                IN THE SUPREME COURT OF THE STATE OF IDAHO
                               Docket No. 38827
FRANK RONALD MAREK and GAYLE A. )
MAREK, husband and wife,                )
                                        )
    Plaintiffs-Appellants,              )
                                        )       Lewiston, May 2012 Term
v.                                      )
                                        )       2012 Opinion No. 81
EARL A. LAWRENCE and SANDRA L.          )
LAWRENCE, husband and wife; ROBERT )            Filed: May 30, 2012
C. JOHNSON, a married man; SANDI        )
WORTHINGTON, a married woman,           )       Stephen W. Kenyon, Clerk
                                        )
    Defendants-Respondents.             )
                                        )
                                        )

       Appeal from the District Court of the Second Judicial District, State of Idaho,
       Clearwater County. Hon. John Bradbury and Michael J Griffin, District Judges.

       District Court judgment boundary line dispute, vacated and remanded.

       Clark & Feeney, Lewiston, for appellants. Paul T. Clark argued.

       Mark S. Snyder, Kamiah, argued for respondents.

                               ___________________________

BURDICK, Chief Justice

       This case concerns the appeal of Frank Ronald Marek and Gayle Marek (the Mareks) of
the district court’s decision and judgment decreeing the locations of two boundary lines in
dispute between the Mareks and Earl A. Lawrence and Sandra L. Lawrence (the Lawrences). As
the deed at question in this appeal was unambiguous, we find that the district court
impermissibly consulted evidence outside of the language of the deed and we remand for further
proceedings.
                   I. FACTUAL AND PROCEDURAL BACKGROUND
       On October 2, 2008, the Mareks filed a complaint against the Lawrences seeking
declaratory relief as well as claims for trespass, conversion, and attorney fees. The Mareks
describe two alleged boundary disputes between the parties, one along the center section line of
Section 27, Township 38 North, Range 1 West, Boise Meridian, the other along the eastern

                                               1
boundary of Three Bear Road, near the section line dividing sections 26 and 27. The Mareks are
owners of the E1/2 of the SW1/4, the NW1/4 of the SE1/4, and the NE1/4 of the SE1/4 of
Section 27 and the SW1/4 of the NW1/4 of Section 26, less rights-of-way and those portions
lying north of the county road in Section 26. The Lawrences own the S1/2 of the SE1/4 of
Section 27 and the NW1/4 of the SW1/4 of Section 26, less rights-of-way. The Mareks contest
the fence line between the parties’ properties in Section 27, and allege that a portion of their
property in the NE1/4 of the SE1/4 of Section 27 lies to the east of Three Bear Road, but that the
Lawrences farm that portion of their property. 1
         The Lawrences answered with a counterclaim for quiet title, averring that the location of
the section line boundary has been in dispute or uncertain for several decades; that the Three
Bear Road runs parallel to this line; and that they have used the property up to the Three Bear
Road for more than twenty years prior to the filing of the action. Upon the Lawrences’ motion
for summary judgment, the district court found that the Lawrences were not entitled to summary
judgment on their adverse possession claim because of inadequate evidence. Following the
district court’s summary judgment decision, the Mareks filed amended complaints adding a
claim for damage to personal property, claiming that they had sustained damages relocating a
fence that the Lawrences had re-erected pursuant to a Preliminary Injunction in the wrong
location.
         Subsequent to a second motion for summary judgment, the district court concluded that
the Lawrences were not entitled to a grant of summary judgment because there were still
material facts in dispute for either an expressed or implied boundary by agreement.                              The
Lawrences then filed a Motion to Reconsider or Clarify pursuant to I.R.C.P. 11(a)(2)(B).
         The district court granted the Lawrences’ motion, stating that it had reconsidered its
previous decision and that it had made an incorrect conclusion. The district court reaffirmed its
finding that there was no boundary by agreement, reasoning that there could not be an
uncertainty as to the location prior to a conveyance (Johnson-Adamson Deed) between
predecessors of title to the Mareks and Lawrences, because no boundary line existed prior to the


1
 The appeal focuses on the Three Bear Road dispute. All references to this property should be the boundary
between the NE1/4 SE1/4 of Section 27 and the NW1/4 SW1/4 of Section 26, and the 1/4 corner common to
Sections 26 and 27 (i.e., the West 1/4 corner of Section 26 and the East 1/4 corner of Section 27). At times, the
district court and the appellant mistakenly refer to the North 1/4 corner between Sections 26 and 27, and then to the
NW1/4 of Section 26 and the NE1/4 of Section 27.

                                                          2
conveyance. 2    The district court had previously found that a boundary line formed by the
Johnson-Adamson Deed “could be construed to place the boundary line according to wherever
the section line might one day be surveyed to lay,” but now held that this conclusion was
incorrect. The district court reasoned:
        [W]hen Mr. Johnson referenced Section 27 in deeding part of his land to Ms.
        Adamson, he did not mean to grant away part of his land and end up not knowing
        for certain where his new boundary lay. Rather, he meant to create a new
        boundary for himself in a particular location. And, of course, Ms. Adamson
        meant to purchase land with a boundary in a particular location. Therefore, in
        referencing Section 27, Mr. Johnson and Ms. Adamson could only have meant to
        determine their new boundaries according to where . . . they then believed the
        eastern line of Section 27 to lay, not wherever it might one day be surveyed to lay.

Additionally, the district court found that based on the evidence presented, it was the parties’
intention in the Johnson-Adamson Deed to convey “the property up to the section line minus the
road right of way.” Also, no evidence was presented that would suggest that either party of the
Johnson-Adamson Deed believed the section line ran anywhere other than where the survey at
the time had placed it. Further, an affidavit from the predecessor in title, Johnson, confirms that
the farming line went up to the edge of the Three Bear Road at the time of the conveyance.
Finally, as the Mareks purchased the property from Adamson, they could only own land that was
conveyed to Adamson by Johnson, which was the land to the west of the road. Everything to the
east of the center line of the road was subsequently sold by Adamson to the Lawrences. A
judgment was then filed decreeing the boundary lines between the parties’ properties, setting
them as the fence along the center section line in Section 27, and that part of the Three Bear
Road parallel with the section line between Sections 26 and 27, extended northerly to the north
line of the Lawrences’ property. The Mareks filed a timely notice of appeal.
                                    II. STANDARD OF REVIEW
        This Court reviews a decision of whether to grant or deny a motion for reconsideration
made pursuant to Idaho Rule of Civil Procedure 11(a)(2)(B) under an abuse of discretion
standard.    Van v. Portneuf Med. Ctr., 147 Idaho 552, 560, 212 P.3d 982, 990 (2009);
Commercial Ventures, Inc. v. Rex M. & Lynn Lea Family Trust, 145 Idaho 208, 212, 177 P.3d


2
 The legal description on the Johnson-Adamson Deed states “Sec 27, 38N, 1W, El/2 NESE, Less S 36', and Less
1.06 AC Road Right of Way in Sec 27 Recorded No 108078.” Prior to the deed, Johnson owned property to the
west and to the east of Three Bear Road, the portion deeded to Adamson, and the N1/2 SW1/4, Section 26,
Township 38 North, Range 1 West.

                                                      3
955, 959 (2008). The abuse of discretion determination is a three part test which asks whether
the district court “(1) correctly perceived the issue as one of discretion; (2) acted within the outer
boundaries of its discretion and consistently with the legal standards applicable to the specific
choices available to it; and (3) reached its decision by an exercise of reason.” Commercial
Ventures, Inc., 145 Idaho at 212, 177 P.3d at 959 (quoting Sun Valley Potato Growers, Inc. v.
Texas Refinery Corp., 139 Idaho 761, 765, 86 P.3d 475, 479 (2004)).
        For an appeal reconsidering a summary judgment motion, this Court will review whether
the district court acted within the legal standards applicable to summary judgment. Baxter v.
Craney, 135 Idaho 166, 170, 16 P.3d 263, 267 (2000). A summary judgment is appropriate
when all of the pleadings, affidavits, discovery documents, and admissions, read most favorably
in light of the non-moving party, demonstrate that no material issue of fact exists, and the
moving party is entitled to a judgment as a matter of law. Id.; I.R.C.P. 56(c). The moving party
has the burden of proving the absence of material facts, and the adverse party is unable to rest
upon the mere allegations or denials from the pleadings, but must set forth specific facts showing
a genuine issue for trial by affidavits or as otherwise provided in rule I.R.C.P. Rule 56(e).
Baxter, 135 Idaho at 170, 16 P.3d at 267. “In other words, the moving party is entitled to a
judgment when the nonmoving party fails to make a showing sufficient to establish the existence
of an element essential to that party's case on which that party will bear the burden of proof at
trial.” Id.
                                          III. ANALYSIS
    A. The district court erred by considering the parties’ intent regarding the Johnson-
       Adamson Deed.
        The Mareks argue that after the district court determined the Johnson-Adamson Deed to
be unambiguous, it impermissibly considered extrinsic evidence instead of determining the
parties’ intent from the language of the Deed. The Lawrences respond that although Johnson and
Adamson may have been mistaken as to the true location of the section line dividing their
properties, they agreed on the location of their boundary. We agree with the Mareks that the
district court impermissibly considered the intent of the parties at the time of the conveyance by
referring to the Johnson Affidavit.
               In interpreting and construing deeds of conveyance, the primary goal is to
        seek and give effect to the real intention of the parties. When an instrument
        conveying land is unambiguous, the intention of the parties can be settled as a
        matter of law using the plain language of the document. However, if the language
                                                  4
       of the deed is ambiguous, ascertaining the parties’ intent is a question of fact and
       may therefore only be settled by a trier of fact. Ambiguity may be found where
       the language of the deed is subject to conflicting interpretations. The trier of fact
       must then determine the intent of the parties according to the language of the
       conveyance and the circumstances surrounding the transaction.
                Conflicting interpretations may arise when no potential boundary line
       unambiguously fits the language contained in the deed. In Read [v. Harvey, 141
       Idaho 497, 499-500, 112 P.3d 785, 787-88 (2005)], the language of the deed
       stating ‘centerline of the creek,’ ‘centerline of the main tributary of the creek,’
       and ‘centerline of the main tributary to Gold Creek’ may have referred to one of
       two drainage ditches or a comparatively dry historical natural creek channel.
       Neither of the drainage ditches, nor the creek channel, unambiguously fit the
       language contained in the deeds, making the intentions of the drafters unclear.
       [Where the intention of the drafters is unclear, the determination is a question] of
       fact with reference to the surrounding facts and circumstances.
                [C]onflicting interpretations may arise when a phrase lends itself, without
       contortion, to a number of inconsistent meanings. . . . [Also,] inconsistencies in a
       deed may throw such a shadow of ambiguity over [an] instrument as to warrant
       the introduction of parol evidence as an aid to discovering the intention of the
       parties.
Porter v. Bassett, 146 Idaho 399, 404-05, 195 P.3d 1212, 1217-18 (2008) (internal citations and
quotations omitted).
       In its May 27, 2009 Memorandum Decision and Order, the district court denied the
Lawrences’ motion for summary judgment on a theory of adverse possession, finding that the
Lawrences had not “offered sufficient proof that their possession was open, notorious, and
hostile to the interests of the Mareks and their predecessors.” In its discussion of the matter, the
district court found that the “Lawrences and their predecessors in interest cultivated the disputed
area between the section line and Three Bear Road, the Mareks and their predecessors paid the
taxes.” Upon a second motion for summary judgment filed by the Lawrences, this time on a
theory of boundary by agreement, the district court again denied the motion. The disputed
boundary in the motion, the area between the section line and Three Bear Road, was claimed by
the Lawrences as an express boundary by agreement as agreed in the Johnson-Adamson Deed to
be what would now be the Mareks’ eastern boundary as the section line envisioned to run within
the right-of-way deed. The Mareks claimed that the language of the Johnson-Adamson Deed
simply notified the purchaser that the conveyance did not include any interest in the right-of-way
over a 1.06 acre portion of the property. The district court found the following undisputed facts
concerning the Three Bear Road boundary dispute:


                                                 5
                   The adjoining property owners own lands generally falling on the western
           and eastern sides, and within the northern corners, of Clearwater County sections
           26 and 27; the Mareks owning the property on the western side of the line, in the
           northwest corner of section 27, and the Lawrences owning the property on the
           eastern side of the line, in the northeast corner of section 26.[3] The disputed
           portion of the property lies to the east of the section line according to the most
           recent survey (the Cuddy survey), and to the west of the portion of Three Bear
           Road that curves away from that surveyed section line slightly toward the west.
                   The prior owner of the disputed land, and the adjacent parcels to the east
           and west of the disputed land, was R.C. Johnson. However, prior to Mr.
           Johnson’s outright ownership, his father, Wayne Johnson, retained a life estate in
           the property. During the time that the senior Johnson still retained a life estate,
           specifically, December 9, 1974, he executed a right of way deed to Clearwater
           County to allow the county to move Three Bear Road slightly eastward.[4]
           Additionally, if the right of way boundary description measurements, all stated as
           a certain distance from the section line of sections 26 and 27, are plotted on an
           aerial photo of the disputed and surrounding lands (as performed by R.C. Johnson
           in "Exhibit 'D"' of his affidavit) using the alleged location of an old concrete
           survey marker as the section line, then the right of way land very closely matches
           the actual location of Three Bear Road.
                   On August 8, 1985, R.C. Johnson conveyed property described as follows
           to the Marek’s predecessor, Laura Adamson: “Sec 27, 38N, 1W El/2 NESE,
           LESS S 36′, AND LESS 1.06 AC ROAD RIGHT OF WAY IN SEC 27
           RECORDED No 108078.”
                   The Mareks also currently own a parcel of land directly to the north of the
           Lawrences’ property. A road accessing this northern parcel crosses the disputed
           property, coming off of Three Bear Road, heading slightly east, and then turning
           north, almost paralleling Three Bear Road. The property between Three Bear
           Road and the access road is not currently cultivated, though all of the disputed
           land to the east of the access road is currently farmed by the Lawrences.
           On the theory of an express boundary by agreement, the district court found that a
reasonable person could draw conflicting inferences as to the interpretation of the Johnson-
Adamson Deed. One of the inferences was that the section line was previously believed by the
predecessor in title, and the county when it relocated a portion of the road, to be west of where
the most recent survey actually located the line. Further, the reference to the right-of-way deed
in the Johnson-Adamson Deed could have been intended to incorporate the then-contemplated
location of the section line as the boundary line of the property conveyed. The district court next
found that the opposite inference was also reasonable—that the deed could be read to mean that
the right-of-way was merely being excluded from within the description of the property, not as a

3
    See supra note 1.
4
    The validity of this conveyance by Wayne Johnson was not an issue raised on appeal.

                                                          6
line intended to be the boundary. As to the theory of an implied boundary by agreement, the
district court found that the use of the land to the east of Three Bear Road was still a genuine
issue of fact left to be resolved.
        Upon a motion to reconsider or clarify pursuant to I.R.C.P. 11(a)(2)(B), the district court
stated that “[i]n my decision on the Lawrences’ second Motion for Summary Judgment I
concluded that one possible interpretation of the alleged agreement (the Johnson-Adamson deed)
is that the boundary was agreed to be wherever the section 26-27 section line might one day be
surveyed to be. Under such an interpretation of the alleged agreement the Mareks would prevail,
and thus, I denied summary judgment.” After describing how a boundary by agreement theory
was inapplicable in this case, the district court stated that on reconsideration of the
interpretations of the deed, it had found that based on the language alone, the boundary asserted
by the Lawrences was correct. 5
                 When a landowner sells off a portion of his land, he certainly has in mind
        an on-the-ground location where his property will thereafter end and the
        purchaser’s property will begin. Additionally, the purchaser certainly has an on-
        the-ground location in mind as to where her property line is located. Therefore,
        when Mr. Johnson referenced Section 27 in deeding part of his land to Ms.
        Adamson, he did not mean to grant away part of his land and end up not knowing
        for certain where his new boundary lay. Rather, he meant to create a new
        boundary for himself in a particular location. And, of course, Ms. Adamson
        meant to purchase land with a boundary in a particular location. Therefore, in
        referencing Section 27, Mr. Johnson and Ms. Adamson could only have meant to
        determine their new boundaries according to where . . . they then believed the
        eastern line of Section 27 to lay, not wherever it might one day be surveyed to lay.
                 The Mareks presented no evidence on where Mr. Johnson or Ms.
        Adamson believed that the Section 26-27 line ran. The Lawrences, however,
        presented evidence showing where Mr. Johnson and Ms. Adamson believed the
        section line to lay. Mr. Johnson stated in his affidavit that he knew of a certain
        monument. That the monument was in existence east of Three Bear Road where
        it intersected the east-west centerline of sections 26 and 27 at the time the Three
        Bear Road was modified. That a survey was made prior to the modification of
        Three Bear Road. That, if one uses the description of the road right of way in the
        right of way deed and measures back from the centerline of the road, one finds a
        section line at the location of the old monument. That it was his and Ms.
        Adamson’s intention to convey to her the property up to the section line minus the
        road right of way.


5
  The boundary by agreement theory was found to be inapplicable because an uncertainty or disagreement as to the
location of the boundary line would be impossible prior to the Johnson-Adamson Deed as Johnson owned all of the
property prior to the conveyance.

                                                        7
               By measuring back from the center of the road at the northern boundary of
       the southeast quarter of section 27 and the southwest quarter of section 26, it is
       clear that Wayne Johnson and the County considered the section 26-27 boundary
       to lay in line with the center of the road where it now runs north to south, and
       continuing on the same line proceeding north when the road curves to the west.
       There is no suggestion that eleven years later R.C. Johnson, or anybody else,
       believed the section line to run anywhere else then where the last survey, the
       county survey, had suggested the line lay. This, along with R.C. Johnson’s
       knowledge of the location of the monument, establishes that he believed the
       section line to run down the center of Three Bear Road where it runs north to
       south, continuing north where the road curves to the west. There has been no
       evidence presented that Ms. Adamson believed that the section line ran anywhere
       other than where the last survey placed it, or anywhere other than where her seller
       believed it to run. Therefore, the uncontroverted evidence indicates that Mr.
       Johnson and Ms. Adamson, when referencing Section 27 in the Johnson-Adamson
       deed, intended that her boundary be determined in reference to a line running
       down the center of Three Bear Road where it runs north to south, such line
       continuing north where the road curves to the west. Furthermore, the affidavit of
       R.C. Johnson confirms such beliefs. His affidavit states that the farming line went
       up the edge of the Three Bear Road at the time he conveyed the land to the west
       of the road to Ms. Adamson, and where the road curves to the west, the farming
       line continued in line with the old monument, which is also in line with the center
       line of Three Bear Road.
               The Mareks, as Ms. Adamson’s successors in interest, can only own what
       R.C. Johnson conveyed to Ms. Adamson. Therefore, according to the language in
       the Johnson-Adamson deed and my conclusions above, the Mareks only own
       property west of Three Bear Road where it runs north to south, and own only that
       property east of Three Bear Road between the road and the centerline of the road
       as it continues north beyond where the road curves to the west. R.C. Johnson kept
       for himself everything east of the centerline of Three Bear Road until he
       conveyed it to the Lawrences[’] predecessors. Therefore, the Lawrences own
       everything to the east of the centerline of Three Bear Road, excluding of course
       the road bed itself, as Mr. Johnson reserved the road right of way out of their deed
       also.
Accordingly, the district court granted the motion for reconsideration because the
“uncontroverted evidence presented by the Lawrences shows that Mr. Johnson and Ms. Adamson
believed the section 26-27 boundary line to run up the middle of Three Bear Road, continuing
north where the road veers to the west.” The district court concluded that this line, minus the
road, was the boundary set by the predecessors in title.
       The district court’s interpretation of the Johnson-Adamson Deed relied on the legal
description of the deed itself (E1/2 NESE Sec 27) and the legal description from the instrument
describing the “Less 1.06 Ac Road Right of Way in Sec 27 Recorded No 108078.” A deed’s


                                                 8
description is “sufficient so long as quantity, identity or boundaries of property can be
determined” from its face, or by the reference to an external record to which the deed refers. Ray
v. Frasure, 146 Idaho 625, 629, 200 P.3d 1174, 1178 (2009).
       The Right of Way Deed recorded at reception number 108078 contains the following
legal description:
              A part of the NWSW 1/4 of Section 26 T38N R1W and part of the NESE
       1/4 of Section 27 T38N R1W Clearwater County State of Idaho, and [illegible]
       described as follows:
              Commencing at the 1/4 corner common to sections 26 and 27, thence,
       West 20 feet to the TRUE POINT OF BEGINNING, thence;
              West, 60 feet;
              South 9° 30' East, 300 feet;
              East, 60 feet;
              North 9° 30' West, 300 feet to the TRUE POINT OF BEGINNING and
       being an area of 0.40 acres, more or less.

               Also a tract of land comprising the existing County road right of way and
       described as follows:
               Commencing at the 1/4 corner common to Sections 26 and 27, thence
       South 299 feet to the TRUE POINT OF BEGINNING, thence;
               West, 30 feet;
               South, 1021 feet, more or less, to the South 1/16 line of NESE 1/4;
               East, 60 feet;
               North, 1021 feet;
               West, 30 feet to the TRUE POINT OF BEGINNING and comprising an
       area of 1.40 acres, more or less.
With these legal descriptions, the district court ascertained that the intent of the parties was that
the boundary line between Section 26 and 27 was the centerline of Three Bear Road for the south
1021 feet, and a line continuing north to the point described as the “1/4 corner common to
sections 26 and 27” as described in the Right of Way Deed.
       Although the district court claimed the deed was unambiguous, it nevertheless took into
consideration Johnson’s affidavit and evidence of where Johnson believed the boundary line to
be located. This was error. If the deed was unambiguous, it would have been unnecessary to
consider the parties’ intent outside the language of the deed. But if the parties’ intent was an
important part of the district court’s conclusion, then the deed was ambiguous and the parties’
intent is a question of fact for the trier of fact. Read v. Harvey, 141 Idaho 497, 500, 112 P.3d
785, 788 (2005) (“The intentions of the parties . . . must be determined as questions of fact with
reference to the surrounding facts and circumstances.”). If the intention of the parties’ was an

                                                 9
unnecessary piece of the district court’s ultimate conclusion, the district court’s decision and the
record itself does not make it abundantly clear. Although the deeds are included in the record,
none of the supposed surveys in question are included, or at least in a way that is apparent to this
Court. Additionally, many of the references to a survey or drawing in the record were very
unclear. 6 Further, the judgment in this case fails to give either party significant guidance.
Accordingly, we hold that the district court’s consideration of evidence outside the language of
the deed was in error and the subsequent judgment in this case is deficient.
    B. The Lawrences are not entitled to attorney fees on appeal.
        The Lawrences argue that that they should be awarded attorney fees pursuant to I.C. §
12-121 for the expenses they have incurred in response to this frivolous appeal.
        An award of attorney fees pursuant to Idaho Code section 12-121 is inappropriate where
a party merely cites to the code section and fails to provide any argument as to why the party is
entitled to the award pursuant to the code section. Bagley v. Thomason, 149 Idaho 799, 805, 241
P.3d 972, 978 (2010). Under the Idaho Appellate Rules, a party is required to include in its
opening brief “the contentions of the [party] with respect to the issues presented on appeal, the
reasons therefor, with citations to the authorities, statutes and parts of the transcript and record
relied upon.”        I.A.R. 35(a)(6) (requirements for appellant); 35(b)(6) (requirements for
respondent).
        In the “Issue on Appeal” section of the Respondent’s Brief, the Lawrences state:
                Also at issue is whether this appeal was frivolous and lacked merit
        sufficient to allow an award of attorney fees and costs on appeal as stated in [I.C.]
        § 12-121.
In the section entitled “Conclusion,” the Lawrences also include the following sentence:
                The Lawrences further claim the additional attorney fees they have
        incurred to protect their property lines in this matter resulted from a frivolous
        appeal and they should therefore be awarded judgment for such expense pursuant
        to [I.C.] § 12-121.



6
  A good illustration of this point is from one of many interactions before the court in the transcript that make
references to locations on an exhibit without describing where the parties are pointing to on the exhibit. In many of
these instances, the record is unclear as to which exhibit the parties are referencing.
                   If you accept this surveyor’s identification of the location of this corner, which by the
          way is a big if, it puts this boundary line down like this to where it eventually hits the road at this
          kind of an angle. They thought . . . way back when they thought they were building this road right
          on the section line.

                                                        10
The Lawrences have failed to explain how they are entitled to attorney fees pursuant to I.C. § 12-
121, and have failed to explain the Court’s standard under I.C. § 12-121 or how this appeal meets
that standard. See Bagley, 149 Idaho at 805, 241 P.3d at 978. Further, the Lawrences are not the
prevailing party on appeal. Aguilar v. Coonrod, 151 Idaho 642, 650, 262 P.3d 671, 679 (2011).
Thus, the Lawrences are not entitled to attorney fees on appeal.
                                       IV. CONCLUSION
       As the district court impermissibly considered evidence outside the language of the deed
on reconsideration of summary judgment, we vacate the judgment and remand for further
proceedings. Also, we find that the Lawrences are not entitled to attorney fees on appeal. Costs
to the Mareks.
       Justices EISMANN and W. JONES, CONCUR.
       J. JONES, Justice, specially concurring.
       I concur in the Court’s opinion. Judge Bradbury clearly erred in concluding in his written
decision on reconsideration that a section line can be located where parties think it should be,
rather than where a survey would show it to be. Section lines do not move. They are located
where a valid survey establishes them to be. When a legal description in a deed utilizes section
lines, half-section lines, or quarter-section lines, those lines are established by survey and do not
move depending on what parties to the deed may think more appropriate. There can be
differences between surveys but those are to be adjudicated based on presentation and
consideration of competent expert evidence.
       The Johnson-Adamson Deed is clearly unambiguous. Johnson conveyed to Adamson the
E½ of the NE¼SE¼ of Section 27, less the south 36 feet of that surveyed parcel and less the
parcel described in the Right of Way Deed recorded as Instrument No. 108078, Clearwater
County records. It may be odd that the Johnson-Adamson Deed specifically exempted the right
of way deeded to Clearwater County in Instrument No. 108078 (apparently leaving Johnson as
the owner of the land underlying the County’s road right of way), but that is the effect of the
deed and no amount of parol evidence can change it. Where the language of a deed is
unambiguous, a court may not rewrite it.
       REINHARDT, J., Pro Tem, concurs.




                                                  11
