                                 No. 12368

      I N T E SUPREME COURT O THE STATE O MONTANA
           H                 F           F

                                       1973



BENNETT L. BRADY and KATHERINE T. BRADY,
husband and w i f e ,

                         P l a i n t i f f s and A p p e l l a n t s ,



T E STATE O MONTANA, a c t i n g by and through
  H          F
t h e STATE HIGHWAY COMMISSION OF THE STATE
O MONTANA,
  F

                         Defendants and Respondents.



Appeal from:      D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
                  Honorable Jack L. Green, Judge p r e s i d i n g .

Counsel o f Record:

    For Appellants :

            Mulroney, Delaney and Dalby, Missoula, Montana
            Stephen H. Dalby argued, Missoula, Montana

    For Respondents:

            N. A . R o t e r i n g , Helena, Montana
            Donald Douglas argued, Helena, Montana
            Leo J. K o t t a s Jr. argued, Helena, Montana

                                 -



                                               Submitted :          December 3 , 1973

                                                  Decided :        f')EC 2 8 1$$n
Filed :   D E 2~8 1813
M r . J u s t i c e Wesley C a s t l e s d e l i v e r e d t h e Opinion of t h e Court.

          This i s an appeal from a judgment entered upon f i n d i n g s
of f a c t and conclusions of law a f t e r t r i a l without a jury.                        The
a c t i o n was t r i e d by t h e Hon. Jack L. Green i n Missoula County.
A t t h e time of t r i a l a c o u r t r e p o r t e r was n o t present.           Subse-
quently, a f t e r a hearing had, Judge Green approved a f i n a l s t a t e -
ment of evidence and proceedings.
          Certain procedural matters on appeal, including t i m e l i n e s s
and t h e above r e f e r r e d t o preparation of a statement of evidence
and proceedings i n l i e u of a t r a n s c r i p t , give r i s e t o i s s u e s on
appeal t h a t t h i s Court w i l l n o t d i s c u s s , s i n c e , a s w i l l appear
h e r e i n a f t e r , a r u l i n g on t h e m e r i t s produces t h e same r e s u l t .
That i s , i f t h e f i n d i n g s of f a c t and conclusions of law a r e
supported by t h e evidence, t h e judgment w i l l be affirmed.
          P l a i n t i f f - a p p e l l a n t s a r e husband and w i f e and w i l l be
referred t o herein a s p l a i n t i f f .        Defendant, respondent h e r e ,
i s t h e S t a t e of Montana, a c t i n g through t h e Department of Highways,
and w i l l be r e f e r r e d t o a s defendant.
          P l a i n t i f f purchased 0n a c o n t r a c t f o r deed from one Bakke,
a l l of Block 54 of W. J . ~ c ~ o r m i c k Addition t o t h e C i t y of
                                              's
Missoula, Missoula County, Montana, according t o t h e o f f i c a l r e -
corded p l a t t h e r e o f , except Lots "G"          and "H"     and t h e East 50 f e e t
of s a i d Block 54.
          The n o r t h boundary of t h e property i s bounded on t h e n o r t h e r l y
s i d e by a public thoroughfare known a s "West                     roadway".        West
Broadway has been f o r over t h i r t y years improved and u t i l i z e d a s
a s t a t e highway by defendant.              When p l a i n t i f f bought t h e property
he d i d n o t have a survey made.              P l a i n t i f f f i r s t became aware t h a t
a d i s p u t e e x i s t e d when defendant's survey crew s e t survey s t a k e s
w i t h i n n i n e inches of t h e f r o n t of a b u i l d i n g located upon t h e
property.       The b u i l d i n g f r o n t s on West Broadway.          The s t a k e s r e -
presented t h e southerly edge of t h e West Broadway right-of-way.
           P l a i n t i f f ' s b u i l d i n g c o n t a i n s a grocery s t o r e , b a r b e r shop,
and f i r e e x t i n g u i s h e r shop.      The d i s t a n c e between t h e s o u t h e r l y
edge of t h e t r a v e l e d       p o r t i o n , a s d i s t i n g u i s h e d from t h e e n t i r e
right-of-way,          of West Broadway and t h e b u i l d i n g i s approximately
22 f e e t .    The a r e a between t h e b u i l d i n g and t h e pavement has been
u t i l i z e d by p l a i n t i f f a s parking f o r t h e b u s i n e s s e s l o c a t e d i n
h i s building.
           West Broadway i s 99 f e e t wide,                   Everyone a g r e e s t o t h a t ,
b u t , t h e l o c a t i o n of t h e c e n t e r l i n e i s i n d i s p u t e .   The t r i a l
c o u r t found t h e c e n t e r l i n e was on a s t r a i g h t c o u r s e over c i t y
sewer manholes.             The r e s u l t of t h i s f i n d i n g i s t h a t from t h e
c e n t e r l i n e a d i s t a n c e of 49.5 f e e t south t o t h e n o r t h boundary of
p l a i n t i f f ' s p r o p e r t y p l a c e s t h e boundary 9 inches from h i s b u i l d i n g .
           Judge Green wrote a memorandum w i t h h i s f i n d i n g s and con-
c l u s i o n s which e x p l a i n s t h e problem:


            h he o f f i c i a l p l a t of McCormick Addition on f i l e
           i n t h e o f f i c e of Missoula County Clerk and Recorder
           f a i l s t o show any l o t depth f o r t h o s e l o t s l o c a t e d
           between Broadway (Cedar) and Pine S t r e e t . However,
           i t does show t h a t t h e l o t s d i r e c t l y t o t h e e a s t
           i n t h e C,P. Higgins Addition a r e 138'6" deep. And
           f u r t h e r shows Broadway (Cedar) a s extending i n a
           s t r a i g h t l i n e a t t h e j u n c t u r e of t h e two a d d i t i o n s .
             he p l a t r e f e r r e d t o i n t h e testimony a s b e i n g
           l o c a t e d i n t h e Missoula Public L i b r a r y shows l o t
           depth f o r t h o s e l o t s l o c a t e d between Broadway (Cedar)
           and Pine a t 130 f e e t . However, i t shows t h e l o t s
           d i r e c t l y t o t h e e a s t i n t h e C.P. Higgins Addition
           a t 130 f e e t deep. And f u r t h e r shows Broadway (Cedar)
           extending i n a s t r a i g h t l i n e a t t h e j u n c t u r e of t h e
           two a d d i t i o n s .
           "It was obvious i n b o t h p l a t s t h a t t h e l o t s between
           Pine and Broadway (Cedar) were intended t o be t h e
           same depth and Broadway (Cedar) was intended t o be
           a s t r a i g h t s t r e e t . I n f a c t , t h i s s i t u a t i o n h a s been
           r e l i e d upon i n c o n s t r u c t i o n both on t h e n o r t h and
           on t h e south s i d e s of Broadway u n t i l t h e p r e s e n t
           d i s p u t e a r o s e . 1I
           I n 1948, t h i s Court had t h e c a s e of C i t y of Missoula v.
Bakke, 121 Mont. 534, 198 P.2d 7 6 9 .                       I n t e r e s t i n g l y , t h e same
person who s o l d Block 5 4 t o p l a i n t i f f h e r e was involved t h e r e .
While t h e c a s e involved d i f f e r e n t p r o p e r t y on a d i f f e r e n t s t r e e t ,
t h e same a d d i t i o n , t h a t i s ~ c ~ o r r n i c k Addition, was i-nvolved.
                                                             's
I n t h a t c a s e J u s t i c e Adair noted t h a t :
      "'* * * the original plat of W. J. McCormick
      Addition had disappeared from the files of the
      Clerk and Recorder of Missoula County, but they
      have in what they call Plat Book, No. I, at
      page 9, a certified copy of the plat; and it has
      been the custom around Missoula for attorneys
      and landholders and abstracters and all to ac-
      cept the plat as appears on page 9 of Plat Book
      I, records of the Clerk and Recorder, Missoula
      County, as the official plat of W.J. ~cCormick's
      Addition. "'
       Now in 1973, as indicated in Judge      re en's memorandum,
a plat appears from the Missoula Public Library, not an official
plat in the Clerk and ~ecorder's office.
       Plaintiff brought the action to determine the correct
northern boundary line of Block 54.      plaintiff's main witness was
surveyor Richard Ainsworth.      Defendant's main witness was an
engineer, Tom Oertli.     The two surveyors agreed they were unable
to locate any original monumentation on West Broadway.      They
differed in their interpretations. Mr. Ainsworth testified that
he could determine the boundaries of West Broadway by starting
from another street, West Pine, and measuring south from there,
using the distances of 130 feet for lot depths, basing such dis-
tances on what he termed the "official" plat found in the public
library.
       The survey notes of Ainsworth dated August 10, 1971, are
part of the record and are:
       "SURVEYOR' S NOTES
       1'
            ...This survey was made at the request of 54 of W.J.
               of the Northwesterly 250 feet of Block
                                                      the owner
              McCormick Addition to the City of Missoula, Montana.
            ...The survey was made to determine and monumented
               relationship between the platted and
                                                    show the true
              centerline of West Pine Street (which are one and
              the same) and the platted and monumented centerline
              of West Broadway (Cedar) Street (which are from
              16.3 feet to 16.8 feet apart).
            ...At one time portions of plat was the first sub-
               recorded as one. This
                                       these two additions were
              division plat on file for this area and is dated
              November 7, 1872. This plat is on file in the
              Missoula County Clerk & recorder's Office but un-
              fortunatly has no dimensions. The plat was filed as
               'Higgins & McCormick Addition' and does show West
              Broadway (Cedar) Street running straight through
              from Higgins Avenue to McCormick Street.
        ...The conflict arises when W.J. ~c~ormick's addi-
           tion and C.P. Higgins Addition were filed for
          record. W. J. McCormick' s Addition (official copy
          on file in the Missoula County Library) was filed
          January 3, 1883 and indicated that the lots in the
          Blocks between West Pine Street and West Broadway
          (Cedar) Street were intended to be 130.00 feet in
          depth. C.P. Higgins Addition was filed for record
          on May 2, 1883 and it indicated that the same tier
          of lots between West Pine Street and West Broadway
          (Cedar) Streets were intended to be 138 feet 6 inches
          in depth.
        ...would make the centerline depths does indeed exist it
           If this difference in lot
                                     and the right-of-way lines
          of West Broadway (Cedar) Street jog by approximately
          17 feet at a point where the two additions meet in the
          Block between Woody Street and Harris (Orange) Street.
        ...as well as existing land use lines indicate thatStreet
           Existing monumentation in West Broadway (Cedar)
                                                            it
          has been assumed that this jog does not exist and it
          would appear that the depth of 138 feet 6 inches had
          been assumed to run straight through from C.P. Higgins
          Addition into W.J. McCormick's Addition. This is not
          what the official plats indicate but it is what the
          existing evidence on the ground would indicate has
          been used for years.
        ...Theoriginal monuments to be two additionstherefore
           no
               official plats of these
                                       set so it is
                                                     indicate
          assumed that all monuments which now exist are second
          generation. A search of all available records does
          not indicate where most of them came from although
          the Montana State Highway Dept. indicated some of the
          monuments in West Broadway (Cedar) Street were set
          by their survey crews over the years.
        ...A jog inStreet would also affecton West Broadway
           (Cedar)
                    the right-of-way lines
                                            the right-of-way
          lines on a portion of West Main Street and the building
          locations in Blocks 23, 24, 25, and 26 of W.J. Mc-
          Cormick's Addition which fall Southerly of West Broad-
          way (Cedar) Street.
        ...The two monuments set during this54 of W.J.McCormickls
           Northerly boundary line of Block
                                             survey on the
          Addition were set using platted distances from West
          Pine Street are were set without reference to existing
          monumentation in West Broadway (Cedad Street or exist-
          ing land use lines.
        ...It is not our intentionWest Broadway (Cedar) state where
           the proper location of
                                   with this survey to
                                                         Street is
          but to show all evidence that exists. 1 I
      As shown by Judge Green's memorandum and the survey notes
of surveyor Ainsworth, the depth of the lots is the problem.
      The burden of proof was on the plaintiff to establish the
true location of the disputed boundary line.   Reel v. Walter,
131 Mont. 382, 309 P.2d 1027.   Plaintiff's evidence did not carry
this burden of proof.   Ainsworth's testimony was conflicting in
and of itself, between his testimony, his survey notes, and
previous surveys done by his own firm.
       Where boundaries are lost or uncertain they may be es-
tablished by the best evidence under available circumstances.
Ghoine v. State, 26 Wash.2d 635, 175 P.2d 955.     Compare Buckley
v. Laird, 158 Mont. 483, 493 P,2d 1070.
       In 12 Am Jur 2d, Boundaries, 54, p, 550, it is stated:
       11
        A highway or street may be a monument, and
       in the absence of other controlling calls or
       landmarks which can be ascertained, the loca-
       tion and occupancy of a street as indicated
       by old buildings and fences, and by its use for
       many years, may be taken as practical evidence
       of the true location of the street, and the
       lines of the street may then determine the loca-
       tion of the boundaries of abutting lands * * *.I1
       Further, in the absence of known monuments, the best
evidence obtainable may be resorted to for the purpose of es-
tablishing a boundary line.   Buckley v. Laird, supra; Coumas
v. Transcontinental Garage, 68 Wyo. 99, 230 P.2d 748.       In this
instance, section 93-401-27(11),   R.C.M.   1947, states:
       11
        In conformity with the preceding provisions,
       evidence may be given upon a trial of the
       following facts:


       11
        (11) Common reputation existing previous to
       the controversy, respecting facts of a public
       or general interest more than thirty years old,
       and in cases of pedigree and boundary."
       Clark on Surveying and Boundaries, 3rd Ed., 5 288, p.
     states    part :
       11 1
         The rule rests on necessity, better evidence
       of the boundary having ceased to exist, and is
       justified on the theory that where-      persons,
       members of a community more or less extensive,
       are interested in a common boundary, they will
       know where it is, and 1 their common assent will
       prove what they know.     This is the rule promul-
       gated in most of the United States, and for sound
       reasoning. It is a matter of justice and equity."
       All of the above confirms that where the northerly boundary
of West Broadway is uncertain or obliterated it can be proven by
tradition, customary usage, and the way in which the buildings
on West Broadway have been b u i l t up.                  Once t h e n o r t h e r l y boundary
of West Broadway has been e s t a b l i s h e d , testimony of p l a i n t i f f ' s
own witness e s t a b l i s h e d t h a t t h e d i s t a n c e from t h e n o r t h e r l y l i n e
of West Broadway t o t h e s o u t h e r l y l i n e i s 99 f e e t .
          The p l a t s i n t h e courthouse and t h e " l i b r a r y p l a t " s h a r e
some negative c h a r a c t e r i s t i c s : (1) none i n d i c a t e t h a t r e s p e c t i v e
o r i g i n a l surveyors s e t monuments i n e i t h e r t h e W.           J. McCormick
Addition o r t h e C.P.         Higgins Addition; (2) none i n d i c a t e any
d i s t a n c e s from t h e purported monumented s e c t i o n corner and q u a r t e r
corner t o any point i n e i t h e r a d d i t i o n ;         (3) none       i n d i c a t e any
angle from t h e n o r t h l i n e of Section 21 t o any i n t e r i o r l i n e i n
e i t h e r a d d i t i o n ; and (4) none i n d i c a t e any angle between i n t e r i o r
l i n e s w i t h i n e i t h e r a d d i t i o n o r any angle between i n t e r i o r l i n e s
i n the respective additions.
          A t t h e c l o s e of t h e testimony i t was s t i p u l a t e d t h a t Judge
Green could look over t h e p l a t s of t h e a d d i t i o n s f o r t h e a r e a
and t h a t h i s observations would be accepted a s evidence a s though
introduced a t t h e time of t r i a l .            He did go upon t h e ground and
d i d go t o t h e public l i b r a r y t o look a t t h e p l a t t h e r e .
          P l a i n t i f f makes one more a s s e r t i o n i n h i s b r i e f , t h a t i s
t h a t defendant should be estopped from a s s e r t i n g a claim t o t h e
property i n question.             There simply i s no evidence g i v i n g r i s e
t o any estoppel.          P l a i n t i f f a s s e r t s t h a t he has r e l i e d on t h e
1883 p l a t .    However i t i s c l e a r t h a t t h e p l a t found i n t h e public
l i b r a r y i s n o t what has been r e l i e d upon.
          Having examined t h e record and t h e p l a t s , however i r r e g u l a r l y
made a p a r t of t h e r e c o r d , we f i n d t h a t p l a i n t i f f f a i l e d i n h i s
burden of proof; and f u r t h e r , t h a t t h e f i n d i n g s and conclusions
of t h e t r i a l c o u r t a r e supported by t h e evidence.
          Accordingly, w e a f f i r m .
Justices.
