No. 85-160
IN THE SUPREME COURT OF THE STATE OF MONTAJYA
1985
BARBARA WITHERS,
Plaintiff and Appellant,
COUNTY OF BEAVERHEAD, MONTANA,
et al.
Defendants and Respondents.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable LeRoy McKinnon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James J. Screnar, Bozeman, Montana
For Respondent:
W. G. Gilbert, 111, County Attorney, Dillon, Montana
Submitted on Briefs: Sept. 19, 1985
Decided: NOV. 25, 1985
Filed: NOV 2 5 1985
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Barbara Withers petitioned the District Court of the
Fifth Judicial District, County of Beaverhead, to issue a
writ of mandamus commanding respondents, Beaverhead County,
its Commissioners and its Clerk and Recorder to file a deed
and certificate of survey transferring a parcel of property
from Barbara Withers to her daughter, Amy Withers. The
District Court denied the petition. We affirm the trial
judge's refusa.1 to grant the writ of mandamus.
Clark and Barbara Withers own land near Dillon, Montana.
The Withers have been attempting to divide the land and
convey parcels of it to various individuals for a number of
years. In the late 1970fs,Clark Withers submitted a six-lot
subdivision proposal to the Beaverhead County Planning Board.
That proposal was rejected by the Board as the proposed
subdivision was in the middle of valuable agricultural la.nd
and its development would result in leapfrogging.
Thereafter, the Withers sold individual parcels of the
proposed subdivision, apparently pursuant to 5 76-3-207(1),
MCA, which lists types of land transfers which are exempt
from the subdivision regulations unless they are made for the
purpose of evading those regulations. Clark Withers also
deed.ed 51.74 acres located near the original proposed
subdivision to his wife, Barbara. However, when the Withers
next sought to have recorded five certificates of survey for
parcels of land located between the proposed subdivision and
Barbara's acreage, the Clerk and Recorder refused, stating
that the transfers were attempts to evade the county's
subdivision regulations. Beaverhead County then instituted a
declaratory judgment suit to determine the nature of the
various land transfers.
A decision was issued in that case on January 14, 1-981,
declaring the recorded transfers to be valid. Regarding the
five certificates of survey the Clerk and Recorder refused to
record, Judge Gordon Bennett stated:
The Beaverhead County Commissioners have not acted
at all, insofar as this record discloses, with
regard to the question of whether the defendants in
seeking to record d.eeds in connection with [the 5
certificates of survey] are attempting to evade
subdivision requirements, or just trying to take
advantage of occasional, family and purported
"remainder" exemptions. If they are restricting
the clerk on recording the instruments relating to
these tracts without making such a determination
they are acting arbitrarily, capriciously and
unreasonably and without any authority in law. If
they have made such a decision, it should be
properly promulgated and communicated to the
defendants without further delay.
He then ordered in a judgment dated June 11, 1981:
2. That if and when future certificates of survey
or conveyance are presented to the commissioners of
Beaverhead County, they will announce their
conclusion in writing within thirty days, and after
hearing thereon if they deem it appropriate, as to
whether such certificates of survey or con~~eyance
are for the purpose of evading the Montana
Subdivision and Platting Act.
No further action was taken by the Withers until April
of 1982, when Barbara attempted to deed property to her
daughter, Amy Withers. The Clerk and Recorder refused to
record the deed, contending that it was an attempt to evade
the subdivision regulations. Acting on behalf of his wife,
Clark Withers submitted the matter to the County
Commissioners on July 7, 1982. The Commissioners advised the
Withers to present the deed for approval as a minor
subdivision, pursuant to county regulations. The Withers
submitted to the County Planning Board an incomplete
application for minor subdivision approval. Though
repeatedly told the application was incomplete, the Withers
did nothing else. Therefore, the Plat Review Committee
recommended to the Planning Board that the applicztion not be
approved. It was not.
The incomplete application was resubmitted to the
Planning Board by the Withers in January of 1983. Despite
numerous communications from the Board and the Committee, the
Withers again failed to complete the application and the
Committee again rejected the appl-ication. Thereafter, Clark
Withers withdrew the application and resubmitted the
certificate of survey and deed to the Clerk and Recorder for
recording. Once again she refused to record the deed.
Barbara Withers then petitioned the trial court to issue
a writ mandating that the deed to her daughter be recorded.
Following a hearing, Judge McKinnon issued findings of fact,
conclusions of law and a judgment on January 28, 1985,
denying petitioner's request. She appeals, raising the
following issues:
1. Whether the actions of the Clerk and Recorder of
Reaverhead County and the Commissioners in refusing to record
the deed from Barbara Withers to Amy Withers as an exempt
family transaction is arbitrary, capricious and in violation
of the law and of the judgment issued by Judge Bennett in
1981?
2. Whether the actions of the Clerk and Recorder and
the Commissioners are arbitrary, capricious and in violation
of the law, thus entitling appellant to a writ of mandate?
3. Whether the trial judge erred in permitting into
evidence exhibits 2, 3 , 5, 6, 7, 8, 9, 10, 23, 24, 25, 26 and
27 and the testimony surrounding them?
Barbara Withers contends that the Commission acted
arbitrarily and capriciously in refusing to record her deed.
Then, citing numerous Montana cases, she asserts that hecause
of the Commission's manifest abuse of discretion, a writ of
mandate should issue compelling the recording of her deed.
As a general rule mandamus is available only to
compel performance of a clear legal duty not
involving discretion. McCarten v. Sanderson, 111
Mont. 407, 109 P.2d 1108, 132 A.L.R. 1229. " But
even where discretion is involved, if there has
been such an abuse as to amount to no exercise of
discretion at all, mandamus will lie to compel the
proper exercise of the powers granted." Skaggs
Drug Centers v. Mont. Liquor Control Board, 146
Mont. 115, 124, 404 P.2d 511, 516. This court has
indicated that arbitrary or capricious action by an
administrative hoard is an abuse of discretion.
State ex rel. Sanders v. Hill (P.E.R.S.), 141 Mont.
558, 381 P.2d 475.
Paradise Rainbows v. Fish and Game Commission (1966), 148
Mont. 412, 417, 421 P.2d 717, 720.
The trial court found no abuse of discretion by the
County Commission. Therefore, since the act sought to be
compelled is discretionary, the writ of mandamus was not
issued.
We affirm the decision of the trial court. In his 1981
judgment, Judge Bennett essentially ordered the Beaverhead
County Commissioners to determine, in the event any
conveyance of land was attempted by the Withers in the
future, whether that conveyance would violate the county's
subdivision regulations. Pursuant to 5 76-3-501, MCA, the
County Commissioners established a procedure for ma.king that
determination. At the time Barbara attempted to convey this
parcel of land to her daughter, the procedure allowed the
Clerk and Recorder, pursuant to established guidelines and
subject to review, to determine whether the conveyance was an
attempt to evade those regulations. Such delegation of
authority by local governments is widely recognized and
approved so long as it is accompanied by guidelines for the
exercise of that authority. See C. Rhyne, The Law of Local
Government Operations (1980), S4.10 and 96.2. The Clerk and
Recorder determined the conveyance to be an attempted
evasion. On review of the decision, the Commissioners made
the same determination. Therefore, both the law and Judge
Bennett's order were followed.
Furthermore, there is substantial credible evidence to
support the determination. The evidence, as set forth below,
indicates that the Withers have been attempting to
"subdivide" their acreage outside Dillon, Montana, for a
number of years.
Since neither the Clerk and Recorder nor the County
Commissioners acted arbitrarily or capriciously in refusing
to record Barbara Withers' deed and since such a decision is
a discretionary function, a writ of mandamus shall not lie.
State ex rel. Barnes v. Town of Belgrade (1974), 164 Mont.
Finally, we see no error in the trial court's
consideration of evidence presented in the earlier case
before Judge Bennett, specifically certificates of survey
previously filed by the Withers and recorded and maps
illustrating how those certificates relate to the subdivision
earlier proposed by the Withers but denied by the County.
Relevant proof in a mandamus action was delineated by this
Court in Stabler v. Porter (1924), 72 Mont. 62, 66, 232 P.
"The applicant must in all cases substantially
demonstra-te the propriety and justice of his case.
Nor is the court bound to take the case as the
applicant presents it. It may consider defendant's
rights, the interest of third persons, the
importance or unimportance of the case, - - and the
applicant's conduct, in determining whether or not
the writ shall go [emphasis supplied]." Quoting 26
Cyc. 144.
The evidence complained of is very relevant to the
Withers' overall conduct with respect to their land holdings
during the past few years and is thus admissible. Rule 401,
M.R.Evid.
Affirmed.
We concur: