96-349
No. 96-349
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
CLAYTON E. DeVOE,
Plaintiff and Appellant,
v.
STATE OF MONTANA, and the HIGHWAY
COMMISSION OF THE STATE OF MONTANA,
Defendants and Respondents,
and
CITY OF MISSOULA,
Intervenor, Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
George C. DeVoe, Attorney at Law, Missoula,
Montana
For Respondents:
James Nugent, Missoula City Attorney,
Missoula, Montana
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Peter W. LaPanne, Montana Department of
Transportation, Helena, Montana
Submitted on Briefs: October 17, 1996
Decided: March 10, 1997
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
Clayton E. DeVoe (DeVoe) appeals from the judgment entered by
the Fourth Judicial District Court, Missoula County, on its
findings of fact, conclusions of law and order dated February 26,
1996, and from earlier orders. We affirm.
We address the following issues on appeal:
1. Did the District Court err in permitting the City of
Missoula to intervene?
2. Did the District Court err in granting partial summary
judgment to the State of Montana and City of Missoula,
and denying summary judgment to DeVoe, on the basis that
the 1937 easement had not been abandoned?
3. Is the District Court's finding that the net acreage
is currently used for highway purposes clearly erroneous?
In May of 1890, the Missoula County Commissioners granted a
petition declaring that a roadway in the Rattlesnake valley area of
Missoula was a public highway (1890 public highway). The 1890
public highway proceeded north on Rattlesnake Drive and then turned
ninety degrees east where it intersected with Creek Crossing Road.
Approximately fifty years later, C. E. Lucas, Ida Lucas, L. A.
Wagoner and Valeria Wagoner (collectively, grantors) granted the
State of Montana (State) a right-of-way easement (1937 easement)
for the construction of a highway on land adjacent to the 1890
public highway in Missoula. The 1937 easement was formalized by a
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document entitled "Highway Right of Way Easement" which set forth
a metes and bounds description of the property subject to the 1937
easement and described the property as being located in the
NW¬NW¬SE¬ of Section 11, Township 13 North, Range 19 West, Missoula
County, Montana. It provided that the 1937 easement:
contain[s] in all 1.23 acres, more or less, including,
however, 0.56 of an acre herein described which
constitutes a part of an existing public highway. (Gross
acreage 1.23; present highway acreage 0.56; net acreage
0.67.)
The 1937 easement further provided that the State was "[t]o have
and to hold all of the above described and conveyed property . . .
as long as the same is used as a public highway."
The property at issue in this case is the 0.67 of an acre
described in the 1937 easement as the net acreage; at the time the
1937 easement was granted, the net acreage was located on the
inside of the ninety degree angle on the 1890 public highway.
DeVoe is the successor in interest to the grantors of the 1937
easement.
After the State acquired the 1937 easement, it changed the
1890 public highway's ninety degree turn to a long sweeping curve
running northeast across the net acreage. In 1983, the State
undertook an intersection improvement project which restored the
original ninety degree turn on the 1890 public highway. In 1989,
the City of Missoula (City) annexed the portion of the Rattlesnake
valley which includes the 1890 public highway and the 1937 easement
acreage.
DeVoe filed a declaratory judgment action against the State
and the Montana Highway Commission (Highway Commission) in 1992.
He alleged that the State's 1983 improvement project, which removed
the long curve crossing the net acreage, constituted an abandonment
of the 1937 easement and, as a result, that the net acreage had
reverted to him. In its answer, the State contended that a highway
easement is abandoned only by official action of the Highway
Commission at a regularly constituted meeting. Because the Highway
Commission had taken no official action in this regard, the State
maintained that it had not abandoned the 1937 easement.
The City petitioned to intervene in DeVoe's action, pursuant
to Rule 24, M.R.Civ.P., claiming a public interest in continued
utilization of the 1937 easement. The District Court granted the
City's petition over DeVoe's objection. DeVoe requested reconsid-
eration of the court's decision or, in the alternative, partial
judgment on the pleadings dismissing the City from the lawsuit. He
argued that the City was not a party to the 1937 easement and,
therefore, that it did not have standing to assert any rights
thereunder. The District Court denied DeVoe's requests.
DeVoe subsequently moved for summary judgment, claiming that
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the 1937 easement had terminated via abandonment, extinguishment
and reversion, or acts incompatible with the nature of the
easement. The City and State opposed DeVoeþs motion and filed a
joint cross-motion for summary judgment on the basis that
affirmative official action indicating an intent to abandon the
1937 easement had not been taken. The District Court granted
summary judgment to the City and State on the abandonment issue,
and denied DeVoe's motion on the reversion issue.
The City subsequently filed a notice of entry of judgment and
DeVoe moved to strike it. He also moved the District Court to
reconsider its decision denying his motion for summary judgment on
the extinguishment and reversion issues. The District Court
granted DeVoe's motion to strike, denied his motion to reconsider
and scheduled an evidentiary hearing on all remaining factual
issues.
Following the evidentiary hearing, the District Court issued
its findings of fact, conclusions of law and order and, thereafter,
entered judgment in favor of the City and State. It determined
that the 1937 easement had not reverted to DeVoe and that he was
not entitled to recover the net acreage or to have title to the net
acreage quieted in his favor. DeVoe appeals.
Additional facts are provided below as necessary for our
resolution of the issues before us.
1. Did the District Court err in permitting the City to
intervene?
DeVoe contends that the District Court erred in permitting the
City to intervene in the action pursuant to Rule 24, M.R.Civ.P.
The City maintains that it was a proper intervenor in the action
and, furthermore, that an order permitting intervention is not an
appealable order pursuant to Rule 1(b), M.R.App.P. Thus, we first
must determine whether an order allowing intervention is an
appealable order.
Rule 1(b), M.R.App.P., authorizes appeals from final judgments
and orders and immediate appeals from certain interlocutory orders
enumerated therein. Orders permitting intervention are not
mentioned in Rule 1(b), M.R.App.P. A matter not specifically
denominated in Rule 1(b), M.R.App.P., is not a proper subject of
immediate appeal; therefore, an immediate appeal cannot be taken
from an order permitting intervention. Continental Ins. Co. v.
Bottomly (1988), 233 Mont. 277, 279, 760 P.2d 73, 75.
In the present case, however, DeVoe is not seeking an
immediate appeal of the District Court's order allowing the City to
intervene. He filed a timely notice of appeal after final judgment
had been entered in the case and raised and argued the intervention
issue in his opening brief.
Rule 2(a), M.R.App.P., outlines this Court's scope of review
in an appeal from a judgment in a civil case. It provides, in
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pertinent part, that:
the court may review the verdict or decision, and any
intermediate order or decision excepted or objected to
within the meaning of Rule 46 of the Montana Rules of
Civil Procedure, which involves the merits, or
necessarily affects the judgment, except a decision or
order from which an appeal might have been taken.
Rule 2(a), M.R.App.P. As discussed above, no direct appeal was
available from the District Court's order permitting intervention.
Thus, the exception clause in Rule 2(a), M.R.App.P., is not
applicable here.
We previously have addressed whether an order allowing
intervention can be reviewed pursuant to Rule 2(a), M.R.App.P., in
the course of an appeal from a final judgment. In In re Custody of
R.R.K. (1993), 260 Mont. 191, 859 P.2d 998, we noted that, while an
order denying a motion to intervene is not separately appealable
under Rule 1, M.R.App.P., the proper appeal from such an
interlocutory order lies after entry of final judgment. Custody of
R.R.K., 859 P.2d at 1005 (citing Rule 2(a), M.R.App.P.; Bottomly,
760 P.2d at 75-76; Estate of Schwenke v. Becktold (1992), 252 Mont.
127, 130-31, 827 P.2d 808, 810). We also have observed that the
only procedure by which an appellant may challenge the propriety of
an intervention order is by appeal after entry of final judgment.
Estate of Schwenke, 827 P.2d at 810.
Here, DeVoe appealed from the order allowing the City to
intervene in the course of his appeal after entry of final
judgment. We conclude, therefore, that DeVoe's appeal from the
District Court's order allowing intervention is properly before us.
With regard to whether the District Court erred in permitting
the City to intervene as of right, Rule 24(a)(2), M.R.Civ.P.,
states that intervention shall be allowed, upon timely application:
when the applicant claims an interest relating to the
property or transaction which is the subject of the
action and the applicant is so situated that the
disposition of the action may as a practical matter
impair or impede the applicant's ability to protect that
interest, unless the applicant's interest is adequately
represented by existing parties.
We recently clarified that a mere claim of interest in the property
at issue is insufficient to support intervention as of right under
Rule 24(a)(2), M.R.Civ.P. Aniballi v. Aniballi (1992), 255 Mont.
384, 386-87, 842 P.2d 342, 343-44. A district court must determine
whether the party seeking intervention has made a prima facie
showing of a "'direct, substantial, legally protectable interest in
the proceedings.'" Aniballi, 842 P.2d at 344 (citations omitted).
A district court's determination regarding whether a party has made
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a prima facie showing is a conclusion of law. Sacco v. High
Country Independent Press (1995), 271 Mont. 209, 236, 896 P.2d 411,
427 (citations omitted). We review conclusions of law to determine
whether the court's interpretation of the law is correct.
Rafanelli v. Dale (Mont. 1996), 924 P.2d 242, 245, 53 St.Rep. 746,
748 (citations omitted).
Here, the City premised its motion to intervene as of right on
its 1989 annexation of the portion of the Rattlesnake valley in
which the 1890 public highway and 1937 easement are located,
contending that the annexation gave it an interest in the continued
use of the 1937 easement within its territorial borders for highway
purposes. The District Court examined and applied a number of
statutes, concluding that they authorized the City to control,
supervise and maintain the 1890 public highway and 1937 easement
property because the City's 1989 annexation brought them within its
jurisdiction. On that basis, the court further concluded that the
City had a protectable interest in the 1937 easement property which
is the subject of this action and granted the City's motion to
intervene.
DeVoe advances several arguments in support of his contention
that the District Court erred in concluding that the City was
entitled to intervene under Rule 24(a), M.R.Civ.P. He does not,
however, challenge the court's underlying statutory analysis. A
district court's findings and judgment are presumed correct and
will not be overturned unless the appellant establishes error.
Frank L. Pirtz Const. v. Hardin Town Pump (1984), 214 Mont. 131,
135, 692 P.2d 460, 462. Thus, for purposes of this case, we
presume that the District Court correctly concluded that the City
is statutorily authorized to control and maintain both the 1890
public highway and the 1937 easement and highway uses thereon, on
the basis of its 1989 annexation of the area in which the 1937
easement is located.
DeVoe's primary assertion of error is that the District
Court's conclusion that the 1989 annexation gave the City a
"protectable interest" in the 1937 easement focuses on the wrong
time frame. According to DeVoe, the 1937 easement terminated by
abandonment or reversion in 1983; as a result, no easement existed
in 1989 in which the City could have acquired any interest--much
less the "direct, substantial, legally protectable interest"
required by Aniballi--via annexation.
DeVoe's argument is misplaced in the context of the City's
motion to intervene as of right. It is premised on an ultimate
resolution in DeVoe's favor of the substantive issues raised in the
case and, as a general matter and specifically in this case, the
resolution of substantive issues on the merits comes later in the
proceedings than a motion to intervene in hopes of affecting that
resolution. Thus, issues relating to the City's motion to
intervene cannot be dependent on whether DeVoe ultimately prevails;
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indeed, if a plaintiff were allowed to prevent intervention at the
outset of an action, by a person with an adverse interest in the
action, by merely asserting that the plaintiff's position would
prevail at the end of the action, no intervention as of right under
Rule 24(a), M.R.Civ.P., could ever be accomplished. We conclude
that the District Court did not focus on the wrong time frame in
determining whether the City had a sufficient interest in the
property at issue to support a right to intervene under Aniballi.
Nor does Aniballi support DeVoe's contention that the District
Court erred in concluding that the City had a legally protectable
interest. There, parents sought intervention as a matter of right
in a marital dissolution action between their son and daughter-in-
law in order to protect an alleged interest in the marital home.
The district court determined that the parents' claimed interest
was barred by the statute of frauds and, to a large extent, by the
statute of limitations. On those bases, the court concluded that
the parents did not have "an interest relating to the property or
transaction which is the subject of the action." Aniballi, 842
P.2d at 343.
On appeal, we rejected the parents' argument that intervention
must be allowed whenever an applicant claims an interest relating
to property involved in the lawsuit. Aniballi, 842 P.2d at 343.
We held that a prima facie showing of a direct, substantial,
legally protectable interest in the proceedings is necessary to
support a claim for intervention under Rule 24(a), M.R.Civ.P.
Aniballi, 842 P.2d at 344 (citations omitted). In affirming the
district court's denial of the parents' motion to intervene, we
implicitly concluded that they had not made a sufficient showing of
a protectable interest in the proceedings. See Aniballi, 842 P.2d
at 344.
Unlike the parents in Aniballi, the City established an
interest relating to the property which is the subject of the
action before us. It acquired that interest in 1989 when it
annexed the area of the Rattlesnake valley in which the 1890 public
highway and 1937 easement are located, and became responsible for
maintenance of the 1890 public highway and the net acreage.
Moreover, in Aniballi, the central property-related issue in the
dissolution action was the allocation of rights to the marital
property between the spouses, not title in rem or the existence or
amount of any debt allegedly owing the parents; thus, the parents'
claim was not related to the central issue in the case. Aniballi,
842 P.2d at 343. Here, the City's interest in the 1937 easement is
in the nature of a public interest in continued use of land within
its jurisdiction for highway purposes. Thus, the City's interest
involves the central and dispositive issue in this case; namely,
whether the 1937 easement terminated in 1983. We conclude,
therefore, that the District Court did not err in determining that
the City had established a legally protectable interest in the 1937
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easement as required by Rule 24(a)(2), M.R.Civ.P., and Aniballi.
The question remains, however, whether the City's interest is
adequately represented by the State. If it is, the City was not
entitled to intervene as of right because Rule 24(a), M.R.Civ.P.,
authorizes such intervention only where the applicant's interest is
not "adequately represented by existing parties."
Under the District Court's unchallenged statutory analysis,
the City--rather than the State--is responsible as a result of the
1989 annexation for the repair and maintenance of the 1890 public
highway and the 1937 easement appurtenant thereto. In addition,
the City asserted potential future uses of the 1937 easement for
public highway purposes relating to its overall transportation plan
for the Rattlesnake valley. Thus, the City's current
responsibilities with regard to the 1890 public highway and the
1937 easement, together with its interest in continued use for
highway purposes of the subject property within its jurisdiction,
render the City's interest in the 1937 easement substantially
different from the State's interest as the named holder of the 1937
easement.
DeVoe contends that it was improper for the District Court to
consider the future uses the City plans for the easement acreage,
but he cites to no authority in support of the contention. While
it may be true that potential future uses would be irrelevant in
determining the substantive issues discussed below regarding
abandonment and reversion, it was not inappropriate for the
District Court to consider such potential future uses, reflecting
concerns of the City and its citizens, in determining whether the
City's interest would be adequately represented by the State.
Where, as here, the City and its citizens will experience greater
consequences than the State if use of the 1937 easement for highway
purposes is lost, we conclude that the District Court did not err
in determining that the City's interest in the 1937 easement is not
adequately represented by the State.
Finally, we address DeVoe's argument that, once the City was
allowed to intervene as a "real party in interest," the District
Court should have dismissed the State because the State "had no
further business in this litigation." DeVoe's assertions to the
contrary notwithstanding, there is nothing illogical about two
entities having different protectable interests in the easement
property at issue here. Nor does he cite to any authority under
which a legal impediment to such a situation exists. Regardless of
the City's status as an intervenor, the State is the named holder
of the 1937 easement and DeVoe properly brought this action against
the State. Moreover, DeVoe did not move to dismiss the State from
the action after the City was permitted to intervene and, as a
result, he raises this issue for the first time on appeal. We have
repeatedly held that we will not address issues raised for the
first time on appeal. See Fandrich v. Capital Ford Lincoln Mercury
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(1995), 272 Mont. 425, 901 P.2d 112; Carter v. Nye (1994), 266
Mont. 226, 879 P.2d 729.
We hold that the District Court did not err in permitting the
City to intervene as of right under Rule 24(a), M.R.Civ.P.
2. Did the District Court err in granting partial
summary judgment to the City and State, and denying
summary judgment to DeVoe, on the basis that the 1937
easement had not been abandoned?
DeVoe and the City and State filed cross-motions for summary
judgment on the issue of whether the State had abandoned the 1937
easement. The District Court determined that the City and State
established that no official action to abandon the 1937 easement
had been taken and that DeVoe had not established the existence of
a genuine issue of material fact to sustain his abandonment theory.
Accordingly, it granted partial summary judgment to the City and
State on this issue.
Summary judgment is proper when no genuine issues of material
fact exist and the moving party is entitled to judgment as a matter
of law. Rule 56(c), M.R.Civ.P. We review a district court's grant
of summary judgment de novo, applying the same Rule 56(c),
M.R.Civ.P., criteria used by that court. Carelli v. Hall (Mont.
1996), 926 P.2d 756, 759, 53 St.Rep. 1116, 1117 (citation omitted).
The moving party has the initial burden of establishing the
absence of genuine issues of material fact and entitlement to
judgment as a matter of law. Carelli, 926 P.2d at 759 (citation
omitted). Only when the moving party satisfies its initial burden
does the burden shift to the party opposing summary judgment to
present evidence raising a genuine issue of material fact.
Carelli, 926 P.2d at 759-60 (citation omitted). Material issues of
fact are identified by looking to the substantive law governing the
proceedings. Carelli, 926 P.2d at 760 (citation omitted).
Here, the parties agree that the substantive law regarding
abandonment of easements by governmental entities is set forth in
Baertsch v. County of Lewis & Clark (1992), 256 Mont. 114, 845 P.2d
106 and City of Billings v. O. E. Lee Company (1975), 168 Mont.
264, 542 P.2d 97. The pivotal element required to prove that a
governmental entity has abandoned public property is a showing of
clear intent to abandon. Baertsch, 845 P.2d at 111. The conduct
which is claimed to demonstrate the intent to abandon must be some
affirmative official act so decisive and conclusive as to indicate
a clear intent to abandon. Baertsch, 845 P.2d at 111 (citing Rumph
v. Dale Edwards, Inc. (1979), 183 Mont. 359, 600 P.2d 163); City of
Billings, 542 P.2d at 99. Abandonment cannot be established by
mere implication. Baertsch, 845 P.2d at 111. Moreover, the
question of abandonment is generally one of fact, not of law. City
of Billings, 542 P.2d at 99 (citation omitted). Thus, we must
examine the record as it existed at the time of the parties' cross-
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motions for summary judgment on the issue of abandonment of the
easement to determine whether a genuine issue of material fact
existed which precluded summary judgment in favor of the City and
State.
With regard to any formal official action indicating a clear
intent to abandon the easement, the City and State presented
evidence that DeVoe attempted to have the Highway Commission
release the 1937 easement in October of 1991. The Highway
Commission responded that it could not take action on his request
until it received and reviewed a transportation plan for the
Rattlesnake area which was expected to be completed by March of
1992. The Highway Commission did not act on DeVoe's request for
release of the 1937 easement prior to his filing of this lawsuit in
August of 1992. Thus, there was no evidence of a formal official
act by the Highway Commission indicating a clear intent to abandon
the 1937 easement.
We have never held, however, that a governmental entity can
abandon an easement only by adopting a formal resolution to do so
at a regularly scheduled meeting. Indeed, in City of Stockton v.
Miles and Sons, Inc. (N.D. Cal. 1958), 165 F.Supp. 554, on which we
relied in City of Billings for the principle that intent of a
governmental body to abandon must be shown by official act, the
federal district court rejected the city's contention that it had
not abandoned a water channel because it had not taken formal
action to do so via a specific ordinance or resolution. City of
Stockton, 165 F.Supp. at 559-60. Having determined that the
crucial question was whether the record showed official action by
the city or an authorized body or person indicating a clear
intention to abandon, the court found many instances of such
official action on the record before it. City of Stockton, 165
F.Supp. at 560. Among them were the appropriation of funds for
filling the channel, authorization by the city for property owners
along the channel--and other private parties--to place fill
material in the channel, and the placement by the city of at least
seven fills of many thousands of cubic feet of dirt, topped with an
asphalt surface of permanent appearance, in the channel. City of
Stockton, 165 F.Supp. at 557, 560. The court concluded that the
city clearly intended to abandon and, in fact, effectively
abandoned the water channel. City of Stockton, 165 F.Supp. at 560.
Under our cases, the question is whether the record evidences any
affirmative official act by the State which is sufficiently
decisive and conclusive to indicate a clear intent to abandon.
Baertsch, 845 P.2d at 111; City of Billings, 542 P.2d at 99.
DeVoe's overall position regarding abandonment is that the
State's 1983 removal of the roadway surface which curved across the
net acreage from 1937 to 1983 was an official and decisive act by
the State indicating clear intent to abandon the 1937 easement. In
arguing that the District Court erred in granting summary judgment
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to the State and City on the abandonment issue, he contends that
the deposition testimony of James Williams (Williams) raised a
genuine issue of material fact in this regard.
Williams was the State's field project manager in charge of
the 1983 project involving the net acreage. He testified that, in
that capacity, he supervised the removal of the long curve running
northeast across the net acreage and the restoration of the
original ninety degree angle on the 1890 public highway. He also
opined that, as he understood the 1937 easement language, the
property would revert "if use as a public highway ceased." He
recalled a 1991 conversation with DeVoe about the 1937 easement and
the possibility of reversion in which he "probably told [DeVoe]
that there was a chance that [the State] could give it up or it
could be given up." Finally, he testified that he had no authority
to be involved in a reversion in any way.
There is no dispute that Williams' acts in supervising the
removal of the roadway surface from the net acreage and
restoration of the original ninety degree angle of the 1890 public
highway were actions authorized by the State. There also is no
dispute that those actions evidenced the State's clear intent to
reroute the driving surface of the 1890 public highway to its
original course. The question before us, however, is whether
Williams' testimony about those authorized and official actions
raised a genuine issue of material fact regarding an intention by
the State to abandon and cease to use the 1937 easement as a public
highway. We conclude that it does not.
Montana statutes define highways broadly and clarify that a
public highway consists of more than the surface of a roadway.
Title 60, MCA, entitled "Highways and Transportation," governs
matters relating to highways in Montana. Under 60-1-103(18),
MCA, a "highway" is statutorily defined to include rights-of-way
and other interests in land, as well as highway-related structures
and signs. Similarly, a "public" highway includes the entire area
within the right-of-way, which is defined as an interest in
property acquired for or devoted to highway purposes. Sections
60-1-103(19) and (23), MCA.
Applying these statutory definitions, it is clear that the
1890 public highway includes the net acreage granted to the State
for use as a public highway via the 1937 right-of-way easement. It
is equally clear that DeVoe's basic premise in this regard, that a
"public highway" is limited to the driving surface--or, stated
conversely, that "asphalt" is the legal equivalent of "public
highway"--is incorrect. As a direct corollary, while Williams'
testimony regarding the 1983 removal of the asphalt from the curved
route crossing the net acreage constitutes evidence of intent to
"abandon" the roadway, it does not constitute evidence of an
official act by the State indicating clear intent to abandon the
1937 easement acquired for use "as a public highway."
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Nor does any other testimony by Williams relate to, or
evidence, intent by the State to abandon the 1937 easement.
Williams' opinion that reversion would occur "if use as a public
highway ceased" relates, if at all, to the use and reversion issue
discussed below. Similarly, Williams' conversation with DeVoe in
1991 related solely to the reversion question; it had no bearing on
the question of the State's intent to abandon the 1937 easement at
the time of an intersection improvement project undertaken eight
years prior to the conversation.
We conclude that the summary judgment record contains no
evidence raising a genuine issue of material fact as to clear
intent by the State to abandon the 1937 easement in 1983. On that
basis, we hold that the District Court did not err in granting
partial summary judgment to the City and State, and denying summary
judgment to DeVoe, on the basis that the 1937 easement had not been
abandoned.
3. Is the District Court's finding that the net acreage
is currently used for highway purposes clearly erroneous?
At the outset of our consideration of this issue, we reiterate
the well-settled principle in Montana that nonuse is insufficient
on a stand-alone basis to establish abandonment of an easement by
a governmental entity. Baertsch, 845 P.2d at 111; City of
Billings, 542 P.2d at 99. In this regard, we observe that the
question of whether, or the extent to which, nonuse alone can
effectuate the same result under a reversionary clause contained in
a right-of-way easement granted to the State is not before us in
this case. The parties have neither raised nor briefed that issue
and, as a result, we do not address it here. Nor should our
discussion of the issue which is before us be construed as an
implicit conclusion that such nonuse would result in reversion of
a right-of-way easement held by a governmental entity for public
highway use.
DeVoe's complaint in this action asserted that the net acreage
granted to the State in the 1937 easement for "as long as the same
is used as a public highway," which consisted of 0.67 of an acre,
reverted to him by operation of law in 1983 as a result of the
State's intersection improvement project and its alleged nonuse of
the net acreage thereafter. The City and State disagreed, pointing
to continuing uses of the net acreage. Following an evidentiary
hearing, the District Court found that a number of highway-related
uses continued to exist on the net acreage and, on that basis,
concluded that the 1937 easement had not reverted to DeVoe. We
note, as did the District Court, that DeVoe changed his position
regarding the extent of the reversion at the evidentiary hearing.
There, he expressly disclaimed the reversion alleged in his
complaint of the entire 0.67 of an acre net acreage described in
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the 1937 easement. Instead, he asserted the reversion of only a
portion of the net acreage, totaling less than 0.25 of an acre, and
attempted to establish that no highway or highway right-of-way uses
were occurring on that limited portion of the net acreage. The
District Court observed that DeVoe's position at the hearing was
not only inconsistent with the basis for relief alleged in his
complaint, but that DeVoe had not obtained a survey or presented
other evidence from which it could determine precisely which land
he was seeking to acquire via reversion based on nonuse.
We agree with the District Court's observations with regard to
DeVoe's change of position. In addition, we note that DeVoe cites
to no authority under which he could obtain, via reversion, less
than the total net acreage described in the 1937 easement. Like
the District Court, we will address this issue as it was presented
in DeVoe's complaint; namely, whether DeVoe is entitled to
reversion based on nonuse for highway purposes of the 0.67 of an
acre net acreage referred to in the 1937 easement.
DeVoe contends that the District Court erred in finding that
the net acreage currently is used for highway or highway right-of-
way purposes. We review a district court's findings of fact to
determine whether they are clearly erroneous, looking first at
whether the findings are supported by substantial evidence. Rule
52(a), M.R.Civ.P.; Aasheim v. Reum (Mont. 1996), 922 P.2d 1167,
1169, 53 St.Rep. 771, 772 (citation omitted).
Martin Van Mil (Van Mil), a civil engineer with the Montana
Department of Transportation (Department), testified that the toe
of the fill material for the relocated roadway of the 1890 public
highway extends approximately thirty feet into the net acreage; in
addition, a concrete curb and gutter, and asphalt for the turning
radius at the intersection of Rattlesnake Drive and Creek Crossing
Road, extend approximately fifteen feet into the net acreage.
According to Van Mil, other current highway-related uses of the net
acreage include the placement of traffic control devices, street
signs and snow plowed from the highway. John Alan Bergum, a civil
engineer for the Department who supervises right-of-way designs and
plans, corroborated Van Mil's testimony.
We conclude that the District Court's finding that the net
acreage currently is used for highway purposes is supported by
substantial evidence and is not otherwise clearly erroneous. On
that basis, we conclude that the District Court correctly
determined that the 1937 easement had not reverted to DeVoe.
Affirmed.
/S/ KARLA M. GRAY
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We concur:
/S/ JAMES C. NELSON
/S/ WILLIAM E. HUNT, SR.
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER
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