                  I N T H E SUPREME COURT OF THE STATE OF MONTANA

                                               1983




SPROUL A .     McGUINESS e t a l . ,

                                                  P l a i n t i f f s and Respondent,

               vs.

DONALD E . M A Y N A R D a n d LEWIS A N D
CLARK C O U N T Y , M O N T A N A , a p o l i t i c a l
s u b d i v i s i o n o f t h e S t a t e o f Montana,

                                                  Defendants and A p p e l l a n t s .




Appeal    from:      D i s t r i c t Court of t h e F i r s t 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 County o f Lewis and C l a r k
                     Honorable Gordon B e n n e t t , J u d g e p r e s i d i n g .

Counsel of       Record:

                     For Appellants:

                     Thomas C .      H o n z e l , H e l e n a , Montana
                     Donald E .      Maynard, P r o S e , H e l e n a ,        Montana

                     For Respondent:

                     H a r r i s o n , Loendorf & Poston, Helena,                  Montana
                     J o h n P o s t o n , H e l e n a , Montana




                                              S u b m i t t e d on b r i e f s :   January 6,     1983

                                                                   Decided:February           18, 1 9 8 3

Filed:      FEB 1 8 I983

                                                               -
                                                Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
     The District Court of the First Judicial District issued
on February 2, 1982, a partial summary judgment declaring the
January 3, 1969, tax deed issued to Donald E. Maynard, to be
void - initio.
     ab             Then, on September 14, 1982, the same court
issued   a    final judgment dismissing Maynard's         alternative
claim    of   adverse    possession   and    returning the   tax   deed
property to its previous owners.            Maynard now appeals these
judgments.
     Prior to 1953, all surface and mineral rights, title and
interests in Placer Survey No. 1198 were owned by the Robert
S. Hale Estate.         On April 20, 1953, Placer Survey No. 1198
was sold to B.F. Otten.       The deed provided for the following
reservation:
    "    ... subject to the reservation in the grantor,
    the heirs and devises of Robert S. Hale, their
    successors and assigns of all mineral in said
    property with the rights of said parties, their
    lessees, successors and assigns to enter in and
    upon said property, with right of egress and
    ingress to explore for mining and mine and operate
    the same, extract therefrom and sell any ore and
    mineral, the right to erect buildings and equipment
    thereon and remove the same with the right of the
    use of surface therefor without any hindrance or
    restraint on the part of the grantees or their
    successors and free from any claim for damage
    resulting from such mining operations and all water
    rights pertaining to these mining claims are
    reserved by the grantor;


    " . .      .
             The grantees shall pay all taxes on the
    above described property for the year 1953 and
    thereafter, both on the surface, and upon the
    mineral     ...
                 " (Emphasis supplied)
     On December 11, 1956, the Merritts purchased Otten's
surface rights interest in Placer Survey No. 1198.           They have
since paid     all taxes assessed on that property in their
names.    However, in 1957, Lewis and Clark County commenced
assessing     the   surface    and    mineral    rights   separately.
Therefore, the Merritts paid only the taxes assessed against
their surface rights.
        The taxes assessed against the reserved mineral rights
interest went unpaid.     The county thereafter "struck off" the
mineral interest and attempted to sell it.       Defendant Maynard
purchased that interest December 1968.            Lewis and Clark
County issued Maynard the tax deed on Janaury 3, 1969.
       Maynard's interest came to light in August, 1979, when
the Merritts attempted to sell their interest in Placer
Survey No. 1198.     On February 19, 1981, Sproul A. McGuinness,
as heir to the Robert Hale Estate, and the Merritts brought
this suit to quiet title to the property.        A lis pendens was
filed in the office of the Lewis and Clark County Clerk and
Recorder on that same day.
        Pre-trial   discovery   by   attorneys   for   all   parties
narrowed the scope of the issues.           On August 19, 1981,
plaintiffs, pursuant to Rule         34, Montana Rules of Civil
Procedure, requested Lewis and Clark County to produce the
affidavit required by section 15-18-204, MCA.          The affidavit
is the sole proof that notice of the sale of the property for
delinquent taxes was given the owner of the property sold.
Section 15-18-202, MCA.         The county responded September 8,
1981, stating:
        " ...   the affidavit of notice   ...
                                            was not filed
        in the office of the Clerk and Recorder and that,
        therefore, Defendant is unable to produce the
        same ."
        Plaintiffs moved for summary judgment on January 11,
1982.     Following a January 27, 1982 hearing on that motion,
the District Court held Maynard's tax deed to be void for
failure to file the affidavit, pursuant to section 15-18-204,
MCA.    The court also denied, as premature, plaintiff's motion
                                                  t
                                                  -
for summary judgment on Maynard's counterclaims of adverse
possession, laches and the statute of limitations.
        At defendant's request, his second attorney withdrew as
counsel on April         10, 1982.           Maynard has since proceeded
pro se.
        A hearing on Maynard's counterclaims, specifically that
of adverse possession, was held September 1, 1982, before the
court sitting without a jury.                Defendant's daughter testified
that in 1975 she assisted her father in digging holes along
the creek with a posthole digger and panning that soil for
gold.     A small storage shed was constructed on the property
in 1978 and a larger residence was constructed in 1980.                        A
neighbor, Earl Lutzenhizer, testified to seeing Maynard pan
for gold on the property for three years prior to September
1, 1982.      Mr. Maynard himself testified that he had been
". . .     testing     for   gold       on    that    property    since    1975."
Excavating commenced in 1979 and buildings were constructed
in 1978 and 1980.        The mine allegedly became commercial and
operating in 1979.
     Clella      Merritt      testified         for    plaintiffs    that     the
Merritts first became aware of mining activities on their
property    on August        29,    1979.       Then on March        23,    1980,
Merritts    learned     that       Donald     Maynard     had    constructed    a
storage shed on their property.                 Jay Merritt testified that
he saw no signs of mining activity on the property prior to
1976.      He was out of state from 1978 to 1980 and. first
noticed mining excavations in 1980 or 1981.                       Finally, Gil
Alexander,    an     ex-resident of           the     area with    training    in
geological research and mining exploration, testified that
although    he   had    been       on   the    property     for   recreational
purposes many times previous to 1977, he had never noticed
any evidence of mining activity.
     The    District Court         concluded    in       its   judgment dated
September     14,     1982   that:       "Defendant's          occupancy      and
possession of the property was such in character and length
of   time    that    it   failed    to   create      a    right     by    adverse
possession."        Further, the surface rights of Placer Survey
No. 1198 were held to belong to Robert Earl Merritt, Clella
Merritt and the Merritt Ranch Company; the mineral interests
of Placer Survey No. 1198 were held to belong to Sproul A.
McGuinness and the other heirs of the Robert Hale Estate;
Donald Maynard's claim of adverse possession was dismissed.
      In his appeal of that judgment, Donald Maynard presents
these issues:
      1.    Did     the    District      Court       err       in        declaring
Defendant/Appellant Donald E. Maynard's tax deed from Lewis
and Clark County void?
      2.    Did the District Court err in allowing the owner of
the surface rights of Placer Survey No. 1198, Merritt Ranch,
to prosecute this quiet title action by joining Sproul A.

McGuinness, an heir of the Robert Hale Estate?
      3.    Did defendant's second attorney exceed his authority
when he signed the stipulation allowing Sproul A. McGuinness
to bring this suit?
      4.    Did     plaintiff's      attorney        follow         the    proper
procedures for a quiet title action as required by sections
15-18-401 and 15-18-402, MCA?
      5.    Were defendant's due process rights violated when
his initial attorney refused to request a jury tria.l?
      6.    Did the District Court err in rewarding Merritts
since they had allegedly disregarded earlier opportunities to
pay the taxes on the mineral interest?
     We find no abuse of discretion and affirm the decision
of the District Court.
       Section 15-18-204, MCA, states in part:
       "Affidavit of notice. No deed of the property sold
       at a delinquent tax sale shall be issued by the
       county treasurer to the purchaser of the property
       until the proof of service of notice of application
       for tax deed has been filed with the county clerk
       and recorder as required by 15-18-202."
The provisions of section 15-18-204, MCA are mandatory and
prohibitory.            They specifically prohibit the issuance of a
tax    deed       by    the    county    treasurer    until    after     such   an
affidavit has been filed.                 King v. Rosebud County (1981),
       Mont   .         ,   631 P.2d 711, 38 St.Rep. 1145.           No affidavit
was filed in this case.                 Therefore, the tax deed issued to
Maynard by the Lewis and Clark County Treasurer is void -
                                                        ab
initio.
       Further,         there     was   no    open,   notorious,       exclusive,
adverse, continuous or hostile occupation or possession of
the property by Maynard for five years prior to the date the
complaint was filed, February 19, 1981.                    Section 70-19-401,
MCA; Scott v. Weinheimer (1962), 140 Mont. 554, 374 P.2d 91.
Neither has Maynard shown "actual possesion of the mineral
interest by openly operating the mine" for the same five year
period.       Lehfeldt v. Adams (1956), 130 Mont. 395, 400, 303
P.2d   934, 937.            Therefore, Maynard has not acquired title to
the    mineral         interest of      Placer Survey No.           1198 through
adverse possession.
       Maynard's            remaining        contentions      are     meritless.
Attorneys         for       all   parties     stipulated      that    Sproul    A.
McGuinness was an heir of the Robert Hale Estate and thus
vested with sufficient title and standing to bring the quiet
title action.               Richard Pyfer signed the February 3, 1982
stipulation as attorney for Maynard.                   Maynard had signed a
Notice of Change of Attorney October 27, 1981, designating
Pyfer's firm as his new counsel of record.                    Therefore, Pyfer
was acting within the scope of his authority when he signed
the stipulation.
      The    procedures   for    a   quiet   title   action   found   in
sections 15-18-401 and 15-18-402, MCA, are procedures to be
followed when a purchaser of a property tax deed wishes to
quiet his title to that property as against anyone else.
They are procedures Maynard would have followed had he sought
to quiet his title to the mineral interests.              They do not
apply   to   quiet   title   actions by      the   true owner of      the
property.
      Actions   to   quiet   title are actions in equity.             R.
McClintock, Handbook of the Principles of Equity, S192, p.
520   (2d ed. 1948).      Judges may enpanel juries for equity
actions; however, they are not bound to do so.          Downs v. Smyk

(1982),          Mont.       ,   651 P.2d    1238, 39 St.Rep.    1786.
Defendant was not entitled to a jury trial.           His due process
rights were not violated when his attorney failed to request
a jury trial.
      Finally, Merritts were not "rewarded".            They received
only that to which they were legally entitled, the surface
rights to Placer Survey No. 1198.
      The judgment of the District Court is affirmed.




We concur:




Justices,
