No. 82-215
IN TBE SUPREME COURT OF THE STATE OF MONTANA
1983
MADISON COUNTY, a body politic, and
the 14ADISON COUNTY COTOIISSION,
Plaintiffs and Respondents,
ED ELFORD and ETI-ILYN VIVIAN ELFORD and
ELFORD RANCHES, a Mont. corp., & LLOYD
C. BREWTON & BILLIE B. BREWTON,
Defendants and Appellants.
Appeal from: District Court of the Fifth Judicial ~istrict,
In and for the County of Fladison, The Honorable
Frank Blair, Judge presiding.
Counsel of Record:
For Appellants:
Poore, Roth & Robinson; Rick Anderson, Butte,
Montana
For Respondents;
Loren Tucker, County Attorney, Virginia City,
Montana
Submitted on Briefs: January 13, 1983
Decided: April 1, 1983
Filed: APR 1 - 198%
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Elford Ranches and Lloyd and Billie Brewton appeal from
a judgment in a condemnation action entered in the District
Court of the Fifth Judicial District, Madison County. The
judgment granted to Madison County a prescriptive easement to
an existing road and condemned certain tracts of land, all of
which were owned by the Elfords and Brewtons. The existing
private road and the condemned land were to be used by
Madison County for the construction of a public county road.
The Elfords and Brewtons also appeal from the District
Court's order which granted the County's motion to amend the
findings of fact and conclusions of law; denied the Elfords'
and Brewtons' motion to amend the findings of fact and
conclusions of law; and denied the Elfords' and Brewtons'
motion for a new trial.
In September of 1980, a petition was submitted to the
Madison County Commission requesting that a road be
constructed to join the Melrose and Burma roads located west
of Twin Bridges. The petition did not specify a particular
route. In November of 1980, Madison County hired a
registered surveyor to survey a potential route (hereafter
referred to as "Route A"). Rased on this survey, Madison
County commenced negotiations with the Elfords and Brewtons
to buy the land under proposed Route A.
In May 1981, the same surveyor was again hired by
Madison County to survey another route. This route
(hereafter referred to as "Route B") became the route which
is now condemned by the District Court's judgment and is the
subject of this appeal. Route B was never the subject of
negotiations between Madison County and the Elfords and
Brewtons.
On August 6, 1981, the Madison County Attorney sent a
letter to the attorney representing the Elfords and Brewtons.
This letter contained an "or else" mandate that unless the
Elfords and Brewtons agreed to the conditions proposed by
Madison County concerning Route A, Madison County would
proceed to condemn Route B.
The Elfords and Brewtons did not agree to Madison
County's conditions, and a complaint was filed against them
on September 3, 1981. The complaint sought to condemn the
property along Route B owned by the Elfords and Brewtons. On
October 8, 1981, the District Court held a hearing to
determine, among other things, whether Route B was located in
a manner which would be most compatible with the greatest
public good and the least private injury.
Witnesses for Madison County included the county's chief
executive, Robert Storey, and a county commissioner, Marie
McAlear. Both witnesses testified that F-oute B was chosen
because it maximized the public good and caused the least
harm to the private landowners. On cross-examination,
however, both witnesses admitted that Madison County had not
determined in specific dollar amounts the cost of damages to
be paid to the landowners or the cost of construction for
either Route A or Route B. Robert Storey testified that a
comparison of prospective private injury was never made
between Route A and Route B. Both witnesses also admitted
that an appraiser was never hired by the County to compare
the routes in terms of greatest public good and least private
injury . In addition, the witnesses testified that when
Madison County estimated the cost of acquiring the
right-of-way, it considered only the amount of land actually
taken. The cost of damages to the remaining property was not
considered.
At the hearing, the Madison County Attorney questioned
several witnesses in an attempt to prove that a prescriptive
easement existed across the Elfords' and Brewtons' property.
Delbrook Lichtenerg, who lives on Burma Road, testified that
he had never been barred from using the road which is located
on the Elfords' land, but also admitted he had received the
Elfords' permission to use the road. Nick Narancich, another
neighbor of the Elfords and Brewtons, testified that he used
the road whenever he so desired. He also stated that gates
crossed the road at the entrances of both the Elfords' and
Brewtons' property, and that the gates were posted with "No
Trespassing" signs.
Near the end of the County's presentation of witnesses,
the attorney for the Elfords and Brewtons objected to the
introduction of testimony regarding a prescriptive easement.
The reasons for the objection were that the complaint did not
ask for a prescriptive easement and the Elfords and Brewtons
were not put on notice that they would be required to defend
that claim. The objection was overruled.
On January 5, 1982, the District Court filed its
findings of fact, conclusions of law and order, wherein the
court condemned Route B and found that a prescriptive
easement existed across the Elfords' and Brewtons' property.
A judgment was entered and notice of entry of judgment was
filed on January 14, 1982. On January 21, 1982, the Elfords
a.nd Brewtons filed a motion to stay the judgment; a motion to
amend the findings of fact, conclusions of law, and judgment;
and an a-lternativemotion for a new trial. The motions were
noticed up for hearing on January 27, 1982.
On January 25, 1982, Madison County filed a motion for
an additional finding of fact and conclusion of law that the
County had "properly determined a route for the road to be
condemned which is consistent with a bala-nce of the greatest
public good against the least private injury even in the
absence of a public prescriptive right-of-way across the
[Elford and Brewtonl property."
The hearing on the post-trial motions was held on
January 27, 1982. On February 17, 1982, the District Court
entered its order denying the Elfords' and Brewtons'
post-trial motions and adopting the County's proposed
additional finding of fact and conclusion of law.
Thereafter, the Elfords and Brewtons filed their timely
notice of appeal.
Four issues are presented for our review:
1. Did the County comply with the statutory
requirements of sections 7-14-2601, et seq. and 70-30-110,
MCA?
2. Was the District Court's finding of a public
prescriptive right-of-way proper?
3. Was the County's motion for additional findings of
fact and conclusions of law timely filed pursuant to Rule
52 (b), M.R.Civ.P.?
4. Is the District Court's additional findings of fact,
conclusions of law and order dated February 17, 1982, a
nullity?
The Elfords' and Brewtons' first allegation of error is
that the statutory requirements of section 7-14-2601, et
seq., MCA, which relate to the establishment, alteration, and
abandonment of county roads, were not followed by Madison
County. Madison County, on the other hand, contends that
section 7-14-2601, et seq., MCA, does not apply to this
proceeding and that this Court should analyze the lower
court's proceeding only in light of the eminent domain
requirements beginning at section 70-30-101, MCA. Madison
County's contention is in error.
When the right of eminent domain is invoked, the
provisions of the law granting the right must be complied
with. Housing Authority v. Bjork (1940), 109 Mont. 552, 556,
98 P.2d 324, 326. In this case, Madison County did not
comply with section 70-30-108, MCA, which states, "Nothing in
this code must be construed to abrogate or repeal any statute
providing for the taking of property in any city, town, or
county for road or street purposes. I
' Therefore, Madison
County must comply with the statutory provisions relating to
the establishment of county roads.
The County's statutory authority to acquire right-of-way
for county road purposes is found in section 7-14-2107, MCA,
which states,
"(1) Each Board of County Commissioners shall
contract, agree for, purchase, or otherwise
lawfully acquire right-of-way for county roads over
private property. It may institute proceedings
under Title 70, Chapter 30, paying for such
right-of-way from the county road fund.
"(2) Each board shall acquire rights-of-way for
county roads and discontinue - abandon them only
or
upon proper petition therefor.
"(3) By taking or accepting interests in real
property for county roads, the public acquires only
the right-of-way and the incidents necessary to
enjoying and maintaining it." (Emphasis added.)
Based upon this statute, counties have the statutory
authority to institute eminent domain proceedings for
acquiring right-of-way. The counties cannot, however,
exercise such authority without following the proper petition
procedure.
The Elfords and Brewtons argue that the petition
requesting the establishment of a county road did not comply
with the requirements of section 7-14-2602, MCA, and
therefore was not "proper" as required by section
7-14-2107(2), MCA. Section 7-14-2602, MCA, provides:
"Contents - petition.
of The petition must set
forth:
" (1) the particular road or roads to be opened,
established, constructed, changed, abandoned, or
discontinued;
" (2) the general route thereof;
"(3) the lands and owners affected;
" (4) whether the owners who can be found consent
thereto;
"(5) where consent is not given, the probable cost
of the right-of-way;
" (6) the necessity for and advantage of the
petitioned action."
The petition which was submitted in September 1980 to
the Board of County Commissioners (hereafter referred to as
"board") indicated the general route of the road, the land
affected, and the reasons why the road was necessary. At the
hearing, however, Robert Storey's testimony admitted that the
petition did not set forth the landowners affected, whether
those landowners consented to the right-of-way, or the
probable cost of the right-of-way. Based upon these
omissions, it cannot be said that the petition was proper.
After a proper petition is filed, the board is required
to "cause an investigation to be made of the feasibility,
desirability, and cost of granting the prayer of the
petition." Section 7-14-2603 (1), MCA. It appears that an
investigation was in fact made pursuant to statute, and
thereafter the board notified the Elfords and Brewtons and
other landowners affected that the board would hold a hearing
to consider the "Viewers' Report" of the land specified in
the petition.
The board is then required to make an entry of its
decision on the minutes, section 7-14-2603, MCA, and send
notice of its decision "to all owners of land abutting on the
r0a.d petitioned for." Section 7-14-2604, MCA. From the
record on appeal, it does not appear that the board made the
requisite formal decision to establish the road.
In November 1980, the board hired a surveyor to survey
the road pursuant to section 7-14-2606, MCA. The road which
was surveyed has been designated as Route A.
The board's next step in the statutory process is to
determine da-mages sustained by the landowners. This
procedure is set forth in section 7-14-2607, which states:
" (1) Whenever the board makes an order
establishing or changing any road, ---- the
it must find
amount of damages sustained by each owner or
claimantof lands or improvements thereon affected
by the road. Damages must be determined by
estimating the benefits and damages accruing. The
sum estimated as benefits must be deducted from the
sum estimated as damages, and the remainder, if
any, shall be the amount of damages awarded.
" (2) Damages shall be paid to the owner or
claimant, if known, upon his showing or
establishing his right or title to the lands or
improvements and furnishing proper deeds and
releases."
It is clear from the following testimony of Robert Storey
that the County did not comply with the requirements of this
statute:
"Q. When the County first received the petition to
establish that road, did the County, if I
understand your testimony, the County has never
determined damages or the benefit that would arise
should the County establish a road along the
proposed route (Route B) in regard to Mr. Brewton
and Mr. Elford, have they? A. At this time, no. "
The last statutory requirement with which the board must
comply is set forth in section 7-14-2608, MCA, which states:
"Effect - acceptance - rejection - award -
of or of of
damages.
" (1) If all awards are accepted, the board shall
declare the road a county road and open it.
" (2)(a) If any award of damages provided for in
7-14-2607 is not accepted within 20 days after the
date of the award, it shall be deemed rejected by
the owner.
" (b) The Board shall by order direct that
proceedings to procure the right-of-way be
instituted under Title 70, Chapter 30 by the County
Attorney against all non-accepting landowners.
"(c) In such proceedings it shall be made to
appear that the board shall have declared by
resolution that the right-of-way was necessary and
desirable. "
The record reveals that although the Elfords and Brewtons
were offered an award of damages for Route A, they were never
offered an award of damages for the land sought to be
condemned under Route B. This route was never the subject of
negotiations. In fact, the Elfords and Brewtons were not
aware that this route was being considered by the board until
they received the letter from the county attorney on August
6, 1981. Based upon this evidence, it is clear that the
County's actions in establishing a road did not comply with
section 7-14-2608, MCA.
Madison County argues that the above-mentioned "minor
procedural defects" should be cured by section 7-14-2609,
MCA, which states:
"Effect of failure to qive notice. The proceedings
providedfor in 7-14-2608 shall in no way be
affected or invalidated by the failure of the board
to give any notice or do any act provided for in
this part. Failure to give any such notice shall
not be considered by any court as a defense in any
proceedings for procuring right-of-way."
This statute, the County argues, demonstrates that
substantial compliance with the statutory procedure for
establishing roads is all that is required. The County's
argument is well taken, and appears to be the intent of the
legislature, which stated that the statutes were enacted
" [TIo provide sufficiently broad authority to enable the
highway officials at all levels of government to function
adequately and efficiently in all areas of their respective
responsibilities, subject -
to -
the limitations of
- the
-
constitution - -
and the legislative mandates hereinafter
imposed." (Emphasis added.) Ch. 1, $ 2 (4) in Ch. 197, Laws
of Montana (1965).
The legislature imposed upon counties the limitations
set forth in sections 7-14-2601 to 7-14-2608, MCA. If
counties were allowed to completely ignore the mandates of
the statutes, they would be of no legal consequence. This
could not have been the intent of the legislature.
Title 7, Ch. 14, MCA, generally requires the following
chain of events: 1) a proper petition is filed with the
County; 2) the County has the option of surveying the
specific route; 3) the County determines the affected
landowners and assesses their damages as provided for in
section 7-14-2607; 4) the County offers an award of damages;
5) if the award is rejected by the landowners, the countv
attorney is directed to begin condemnation proceedings.
Here, Madison County did not receive a proper petition.
An original survey was done by Madison County and an offer of
damages was made to the landowners for land along Route A.
Thereafter, instead of proceeding to condemnation on Route A,
the County conducted a second survey for Route B, made no
offer of compensation for land along Route B, and filed their
condemnation action. The County's proceedings did not in any
manner substantially comply with the mandates of Chapter 7,
Section 14, MCA.
Although the resolution of this issue disposes of the
case, we will also briefly discuss the issues of whether
Madison County complied with the statutory requirements of
section 70-30-110, MCA, and whether the District Court's
finding of a public prescriptive right-of-way was proper. We
hope that the discussion of these issues will help to avoid a
multiplicity of appeals.
Section 70-30-110, MCA, states that ". . . where land is
required for public use,. . . it must be located in the
manner which will be most compatible with the greatest public
good and the least private injury . . ." Although a
condemnor's decision as to choice of location is given great
weight, State ex rel. Livingston v. District Court (1931), 90
Mont. 191, 300 P. 916, his decision can be overturned if
clear and convincing proof is presented to show that the
taking is excessive or arbitrary. State Highway Commission
v. Crossen-Nissen Co. (1965), 145 Mont. 251, 400 P.2d 283.
In this instance, it appears that the County's choice of
routes was arbitrary. The County did not properly evaluate
and investigate the routes in accordance with the mandates of
section 70-30-110, MCA. At the October 8 hearing, Robert
Storey and Marie McAlear made statements that Route B would
maximize the public good and minimize the private injury.
However, the County later admitted that it did not
investigate or evaluate the prospective injury to the
Elfords' or Brewtons' property; nor did the County make any
comparison of prospective injury between Route A and Route B.
". . . when the condemnor fails to consider the question of
least private injury between alternate routes equal in terms
of public good, its action is arbitrary and amounts to an
abuse of discretion." City of Helena v. De Wolf (1973), 162
Mont. 57, 68, 508 P.2d 122, 129, citing State Highway
.&r~
Commission v. Daniel- (1965), 146 Mont. 539, 409 P.2d 443.
Based upon the record, it is difficult to ascertain which
route is superior in terms of public good. Lloyd Harkins,
the county's road foreman, testified that the distances along
Routes A and B were approximately the same. Nowhere in the
record does the County provide a comparison of the costs of
construction or the costs of acquiring the right-of-way
between Routes A and B. Without more specific information,
the District Court should not have found that Route B
maximized the public good and caused the least private
injury.
Finally, the Elfords and Brewtons argue that the
District Court erred in finding that a public prescriptive
easement exist across their respective properties. To
establish the existence of a public or private easement by
prescription, the party so claiming must show open,
notorious, exclusive, adverse, continuous and uninterrupted
use of the easement claimed for the full statutory period.
Taylor v. Petranek (1977), 173 Mont. 433, 568 P.2d 120.
Evidence presented by the County showed that several of the
Elfords' and Brewtons' neighbors used the road located on the
Elfords' and Brewtons' land. The witnesses also testified,
however, that the Elfords and Brewtons had given their
consent to use the road, and that gates posted with "No
Trespassing" signs crossed the road. This kind of use is not
adverse and does not create a public prescriptive easement.
Oates v. Knutson (1979), 182 Mont. 195, 595 P.2d 1181; Taylor
v. Petranek (1977), 173 Mont. 433, 568 P.2d 120; Ewan v.
Stenberg (1975), 168 Mont. 63, 541 P.2d 6 0 .
The judgment of the District Court is vacated and the
cause is dismissed.
Ct~.e.& Justice
We Concur:
\
I
Justices