No. 12020
I N THE SUPREME C U T O THE STATE O M N A A
OR F F OTN
1972
HARRY A . BOLINGER, J R , ,
Executor of t h e L a s t W i l l and Testament
of Mary E. Bolinger, Deceased and
L u c i l l e B. Wood,
P l a i n t i f f s and ellant ants,
C I T Y O BOZEMAN, a Municipal Corporation
F
of t h e S t a t e of Montana, e t a l e ,
Defendants and Respondents.
Appeal from: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t ,
Honorable V i c t o r H. F a l l , Judge p r e s i d i n g .
Counsel of Record:
For Appellants :
Bolinger and Wellcome, Bozeman, Montana.
H, A. Bolinger argued, Bozeman, Montana,
For Respondents:
Berg, ~ ' ~ o n n e l Angel and Andriolo, Bozeman, Montana.
l,
Ben E. Berg argued, Bozeman, Montana.
Submitted : January 10, 1972
Decided : FED 9 - 1$J@& 4;.t.*J.
9,c
17
I -' 1
Filed : ff8 -
Mr. Justice Wesley Castles delivered the Opinion of the Court.
This is an appeal from a judgment entered by the district
court in Gallatin County, Hon. Victor H. Fall presiding. The
case was tried by the court without a jury and judgment was
entered pursuant to findings of fact and conclusions of law, in
favor of defendant. Plaintiff, Harry A. Bolinger, Jr., executor
of the last will and testament of Mary E. Bolinger, deceased,
filed exceptions to the findings and a motion to amend and make
additional findings. The exceptions and motion were not ruled
upon within the permissible time period, thereupon, the excep-
tions and motion being deemed denied, plaintiff perfected this
appeal from the judgment.
This Court rendered an opinion on October 4, 1971, sub-
sequently by order granted a limited rehearing, limited as to the
disposition on reversal of the judgment; reheard that limited
matter; and subsequently by order dated December 6, 1971, with-
drew its original opinion and granted a full rehearing. The
matter was reheard on January 10, 1972.
The case involves a county road in Gallatin County desig-
nated as county road No. 61, which runs in a north-south direction
in close proximity to the city limits of the city of Bozeman. The
property through which the road runs is not contiguous to the
city, so as to permit an application for annexation under exist-
ing statutes.
In March 1969, the city of Bozeman obtained an "Encroach-
ment Application and Permit" from Gallatin County to " * * * con-
struct, install, operate and maintain a sanitary sewer line to-
gether with necessary appurtenances thereto, on and within the
r i g h t o f way of t h e County Road Number S i x t y ( 6 1 ) " ( s i c ) . T h i s
p e r m i t i s e x p r e s s l y a u t h o r i z e d by s e c t i o n 1 6 - 1 1 1 4 , R.C.M, 1947.
I n t h e d i s t r i c t c o u r t t h e r e were two p l a i n t i f f s , B o l i n g e r
and a n e i g h b o r i n g p r o p e r t y owner, L u c i l l e B. Wood. These p l a i n -
t i f f s own t h e f e e o f a p o r t i o n of l a n d s o v e r which county r o a d
No. 6 1 r u n s ; b u t t h e i n s t a n t a p p e a l i s t a k e n o n l y by Harry A .
B o l i n g e r , J r . , as e x e c u t o r o f t h e l a s t w i l l and t e s t a m e n t of
Mary E. B o l i n g e r .
The road i n q u e s t i o n was e s t a b l i s h e d March 7 , 1891, by
t h e board of county commissioners o f G a l l a t i n County upon p e t i t i o n
o f r e s i d e n t s i n t h e area t r a v e r s e d by t h e r o a d . A t t h e t i m e of
t h e f i l i n g of p l a i n t i f f s ' c o m p l a i n t t h e road was n e i t h e r graded
nor surfaced,
Defendants were a d v i s e d o f t h e p l a i n t i f f s ' o b j e c t i o n s t o
t h e sewer p r i o r t o u n d e r t a k i n g t h e d i g g i n g o f t h e sewer l i n e i n
county r o a d No. 6 1 a c r o s s p l a i n t i f f s ' p r o p e r t y . Plaintiffs'
o b j e c t i o n s were based upon t h e f a c t t h a t d e f e n d a n t s had no e a s e -
ment o r r i g h t of way agreement and f o r t h i s r e a s o n c o u l d n o t en-
c r o a c h upon t h e f e e i n t e r e s t o f t h e p l a i n t i f f s . Defendant c i t y
of Bozeman had a d v i s e d p l a i n t i f f s t h a t t h e y could n o t a t t a c h t o
t h e sewer when it was completed, s i n c e t h e i r p r o p e r t y w a s n o t
within the c i t y l i m i t s .
Defendant, c i t y o f Bozeman, proceeded w i t h and completed
t h e c o n s t r u c t i o n o f t h e sewer i n s p i t e o f t h e i n t e r v e n t i o n of
t h i s s u i t s e e k i n g a mandatory i n j u n c t i o n t o compel t h e removal of
any p i p e which had been p l a c e d a t t h a t t i m e and t o e n j o i n t h e
t r e s p a s s by d e f e n d a n t s . Following completion o f t h e sewer l i n e
the case was tried and the district court found that defendants
had a right to lay a sewer line under the right of way of county
road No. 61 by virtue of the encroachment permit from Gallatin
County.
Appellant poses the question here as--what right does
Gallatin County possess in the fee underlying county road No. 61,
which might be assigned to the city of Bozeman for a sewer system?
Respondent poses the question here as--may a municipal
sewer be installed in a public road by permission of the county
without consent of the adjoining property owners?
Subsidiary to both questions posed are these inquiries:
What is the nature and extent of a public easement in a highway?
That is, insofar as the sewer line here is concerned, is the pub-
lic easement restricted to the use of a roadway for the movement
of vehicular traffic only?
Clearly, and we think it needs no citation of authority
to support, the governing authority can regulate use of the ease-
ment. Here, this governing body, the Board of County Commissioners,
has statutory authority to issue the permit and did so. So the
question really is, whether the rights of the fee owner have
been invaded.
The district court in its finding of fact No. 11, found:
"That Gallatin County Road No. 61 is a public
road created by order of the Board of County
Commissioners on March 7, 1891 * * *."
The fact that appellant's predecessor was one of fifteen
'householders" who petitioned the county for a county road, which
is the subject matter of this suit, is not in dispute and is
supported by the record, as is the granting of the petition by
the county.
In 1891 Montana had no statute governing dedication of
privately owned lands to the public. Hence, the recording of a
grant constituted a common-law dedication. City of Billings v.
Pierce Co., 117 Mont. 255, 161 P.2d 636. By a common-law dedica-
tion the interest vested in the public is an easement. 23 Am Jur 2d,
Dedication, 8 57. The grant of an easement is the grant of a use
and not a grant of title to the land. 28 C.J.S. Easements 8 28, p .
Appellant approaches the problem by distinguishing be-
tween city streets and rural or county roads insofar as there
is a differentiation in rights of the public as f01fsws~
The present section pertaining to county roads is section
32-4001, R.C.M. 1947, which provides as follows:
"Rights of way for county roads * * *
"(2) By taking or accepting interests in real
property for county roads, the public acquires
only the right of way and the incidents neces-
sary to enjoying and maintaining it." (Emphasis
supplied)
The foregoing section was enacted as part of the revised
highway laws of 1965. Prior to the recodification of this law,
the section appeared as section 32-107, R.C.M. 1947, and provided
as follows:
"Rights acquired by public in hiqhway. By
taking or accepting land for a highway, the
public acquires only the right of way and the
incidents necessary to enjoying and maintain-
ing the same, subject to the regulations in
this act and code provided."
The section was originally enacted as section 2620 of
the 1895 Political Code in almost the identical language.
The Montana code provision was adopted from the California
code which had contained a similar section since 1883. The Cali-
fornia Code at the time of the adoption of the same provision by
the Montana legislature, provided as follows:
"section 2631, California Political Code.
"By taking or accepting land for a highway,
the public acquire only the right of way, and
the incidents necessary to enjoying and main-
taining the same, subject to the regulations in
this and the Civil Code provided."
As opposed to the clear-cut legislation indicating that
the county only acquires a right of way over lands where a county
road is laid out or dedicated, the city of Bozeman obtained a fee
interest in its streets by virtue of section 11-3304, R.C.M. 1947,
which provides as follows:
"The map or plat recorded under the provisions
of the foregoing act shall thereupon be suffi-
cient conveyance to vest in the municipality
the fee of the parcel of land designated or in-
tended for streets, alleys, ways, commons, or
other public uses, to be held in the corporate
name in trust to and for the uses and purposes
in the instrument set forth, expressed, desig-
nated, or intended." (Emphasis supplied)
The use to which streets may be placed is much broader
than the use to which county highways may be placed, particularly
in view of the fee interest which a city obtains, and also in
view of the fact that the owners of property in the city are
benefited by the various instrumentalities which utilize the street
for conducting their operations.
In California the sections pertaining to county roads,
which we have set forth hereinabove, have received extensive in-
terpretation throughout the years. Prior to the adoption of the
Montana statute, the California Supreme Court had considered the
applicable California section in McRose v. Bottyer, 81 Cal. 122,
22 P. 393, 394, (Decided October 11, 1889), where that court
stated as follows:
"'By taking or accepting land for a highway,
the public acquire only the right of way, and
the incidents necessary to enjoying and main-
taining the same, subject to the regulations in
this and the Civil Code provided.' Pol.Code,
52631. 'The extent of a servitude is determined
by the terms of the grant, or the nature of the
enjoyment by which it was acquired,' (Civil
Code, 5806;) and is extinguished, 'when the
servitude was acquired by enjoyment, by the
disuse thereof by the owner of the servitude
for the period prescribed fox acquiring title
by enjoyment,' (Id.5811.) These provisions are
part of chapter 3, pt.2, tit.2, of the Civil
Code, which relates to private easements and
servitudes; but they are made applicable to a
public easement of the character in question
by section 2631 of the Political Code, supra
* * **'I
The same holding was followed in Smith v. City of San Luis Obispo,
95 Cal. 463, 30 P. 591, 593.
Thus, from the foregoing discussion of appellant's view
of a distinction between urban and rural streets, appellant urges
that an easement is limited to "only the right of way and the
incidents necessary to enjoying and maintaining the same * * *."
This, appellant urges, does not include granting permission to a
city to lay a sewer line.
Appellant cites 26 Am Jur 2d, Eminent Domain, § 225, as
follows:
" * * * In states in which a distinction between
urban and rural servitudes is recognized, it is
uniformly held that a pipeline for the convey-
ance of natural gas cannot be laid beneath the
surface of a country road without dompensation
to the owners of the fee. A like rule is applied
with respect to a water main. The laying of
water mains in a country highway to furnish
connection with other pipes, and not to supply
the residents upon the highway with water,
is an additional servitude, although the lo-
cation is adjacent to a well-settled comrnun-
ity. * * * "
However, that same section cites cases to the contrary. The
mere distinction between city and rural roads does not, in our
view, answer the question of whether the rights of the fee owners
have been invaded.
Much litigation has arisen over the years concerning the
use of public right of ways for utility purposes. Most of the
earlier cases were challenges by abutting landowners to the util-
ities' right to locate their facilities in the public way, but the
later cases have concerned the use of public funds to relocate
utility lines in the construction of interstate highways, where
the utilities' initial right to use the highway was again reviewed.
In this respect, Montana's legal history has paralleled that of
other states. Although the recent decisions are not uniform,
they are generally distinguishable by reference back to the policy
established in the early decisions.
Perhaps the leading early case in the west is Cater v.
Northwestern Tel. Exch. Co., 60 Minn. 539, 63 N.W. 111, 112, which
involved the construction of a telephone line between the cities
of Minneapolis and St. Cloud along a rural highway, the fee of
which, subject to the public easement, belonged to the plaintiff,
an abutting landowner. The line was built without his consent,
but pursuant to a statute which granted to utilities the right to
use public highways for the purpose of erecting transmission lines
provided their installation did not interfere with ordinary travel
on the road. As the court put it, the plaintiff "plants himself
squarely upon the proposition that the erection and maintenance
of telephone poles and wires is not within the public easement
in a highway, but constitutes the imposition of an additional
servitude upon his land". Similarly, the court framed the ques-
tion in this language: "[Wlhat is the nature and extent of the
public easement in a highway?" It was to this question that the
Minnesota court addressed itself, saying:
"If there is any one fact established in the
history of society and of the law itself, it
is that the mode of exercising this easement
is expansive, developing and growing as civil-
ization advances. * * * Hence it has become
settled law that the easement is not limited
to the particular methods of use in vogue when
the easement was acquired, but includes all new
and improved methods, the utility and general
convenience of which may afterwards be discover-
ed and developed in aid of the general purpose
tor which h ghways are des gned. * * * Another
proposition, which we believe to be sound, is
that the public easement in a highway is not
limited to travel or transportation of persons
or property in movable vehicles. * * * But -it
is now universally conceded that urban highways
may be used for constructing sewers and laying
- --
pipes for the transmission of gas, water, and
the like for public use. * * * The uses refer-
red to of urban streets are not in aid of travel,
but are themselves independent and primary uses,
although all within the general purpose for
which highways are designed. Neither can a dis-
tinction between urban and rural ways be sustain-
ed on the ground that such uses were contemplated
when the public easement was acquired in the
former, but not when the easement was acquired
in the latter. As a matter of fact, most of
these uses were unknown when the public easement
was acquired in many of the streets in the older
cities. Indeed, many of what are now urban
highways were merely country roads when the
public acquired its easement in them, and doubt-
less many highways that are now merely country
roads will in time become urban streets. When
such changes occur, will the abutting owners
be entitled to new compensation before the
public can build sewers or lay water or gas
pipes in these streets?
"It seems to us that a limitation of the
public easement in highways to travel and
the transportation of persons and property
in movable vehicles is too narrow. In our
judgment,public highways whether urban or
rural, are designed as avenues of communi-
cation; and, if the original conception
of a highway was limited to travel and
transportation of property in movable vehicles,
it was because these were the only modes of
communication then known; that as a civili-
zation advanced, and new and improved methods
of communication and transportation were devel-
oped, these are all in aid of and within the
general purpose for which highways are designed.
Whether it be travel, the transportation of
persons and property, or the transmission of
intelligence, and whether accomplished by old
methods or by new ones, they are all included
within the public 'highway easement,' and im-
pose no additional servitude on the land,
provided they are not inconsistent with the
reasonably safe and practical use of the high-
way in other and usual and necessary modes,
and provided they do not unreasonably impair
the special easements of abutting owners in
the street for purposes of access, light,
and air. " (Emphasis supplied.)
Montana in its earl-y cases adopted a similar concept of
the extent and nature of a public easement. For example, in
Hershfield v. Rocky Mt. B. T. Co., 12 Mont. 102, 118, 29 P. 883,
where the plaintiff, a property owner on ~elena'sMain Street,
attempted to enjoin the erection of a telephone pole in front of
his property, the court denied the injunction, saying:
"We think that to use the street in a reason-
able manner, and to a reasonable extent, for
this purpose, is just and proper, and is with-
in the uses to which the street may lawfully
be put, when such use is sanctioned by the
public through its duly-authorized municipal
agents. "
The Montana Supreme Court does not always distinguish
between urban and rural easements. Thus, in Howard v. Flathead
Independent Tel. Co., 49 Mont. 197, 141 P. 153, it was held that
a guy wire to support a telephone pole in a rural road was not
a trespass on the public right of way. This was a negligence
case.
In Kipp v. Davis-Daly Copper Co., 41 Mont. 509, 516-518,
110 P. 237, which involved the installation of railroad tracks
on Mercury Street in Butte for rail transportation of ore, this
Court in sustaining that use of the public street, adopted and
embellished the same ideas promulgated by the Minnesota court in
Cater :
"But it is not important to inquire where
the fee is vested. The respective rights of the
abutting owner and the public are dependent up-
on the fact of dedication. In view of these
provisions as well as of the rule of law recog-
nized everywhere, the authorities which control
streets and highways may use or permit the use
of them in any manner or for any purpose which
is reasonably incident to the appropriation of
them to public travel and to the ordinary uses
of streets or highways under the different con-
ditions which arise from time to time. (White
v. Blanchard Bros. Granite CO., 178 Mass. 363,
59 N.E. 1025.) For a highway is created for
the use of the public, not only in view of its
-
necessities and requirements as they exist,
but also in view of the constantly changing modes
and conditions of travel and transportation,
brought about by improved methods and required
by the increase of population and the expansion
in volume of traffic due to the ever-increasinq
needs of society, Were this not SO, any change
in these respects would require a readjustment
of rights as between the public and the abutt-
ing property owner, because the result of it would
of necessity be held an imposition of a new burden
upon the highway, and hence upon the property of
the abutting owner. For these changing public
-
uses the owner must be presumed to have received
compensation when the highway was created. * * *
"It is often difficult to determine whether a
new use is such an invasion of the rights of
an abutting owner as entitles him to damages
within the meaning of the limitation. If
it is, compensation must be made before the
use is installed. But it must be borne in
mind that the way was created for all uses
to which it might reasonably be put in view
of improved methods and the increasing needs
of the public; and the limitation is to be
given a construction which will not defeat
this original purpose. And if the particular
use to which consent has been given by the
municipal authorities is in the nature of a
public use, and is not more burdensome than
other public uses which have been held to be
within possible contemplation at the time the
way was created, it is not a taking or damaging
of the rights of the owner, within the pur-
view of the limitation. " (Emphasis supplied. )
As indicated, recently the courts have had occasion to
review the principles announced in these early cases. This has
been true in Montana as elsewhere. Thus, in Jones v. Burns, 138
Mont. 268, 287, 357 P.2d 22, this Court was asked to decide the
constitutionality of a statute authorizing the State Highway
Commission to participate in the cost of relocating utility lines
in public roads including privately owned gas lines. In review-
ing the decisions of other states, the Court noted that only Idaho
and Maine, with similar constitutional provisions, had declared
such statutes unconstitutional. To distinguish the Idaho deci-
sion, the Court compared the policy of the Idaho court with the
early decisions in Minnesota, especially the holding in Cater:
"There is further reason why this court
should not follow the decision of the Idaho
court, but rather the decision of the Minne-
sota court, This is based on the fact that
Idaho has a different policy than Montana or
Minnesota on what is to be regarded as a
primary and proper use for which highways are
designed,
"In Minneapolis Gas Co. v. Zimmerman, supra,
253 Minn, 164, 91 N.W.2d 642, 649, the Minne-
sota court, after quoting the following from
Cater v. Northwestern Tel, Exch. Co., 60 Minn.
539, 63 N.W. 111, 1 1 2 , 28 L.R.A. 310:
11
* * * t h e p u b l i c easement i n a highway
I It
is not limited t o travel o r transportation
of p e r s o n s o r p r o p e r t y i n movable v e h i c l e s .
* * * But it i s now u n i v e r s a l l y conceded t h a t
urban highways may be used f o r c o n s t r u c t i n g
sewers and l a y i n g p i p e s f o r t h e t r a n s m i s s i o n
o f g a s , w a t e r , and t h e l i k e f o r p u b l i c u s e .
* * * The u s e s r e f e r r e d t o o f u r b a n s t r e e t s
a r e n o t i n a i d of t r a v e l , b u t a r e t h e m s e l v e s
i n d e p e n d e n t and p r i m a r y u s e s , a l t h o u g h a l l
w i t h i n t h e g e n e r a l p u r p o s e f o r which highways
a r e d e s i g n e d . N e i t h e r can a d i s t i n c t i o n be-
tween urban and r u r a l ways b e s u s t a i n e d . * * *",
s t a t e d a t page 649 o f 9 1 M.W.2d:
" ' C l e a r l y s i n c e t h e C a t e r d e c i s i o n i n 1895,
Minnesota h a s been d e f i n i t e l y committed t o
t h e view t h a t t h e u s e of riqhts-of-way by
u t i l i t i e s f o r locatinq t h e i r f a c i l i t i e s is
one o f t h e p r o p e r and primary p u r p o s e s f o r
which hiqhways a r e d e s i g n e d even though t h e i r
p r i n c i p a l u s e i s f o r t r a v e l and t h e t r a n s p o r -
t a t i o n of p e r s o n s and p r o p e r t y . '
"Such u s e of t h e s t r e e t s and highways i s
conducive t o t h e p u b l i c w e l f a r e and s e r v e s
one of t h e p u r p o s e s f o r which t h e y are d e d i -
cated.
" I n H e r s h f i e l d v. Rocky M t . B. T. Co., 12
Mont. 1 0 2 , a t page 1 1 8 , 29 Pac. 883, a t page
887, t h i s c o u r t a l s o committed i t s e l f t o t h i s
view when i t s t a t e d ' W e t h i n k t h a t t o u s e t h e
s t r e e t i n a r e a s o n a b l e manner, and t o a r e a s o n -
a b l e e x t e n t , f o r t h i s purpose [ p l a c i n g t e l e p h o n e
p o l e s and l i n e s a l o n g t h e s t r e e t s ] i s j u s t and
p r o p e r , and i s w i t h i n t h e u s e s t o which t h e
s t r e e t may l a w f u l l y be p u t , when such u s e i s
s a n c t i o n e d by t h e p u b l i c t h r o u g h i t s d u l y -
authorized municipal agents.'
" I n S t a t e e x r e l . Rich v. I d a h o Power Company,
8 1 Idaho 487, 346 P.2d 596, t h e I d a h o c o u r t
e x p r e s s l y h e l d t h a t i t was n o t committed t o t h i s
view." (Emphasis s u p p l i e d . )
I t i s a l s o worth n o t i n g t h e c o u r s e o f r e c e n t c a s e s i n
New Mexico where t h e Supreme C o u r t i n S t a t e Highway Com'n. v .
S o u t h e r n Union G a s Co., 65 N.M. 84, 332 P.2d loto, 1016, f i r s t
held its U t i l i t y Relocation Financing s t a t u t e u n c o n s t i t u t i o n a l
and in distinguishing the Minnesota cases, said:
"It might be explained that Minnesota is com-
mitted to the view, as stated at page 649 of
91 N.W.2d:
" ' * * * the use of rights-of-way by utilities
for locating their facilities is one of the
proper and primary purposes for which highways
are designed.' [Emphasis ours.]
"Needless to say, such has never been the policy
of New Mexico. "
But, in the later case of State v. Lavender, 69 N.M. 220,
365 P.2d 652, 661, upon reflection and reconsideration the New
Mexico court reversed itself, saying:
"The statement in Southern Union that New
Mexico has never recognized that one of the
primary purposes for which highways are
designed is for location of utility facilities,
was made in order to distinguish the leading
contrary case, Minneapolis Gas Company v.
Zimmerman, 1958, 253 Minn. 164, 91 N.W.2d 642.
Actually, the statement is erroneous when it
is considered there has been unquestioned
statutory authority for such use of highway
rights-of-way for more than fifty years. * * *
The Minnesota decision was soundly based on a
prior decision of that court in Cater v.
Northwestern Tel. Exch. Co., 60 Minn. 539, 63
N.W. 111, 28 L.R.A. 310, which held that the
use of highway easements for utility services
was within the general purpose for which high-
ways are designed, in addition to their use
for transportation of movable vehicles. We
agree. To hold otherwise would be to ignore
the practical, as well as the legal, aspects
of the situation."
Furthermore, the courts of California, appellant's cita-
tions to the contrary notwithstanding, agree with Minnesota, New
Mexico, and Montana as to the extent and nature of the public
easement in a dedicated public road. In Collopy v. United Railroads
of San Francisco, 67 C.A. 716, 228 P. 59, 61, the court approving-
ly cites Cater:
"As civilization advances and new and improved
methods of transportation are developed, these
are in aid of and within the general purposes
for which highways are designed. Cater v.
Northwestern, etc., 60 Minn. 539, 63 N.W. 111,
28 L.R.A. 310, 51 Am. St. Rep. 543. An abutting
owner, therefore, is not entitled to be compen-
sated anew for every improvement in street or
vehicle, or with every change made imperative
by such improvement, and especially so where
he has made a conveyance in full contemplation
and knowledge of such change. Such in effect
is the principle established in Montgomery v.
Railway Co., 104 Cal. 186, 37 Pac. 786, 25
L.R.A. 654, 43 Am. St. Rep. 89, and Hayes v.
Handley, 182 Cal. 273, 187 Pac. 952. See,
also, Albany v. United States, etc., 38 Cal.
App. 466, 176 Pac. 705.
"Where land is conveyed for a public highway
the implication must be that it will be used
as the convenience and welfare of the public.
may demand, although that demand may be aug-
mented by the increase of population, The
benefits which an owner of the servient es-
tate receives from the increase in population
and consequent building up of the community
usually far more than compensate him for the
increased burden he may claim to have suffered."
(Emphasis supplied.)
In W a e o n v. Eldridge, 207 Cal. 314, 278 P. 236, 238,
the question was whether the canals of Venice, California, could
be filled and converted to surface highways without compensation
to abutting landowners. Holding that this change of use was
justified, the Supreme Court of California said:
"The real question always is, therefore,
whether the use in a particular case, and for
aqdesignated purpose is, consistentfor inconsis-
tent with such primary object. Whether or not
a particular use amounts to a diversion from
that for which the dedication was made depends
on the circumstances of the dedication and the
intention of the party making it, It has been
held that such use is authorized as is fairly
within the terms of the dedication and reason-
ably serves to fit the property for enjoyment
by the public in the manner contemplated.
[Citing cases.] In other words, the dedicator
is presumed to have intended the property
to be used in such way by the public as will
be most convenient and comfortable and accord-
% 1
known at the time of the dedication but also
to those justified by lapse of time and chanqe
of conditions." (Emphasis supplied.)
See also Airways Water Co. v. Los Angeles County, 106
C.A.2d 787, 236 P.2d 199; State v. Board of Com'rs of Walla Walla
County, 28 Wash.2d 891, 184 P.2d 577, 172 ALR 1001.
Finally, appellant's argument that the public easement
in a rural county road is so much different and more limited
than an easement in a city street is also disposed of by the
Supreme Court of Oregon in Huddleston v. City of Eugene, 34 Ore.
343, 55 P. 868, 871, where that court said:
"It is argued that the uses to which streets
are ordinarily put are greater and more numerous
than those to which a county road is subjected,
and particularly so with reference to the lay-
ing of pipes and the construction of drains,
sewers, and culverts in streets. 2 Dill Mun.
Corp. 5 688. But Judge Elliott, in his work on
Roads and Streets (page 311), anticipating such
contention, says: 'Where land is dedicated or
appropriated for a suburban road, the implica-
tion must be that it shall be used as the con-
venience and welfare of the public may demand,
although that demand may be augmented by the
increase in population, or by a town or city
springing up in the territory traversed by the
road. ' "
Appellant would distinguish most of the foregoing analysis
on two points: First, that in Cater the Court assumed that the
telephone line there involved was for the use of the public upon
payment of certain charges. This assumption, appellant urges,
distinguishes that case and those based on that rationale from
the instant case, because appellant is not allowed to hook onto
the sewer. Second, that in most of the cases involved there were
statutory dedications while here we are dealing with what we
have heretofore described as a common law dedication (being prior
to statutory authority). We hold that neither of these distinc-
tions, if they be that, are sufficient to remove this case from
the rationale expressed heretofore.
Accordingly, we affirm the judgment. However, in consider-
ing costs on this appeal, much of the additional costs we find
were brought about by the respondent from the inception of the
sewer project. We have not developed the facts and circumstances
showing this, in this opinion. we do assess costs under Rule 33,
Montana Rules of Appellate Civil Procedure, against respondent.
~ssod&e Justice
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Associate Justices v