of title?     It
           may be defined to be a writing upon its
           fact professing to pass title, but which
           does not do it, either from a want of
           title in the person making it, or from
           the defective conveyance that is used--a
           title that is imperfect, but not so
           obviously so that it would be apparent to
           one not skilled in the law."'    Morrison
           v. Lind (1915), 50 Mont. 396, 401-409,
           147 P. 166, 168.
           Under Montana law, "An instrument which
           purports to convey land or the right to
           its possession is sufficient color of
           title as a basis for adverse possession
           if the claim is made in good faith."
           (Emphasis added.)
Joseph Russell Realty Co. v. Kenneally (1980), 185 Mont. 496,
503, 605 P.2d 1107, 1111.
      Meier testified that he thought the Crosbys had always
owned the property in question. He stated that the Crosbys
built the sheds and improvements on the property and enclosed
the area in a fence. He further stated that he did not know
he was taxed on the disputed property until Cos 119B was
completed in 1978. However, even after he was aware that he
may have had claim to the property, he made no effort to
retrieve it.
      We have held that a fenced enclosure is sufficient to
satisfy the actual possession requirement under S 70-19-408,
MCA. Castles, supra, 662 P.2d at 590; Johnson v. Silver Bow
County (1968), 151 Mont. 283, 286, 443 P.2d 6, 8, overruled
on other grounds, 593 P.2d 1055, 1058. The establishment of
the fence in this case clearly satisfies the enclosure re-
quirements and this conclusion is further buttressed by the
improvements made to the property. The improvements included
a large shed, a smaller shed, referred to as a "doll house,"
and a dog kennel.
      The District Court found that the Perusichs and prede-
cessors held the property "[o]penly, notoriously and adverse-
ly, as against all persons."      The evidence supports this
finding. The fence and improvements are sufficient to satis-
fy this requirement. The holding was open, it was not masked
to deceive Meier.    Both Perusichs and the Crosbys openly
showed their intention of possessing Tract Two.     arti in v.
Randono (1978), 175 Mont. 321, 573 P.2d 1156, appeal after
remand, 623 P.2d 959.
      The property was held adversely and hostile to Meier's
interest.    The Perusichs' claim was adverse to the extent
that Neier gave no privilege or license to them or their
predecessors to possess Tract Two.       Taylor v. Petranek
(1977), 173 Mont. 433, 437, 568 P.2d 120, 122. Yet Meier
acquiesced in the use, even after he was aware of a possible
claim.       The use by the Perusichs and their predecessors
clearly put Meier on notice that they were adversely holding
the land. This Court has defined "hostile" to mean " [aln
invasion of the owner's possession by the claimant without
the owner's permission and in violation of the owner's right
of property. "   Price v. Western Life Insurance Co. (1943),
115 Mont. 509, 514, 146 P.2d 165, 167. In Price, this Court
also stated that "adverse" meant "having opposite interests,
having interests for the preservation, of which opposition is
essential."    Price, supra, 146 P.2d at 167. The land was
held in violation of Meier's interests once the Crosbys
fenced and improved the area, even though he was unaware that
he had an interest until 1978.
       Finally, although it was contested and arguably proven
by Meier that he also paid taxes on Tract Two, it was proven
by the Perusichs that they, and the Crosbys prior to them,
paid, not only the underlying property tax but also the tax
on the improvements. Section 70-19-411, MCA, mandates that a
claimant pay the taxes levied for adverse possession to
occur:
            In no case shall adverse possession be
            considered established under this code
            unless it shall he 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
             - have been legally levied and as-
             the taxes, state, county, or municipal,
             which
             sessed upon said land. -(~m~hasis added. )
      This has generally been the aspect which bars most
parties attempting to adversely possess land.     Huggans v.
Weer (1980), 189 Mont. 334, 336-337, 615 P.2d 922, 924.
However, the Perusichs sufficiently proved that they and
their predecessors paid - taxes for the mandated period and
                        all
therefore satisfied this burden. Townsend v. Koukol (1966),
148 Mont. 1, 8, 416 P.2d 532, 537. The District Court appro-
priately mentioned that both parties may have paid the taxes
on the property. However, not only did the Perusichs prove
payment of - taxes, they also showed that they were the
            all
party that possessed the property in an open, notorious,
hostile and adverse manner.
      There was substantial credible evidence to support the
District Court's findings of fact, conclusions of law and
decree.
      Affirmed.




We concur:                             i
