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No. 79-88 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980
JOHN P. HUGGANS, Plaintiff and Appellant, -vs-DAN WEER, Defendant and Respondent.
Appeal from: District Court of the Fourth Judicial District, In and for the County of Ravalli, The Honorable James B. Wheelis, Judge presiding.
Counsel of Record: For Appellant: Tipp, Hoven & Skjelset, Missoula, Montana
For Respondent: Koch, McKenna & Goheen, Hamilton, Montana
Submitted on Briefs: June 25, 1980
AUG 2 '7 1980
Decided :
This is an appeal by John P. Huggans from the judgment
of the Fourth Judicial District Court, Ravalli County,
following a nonjury trial to settle a boundary dispute
between John P. Huggans and Dan Weer, adjoining landowners.
A sixty-foot wide strip of land is claimed by both Huggans
and Weer. In 1978, Huggans petitioned the District Court
for a temporary order restraining Weer from entering the
disputed strip of land. Huggans also petitioned the District
Court to hold a hearing to adjudicate the parties' property
rights with respect to the strip of land.

At the hearing in the District Court, Huggans claimed
title to the strip of land under the doctrines of adverse
possession and agreed boundary. Weer claimed that a recent
survey of the land proved that he was the owner of the land
and entitled to possession of the land. The District Court
found that Weer was the owner of the land. The court concluded
that Weer held title to the strip of land because the evidence
before the court was legally insufficient to establish
Huggans' claim of title by adverse possession or by agreed
boundary. We affirm the judgment of the District Court.

John Huggans and Dan Weer own tracts of land in the southeast quarter of Section 7, Township 2 North, Range 20 West, Montana Principal Meridian in Ravalli County, Montana. John Huggans owns the east portion of the southeast quarter section. Dan Weer owns the west portion of the same quarter section. Huggans and Weer are both successors in title to Mr. and Mrs. Charles Rouse, who divided the quarter section, first contracting in 1932 to convey the west parcel to predecessors in title to Dan Weer and later conveying the east parcel to Huggans in 1944. When the Rouses divided
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in-title, Perry Cooper, no survey was made to determine the

exact east-west boundary line, the quarter section sixteenth

line. A broken-down fence, rebuilt by Cooper was used as an

informal boundary line by Cooper and Rouse. This fence,

referred to locally as the "Cooper fence" was built sixty

feet west of the sixteenth line. The fence is the cause of

the boundary disagreement between Huggans and Weer.

When the Rouses conveyed the east portion of the
quarter section to Huggans, the description indicated that
the east parcel's west boundary was the Cooper fence. The
land conveyed to Huggans was described in the deed as follows:

"A parcel of land in the southeast quarter of the southeast quarter of section 7, township 2 north, range 20 West, Montana Meridian, described as starting . . . (Measurement by chains and links) . . . thence due west 3 chains 85 links to Cooper fence.. . ."
At the time of the Huggans' deed, however, Rouse had already
agreed to sell land that extended about sixty-feet east of
the Cooper fence, to Weer's predecessor.

The evidence presented at the District Court hearing
indicated that Huggans had actual, continuous and exclusive
possession of all of the property in the quarter section
east of the Cooper fence, including the sixty-foot strip now
in dispute. Although each of the property owners west of
the fence, including Weer, testified they knew the fence did
not mark the proper boundary, they did not assert their
claim to the land east of the fence. From 1944 until 1978,
Huggans used all of the property east of the Cooper fence
for mink ranching.

In 1978, Weer had his property surveyed. The survey
established the location of the sixteenth line and the true
Huggans/Weer boundary. Weer notified Huggans of the survey

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negotiate a settlement of their boundary problem. Following

an attempt by Weer to reclaim his property by removing the

Cooper fence, this litigation began.

The first issue Huggans presented to the District Court
and now present& to this Court is whether title to the sixty-
foot strip should properly vest in Huggans because of his
adverse possession of the strip. The determinative question
in regard to this issue is whether Huggans paid the tax
levied on the strip of property for a period of five con-
tinuous years, a positive statutory requirement under section
70-19-411, MCA. To satisfy this requirement, Huggans offered
as evidence his 1966 Ravalli County property tax receipt and
the testimony of Mae Chaffin, a Ravalli County appraisal
supervisor. This evidence, however, shows that Weer and not
Huggans paid the taxes on the disputed strip of land. Ravalli
County property tax assessments are made on the basis of the
property owner's deed description. The original Huggans
deed description contained two descriptions: a general
description by quarter section and a measurement description
including the reference to the Cooper fence. The description
used by the assessor's office in Huggans' case was the
government survey quarter section description. Taxes were
assessed on Huggans' property extending west to the quarter
section sixteenth line and not beyond to the Cooper fence.
Huggans' failure to prove he paid taxes on the strip extending
west to the Cooper fence, is fatal to his adverse possession
claim. Section 70-19-411, MCA; Townsend v. Koukol (1966),
148 Mont. 1, 416 P.2d 532, 536.

The second issue on appeal is whether the District
Court erred by not finding that the Cooper fence replaced
the sixteenth line as the Huggans/Weer boundary by appli-

cation of the doctrine of agreed boundary. This doctrine

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line of their respective parcels of land by agreement;

recognizing a line other than the one described in their

instruments of title as their property boundary line.

Because this doctrine affects property ownership, proof of

any agreed boundary must be clear and convincing. This

Court in Townsend v. Koukol, supra, 148 Mont. at 6-7, 416

P.2d at 535, adopted the California rule regarding the

doctrine of agreed boundary:

". . . in order to establish an agreed boundary line, the evidence must show more than mere acquiescence and occupancy for the time prescribed by the statute of limitations; it must go further and show that there . . . was an agreement among the coterminous owners, express or implied, fixing the line, and that there was an actual designation of the line upon the ground and occupation in accordance therewith."
The evidence was not clear and convincing to prove

an agreement to make the Cooper fence the east-west property

boundary:
"THE COURT: Mr. Cooper, when you built the fence,
did you think it was on the line, the sixteenth
line between the two eighties?

"A. Well, I didn't even think a thing about it.
Charley (Rouse) and I agreed that was the old
line, and we put it right back where it was.

"THE COURT: When you say you agreed it was the

old line, did you think that the fence that had

been there had marked the sixteenth line between

the two eighties? You know, was --
"A. Well, it was --I don't know; he didn't --We didn't discuss that at all. We just agreed to put the fence back where it was. That's all.
"Q. (By Mr. McKenna) One other question, sir.

Did I understand you correctly to say that one of

the main reasons for the fence was for your

garden and so forth, right?

"A. Yeah. Yeah, see Charley used that piece
in there that Mr. Huggans bought for his night

pasture for the cows, and I used that open space

there for my garden, see? And we had to make a fence."
A third issue presented by Huggans to this Court on
appeal concerns the doctrine of laches. This issue was not
raised by Huggans at the District Court hearing or in the
pleadings. The long-standing rule of this Court is that we
will consider for review only those questions raised in the
trial court. Huggans argues that laches is an exception to
this rule. We disagree. In Elliston Lime Company v.
Prentice Lumber Company (1971), 157 Mont. 64, 483 P.2d 264,
we specifically provided that the issue of laches cannot be
raised as an issue for the first time in an appeal to this
Court.

Except for the scrivener's error in finding of fact no.
11, we find no error in the findings and conclusions of the
District Court. Accordingly, the judgment of the District
Court is affirmed.

Justice
We Concur:

Chief Justice

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Justices

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