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Scarison v. Evjene

Supreme Court of Montana

July 11, 2017

HANS E. SCARISON and LEANA F. SACRISON, Plaintiffs and Appellants,
v.
JEFFREY M. EVJENE, RICKY GENE MARVEL, and SYLVIA DENESE MEE, Defendants and Appellees.

          Submitted on Briefs: May 17, 2017

         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

          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

          OPINION

          Jim Rice Justice.

         ¶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 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 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 ...

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