No. 8 5 - 0 2
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
- ..,.
ALLEN SHELDON and JANET SHELDON,
Pla.intiffs and. Appellants,
FLATHEAD COUNTY, et al.
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable J. M. Salansky, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hash, Jellison, O'Brien & Bartlett; James C. Bartlett,
Kalispell, Montana
For Respondent:
Ted 0 . Lympus, County Attorney, Kalispell, Montana
Lane K. Bennett, Deputy County Attorney, Kalispell
Submitted on briefs: May 30, 1 9 8 5
Decided: October 15, 1985
Filed: DGT 15 1985
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Plaintiffs appeill a judgment entered against them in
the Eleventh Judicial District, Flathead County, on October
16, 1984, following a bench trial on an action to quiet
title. The court decreed that Patrick Creek Road is a
sixty-foot-wide declared county right-of-way and public road
in its entirety and as it crosses plaintiffs' real property.
We affirm. We hold that Reid v. Park County (1981),
627 P.2d 3210, 38 St.Rep. 631, controls and that it is suffi-
cient if the record as a whole supports a finding that a
public road was created in 1902. Here, the record supports
the finding that Patrick Creek Road was statutorily created
and declared a county road. Pursuant to section 2602, Mon-
tana Political Code of 1895, j t had the statutory width of
.
sixty feet when proceedings were silent as to the width of
the right-of-way.
The issue upon appeal is whether the court properly
determined Patrick Creek Road, as it passes through plain-
tiffs' property, to be a statutory road mandating a finding
of a sixty-foot right-of-way, or whether it is a road by
prescription with a prescriptive easement limited to width of
actual use.
In 1962 Allen and Janet Sheldon purchased real property
in Flathead County, Montana. Patrick Creek Road passed
through their property, a country road which was about "wagon
wheel" width, i.e., twenty-five feet, for the past eighty
years. A predecessor in interest, H. H. Disbrow, had signed
a petition to the county commissioners on April 28, 1902,
al-ong with at least nine other freeholders in the Patrick
Creek area, initiating proceedings under sections 2750
through 2771, Montana Political Code of 1895, to create a
statutory road. The petition requested the establishment of
a new highway in Road District No. 8 on the basis of public
necessity, convenience and welfare, and recommended a general
route which at Disbrow's property would run "thence in a
Southerly course up and along said creek to the South line of
section 18. .. ."
The proposed highway was to extend through the property
of Mrs. Emma Ingalls, Charles Conger, PI. Zeller, P. C.
McStravick, C. J. W. Bolton, H. H. Disbrow and the "N. P. Ry.
Co." as to section 7. Bolton and Zeller were noted on the
petition as making no claims for damages. According to
statute, the county commissioners issued a "Warrant to View-
ers" on April 30, 1902, to begin to view and mark out the
road, perform required duties an make report according to
law.
Three viewers obtained written statements from the
property owners who were home on May 16, 1902, and on the
same day filed the report of viewers to the board. of county
commissioners. On May 16, 1902, Disbrow executed a consent
giving right-of-way: "I, H H Disbro [sicl agree to give rite
of way [sic] for County Road threw [sicl the west 1/2 of N.
W. 1/4 of Sec 18 T22 R21N on East side of Lost Cr threw [sic]
my land [signed] H. H. Disbrow." Conger agreed to sell "rite
of ways on recourded [sic] route for $30.00 [per acrel and on
petitioned rout [sic] for $22.50 [per acrel . . . ." Bolton
agreed to give "60 foot rite of way," and Catherine ("Cate")
McStravick agreed to give "60 ft rite of way for County
Road," signing in her own name and "per P C McStravick."
Ellen McCarthy stated that she "will" sell the right-of-way
for sixty-foot county road through her land.
Although these conveyances of the right-of-way were not
recorded, they were in the file on the road in the county
clerk and recorder's office. The commissioners held a public
hearing and on June 20, 1902, ordered the county surveyor,
B. S. Adams, to survey the road. Because of the surveyor's
inaction, the commissioners decided to go down on August 18,
1302, look over the proposed road and help open it. The
commissioners' journal entry of November 17, 1902, noted
acceptance of the landowners' petition, declared the roadway
a public highway and ordered it open. Following further
inaction, the commissioners ordered J. B. Gibson, county
surveyor, to survey in 1904, which he finally did on October
17, 18 and 19, 1904. The surveyor's record of survey based
upon his field notes located the road on the east side of the
creek in Section 18.
Sheldons filed a complaint to quiet title on the road
on April 9, 1.982. The court held trial without a jury on July
19, 1984. The only witnesses were Allen and Janet Sheldon
and Joan Beck, Chief Deputy of the Plat Room, Clerk and
Recorder's Office, Flathead County.
The Sheldons testified that they purchased the nearly
3-60 acres in Section 18 in 1962. The porch of their dwell-
ing, a log house built in about 1902, is about thirty feet
from the edge of the traveled portion of the road. The road
consists mainly of dirt, very little gravel, and has always
been twenty-five-feet wide. In grading the road, the mainte-
nance crews have ignored Sheldons' demands not to push the
road wider. Sheldons testified that they received money from
the federal government for the grant of a sixty-foot easement
on a sixty-foot length of the road, "with the thinking that
they quit using the road, that the property would go back to
twenty-five feet, and it would be back to our iurisdiction."
Appellants contend that while the county may have
sought to take all necessary legal steps to esta.blish a.
statutorily created public highway, it ignored or failed to
comply with many required steps. Appellants claim that the
roadway passing through their property was not created by any
formal action of the State of Montana and that the existing
public road was acquired by prescriptive use, limited to the
greatest width actually used.
We disagree. This record, taken as a whole, shows that
a public road was created pursuant to the standard of Reid v.
Park County (pllont. 1981), 627 P.2d 1210, 38 St.Rep. 631.
There we he1.d that the county was not required to prove on
the face of the record that public officials had jurisdiction
to create a public road if the record, taken as a whole,
shows that a public road was created. Reid, 627 P.2d at
1213. We recognized that the curative statute (now re-
pealed), § 32-103, RCM (1947), cured procedural defects which
were not jurisdictional if the county had shown obvious
efforts on the record to establish a road. Reid, 627 P.2d at
We adopted the rule:
. .. it is sufficient if the record
taken as a whole, shows that a public
road was created. Otherwise, the burden
on the public in a particular case to
prove a public road was crea.ted so many
years ago may well be unsurmountable.
... [ilf we did not now overrule
Auchard and Warren on the jurisdictional
issue, a private landowner may, in a
particular case, be able to keep the
public from going through land because
the public's records of a road no longer
support a determination that the public
had originally acquired jurisdiction to
create the road.
Reid, 627 P.2d at 1213, overruling Warren v. Choteau County
(1928), 82 Mont. 115, 265 P. 676, and State v. Auchard
(1898), 22 Mont. 14, 55 P. 361.
The record in this case (and the historical events in
question) is more sufficient than what we were presented with
in Reid to support the jurisdiction of the county and the
statutory creation of Patrick. Creek Road. The entry in the
commissioners journal on November 17, 1902, stated, " [tlhe
petition is hereby accepted, road declared. a public highway
and ordered open." The record contains the actual petition
signed by more than twenty residents of the area, including
appellants~redecessor in interest, Disbrow. In Reid the
county failed to produce any copy of the petition or show one
was signed by the requisite ten qualified petitioners. Here,
the record supports a finding that Disbrow agreed to give the
right-of-way for a road on the east side of the creek where
the road was actually located.
Disbrow signed the petition with the other residents
because they needed a road. In expecting the county to
perform, they were requesting a statutorily created public
road, which was ordered open by an official act of the com-
missioners. In Reid, there was no evidence of deeds or
grants of right-of-way on the record. Here, Disbrow and
others executed written consents after requesting the road.
The viewers' report also noted those who agreed to give
right-of-way, including Disbrow.
Disbrow gave his consent for the right-of-way on May
16, 1902. Nearly eighty years later Sheldons filed this
action to quiet title. This passage of time further estops
the appellants, and those who may claim under them, from
challenging the existence of the statutory road.
The historical events in question, as well as the
record, support the District Court's conclusion that Patrick
Creek Road is a statutorily created public road. Section
2602, Montana Political Code of 1895, declares that the width
of all public highways must be at least sixty feet. Where
there are any procedura.1 defects in the statutory proceed-
ings, the curative statute (now repealed), section 32-103,
R.C.M. 1947, cures the defect, e.g., the failure to declare
it a sixty-foot-wide public road, pursuant to 2602, Montana
Political Code of 1895.
The rule we adopted in Reid was in recognition of the
burden today of tracing records back so long ago which were
based upon the best efforts of sometimes less procedurally
sophisticated county governments. We find no reason to
overturn the District Court where the evidence does not
preponderate against the findings (Matos v. Rohrer (Mont.
1.983), 661 P.2d 443, 450, 40 St.Rep. 366, 375) and where we
have clear precedent to affirm the judgment.
Affirmed.
We concur: