No. 85-360
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
RALPH BAERTSCH; TERRY A. BROWNE and SUSAN G. BROWNE,
husband and wife; INGRAM-CLEVENGER, INC., a Montana
corporation; NORMA J. ANDRIOLO; CLINTON H. JENKS and
CLINTON H. JENKS and VICTORIA J. JENKS, husband and
wife; GEORGE RANDALL FRASER and MARY E. FRASER, husband
and wife; GERALD VERN EVANS and YVONE J. EVANS, husband
and wife; GEORGE A ALGARD and SUSAN E. ALGARD, husband
and wife; HAROLD R. CRANMER and JANET CRANMER, husband
and wife; CHARLES J. KASSNER; CARL SAMUEL PEIL and
PAMELA A. PEIL, husband and wife; FORREST A BAERTSCH:
MC HUGH LAND & LIVESTOCK CO., a Montana corporation;
PETER J. MC HUGH, JR. and MARY J. MC HUGH, husband and
wife; DAVID B. HAHN and CAROL W. HAHN, husband and wife,
Appellants,
COUNTY OF LEWIS AND CLARK, a political subdivision of the
State of Montana, and all other persons unknown, claiming
or who might claim any right, title, estate or interest in,
or lien or encumbrance upon, the real property described in
the Complaint, or any thereof, adverse to appellants' owner-
ship, or any cloud upon appellants' title thereto, whether
such claim or possible claim be present or contingent,
including any claim or possible claim of dower, inchoate or
accrued,
Respondents.
APPEAL FROM: District Court of the First Judicial District,
in and for the County of Lewis and Clark,
The Honorable Henry Loble, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Smith Law Firm, P.C.; Robert J. Sewell, Jr.,
Helena, Montana
For Respondent:
Mike McGrath, County Attorney, Helena, Montana,
Peter Funk, Deputy County Attorney, Helena,
Montana
Submitted on Briefs: ~ u g u s t7, 1986
Decided: September 12, 1986
- -
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from the judgment of the District
Court of the First Judicial District, in which the court
dismissed the landowners' complaint and declared Lewis and
Clark County the owner of the 100 foot right-of-way which
constitutes McHugh Drive near Helena, Montana. We reverse
and remand.
The controlling issue is whether the District Court
erred in dismissing the action as barred. The other issues
remain to be decided by the District Court on remand.
The facts in the present case are basically set forth in
the recent case of Ingram-Clevenger, Inc. v. Lewis and Clark
County (Mont. 1981), 6 3 6 P.2d. 1372, 38 St.Rep. 1696. In
Ingram-Clevenger, all of the landowners whose property is
adjacent to McHugh Drive petitioned the Commissioners of
Lewis and Clark County to abandon 40 feet of the right-of-
way, that being 20 feet on either side of the Drive. The
landowners contended that the statutory provision for aban-
donment of county roads was mandatory where all property
owners petitioned. The County Commissioners refused to
abandon any part of the Drive. The landowners were granted a
writ of mandamus by the District Court which directed the
County Commissioners to partially abandon McHugh Drive. We
concluded that the authority to aband.on on the part of the
County Commissioners was discretionary and that mandamus did
not lie. As a. result, in Ingram-Clevenger, no part of McHugh
Drive was abandoned. The judicial portion of the proceedings
in Ingram-Clevenqer were brought for judicial. review of the
administrative actions of the Lewis and Clark County Commis-
sioners under the Montana Administrative Procedures Act, and
for a peremptory writ of mandamus directed to the Commission-
ers. In the court proceedings, a petition was filed by the
landowners, the administrative record was submitted by stipu-
lation, and briefs and oral argument were presented by the
parties. No answer or response was filed by the County and
no evidence was submitted by the landowners on the question
of ownership of the Drive. The only issues in
Ingram-Clevenger were the propriety of the decision by the
County Commissioners not to abandon a portion of McHugh
Drive, and the appropriateness of mandamus.
After Ingram-Clevenger came down, essentially the same
landowners filed their complaint in the present action.
Their basic contentions were that McHugh Drive in its entire-
ty was never properly dedicated as a county road, the County
abandoned all that portion of the road right-of-way not
actually used for roadway and borrow pits, the landowners
have obtained title to the disputed portion of the right-
of-way by adverse possession, and the County's claim was
barred by equitable estoppel. The County raised the defense
of res judicata as well as other theories of defense. The
District Court concluded that res judicata was applicable,
and denied the prayer of the landowners, quieting title in
the County to the 100 foot right-of-way. The landowners
appeal.
Did the District Court err in dismissing the action as
barred?
The District Court held that Ingram-Clevenger barred
this action and that the affirmative defenses of res
judicata, the doctrine of merger, the rule against splitting
causes of action, and collateral estoppel were well taken.
This Court has previously held that:
Both the rule against splitting causes of action
and the doctrine of merger are inextricably related
to the principles of res judicata; and the applica-
tion of either to bar a subsequent action depends
upon the existence of a "valid. and final" prior
judgment. As was stated in Mervin v. F.T.C. (D.C.
Cir. 1978), 591 F.2d 821, 830:
"Principles of res judicata prevent
relitigation not only on the grounds or theo-
ries actually advanced, but also on those
which could have been advanced in the prior
litigation." (Citations omitted.)
Hughes v. Salo (Mont. 1983), 659 P.2d 270, 274, 40 St.Rep.
289, 295. Counsel and the trial judge did not specifically
address the defenses of merger, rule against splitting causes
of action, and collateral estoppel separate from the defense
of res judicata. As indicated in the foregoing quotation, we
conclude that the doctrine of merger and the rule against
splitting causes of action are inextricably related to the
principles of res judicata. So far as collateral estoppel is
concerned, no facts have been presented suggesting a basis
for estoppel separate from the other affirmative defenses.
We have applied a four element test in determining
whether or not a second action is barred under these circum-
stances, and we consider the same at the present time with
regard to all of such affirmative defenses: first, the
parties or their privies must be the same; second, the sub-
ject matter of the action must be the same; third, the issues
must be the same; fourth, the capacities of the persons must
be the same in reference to the subject matter and to the
issue between them. See State ex rel. Sullivan v. School
District (1935), 100 Mont. 468, 50 P.2d 252; Smith v. County
of Musselshell (1970), 155 Mont. 376, 472 P.2d 878; S-W Co.
v. John Wight, Inc. (1978), 179 Mont. 392, 587 P.2d 348;
Harris v. Harris (Mont. 1980), 616 P.2d 1099, 37 St-Rep.
1696.
The key element here is whether the issues are the same.
In Brannon v. Lewis and Clark County (1983), 193 Mont. 200,
387 P.2d 706, this Court approved the following language from
Phoenix Mutual Life Insurance Co. v. Rrainard (1928), 82
Mont. 39, 44, 265 P. 10, 12:
'Unless it clearly appears that the precise ques-
tion involved in the second case was raised and
determined in the former, the judgment is no bar to
the record action.'
Brannon, 143 Mont. 200, 207, 387 P.2d 706, 710-11.
In Ingram-Clevenger, the fundamental issue was whether
or not - landowners could compel the County to partially
all
abandon McHugh Drive. This Court concluded that the control-
ling statutes were discretionary and affirmed the denial of
abandonment by the County Commissioners. As a result, the
District Court decision in Ingram-Clevenqer granting mandamus
to the landowners was vacated.
In the present case the essential claims of the landown-
ers are that: (1) the instruments granting a 100 foot
right-of-way to the County in 1890 were conveyances and were
not properly recorded or indexed; (2) the County Commission-
ers failed to follow the statutory procedure in granting the
petition for roadway in 1890; (3) the County abandoned all of
that portion of the right-of-way not actually used for the
roadway and borrow pits; (4) the landowners have obtained the
disputed portion of the right-of-way by adverse possession;
(5) the doctrine of equitable estoppel bars the County's
claim to the 100 foot right-of-way; and (6) the doctrine of
res judicata bars the claim of the County as to some of the
landowners.
We conclude that the issues in the two cases are not the
same. In Ingram-Clevenger the request of the landowners was
for the vacation of a portion of McHugh Drive under the
statutory authority granted to the County Commissioners. The
title or ownership to the Drive was not in any manner in-
volved in that proceeding. In contrast, the essential claims
in the present case are issues relating to the title to the
McHugh Drive roadway itself. Such issues could not have been
properly presented as a part of the proceeding for vacation
of McHugh Drive. The Board of County Commissioners has no
authority to adjudicate title. Under the Administrative
Procedures Act, as stated in Ingram-Clevenger, the authority
of the District Court is limited to a consideration of the
proceedings before the County. We conclude that the issues
of the present action are not the same issues as in
Ingram-Clevenger. As a result the present action is not
barred under a theory of res judicata, merger, the rule
against splitting causes of action or the doctrine of equita-
ble estoppel.
We reverse the District Court and remand for trial of
the issues on the merits.
We Concur:
Justices
Mr. Justice John Conway Harrison, dissenting.
I dissent.
In Ingram-Clevenger we were asked to decide whether
county commissioners are statutorily mandated to abandon
county roads when petitioned by landowners, pursuant to
S 7-14-2601 et seq., MCA. We found the authority
discretionary. The commissioners concluded abandonment of 40
feet of the right-of-way of McHugh Lane was not in the best
interests of the county roads and the county road districts.
Regrettably the county did not move for summary
judgment based on the doctrine of res judicata. It did,
however, raise the doctrine as a defense, which I believe is
well taken. Certainly access to the courts to pursue a
lawful claim is central to our constitutional system. Of
equal importance to the functioning of the system, however,
is the notion that at some point litigation must come to an
end. In this case, that point was reached when we decided
Ingram-Clevenqer.
The practice of relitigation is condemned by the United
States Supreme Court. U.S. v. California and Oregon Land
Co., (1904), 192 U.S. 355, 24 S.Ct. 266, 48 L.Ed. 476, and
Grubb v. Public Utilities Commission of Ohio (1930), 281 U.S.
470, 50 S.Ct. 374, 74 L.Ed. 972. In the OregonLand case,
the United States brought an action claiming certain patents
it had granted to the California and Oregon Land Co. were
void because of a statute. The court ruled against the
United States. On the second try it claimed the statutes
were void because some of the property was on Indian Tribal
land. Mr. Justice Holmes, writing for the majority, stated:
The whole tendency of our decisions is to
require a plaintiff to try his whole
cause of action and his whole case at one
time. He cannot even split up his claim,
[citing cases] and, a fortiori, he cannot
divide the grounds of recovery.
Oregon Land, 192 U.S. at 358, 24 S.Ct. at 267, 48 L.Ed. at
In the Grubb case the plaintiff unsuccessfully sought
to restrain, through the state courts, enforcement of an
order allowing a license to operate a bus on all but a tiny
portion of a bus route. Plaintiff then brought suit in
federal district court alleging the order violated the
Commerce Clause of the United States Constitution. The suit
was dismissed. The United States Supreme Court, in upholding
the dismissal said:
[A] judgment on the merits in one suit is
res judicata in another where the parties
and subject-matter are the same, not only
as respects matters actually presented to
sustain or defeat the right asserted, but
also as respects any other available
matter which might have been presented to
that end.
Grubb, 281 U.S. at 4790, 50 S.Ct. at 378, 74 L.Ed. at 979.
The case at bar parallels Grubb. The appellants here
seek to gain title to the land bordering McHugh Lane. That
was the objective in Ingram-Clevenger. The parties in this
case were also parties in Inqram-Clevenqer. All theories of
recovery should have been raised in the first action.
We consistently have applied a four element test to
determine whether or not a second action is barred:
First, the parties or their privies must
be the same; second, the subject-matter
of the action must be the same; third,
the issues must be the same, and must
relate to the same subject-matter;
fourth, the capacities of the persons
must be the same in reference to the
subject-matter and to the issues between
them ...
State ex rel. Sullivan v. School District (1935), 100 Mont.
468, 472, 50 P.2d 252, 253. See also Harris v. ~ a r r i s (~ont.
1980), 616 p.2d 1099; S W CO. V. John Wight, Inc* (19781, 179
Mont. 392, 587 P.2d 348; Smith v. County of Musselshell
(1970), 155 Mont. 376, 472 P.2d 878.
Merely a cursory examination of the four elements shows
the parties or their privies are the same. Certainly the
subject matter, a 20 foot-wide strip of la.nd on either side
of McHugh Lane, is the same. The capacity of the persons in
reference to McHugh Lane is uncha.nged. The only element of
controversy is whether the issue is the same.
A careful analysis shows the justicible issue to be the
same. Appellants contend McHugh Lane was never properly
dedicated a county road, despite Ingram-Clevenger, which
says, "McHugh Lane was a properly dedicated county road with
a width of 100 feet", 636 P.2d at 1373. Judge Loble's
well-phrased order is equally clear:
The statutes concerning abandonment of
county roads, $ 7-14-2601 et seq., MCA,
contemplate that there must be a county
road. in existence before it can be
abandoned. How can it be otherwise? A
justicible controversy could not have
existed in Ingram-Clevenger if McHugh was
not an actual county road, 100 feet wide.
Clearly, there is a road, 100 feet wide.
Undaunted, the landowners now attempt to cloak
themselves in a different theory of recovery, arguing the
facts and purposes for which the first action was brought
constitute separate claims and res judicata does not apply.
This seems like a case of deja vu.
The facts are these: In 1980 the landowners petitioned
the county commissioners to abandon 20 feet on either side of
McHugh Lane. The county commissioners refused. An action
for mandamus was issued wherein the district court directed
the county commissioners to abandon part of the road. We
reversed, holding the statutes under which abandonment is
accomplished are discretionary, precluding mandamus. The
question is, what was the purpose or objective of the
landowners' first action? Certainly it was to force the
county commissioners to abandon 20 feet on either side of
McHugh Lane, not to have a determination of whether an action
by the county commissioners was discretionary or mandatory.
In 1982, the same property owners brought an action
claiming there really was no properly dedicated road, and
even if there were a properly dedicated road, 20 feet on
either side should have been declared not to be part of that
road. Notwithstanding the issues are phrased differently
this time around, the substance of the landowners' contention
is they want the county commissioners to abandon 20 feet on
either side of McHugh Lane. A cause of action cannot be
split in an attempt to prevail under a different theory the
second time around. Hughs v. Salo (Mont. 1983), 659 P.2d
270, 275, 40 St.Rep. 289, 295-96.
I would affirm.
Mr. Justice William E. Hu r., joins in the
foregoing dissent of Mr. Conway Harrison.