                                                                                               07/11/2017


                                            DA 16-0699
                                                                                           Case Number: DA 16-0699

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                            2017 MT 170



HANS E. SCARISON and LEANA F. SACRISON,

               Plaintiffs and Appellants,

         v.

JEFFREY M. EVJENE, RICKY GENE MARVEL,
and SYLVIA DENESE MEE,

               Defendants and Appellees.


APPEAL FROM:           District Court of the Nineteenth Judicial District,
                       In and For the County of Lincoln, Cause No. DV-14-209
                       Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Randall A. Snyder, Snyder Law Office, PC, Bigfork, Montana

                For Appellees:

                       Sean S. Frampton, Morrison & Frampton, PLLP, Whitefish, Montana

                       Kim Christopherson, Christopherson Law Office, Kalispell, Montana



                                                    Submitted on Briefs: May 17, 2017

                                                              Decided: July 11, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Plaintiffs Hans E. Sacrison and Leana F. Sacrison (Sacrisons) appeal the partial

summary judgment entered by the Nineteenth Judicial District Court, Lincoln County, in

favor of Defendant Jeffery M. Evjene (Evjene).1 The appeal comes before us upon

certification pursuant to M. R. Civ. P. 54(b). We address the following issue:

       Did the District Court err by granting partial summary judgment on a record
       containing genuine conflicts in material facts?

¶2     We reverse and remand for further proceedings.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     This case involves a boundary dispute involving three adjacent properties.

Sacrisons initiated this action for declaratory judgment and quiet title against Evjene, as

well as Ricky G. Marvel (Marvel) and Sylvia D. Mee (Mee), collectively “Marvel/Mee.”

After the parties moved for summary judgment, the District Court granted partial summary

judgment in favor of Evjene on Sacrisons’ claims, directed that a decree of quiet title be

entered, and certified the order as final under M. R. Civ. P. 54(b). We accepted the certified

order for review on November 29, 2016. Sacrisons’ claims against Marvel/Mee remain

before the District Court.

¶4     Based on the record developed to this point, all the properties involved in the dispute

were owned by Will W. Cole until 1954. That year, Cole sold approximately one acre to

Evjene’s original predecessors-in-interest, his grandparents. A survey to create this parcel


1
 Cheryl Evjene was named as a party in the original complaint, but was dismissed when it was
discovered that she had quitclaimed her interest in the property to Jeffery Evjene.
                                                 2
was performed by Leland E. Tripp, herein “the Tripp Survey,” and recorded with the

Lincoln County Clerk and Recorder as Plat 294. The parties agree that the Tripp Survey

contains errors. The District Court indicated that the property description provided by the

Tripp Survey “does not close. The final measurement is 32 feet off from the point of

beginning,” and stated, “[t]he problem lies in the fact that when applied to the ground,

Tripp’s survey is ambiguous.”

¶5     The Tripp Survey relied on two monuments, the Tobacco River and Tobacco Siding

Road, to set the western, southern, and eastern boundaries of the property. The boundaries

form the property into, roughly, the shape of a trapezoid. In about 1950, before the property

was sold and the Tripp Survey was completed to create a parcel, a fence was constructed

along what may have been the anticipated northern boundary of the property. Evjene’s

grandparents built a house on the property around 1952. Later, when surveying the

property, Tripp did not rely on the fence as a monument for the northern boundary. In

1988, Sacrisons acquired their property, which lies to the north and west of the Evjene

property, and to the west of the Marvel/Mee property, which also lies to the north of the

Evjene property. In 2005, Evjene purchased his property from his uncle and aunt, who had

acquired the property from his grandparents. He built a new fence in the location of the

original 1950 fence. Evjene also built a new home upon his grandparents’ original 1952

home site.

¶6     In 2012, Evjene retained Sam Cordi Land Surveying and Mapping, Inc., to retrace

the Tripp Survey of his property, herein “the Cordi Survey,” which was recorded as

                                             3
Certificate of Survey (COS) 4181. The Cordi Survey relied upon monuments cited in the

Tripp Survey, as well as the fence in the northern portion of the property, but ran into

difficulties, noting:

       The Evjene family have [sic] occupied the property to the County Road, to
       the Tobacco River, and to a fence along the northern boundary. This fence
       line has been agreed upon as the boundary line between the Evjenes and the
       property owners to the north since [the Evjene property] was created. After
       numerous attempts to the make the legal description agree with the lines of
       possession, this firm believes that the description and original survey contain
       errors that cannot be made to match the agreed upon boundaries.

The Cordi Survey determined the western boundary of the original Tripp Survey ran

through Evjene’s home, and that the correct boundary of Evjene’s property partially

encroached into Sacrisons’ property.

¶7     Sacrisons object to the notation in the Cordi Survey that the property owners agreed

the fence marked the northern boundary of the Evjene property. In 2013, Evjene entered a

boundary line agreement with Marvel/Mee and other neighbors. This agreement stipulated

the common, north-south boundary line, as between the parties to the agreement, was the

fence line described in the Cordi Survey. Sacrisons did not join the agreement and

expressed disagreement with the proposition that the fence line constituted the correct

boundary. Sacrisons commissioned Brian Block to retrace the boundaries of their property,

herein “the Block Survey,” which was recorded as COS 4229.              The Block Survey

determined the boundary of the Sacrisons’ property partially overlapped Evjene’s property

and placed a boundary line through Evjene’s house. The Block Survey did not rely on the




                                             4
fence as an artificial monument for the north-south boundary between the properties, and

noted as follows:

       Certificate of Survey 4181 [the Cordi Survey] . . . retraces occupation and
       lines of possession. It was stated in the Surveyor’s Note, “that the fence line
       has been agreed upon as the boundary between Evjenes and the property
       owners to the north.” However, the “property owner to the north” is also
       Sacrison and they did not sign or join in C.S. 4181.

¶8     Sacrisons brought this action to determine their common boundary with Evjene, and

for other relief not before us here. In support of his request for summary judgment, Evjene

submitted an affidavit providing information based on “discussions with my grandparents

and other family members” that a fence “was installed along the northern boundary in or

around 1950.” The District Court concluded that the fence should be declared an artificial

monument denoting the northern boundary of the Evjene property because “it is undisputed

that the fence along the northern boundary is in the same location as the original fence in

1954.” Although indicating the conflicting notes on the surveys, emphasized by Sacrisons,

were “of value to this court,” the District Court nonetheless held that the material

undisputed fact was that “the fence line itself has remain[ed] unchanged since 1954.” After

declaring the fence to be a survey monument, the District Court rejected the Block Survey

as a matter of law because it “disregarded the basic rule, to give greater weight to the

monuments, such as the fence, than to mere measurements.”

¶9     Sacrisons appeal.




                                             5
                               STANDARD OF REVIEW

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

the same criteria of M. R. Civ. P. 56 as a district court. Whary v. Plum Creek Timberlands,

L.P., 2014 MT 71, ¶ 8, 374 Mont. 266, 320 P.3d 973 (citation omitted). Summary judgment

is an extreme remedy, which should only be “rendered if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P.

56(c)(3).

                                      DISCUSSION

¶11 Did the District Court err by granting partial summary judgment on a record
containing genuine conflicts in material facts?

¶12    In its decision, the District Court cited precedent concerning surveying and

monuments and concluded that “[s]ummary judgment is proper in this case because the

boundaries of Evjene’s property are based on calls to natural and artificial monuments,

whereas the courses and distance in Tripp’s survey, and Block’s COS 4229, are

undisputedly inaccurate and ambiguous.” However, in so concluding, the District Court

relied upon material facts that are genuinely disputed by Sacrisons. Determining whether

Evjene was entitled to judgment as a matter of law and whether there are material factual

conflicts requires a review of the law related to the surveying of property.

Surveying Law—Monuments and Call Priority

¶13    A monument is “[a]ny natural or artificial object that is fixed permanently in land

referred to in a legal description of the land.” Black’s Law Dictionary 1161 (Bryan A.
                                              6
Garner ed., 10 ed. 2014). “Natural monuments include such natural objects as mountains,

streams, rivers, creeks, springs, and trees. Artificial objects and monuments consist of

marked lines, stakes, roads, fences, buildings, and similar matters marked or placed on the

ground by the hand of man.” 12 Am. Jur. 2d Boundaries § 6 (2009). Monuments are

commonly used to establish property boundaries, but the priority of calls is governed by

statute and case precedent. We have explained:

       If there were any principle that perhaps is misinterpreted and possibly
       misapplied by surveyors, attorneys, and courts, it is the priority of calls. The
       priority of calls was developed through caselaw in the 1800s and is also
       governed by statutory law. The general hierarchy is as follows: lines actually
       run on the ground by the creating surveyor prevail over natural monuments
       (e.g., a tree), which prevail over artificial monuments (e.g., surveyor’s
       stakes), which prevail over references to adjoining boundaries (e.g., “to
       Hunter’s property line”), which prevail over directions (e.g., northwest),
       which prevail over distances (e.g., 30 feet), which prevail over area (e.g., 5
       acres), which prevails over place names (e.g., “the Quinn farm”).

Larsen v. Richardson, 2011 MT 195, ¶ 44, 361 Mont. 344, 260 P.3d 103 (internal quotation

and citations omitted); see also Walter C. Robillard, Clark on Surveying and

Boundaries § 14.21, 14-54 (Supp. 2014). This priority ranking of calls is not inflexible,

and a “lower-ranked call may prevail over a higher-ranked call if the circumstances show

that the lower-ranked call is the more reliable evidence of the boundary’s true location.”

Larsen, ¶ 45 (citation omitted). When a surveyor conducts a retracement survey, his

“primary purpose is to track the footsteps of the original surveyor, to locate the survey as

it was intended to be located on the ground” by the original surveyor, which aims to

establish a property’s boundary by way of the highest call. Larsen, ¶ 32; Karlson v. Rosich,

2006 MT 290, ¶ 14, 334 Mont. 370, 147 P.3d 196. If the surveyor “is unable to follow the
                                              7
precise ‘footsteps’ of his or her predecessor, then a surveyor must attempt to track the

original surveyor’s work using whatever recoverable evidence that exists.” Larsen, ¶ 36;

Robillard, supra, § 15.08, 15-15. Finally, “[i]n ascertaining the true and correct boundaries

of a parcel, the surveyor is obligated to consider any and all evidence. This rule is

inflexible.” Robillard, supra, § 14.21, 14-54.

¶14    Based on the summary judgment record before the District Court, it appears that the

Cordi Survey and the Block Survey were based upon research about property ownership

records, including surveys of record, and field work. Both surveys relied, in part, on

monuments, with the central conflict between them being whether to rely on the fence as

an artificial monument denoting a property boundary. Based on its assumption that all

parties agreed the fence marked the boundary, the Cordi Survey deemed it to be a

monument. In contrast, Block noted disagreement among the parties about the fence and

testified in his deposition that, while a court could consider the fence, along with other

testimony, in making that determination, he would not, as a surveyor, declare it to be a

monument.

¶15    “In order to rely on a fence as the true and correct dividing line, the fence itself must

be supported by testimony or parol evidence indicating the fence was built on the correct

original line.” Robillard, supra, § 15.10, 15-42. As we explained in Pilgrim v. Kuipers,

209 Mont. 177, 181-82, 679 P.2d 787, 790 (1984), a case also involving a legal description

that did not call to a disputed fence line as a boundary monument:

       There is a critical distinction between a fence which establishes a boundary
       line, and a fence that merely separates one side of the fence from the other.
                                               8
       The former is a monument as well as a fence, while the latter is merely a
       fence. Unlike the highway right-of-way and the Beaverhead River, there are
       no calls in the legal description to the “fox farm” fence. There is no evidence
       that the fence line was surveyed or that the fence was built to conform to a
       surveyed line. One witness testified that the fence was built zig-zag
       apparently around trees and without any pattern at all. Another said it
       “jogged” by as much as 20 feet. In contrast, the legal description calls for a
       straight line. There simply is no evidence to support the fence as a monument.
               Nor does a fence establish a boundary line when it does not conform
       to the true line, even though the property owners thought it was the boundary.
               Where two adjoining properties are divided by a fence, which both
       owners suppose to be on the line, such fence is a division fence, as between
       them, until the true line is ascertained, when they must conform to the true
       line.

(Internal quotation omitted; citations omitted; emphasis added.) There are parallels to

Pilgrim here.

¶16    Record evidence indicates the original fence was built around 1950, before the

property was sold and surveyed. Then, when the original Tripp Survey was completed in

1954, it did not call to the fence as a monument for the boundary, despite the survey’s calls

to other monuments for the property description. Evjene averred, and the District Court

assumed, that his 2005 fence was built “in the exact same location” as the original fence,

but, as in Pilgrim, there is “no evidence that the [original] fence line was surveyed or that

the fence was built to conform to a surveyed line.” Pilgrim, 209 Mont. at 182, 679 P.2d at

790 (emphasis added). The only possible exception is a hearsay statement, discussed

below. The District Court’s stated basis for declaring the existing fence a monument, that

“it is undisputed that the fence along the northern boundary is in the same location as the

original fence in 1954,” even if correct, assumes without proof that the original fence

marked the property’s boundary. The District Court failed to acknowledge our explanation
                                             9
in Pilgrim that a fence, by itself, does not establish a boundary; more is needed. The

original fence was not called in the legal description, and has not yet been otherwise

verified as conforming to the northern boundary of the Evjene property. In view of these

factual issues, illustrated further by the conflicting Cordi and Block retracement surveys,

we must conclude that resolution of the dispute by summary judgment was in error as

overlooking genuine issues of material fact, which must be resolved by the trier of fact.

Evidentiary Standard

¶17    In his affidavit, Evjene averred his property was originally purchased by his

grandparents, transferred to his aunt and uncle in the early 1980s, and then purchased by

him in 2005. He asserted his affidavit provided information passed to him from family

members, and avers that, “[p]rior to the conveyance of the Property to my grandparents in

or around 1954, a fence was installed along the northern boundary in or around 1950.” Of

course, there was no boundary in 1950—at least, one that had been surveyed. Pilgrim

explained the necessity of demonstrating that a “fence line was surveyed or that the fence

was built to conform to a surveyed line,” before it could be considered a monument.

Pilgrim, 209 Mont. at 182, 679 P.2d at 790 (emphasis added). Further, even assuming,

arguendo, that the affidavit satisfied the Pilgrim standard, Evjene’s statement constitutes

hearsay. An “affidavit must be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant is competent to testify on the matters

stated.” M. R. Civ. P. (56)(e) (emphasis added). Evjene’s affidavit was not based entirely

on his own personal knowledge. Evjene argues any hearsay in his affidavit is admissible

                                            10
under M. R. Evid. 803(20), which provides that, “[r]eputation in a community, arising

before the controversy, as to boundaries of or customs affecting lands in the community,

and reputation as to events of general history important to the community or state or nation

in which located” are exceptions to the prohibition against hearsay. About this rule we

have explained:

       The reason for this rule is not only caused by the perishable nature of
       boundary markers, but also because general reputation about facts of
       community interest are generally trustworthy. It is unlikely that a falsehood
       could become generally accepted in a community as the truth. The prolonged
       and constant exposure of these facts to observation and discussion by the
       community sifts out the possible errors and gives to the residual facts which
       are generally accepted by the locality a trustworthiness which allows these
       facts to be presented as evidence in a court of law.

Goodover v. Lindey’s, 232 Mont. 302, 308, 757 P.2d 1290, 1294 (1988) (internal quotation

omitted; citation omitted; emphasis added); see also 5 Mark S. Brodin et al., Weinstein’s

Federal Evidence § 803.22[1], 803-142 (2d ed. 2012). As we explained, evidence falling

into this hearsay exception must be based on the consensus of the community. Here, the

evidence supporting the location of the fence as the property line has been supplied only

by Evjene, Marvel, and Mee—party litigants who previously entered a boundary

agreement. We are hesitant to declare that this testimony qualifies as “general acceptance

in a community” necessary to satisfy M. R. Evid. 803(20), for purposes of summary

judgment. Goodover, 232 Mont. at 308, 757 P.2d at 1294.

¶18    Summary judgment “should [only] be rendered if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P.
                                             11
(56)(c)(3). We conclude that genuine issues of material fact precluded summary judgment

herein, and Evjene was not entitled to judgment as a matter of law.

¶19   We reverse and remand for further proceedings consistent with this opinion.



                                                /S/ JIM RICE


We concur:

/S/ DIRK M. SANDEFUR
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER




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