Shurtz v. Dalton Grove

2021 MT 137N

Opinion

06/01/2021

DA 20-0507 Case Number: DA 20-0507

IN THE SUPREME COURT OF THE STATE OF MONTANA 2021 MT 137N

BONNIE SHURTZ,

Plaintiff and Appellee,

v.

DALTON GROVE PROPERTIES, LP,

Defendant and Appellant.

ESTATE OF JOHN BILLMAYER, ESTATE OF KATHRYN BILLMAYER, and all other persons, unknown, claiming or who may claim any right, title, estate, or interest in or lien of encumbrance upon the real property described in the complaint adverse to plaintiff’s ownership of any cloud upon plaintiff’s title, whether the claim or possible claim is present or contingent,

Defendants.

APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DV-18-255 Honorable Deborah Kim Christopher, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Richard P. DeJana, Richard De Jana & Associates, PLLC, Kalispell, Montana

For Appellee:

Joseph D. Houston, Kevin S. Jones, Jones & Associates, PLLC, Missoula, Montana

Submitted on Briefs: April 14, 2021

Decided: June 1, 2021 Filed: sr---6ma•—•f __________________________________________ Clerk

2 Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), 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 Dalton Grove Properties, LP, appeals an order from the Twentieth Judicial District

Court, Lake County, denying its motions for partial summary judgment and granting

Bonnie Shurtz’s cross motion for summary judgment. We affirm.

¶3 This matter concerns a disputed gap of land between the boundaries of properties

owned by the parties. On July 26, 1982, the following lakefront property was conveyed

to Shurtz and her husband, and subsequently deeded exclusively to Shurtz on

June 15, 1998:

That portion of Government Lot 1, Section 13, Township 26 North, Range 20 West, Lake County, Montana, described as follows:

Commencing at the Northeast corner of Section 13; thence along the North line of Section 13 West 1060.44 feet to the point of beginning; thence South 128.80 feet; thence 490.70 feet more or less to the low water mark of Flathead Lake; thence Northwesterly along the low water mark 140 feet more or less to the North line of Section 13; thence along said North line East 540.59 feet more or less to the point of beginning, containing 1.53 acres more or less of land.

In accordance with Certificate of Survey No. 3864.

3 James and Patricia Lafferty, principals of Dalton Grove, a Texas-based company, were

deeded the following lakefront property on February 28, 2003, which was later deeded

entirely to Dalton Grove on June 19, 2017:

A portion of Government Lot 1, Section 13, Township 26 North, Range 20 West, P.M.M., Lake County, Montana, described as follows:

Beginning at a point 20 feet West and 128.8 feet South of the Northeast corner of said Government Lot 1; thence running West 1401.1 feet to the meander line of Flathead Lake; thence along said meander line 100.8 feet; thence East 1413.9 feet to a point 20 feet West of the East line of said Government Lot 1; thence North 100 feet to the place of beginning. Further identified as being Tract 3 of the unrecorded plat of Piedmont Tracts and herein referred to as Deed Exhibit H-55, on file in the office of the Clerk and Recorder of Lake County, Montana.

Both the above-listed properties were once owned by Lewis Butterfield as a larger

development entitled, “Lake County Piedmont Tracts” (Piedmont Tracts). On

May 18, 1945, the Piedmont Tracts were depicted in Exhibit H-55 (H-55), recorded with

the deed, as 18 separate lakefront tracts of real property located on the west side of

Flathead Lake. H-55 described Butterfield as the original property owner and included a

signed and sworn statement dated May 11, 1945, from a civil engineer. Prior to

recording H-55, Butterfield had deeded multiple tracts within the

Piedmont Tracts: (1) June 19, 1939, deed for “Lake Co. Piedmont Tracts Lot 18”;

(2) April 30, 1940, deed for “Lot 10 of the unrecorded plat of Piedmont Tracts”;

(3) April 30, 1940, deed for “Lot 9 of the unrecorded plat of Piedmont Tracts”;

(4) September 17, 1941, deed for “Tract No. 16 of the plat of Lake County Piedmont

Tracts”; (5) October 10, 1942, deed for “Tract No. 15 of unrecorded plat of Lake County

Piedmont Tracts”; (6) May 3, 1943, deed for “Tract No. 11 of the unrecorded plat of

4 Lake County Piedmont Tracts”; (7) April 6, 1945, deed for “Tracts numbered 1 and 2 of

the first party’s unrecorded plat of Lake County Piedmont Tracts,” “Tracts numbered 6,

7, and 8 of the first party’s unrecorded plat of Lake County Piedmont Tracts,”

“Tracts numbered 12, 13, and 14 of the first party’s unrecorded plat of Lake County

Piedmont Tracts,” and “tract numbered 17 of the first party’s unrecorded plat of Lake

County Piedmont Tracts.” The deed dated April 6, 1945 contained a handwritten

description stating: “See Deed Exhibit H-55.”

¶4 Shurtz’s property is part of what was described as “Tracts numbered 1 and 2 of the

first party’s unrecorded plat of Lake County Piedmont Tracts” and depicted in a deed

recorded April 6, 1945. Thereafter, the grantees deeded their interest on May 13, 1946,

describing the property conveyed as “Lots 1 and 2 of Piedmont Tracts, according to the

map or plat thereof on file and of record in the office of the County Clerk and Recorder

of Lake County, Montana.” The Clerk and Recorder placed a note on the deed indicating

“See Plat H-55 in reference to this Deed.” Also, Butterfield deeded title to the property

currently owned by Dalton Grove and depicted as “Tract Three” on July 23, 1945. This

deed specifically referred to H-55. Butterfield’s conveyance of Tract 4 in the

Piedmont Tracts also referred to H-55.

¶5 Shurtz’s predecessors-in-interest subdivided their interest in Tracts 1 and 2,

creating four separate parcels depicted in Certificate of Survey No. 2909 (COS 2909) and

No. 3684 (COS 3684). By deed, dated July 26, 1982, Shurtz was conveyed the property

depicted in COS 3684. However, when COS 2909 and COS 3684 were prepared, an

error was made by the surveyor which created a gap between Tracts 1 and 2 that ran

5 parallel with cardinal west bearings. Shurtz and her family have utilized the gap,

traversed it, and cultivated it since 1982. Shurtz was unaware of the surveying error.

¶6 In July 2017, Dalton Grove hired a surveyor to record a Certificate of Survey

7225-RT (COS 7225-RT). COS 7225-RT detailed the northern boundary of Tract 3 as

the southern boundaries indicated in COS 2909 and COS 3684, essentially encompassing

the gap at issue. COS 7225-RT thus allocated more land to Tract 3 than what was

described in H-55 or than what was contained in the deed to Dalton Grove. Shurtz hired

a surveyor as well, who indicated the gap was part of Tract 2, as shown on H-55.

Shurtz’s surveyor further acknowledged that when COS 2909 and COS 3684 were

prepared, they failed to include all of Tracts 1 and 2 and did not establish the northern

boundary of Tract 3. However, the surveyor maintained that H-55 accurately depicted all

of those boundaries and was the proper description upon which to base the survey.

¶7 Shurtz filed an action for quiet title in October 2018, asserting Dalton Grove was

trespassing and had damaged her land, i.e., the gap at issue. Competing motions for

summary judgment were filed by both parties in 2019. Dalton Grove argued the gap at

issue was part of Tract 3 and that H-55 was not a proper deed depicting the

Piedmont Tracts. Shurtz argued the gap was part of Tract 2 and H-55 was the only true

and accurate document depicting the conveyance of tracts within the Piedmont Tracts. A

two-day bench trial was scheduled for August 19 and 20, 2020, however, was later

vacated. The District Court issued a final order on July 17, 2020, which denied

Dalton Grove’s motions for partial summary judgment, and granted Shurtz’s

cross motion for summary judgment. Dalton Grove appeals.

6 ¶8 “The standard of review for a district court’s granting of summary judgment is

de novo.” Farmers Ins. Exch. v. Johnson, 2009 MT 442, ¶ 7, 354 Mont. 192,

224 P.3d 613. The facts presented are reviewed to determine whether the prevailing part

is entitled to judgment as a matter of law. Johnson, ¶ 7. Summary judgment “shall be

rendered forthwith if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” M. R. Civ. P. 56(c); Mattson v. Mont. Power Co., 2009 MT 286, ¶ 15,

352 Mont. 212, 215 P.3d 675. We review a district court’s conclusions of law de novo to

determine whether those conclusions are correct. Mattson, ¶ 15.

¶9 Dalton Grove asserts the District Court erred in relying solely on H-55.

Dalton Grove also asserts COS 7225-RT correctly depicts the boundary lines between

Tract 2 and Tract 3; that H-55 only provides subjective extrinsic evidence; and that

Butterfield intended to include the gap within Tract 3. We disagree.

¶10 When the description contained in a deed “refers to a map and that reference is

inconsistent with other particulars, it controls them if it appears that the parties acted

with reference to the map.” Section 70-20-201(6), MCA (emphasis added). H-55 is a

map of the Piedmont Tracts created and certified by a civil engineer in 1945. The

description provided, “the annexed plat is a true and correct copy of the original plat of

the Lake County Piedmont Tracts.” All other deeds and conveyances by Butterfield, or

subsequent grantees, involving the Piedmont Tracts refer to the H-55 map or plat.

7 We conclude H-55 is the controlling document depicting the Piedmont Tracts and its

conveyances.

¶11 Our conclusion is supported by our assessment of the parties’ intent. “The main

object in construing a deed is to ascertain the intention of the parties from the language

used and to effectuate such intention where not inconsistent with any rule of law.”

Henningsen v. Stromberg, 124 Mont. 185, 191, 221 P.2d 438, 442 (1950). H-55 is the

only instrument that purports to show Butterfield’s intended divisions and conveyances.

All subsequent documents, including the Shurtz deed and the Dalton Grove deed,

reference H-55. The property descriptions in Butterfield’s deeds that predate the

recording of H-55 demonstrate he conveyed the properties with reference to what was

depicted in H-55. To construe the conveyances consistently and ascertain the intent of

the Butterfield deeds, the District Court had to rely on H-55. The District Court did not

err in concluding H-55 expressed the intention of the Butterfield deeds, particularly in the

conveyances to Shurtz and Dalton Grove.

¶12 The District Court also correctly concluded that § 70-20-201, MCA, gives priority

to maps referenced by the deed of conveyance. Section 70-20-201(6), MCA, provides

that “[w]hen the description refers to a map and that reference is inconsistent with other

particulars, it controls them if it appears the parties acted with reference to the map . . . .”

The District Court’s conclusion that H-55 clearly established the intention of the

landowner was supported by the continual reference to H-55 in the deeds, the

conveyances, and descriptions of the boundary lines. Furthermore, the District Court was

correct in concluding COS 7225-RT was not an accurate depiction of the conveyances.

8 ¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶14 Affirmed.

/S/ LAURIE McKINNON

We concur:

/S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ INGRID GUSTAFSON /S/ DIRK M. SANDEFUR