Jones v. Shaurette , 2012 MT 310N ( 2012 )

December 27 2012
DA 12-0153
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 310N
PAUL W. JONES and MARCIA B. JONES,
Plaintiffs and Appellees,
v.
JAMES D. SHAURETTE,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and For the County of Lincoln, Cause No. DV-04-20
Honorable James B. Wheelis, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Karl K. Rudbach; Ramlow & Rudbach, PLLP, Whitefish, Montana
For Appellees:
Richard De Jana; Richard De Jana & Associates, PLLC, Kalispell,
Montana
Submitted on Briefs: December 12, 2012
Decided: December 27, 2012
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 James D. Shaurette appeals from the District Court’s Findings of Fact,
Conclusions of Law and Order, dated January 18, 2012. We affirm in part and reverse in
part.
¶3 The parties own adjacent lots on Bull Lake in Lincoln County. The Joneses
acquired Lot 8 in 2000 from family members and had a survey done in 2002. That
survey showed that three of Shaurette’s buildings located near the lake shore on Lot 9
encroached from 12 to 24 feet onto the Joneses’ Lot 8. In the area of the encroachment
near the lake each lot is approximately 75 feet wide and Lot 8 is undeveloped apart from
Shaurette’s buildings. The Joneses sued Shaurette seeking an order to require removal of
the encroaching buildings from Lot 8. The District Court conducted a bench trial on
November 8, 2011.
¶4 The District Court found that Shaurette’s buildings have been in place for 25 to 30
years and that no one had sought or obtained permission for the encroachments from any
owner of Lot 8. Shaurette has never paid property taxes on the portion of Lot 8 occupied
by his buildings. Neither the Joneses nor their predecessors in interest knew of the
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encroachment until after the 2002 survey. The District Court further found that neither
the Joneses nor their predecessors in interest had engaged in any activity that would estop
them from maintaining this action, or that would equitably entitle Shaurette to continue
the encroachment. The District Court concluded that under the facts the Joneses’ action
was not barred by the statute of limitation or by laches.
¶5 The District Court concluded that while Shaurette claimed a prescriptive easement
for the buildings encroaching on Lot 8, because the encroaching buildings effectively
enclosed portions of Lot 8 to the exclusion of entry by others, Shaurette’s only recourse
was to claim title by adverse possession. That claim was precluded by the fact that
Shaurette never paid taxes on the Lot 8 property as required by § 70-19-411, MCA.
Therefore, the District Court concluded that Shaurette’s claim of right to use Lot 8 is
subordinate to the Joneses’ legal title and ordered Shaurette to remove the encroaching
buildings.
¶6 On appeal Shaurette argues that the District Court erred in denying his claim for a
prescriptive easement for his encroaching buildings; that the District Court erred in
holding that the Joneses’ claims were not precluded by laches or the statute of limitations;
that the District Court should have applied a “relative hardship doctrine” to allow the
buildings to stay; and that the District Court erred in awarding costs to the Joneses.
¶7 A party seeking a claim of adverse possession must prove the claim--open,
notorious, exclusive, adverse, continuous and uninterrupted use--by clear and convincing
evidence. Meadow Lake Estates v. Shoemaker, 2008 MT 41, ¶¶ 36-37, 341 Mont. 345,
178 P.3d 81. The requisite open and notorious use is a “distinct and positive assertion of
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a right hostile to the rights of the owner and brought to the attention of the owner.”
Combs-Demaio Living Trust v. Kilby Butte Colony, 2005 MT 71, ¶ 14, 326 Mont. 334,
109 P.3d 252. This Court reviews findings of fact entered after a civil bench trial to
determine if they are supported by substantial credible evidence, viewed in a light most
favorable to the prevailing party and leaving the credibility of witnesses and the weight to
be given to testimony to the district court. Kurtzenacker v. Davis Surveying, 2012 MT
105, ¶ 14, 365 Mont. 71, 278 P.3d 1002. The District Court decided the issues properly
brought on for trial, based its findings of fact upon substantial evidence in the record, and
properly applied its conclusions of law to those facts.
¶8 Shaurette also contends that the District Court erred in awarding certain costs to
the Joneses. We affirm the District Court’s award of costs except as related to the survey
of Lot 8. One of the Joneses’ claimed costs allowed by the District Court was for “Expert
witness fee for preparation of survey and time testifying $250.00.” The parties agree that
the Joneses commissioned the survey of Lot 8 prior to the commencement of the
litigation, and prior to their knowledge that there was even a basis for commencing
litigation. In filings before the District Court the Joneses stated that the $250 they sought
for the survey item did not include the statutory fee for a witness’ trial testimony. Witty
v. Pluid, 220 Mont. 272, 714 P.2d 169 (1986) (a district court cannot award more than the
statutory $10 per day as costs for an expert’s testimony). Because the survey was
commissioned prior to the litigation and not for purposes of the litigation, the Joneses
may not recover the costs of the survey. Hitshew v. Butte-Silver Bow County, 1999 MT
26, ¶¶ 31-34, 293 Mont. 212, 974 P.2d 650.
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¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for memorandum opinions. The District
Court’s findings of fact are supported by substantial evidence and the legal issues are
controlled by settled Montana law, which the District Court correctly interpreted. We
reverse the award of costs to the Joneses for “Expert witness fee for preparation of survey
and time testifying $250.00” and remand to the District Court for the sole purpose of
entry of a revised order of costs.
¶10 Affirmed in part and reversed in part.
/S/ MIKE McGRATH
We concur:
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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