No..
.~- 91-062
.- - - -
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
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 VICTORIA J. JENKS,
husband and wife; GEORGE RANDALL FRASER and MARY E. FRASER,
husband and wife; GERALD VERN EVANS and WONE J. EVANS,
husband and wife; GEORGE A. ALGARD and SUSAN E. ALGARD,
husband and wife; HAROLD F. CRANMER and JANET CRANMER,
husband and wife; CHARLES J. KASSNER; CARL SAMUEL PEIL and
PAMELA A. PEIL, husband and wife; FORREST A. BAERTSCH;
McHUGH LAND & LIVESTOCK CO., a Montana corporation;
PETER J. McHUGH, JR. and MARY J. McHUGH, husband and wife;
DAVID B. HAHN and CAROL W. HAHN, husband and wife,
Plaintiffs and 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 plaintiffsp ownership,
or any cloud upon plaintiffsp title thereto, whether such claim
or possible claim be present or contingent, including any claim
or possible claim of dower, inchoate or accrued,
Defendant and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
R. J. ppJimpp
Sewell, Jr., Lewis Smith,
Smith Law Firm, Helena, Montana
For Respondent:
Michael McGrath, Lewis and Clark County
Attorney, K. Paul Stahl, Deputy County
Attorney, Helena, Montana
Submitted on Briefs: May 14, 1992
DEC 3 0 1992 p
i
i
Decided: December 30, 1992
Justice William E. Hunt, Sr., delivered the opinion of the Court.
This is an appeal from the judgment of the District Court of
the First Judicial District, Lewis and Clark County. Plaintiffs,
a group of landowners owning property adjacent to McHugh Drive near
Helena (landowners), brought suit against defendant Lewis and Clark
County (County) over a dispute regarding the right-of-way to McHugh
Drive. The County claims a 100-foot right-of-way easement for
McHugh Drive. The landowners contend, based on various legal
theories, that the right-of-way is considerably less than 100 feet.
The District Court found in favor of the County under all arguments
presented by the landowners, with the exception of the landowners'
argument based on res judicata. However, not all of the landowners
prevailed under the District Court's application of the doctrine of
res judicata. The landowners appeal from the judgment of the
District Court. We affirm.
The landowners present the following issues for consideration
by this Court:
1. Did the District Court err in determining that the 1890
conveyances granting the County a 100-foot right-of-way were
properly recorded so as to impart constructive notice of their
contents to the general public?
2. Did the District Court err in determining that the
original dedication of the 100-foot right-of-way in 1890 was done
in accordance with the proper statutory procedure?
3. Did the District Court err in determining that the County
had not abandoned the disputed portion of the right-of-way?
4. Did the District Court err in determining that the
landowners, through their predecessors in interest, did not acquire
ownership of the disputed portion of the right-of-way by adverse
possession?
5. Did the District Court err in determining that the
County's claim to the disputed right-of-way was not barred by the
doctrine of equitable estoppel?
6. Did the District Court err in determining that the
doctrine of res judicata did not bar the County's claim to the
disputed right-of-way as to some of the landowners?
The landowners' appeal presently before this Court is the
latest development in what has been a lengthy dispute between the
parties over the right-of-way to McHugh Drive. The relevant facts
of this case have previously been set out in two prior decisions of
this Court. The first decision in this matter was Ingram-
Clevenger, Inc. v. Lewis and Clark County (1981), 194 Mont. 43, 636
P.2d 1372. In Insram-Clevenser, we set out the factual and
procedural history of the case stating that:
McHugh Lane (or Drive) is a county road running
north-south through the Helena Valley. In 1890, Lewis
and Clark County was granted a 100-foot right-of-way to
establish the road.
On June 6, 1980, plaintiffs presented the board of
county commissioners with a petition signed by every
landowner owning property adjacent to McHugh Lane. The
petition requested that the County abandon forty feet of
the McHugh Lane right-of-way (twenty feet on each side).
The petition was discussed at a regularly scheduled and
noticed hearing of the Lewis and Clark County
Commissioners on July 22, 1980. At this time, the
commissioners found the petition to be in proper form
required under section 7-14-2602, MCA, a finding
reiterated in defendant's brief. The commissioners
denied the petition.
On August 22, 1980, plaintiffs filed suit, seeking
a peremptory writ of mandamus against Lewis and Clark
County, the board of county commissioners and the three
county commissioners. Oral argument as tothe applicable
law was heard on September 3, 1980. Briefs were
submitted at the District Court judge's request. On
October 20, 1980, the District Court issued its order and
opinion, granting plaintiffs' writ of mandate and
directing the board of county commissioners to forthwith
grant the petition to partially abandon McHugh Lane.
Inaram-Clevenaer, 636 P.2d at 1373.
The County brought an appeal from the District Court's order
granting plaintiffs' writ of mandamus. In Inaram-Clevenaer, for
reasons not important to the present appeal, this Court vacated the
order of the District Court, finding that mandamus did not lie.
Following this Court's decision in Inaram-Clevenaer, the
plaintiffs brought an action on April 29, 1982, for declaration
that they had obtained title to the disputed portion of the
100-foot right-of-way. The issues raised in that suit are
essentially the same issues raised on this appeal. The County
raised the defense of res judicata to the plaintiffs' action,
alleging that this Court's decision in Inaram-Clevenaer barred the
plaintiffs' action. The District Court agreed. Following a bench
trial the District Court dismissed the landownersf complaint, and
quieted title in the County to the 100-foot right-of-way. The
landowners brought an appeal from the judgment of the District
Court, and in Baertsch v. County of Lewis and Clark (1986), 223
Mont. 206, 727 P.2d 504, this Court reversed the judgment of the
District Court. In Baertsch, we stated that:
We conclude that the issues in the two cases are not
the same. In Incrram-Clevencrer 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 involved 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.
Baertsch, 727 P.2d at 506-07.
In Baertsch, we determined that the plaintiffst action was not
barred by the doctrine of res judicata and remanded for trial of
the issues on the merits. Upon remand, the parties agreed to
submit the matter to the District Court for a decision on the
merits of landownerst allegations based on briefs, oral argument,
and the prior trial record. Oral argument was held on May 3, 1990.
The parties were given 30 days to file findings at which time the
matter would be deemed submitted for decision. On November 16,
1990, the District Court filed lengthy and detailed findings of
fact, conclusions of law, and order in this matter. The District
Court found in favor of the County under all legal theories raised
by landowners, with the exception that certain of the landowners
prevailed on the theory of res judicata. Landowners brought this
appeal.
I
Did the District Court err in determining that the 1890
conveyances granting the County a 100-foot right-of-way were
properly recorded so as to impart constructive notice of their
contents to the general public?
The parties disagree as to the appropriate standard of review
to be utilized by this Court in this case. On appeal, this Court
will not set aside factual determinations made by a district court
sitting without a jury unless they are clearly erroneous. Rule
52(a), M.R.Civ.P. Concerning our review of conclusions of law,
this Court will simply determine whether the lower court's
interpretation of the law was correct. We are not bound by the
trial court's conclusions and remain free to reach our own. Schaub
v. Vita Rich Dairy (1989), 236 Mont. 389, 770 P.2d 522.
The petition for Forestvale Road (now McHugh Drive), granted
in 1890 by the county commissioners, was never filed as a
conveyance. Landowners contend that the 1890 documents granting
the disputed right-of-way to the County were not properly recorded
and indexed as conveyances, and therefore, failed to give adequate
notice to the public that the right-of-way was 100 feet. Pursuant
to various sections of the 1887 Compiled Statutes of Montana (CSM)
which governed in 1890, all conveyances that were not recorded and
indexed as required by law were void against any subsequent
purchasers in good faith and for valuable consideration. The
District Court found that the original petition and accompanying
deeds were not recorded or indexed as conveyances.
The County argues that the 1890 documents creating the
right-of-way did not have to be recorded and indexed as
conveyances. The County contends that 5 1823, CSM (1887), as the
specific statute governing the creation of roads, sets out the only
procedure necessary for the creation of roads. Section 1823, CSM
(1887), provides that:
Whenever a petition shall be presented to the board
of county commissioners of any county of this territory
praying for a public highway, and the names of all the
owners of all the land through which said road is to be
laid out, shall be signed thereat, giving the right of
way through the lands, and accompanied by a plat of the
road, it shall be the duty of the county commissioners,
if in their opinion the public good requires it, to
declare the same a public highway, and thereu~onthe ~ l a t
shall be filed and recorded. and the same shall become a
public hiahwav from and after that date. [Emphasis
added. ]
Landowners contend the filing and recording of the plat as
described in § 1823, CSM (1887), is in addition to the recording
and indexing as a conveyance. The District Court agreed with the
County. The District Court stated that:
This specific statute on the creation of public
rights-of-way for counties takes precedence over any
other statute dealing with recording or indexing
conveyances. According to Section 1823, the plat shall
be filed and recorded. It is uncontested that the plat
was filed and recorded. Defendantst Exhibit M, Road
Index, and Plat Book 1, page 38, Defendantst Exhibit 0.
The statutes under which the county commissioners were
operating in 1890 were met. There is no requirement that
the petition, plat, or deeds be filed anB recorded as
conveyances. The terms of the specific statute on how to
create a road take precedence over the more general
statute on recording conveyances.
Landowners point out that pursuant to the existing statutes
the filing and recording of the plat as described in 5 1823 was Itto
be recorded in the office of the county clerk and recorder in the
book kept for that purpose." Section 1817, CSM (1887). Landowners
presented evidence that the record book of roads was not always
kept in the clerk and recorder's office, and therefore, the public
was not put on notice of the 100-foot right-of-way claimed by the
County. The County presented evidence that although the book was
not always kept in the office of the clerk and recorder, the
location of the book was always known and available to the public.
Clearly the statutes in question were not models of clarity.
Additionally, there was conflicting testimony as to the location
and availability of the record book over the years. However, the
District Court, after having had the opportunity to listen to and
observe the testimony of the witnesses, determined that the
procedural requirements of the statute had been satisfied. We
cannot say that the decision of the District Court was clearly
erroneous.
II
Did the District Court err in determining that the original
dedication of the 100-foot right-of-way in 1890 was done in
accordance with the proper statutory procedure?
Section 1822, CSM (1887), provided that unless otherwise
ordered by the board of county commissioners, all public highways
created in the Territory of Montana shall be 60 feet in width.
Landowners contend that the county commissioners acting in 1890 did
not specifically order the public highway in the present location
of McHugh Drive to be 100 feet in width, and therefore, the width
is only 60 feet, as provided by the statute governing at the time.
However, the petition, plat, and dedication presented to the county
commissioners in 1890 all showed that the right-of-way was 100
feet. Specifically, the petition read in part that "said public
road or highway should be 100 feet wide, being fifty feet wide on
each side of said quarter section line . . . . The county
commissioners granted the petition. We hold that the District
Court was correct in concluding that the county commissioners, in
grantingthe petition, "were obviously granting its contents, which
was a request for a 100-foot right-of-way."
I11
Did the District Court err in determining that the County had
not abandoned the disputed portion of the right-of-way?
Landowners contend that the County abandoned all but 60 feet
of the right-of-way. The District Court disagreed, concluding that
the evidence was neither decisive nor conclusive that the County
intended to abandon the full right-of-way. Additionally, the
District Court concluded that the statute concerning abandonment of
County roads had not been met. Section 7-14-2615, MCA, sets forth
the procedure for abandoning county roads and provides that:
(1) All county roads once established must continue
to be county roads until abandoned or vacated by:
(a) operation of law;
(b) judgment of a court of competent jurisdiction;
or
(c) the order of the board.
(2) No order to abandon any county road shall be
valid unless preceded by notice! and public hearing.
One of the elements necessary t o prove abandonment of public
.
property by governmental entities is a showing of a clear intent to
abandon. The conduct claimed to demonstrate this intent must be of
character so decisive and conclusive as to indicate a clear intent
to abandon. Rumph v. Dale Edwards, Inc. (1979), 183 Mont. 359, 600
P.2d 163. The conduct must be some affirmative official act, and
not mere implication. Mere nonuse, even for extended periods of
time, is generally insufficient, by itself, to indicate an intent
to abandon. City of Billings v. 0. E. Lee Co. (1975), 168 Mont.
264, 542 P.2d 97. The District Court's finding that the County had
not manifested any intent to abandon the disputed portion of the
right-of-way is not clearly erroneous.
Did the District Court err in determining that the landowners,
through their predecessors in interest, did not acquire ownership
of the disputed portion of the right-of-way by adverse possession?
Landowners contend that they have satisfied the requirements
for obtaining land by adverse possession. The County responds by
arguing that Montana law provides that title to public roads may
not be obtained by adverse possession. The general rule concerning
adverse possession of public roads, followed in the majority of
jurisdictions, is that:
It is a widely accepted general rule, sometimes
embodied in statute, that the statute of limitations does
not run in favor of those who occupy property held for
public use as a street or highway, and that title cannot
be acquired thereto by such occupancy, no matter how long
occupancy has been continued and whatever may have been
its character. So, it has been held that the rights of
the public in its highways cannot be lost by acquiescence
in the use or occupation thereof by individuals, even
though such highways have not been opened or used.
3 Am. Jur. 2d Adverse Possession § 271 (1986). A minority of
jurisdictions take the view that public roads may be acquired by
adverse possession in some situations.
Montana law in this area clearly follows the general rule that
title to public roads may not be obtained by adverse possession.
In City of Billings v Pierce Packing Company (1945), 117 Mont.
.
255, 161 P.2d 636, this Court held that public roads may not be
obtained by adverse possession. Pierce Packinq is still the law of
Montana today and we decline to adopt the landowners' suggestion
that Montana join the minority of jurisdictions which allow title
to public roads to be obtained by adverse possession. We hold that
the District Court was correct in concluding that landowners did
not obtain title to the disputed right-of-way through adverse
possession.
v
Did the District Court err in determining that the County's
claim to the disputed right-of-way was not barred by the doctrine
of equitable estoppel?
Landowners contend that the County is equitably estopped from
claiming title to the 100-foot right-of-way to McHugh Drive.
Landowners have placed various improvements within the 100-foot
right-of-way claimed by the County. Landowners contend that based
upon the conduct of the County and the nature of the improvements,
that the County must be equitably estopped from claiming title in
order to prevent a manifest injustice to the landowners.
The County argues that equitable estoppel will only be used
against public property in exceptional cases and then only with
great caution. Pierce Packinq, 161 P.2d at 640. The County
contends equitable estoppel against a governmental entity is looked
upon with great disfavor, even in situations in which there may be
some wrongful conduct on the part of government officials.
Chennault v Sager (1980), 187 Mont. 455, 610 P.2d 173.
. The
District Court relied heavily on this Court's opinion in Pierce
Packinq wherein we stated that:
"But where the road has been established and continually
used, the mere fact that the fences bordering it are not
on the true line and the portion beyond has been occupied
by the landowner up to the fence and not made use of by
the public will not work an estoppel against the public,
but the entire width of the highway may be appropriated
by the public whenever required for the purposes of
travel .... 'I
Pierce Packinq, 161 P.2d at 639.
The rationale underlying the general rule that equitable
estoppel is not applicable against governmental entities is the
overwhelming interest of the public in maintaining public lands.
This Court has stated that "[ilrrespective of the negligence of
public employees and officials, however, the foremost consideration
in our minds lies with the protection of the public interest."
Chennault, 610 P.2d at 177. Public roads in particular are
protected in that "[nlo other kind of public property is subject to
more persistent and insidious attacks or is less diligently guarded
against seizure." Pierce Packinq, 161 P.2d at 640.
Landowners point out that this Court has previously recognized
that a governmental entity may be equitably estopped from claiming
an interest in public land under exceptional circumstances. In
Town of Boulder v. Bullock (1981), 193 Mont. 493, 632 P.2d 716,
this Court held that the town was estopped from claiming an
injunction from further construction or requiring the removal of an
individual's building encroaching on a portion of a public street.
Landowners argue that the present case presents the type of
exceptional circumstances as existed in Bullock.
Landowners point out that the County has not used the disputed
portion of the right-of-way for public benefit for over 90 years.
In fact, the County has accepted and approved plats of subdivisions
showing the right-of-way to be less than 100 feet. It was
stipulated by the parties, and accepted by the District Court, that
all the landowners accepted and recorded deeds to land within the
100-foot right-of-way of McHugh Drive. Landowners contend that
such acquiescence to private use, along with the improvements made
over the years by the landowners, justifies the application of the
doctrine of equitable estoppel in this case. The District Court
found that not applying equitable estoppel in this situation would
not result in manifest injustice to landowners. Taking into
consideration the public interest in maintaining public property,
we cannot say that the District Court's determination that the
doctrine of equitable estoppel did not apply in this situation is
clearly erroneous.
VI
Did the District Court err in determining that the doctrine of
res judicata did not bar the County's claim to the disputed
right-of-way as to some of the landowners?
The District Court found that over the years there had been
four quiet title actions in which it had been judicially determined
that the County's right-of-way to McHugh Drive was less than 100
feet. The District Court determined that as a result of two of
these actions, the doctrine of res judicata barred the County from
asserting a 100-foot right-of-way against certain of the
landowners. The criteria which must be met before the doctrine of
res judicata will be applied are:
(1) [Tlhe parties or their privies must be the same;
(2) the subject matter of the action must be the same;
(3) the issues must be the same, and must relate to the
same subject matter; and (4) the capacities of the person
must be the same in reference to the subject matter and
to the issues between them.
First Bank Missoula v. District Court (1987), 226 Mont. 515, 520,
737 P.2d 1132, 1135. Landowners argue that all four quiet title
actions should act as a bar to the County's claim of a 100-foot
right-of-way. The County contends that the doctrine of res
judicata does not apply.
The two actions which the District Court found acted as a bar
to the County's claim clearly satisfy the four criteria of res
judicata. In one of the other quiet title actions, the plaintiff
was Forestvale Cemetery. Forestvale Cemetery is not a party to
this action, nor is it a predecessor in interest to any of the
present landowners. The quiet title action involving Forestvale
Cemetery, which determined the County's right-of-way was less than
100-feet, is not res judicata in this instance because the prior
litigation did not involve the present parties or their
predecessors in interest. The other quiet title action did not
name the County as a defendant. Landowners contend that while not
specifically mentioned in the action the County was served by
publication as an unknown person who might have an interest in the
property. This procedure may be sufficient to bring an unknown
party into the action, but only after the plaintiff has used
"reasonable diligence" to locate the specific individuals with an
interest in the property. Joseph Russell Realty Co. v. Kenneally
(l98O), 185 Mont. 496, 605 P.2d 1107; Rule 4D(2) (f), M.R.Civ.P.
The District Court was correct in concluding that the County was
not properly a party to the prior litigation, and therefore, res
judicata does not apply. We affirm the conclusions of the District
Court.
Affirmed.
Justice
We concur:
December 30, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
R.J. "JIM" SEWELL
Smith Law Firm, P.C.
P.O. Box 604
Helena, MT 59624
MICHAEL McGRATH
K. PAUL STAHL
County Attorney's Office
Lewis & Clark County Courthouse
Helena, MT 59601
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF M O N W A