NO. 84--28
IN THE SUPREMF: COURT OF THE STATE OF MONTANA
1984
CARBON COUNTY, a political
subdivision of the State of
Plontana,
Plaintiff and Appellant,
ALBERT G. SCHWEND, et al. ,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Carbon,
The Honorable Diane G. Barz, Judge presiding.
COULSSEL OF RECORD:
For Appellant:
Hibbs, Sweeney, Colberg & Koessler; Jon E. Doak
argued, Billings, Montana
For Respondents :
Sandal1 & Cavan; Addison Sessions argued, Billings,
Montana (Parker, Schwend)
Moulton, Bellingham, Longo & Mather, Billings,
Montana (First Bank-Billings)
Gary L. Beiswanger, Billings, Montana (Burleson)
Peterson, Schofield & Leckie, Billings, Montana
Eugene & Ruth Tippets, pro se, Colstrip, Montana
Submitted: September 14, 1984
Decided: October 11, 1994
Filed: !JLi , 1 384
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Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Carbon County filed a lawsuit in the Thirteenth Judicial
District Court of Montana against Albert G. Schwend, et. al.,
in 1976, claiming a right-of-way over the Sage Creek Road.
Judgment was entered May 2, 1977, determining, among other
things, section three of Sage Creek Road not to be public.
On March 30, 1982, County filed an independent action in
equity, pursuant to the last sentence of Rule 60(b),
M.R.Civ.P., to reopen the 1977 judgment. County's complaint
was based on newly discovered evidence that the Carbon County
commissioners had, in 1912, dedicated section three of the
Sage Creek Road in accordance with the statutory provisions
for road dedication in effect in Montana at that time.
Defendants Schwend, Parker and Reed filed a motion for
judgment on the pleadings, to which County responded with a
motion for summary judgment. Following a hearing, the trial
judge issued an order on September 15, 1983, denying County's
motion and finding that (1) reasonable diligence would have
produced the "new evidence" in time for the 1976-77 lawsuit
and (2) the "new evidence" would not have altered the results
of the original trial. We affirm the order of the District
Court.
Section three of Sage Creek Road is basically an
undeveloped road located in the Pryor Mountains in the
southeast corner of Carbon County between the southern
boundary of the Crow Indian Reservation and the Wyoming state
line. It crosses Forest Service land in numerous locations,
as well as land owned by some of the defendants to this suit.
Carbon County began its efforts to have Sage Creek Road
determined open and public in 1966. However, that lawsuit
was dismissed for failure to prosecute in 1971. k private
attorney, William Jensen, was then hired by County in 1976 to
pursue its claim that Sage Creek Road is a county road.
There are three ways by which a road may become open and
public: common-law dedication by the private owners; adverse
user or prescription; and statutory dedication by the county.
In 1912, statutory dedication of public roads was controlled
by sections 1340 and 1341, R.C.M. 1907 and sections 1390
through 1410, R.C.M. 1907. Those sections set forth the
following requirements for the opening of a road:
1. A written petition, signed by any ten freeholders of
a road district and requesting that the road he opened, must
be presented to the county commissioners.
2. Three viewers must be appointed by the county
commissioners to view the road. They must also present a
report to the commission containing the estimated cost of the
opening and. their opinion as to whether or not the road
should be opened.
3. A hearing on the viewer's report must be held by the
county commission.
4. The county commission must declare by order that the
road is to be public and open and that order must be recorded.
in the commission's minutes.
5. If the county commission orders a survey of the
road, the county surveyor must survey and plat the road and
record his notes with the county clerk.
6. The county commission must determine the appropriate
compensation to be given the owners of the affected land and
order payment of that compensation.
In preparation for the 1976-77 lawsuit, Jensen reviewed
the Carbon County road index, the Carbon County road books
and the Carbon County surveyor files. He also interviewed:
Carbon County commissioners; Emery Lufkin, an original
homesteader in the area; and Craig Silvernale, a Forest
Service lands specialist. Mr. Lufkin, now deceased, stated
in a deposition that the road had never been a county road.
No Forest Service records brought to Jensen's attention by
Silvernale supported County's claim. In short, little or no
evidence of Sage Creek Road becoming a county road by any of
the three methods was found, and County lost its 1976-77
lawsuit.
In August 1981, Gary Wetzsteon, a Forest Service lands
specialist who replaced Silvernal-e when he retired, informed
Jensen that the Forest Service had discovered references to a
1912 county proceeding to dedicate the Sage Creek Road. In
an affidavit, Wetzsteon stated that Mr. Eugene Tipperts
brought him a 1912 map of Carbon County showing Sage Creek
Road to be a county road and a.sked him to pursue an
investigation to determine whether the Sage Creek Road was in
fact statutorily dedicated as a county road. That map had
been introduced by County as an exhibit in the 1976-77 trial.
The 1912 map contained the names of all settlers along
the Sage Creek Road, so Wetzsteon reviewed all Forest Service
documents concerning those homestead entries. The documents
were in Seattle. Those files made specific reference to
proceedings before the county commissioners concerning the
Sage Creek Road during the summer and fall of 1912.
Therefore, Wetzsteon had George Schaller review all records
of proceedings of that commission for calendar year 1912.
Mr. Schaller found a petition requesting that the road be
dedicated, a viewers' report of the road and the following
four entries in the commissions' minutes referring to the
Sage Creek Road.
June loth, 1912 - "Road petition signed by Henry
Spencer and others for road running up Sage Creek
was examined and the following were named to view
said road; C.R.. Beeler, John Brimrner and Chas.
Lufkins. "
June 26th, 1912 - "Viewers report on Sage Creek
road was examined and the 25th day of June (sic -
July) was the day set for hearing on said road."
July 25th, 1912 - "Hearing on viewers report on
Sage Creek road was taken up and report approved
and County Surveyor was instructed to survey and
plat said road as a county road."
October 3rd, 1912 - "Government Supervisor Smith of
this Division appeared before the Board and
explained that he had at his disposal $1000 - a
portion of the money distributed Montana from
Forest Receive Sales; this money to be expended on
improvement of roads in the Sage Creek country he -
suggested that the County and Government unite on
improving the Sage Creek Road -- an order was made
by the Commissioners whereby Road Supervisor Beeler
be authorized to do not to exceed $500 .OO work on
the said road.
"Surveyor was instructed to survey the said road &
make an estimate of the work to be done thereon."
No survey or plat of the road was ever located.
On the basis of the information presented Jensen by
Wetzsteon, County sought to reopen the 1977 judgment. The
District Court refused to do so and County appeals. Numerous
issues are raised. However, the only issues relevant to this
decision are:
1. Did County carry the burden of showing that it
exercised reasonable or due diligence in attempting to
discover the "new evidence" prior to the 1976 lawsuit?
2. Would the "newly discovered evidence" have produced
a different result in the 1976 trial?
A basic criteria for granting new trials on newly
discovered evidence is that the newly discovered evidence
could not have been discovered and produced at trial with the
exercise of reasonable or due diligence. Kartes v. Kartes
(1977), 175 Mont. 210, 214, 573 P.2d 191, 193. County
contends that the exercise of reasonable and due diligence by
its attorney prior to the 1976-77 lawsuit failed to produce
the necessary evidence for determining that the road had been
statutorily dedicated.
Jensen reviewed the records in which County's clerk had
a duty to record any reference to statutory dedication of a
road, duly examined living witnesses most likely to have
firsthand knowl-edge of such a statutory dedication and souqht
all relevant information from the Forest Service. However,
despite the statutory mandates that roa.ds may only be opened
by order of the county commission and that such orders must
be recorded in the commission's minutes, as well as
information indicating that such an order may have been made
in 1912, County's attorney failed to search the commission's
1912 minutes until 1981.
The 1912 commission's minutes, the petition for the road
and the road viewer's report have all been in County's
possession since 1912. A diligent search in 1976 would. have
resulted in their discovery. "Where the moving party in a
motion for new trial on the ground of 'newly discovered'
evidence has had the books and documents in possession, from
which he later 'discovers' the 'new evidence', the motion
will be denied, even though the evidence itself may be
material. Rand v. Kipp (1902), 27 Mont. 138, 142, 69 P.
714." Martes, 175 Mont. at 215, 573 P.2d at 194.
Although material., the evidence discovered in 1981 is
neither complete nor decisive with respect to whether or not
Sage Creek Road was statutorily dedicated in 1912. However,
our decisions, in Rand, supra, and Kartes, supra, make it
unnecessary to determine the question of whether the evidence
would have produced a different result at the 1976 trial.
The trial court judge has wide discretion in determining
whether or not to grant a motion for a new trial on the basis
of newly discovered evidence. Kerrigan v. Kerrigan (1943),
115 Mont. 136, 139 P.2d 533. The trial court judge did not
abuse her discretion in the case at bar. The October 6, 1983
order of partial summary judgment by the District Court
denying County's motion for a new tria
w
We concur:
Chief Justice