06/29/2021
DA 20-0369 Case Number: DA 20-0369
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 159
GORDON WILLIAMS, GALE MADLER,TIMOTHY RUSSELL,
JOYCE KELLEY, and SAM BLAYLOCK,
Plaintiffs and Appellants, FILED
v. JUN 29 2021
Bowen Greenwood
Court
Clerk of Supreme
STILLWATER BOARD OF COUNTY COMMISSIONERS, State of Montane
Defendant and Appellee.
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Stillwater, Cause No. DV-19-27
Honorable Matthew J. Wald, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
David K. W. Wilson, Jr., Morrison Sherwood Wilson & Deola, PLLP,
Helena, Montana
For Appellee:
Jacqueline R. Papez, Sarnuel J. King, Doney Crowley P.C., Helena,
Montana
Nancy L. Rohde, Stillwater County Attorney, Columbus, Montana
Raymond Kuntz, Kuntz Law Office, P.C., Red Lodge, Montana
Submitted on Briefs: May 26, 2021
Decided: June 29, 2021
Filed:
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Gordon Williams, Gale Madler, Timothy Russell, and Joyce Kelley (the "Plaintiff
Landowners")1 appeal from the Order on Writ ofReview from the Twenty-Second Judicial
District Court, Stillwater County, affirming the decision ofthe Stillwater Board of County
Commissioners (the "Board")to abandon a portion of Eerie Drive. The Landowners raise
two issues on appeal:
1. Did the District Court err in concluding the Board did not exceed itsjurisdiction
by abandoning a portion ofEerie Drive?
2. Did the District Court err in concluding the Board adequately documented its
decision, as required by the county road abandonment statutes and caselaw?
¶2 We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
This case concerns a dispute about the Stillwater Board of County Commissioners'
decision to abandon a portion of Eerie Drive located in Section 29, Township 2 South,
Range 20 East, Stillwater County, Montana. Eerie Drive is a short, dead-end county road
located outside Columbus, Montana, on the south side of the Yellowstone River in
Stillwater County.
¶4 The property owners along Eerie Drive are neighbors who own property located
between Highway 78 and the southern bank of the Yellowstone River in Sections 28 and
29, Township 2 South, Range 20 East. David Carse owns a large tract of property on the
1 Sam Blaylock, a plaintiff in the case before the District Court, does not join in the appeal.
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southern banks of the Yellowstone River. Timothy Russell and Joyce Kelley
("Russell/Kelley") own a smaller piece of land, surrounded by the Carse property on three
sides in the in the southeast corner ofthe Carse property. John Matovich owns the property
south of the Carse and Russell/Kelley properties, extending to Highway 78. Linda Bay
owns the riverfront property east ofthe Carse property. Gale Madler and Gordon Williams
("Madler/Williarns") own the property bordering Highway 78 east of the Matovich
property and south of the Bay property. Sam Blaylock owns the property east of the Bay
and Madler/Williarns properties. The point at which the Blaylock, Bay, and
Madler/Williarns properties meet is referred to as the "common corner."
Eerie Drive runs northeast frorn its intersection with Highway 78 through the
Matovich and Madler/Williams properties. On the Madler/Williams property the road
curves northwest toward the Russell/Kelley property before again turning northeast and
running across the southeast corner of the Carse property. The road then continues east
through the Bay property, where it is disputed as to whether it ends on the Bay property or
continues to the common corner of the Bay, Blaylock, and Madler/Williams properties.
On or about November 29, 2017, Carse petitioned the Board to abandon the
approximately 400-foot portion of Eerie Drive that runs through his property. On
January 8, 2018, the Board issued a letter acknowledging receipt of Carse's petition and
appointing a County Commissioner and the Clerk and Recorder/County Surveyor for
Stillwater County as viewers to investigate the proposed abandonment. The viewers
submitted a report, concluding Eerie Drive is not developed or maintained and is being
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used to access private property. The report included maps and photographs taken by the
viewers showing the current condition of the road.
¶7 The Board held public hearings regarding the petition on February 6, February 20,
February 27, and March 13, 2018, at which it heard public testimony, reviewed comments
submitted in writing, and examined historical documentation of the road. All the Plaintiff
Landowners were heard either by appearing at the hearings, filing written comments, or
both, during the Board's deliberations. The main contention of the Plaintiff Landowners
throughout the proceedings was Eerie Drive runs through the Bay property to the common
corner, giving Blaylock and Madler/Williams access to their northern property lines from
the county road beyond the portion ofthe road that runs across the Carse property. Because
Blaylock and Madler/Williams had access to their properties from the common corner,they
rnaintained the Board could not abandon the road under § 7-14-2615(4), MCA, without
their agreement. Carse rnaintained Eerie Drive terminates on the Bay property and does
not extend to the common corner to provide Blaylock and Madler/Williarns with access to
their properties. Williams. and Russell/Kelley also argued the Russell/Kelley property
abutted 125 feet ofthe portion ofEerie Drive Carse proposed to abandon based on a survey
completed in 1975. Carse maintained that portion ofroad does not touch the Russell/Kelley
property, as shown on other historic and modern surveys he provided. Russell/Kelley
further opposed the abandonment due to their concern Carse's plans to improve the road
would increase the potential for flooding on their property. Carse maintained only two
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landowners were affected by the abandonment—Carse and Bay. Bay has a recorded
easement to cross the Carse property and assented to the abandonment.
¶8 Before the Board were various historic petitions, resolutions, and certificates of
survey, which included an 1893 petition to establish and order establishing a public
highway "Neginning at or near the southwestern corner of the northeast quarter (1/4) of
the northeast quarter (1/4) of Section Twenty-Eight (28), T,own. 2 South, R. 20 E." and
continuing in a southwesterly direction; a 1919 approved petition to abandon a section of
a county road "beginning at SW corner of the NE1/4NW1/4 of Section 28, Twp. 2 S - R.
20 E. thence East about 3/4 of mile to present County Road"; a June 4, 1975 Resolution
frorn the Stillwater Board of County Commissioners, stating "the roadway designated as a
county road on Plat #171893 is hereby designated and acknowledged to be a county road
ofthe County of Stillwater and State of Montana as the same has been used and considered
to be for many years past" and the attached Plat # 171893, surveyed in 1958 and depicting
Eerie Drive running from state secondary highway 307 (now Highway 78), not abutting
the eastern border of the Russell/Kelley property, and terminating on the Bay property
before the comrnon corner; a survey completed in 1975 depicting Eerie Drive abutting the
eastern border ofthe Russell/Kelley property; and additional surveys frorn 1958, 1979, and
2016 depicting Eerie Drive running through the Bay property up to or past the common
corner.2
2The 2016 survey also depicted Eerie Drive as not abutting the eastern border ofthe Russell/Kelley
property. The 1958 and 1979 surveys do not depict that section of the road.
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¶9 At a regular meeting ofthe Board on March 13, 2018, the Board unanimously voted
to abandon the approximately 400-foot portion of Eerie Drive crossing the Carse property.
At the rneeting, Carse "stated he is not trying to block anyone from the north fence line"
and agreed to provide an easement across his property to the objecting landowners.
¶10 The Plaintiff Landowners filed suit challenging the road abandonment shortly
thereafter, seeking a declaratory judgment the Board's order was invalid. The District
Court dismissed the Plaintiff Landowners' complaint, finding the proper remedy for
challenging a road abandonment decision of a board of county commissioners is a writ of
review. The Plaintiff Landowners then filed the subject suit on June 20, 2019, seeking a
writ of review of the Board's decision. The District Court held a hearing on October 17,
2019, on the issue of whether to order production of the Board's records under the writ,
which it ordered on October 28, 2019. Following the production of records, the court held
a hearing on January 9, 2020, and heard argument from the Plaintiff Landowners and the
Board. On April 28, 2020, the District Court affirmed the Board's decision to abandon the
road and dismissed the Plaintiff Landowners' petition for a writ of review. This appeal
follows.
STANDARD OF REVIEW
1111 A district court's decision to grant or deny a petition for a writ of review is
discretionary. See § 27-25-102, MCA. The district court's review of the decision of the
inferior tribunal, board, or officer on a writ of review is limited to determining whether an
inferior tribunal, board, or officer exceeded its jurisdiction or whether the inferior tribunal,
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board, or officer regularly pursued its authority. Sections 27-25-102(2), -303, MCA. On
appeal, our review is limited to the sarne questions.
DISCUSSION
¶12 1. Did the District Court err in concluding the Board did not exceed itsjurisdiction
by abandoning a portion ofEerie Drive?
¶13 The PlaintiffLandowners argue the District Court misconstrued the factual evidence
in the record and rnisinterpreted § 7-14-2615(4), MCA, in determining the Board did not
exceed its jurisdiction in abandoning a portion of Eerie Drive. Citing Bugli v. Ravalli
County, 2019 MT 154, 396 Mont. 271, 444 P.3d 399 (Bugli II), the Plaintiff Landowners
contend the review of whether the Board exceeded its jurisdiction under a writ of review
goes to the rnerits of the Board's decision. The Plaintiff Landowners, thus, contend the
District Court erred when it did not consider the substantial evidence the Plaintiff
Landowners submitted to the Board that demonstrated Eerie Drive extends to the common
corner and part of the abandoned road runs along the eastern border of the Russell/Kelley
property. The Plaintiff Landowners contend because substantial evidence demonstrates
Eerie Drive extends to the common corner and part of the abandoned road runs along the
eastern border of the Russell/Kelley property, the Board could not abandon the road
without their agreement under § 7-14-2615(4), MCA, and the District Court erred in
determining otherwise.
¶14 Montana statutes ernpower the Board to grant or deny petitions to establish, alter,
or abandon a county road. See §§ 7-5-2101, 7-14-2101(1)(a)(i), -2601 through -2604,
-2615(1)-(2), MCA. Under § 7-14-2615(4), MCA,"Whe board may not abandon a county
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road or right-of-way used to access private land if the access benefits two or more
landowners unless all ofthe landowners agree to the abandonment." To exercise the power
to abandon a county road, thus,"necessarily involve[s] a determination of questions of law
and fact" whether the county road is used to access private land and whether the access
benefits two or more landowners. See State ex rel. Furnish v. Mullendore, 53 Mont. 109,
113, 161 P. 949, 951 (1916).
¶15 As the Legislature has not provided for a direct appeal or some other method of
judicial review from a county commission's decision whether to abandon a county road,
the only avenue for judicial review ofsuch decisions is through an extraordinary writ.3 See
Lee v. Musselshell County, 2004 MT 64, ¶ 27,320 Mont. 294, 87 P.3d 423;Bugli v. Ravalli
County, 2018 MT 177, ¶ 16, 392 Mont. 131, 422 P.3d 131 (Bugli 1). The writ of review is
an extraordinary remedy. Review under the writ is lirnited to keeping an inferior tribunal
within the limits of its jurisdiction and ensuring that such jurisdiction is exercised with
regularity. See §§ 27-25-102(2), -303, MCA; State ex rel. Lay v. Dist. Court, Fourth
Judicial Dist., 122 Mont. 61, 68-69, 198 P.2d 761, 765 (1948). In cases where the
legislature has not provided for judicial review of the proceedings of an inferior tribunal,
board, or officer, the writ ofreview is not a functional equivalent of an appeal. See Bugli
3 Before 1999, the decision of a board of county commissioners to abandon a county road was a
wholly discretionary decision. In 1999, the legislature removed some discretion from boards of
county commissioners to abandon county roads by prohibiting boards from abandoning county
roads if the roads provide access to public or private lands under certain circumstances. See
1999 Mont. Laws ch. 107, § 3 (codified as § 7-14-2615(3)-(4), MCA). In making these changes,
the legislature did not provide for additional judicial review of the factual or legal grounds for a
board's decision to abandon a county road outside of the writ of review.
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¶ 19; Buffalo v. Thiel, 213 Mont. 280, 284, 691 P.2d 1343, 1345 (1984); State ex rel.
Griffiths v. Mayor ofCity ofButte, 57 Mont. 368, 372, 188 P. 367, 368 (1920); 14 Am. Jur.
2d Certiorari § 5 (explaining a writ of review "and appeal are distinguishable in that [a
writ of review] prevents the tribunal performing or exercising a judicial or quasi-judicial
act frorn exceeding its jurisdiction or the scope of its authority while appeal is aimed at
relieving an individual litigant from a mistake in applying the adjective law or is confined
to substantial questions of law affecting the merits of the case."(footnotes omitted)).
¶16 A court reviews the record ofthe lower tribunal, board, or officer on a writ ofreview
to deterrnine whether the body had jurisdiction and kept within it. State ex rel. Griffiths,
57 Mont. at 373, 188 P. at 369. As part ofthis review, we have explained the court inspects
the record to determine if the decision is "unsupported by evidence, or the findings are
contrary to all the substantial evidence, or the decision below has no evidence to support
it." See State ex rel. Griffiths, 57 Mont. at 373, 188 P. at 369. The court's review of the
evidence is "not for the purpose of weighing it, but to ascertain whether it furnishes any
legal and substantial basis" for the decision. State ex rel. Griffiths, 57 Mont at 373, 188 P.
at 369 (quotation omitted); see also State ex rel. Lay, 122 Mont. at 70, 198 P.2d at 766.
¶17 The Board's decision to abandon a portion of Eerie Drive over the objections ofthe
Plaintiff Landowners necessarily required it to determine Eerie Drive did not abut the
eastern border of the Russell/Kelley property and the road did not extend to the common
corner. The District Court did not err in limiting its review of the record to "whether or
not there is sufficient evidence that the Board overstepped its jurisdiction to justify
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intruding on the Board's inherent discretion regarding road abandonrnent decisions." A
reviewing court is limited to determining whether the evidence in the record "furnishes any
legal or substantial basis" for the decision and may not reweigh conflicting evidence. See
State ex rel. Griffiths, 57 Mont. at 373, 188 P. at 369. Although the Plaintiff Landowners
emphasize the evidence in the record supporting their position, competent evidence
supported the Board's decision and provided a substantial basis for its exercise of authority
to abandon a portion of Eerie Drive. The 1975 Resolution and attached Plat #171893
showed Eerie Drive terminating on Bay's property before the common corner and multiple
surveys included in the record showed Eerie Drive not abutting the eastern border of the
Russell/Kelley property. As the District Court noted: "The evidence provided by the
Plaintiffs is often unclear and could be subject to multiple interpretations. The Court may
not intrude into an area where the Board holds broad discretion without substantially
clearer evidence that [it] w[as] acting outside of[its] authorized scope." The District Court
did not err in concluding substantial evidence supported the Board's decision.
¶18 2. Did the District Court err in concluding the Board adequately documented its
decision, as required by the county road abandonment statutes and caselaw?
¶19 The PlaintiffLandowners argue the Board did not adequately document its decision.
The Plaintiff Landowners fault the Board for not issuing formal findings of fact to support
its decision. They contend our holding in Bugli II, ¶ 33, requires a board of county
commissioners to issue findings of fact to support its decision to abandon a county road to
show compliance with the statutes.
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¶20 The Plaintiff Landowners rely heavily on our decision in North 93 Neighbors, Inc.
v. Board ofCounty Commissioners ofFlathead County, 2006 MT 132, 332 Mont. 327, 137
P.3d 557, in which we faulted a board of county commissioners for failing to provide
detailed findings of fact to support its zoning decision and explained a board "must equip
reviewing courts with a record of the facts it relied upon in making its decision to avoid
judicial intrusion into matters committed to [a board's] discretion." N. 93 Neighbors, Inc.,
¶ 35. That case in inapposite. Land use and zoning decision-making falls under a different
statutory regime, one in which the legislature has provided for broader and more searching
judicial review of a board's decision-rnaking. See, e.g., §§, 76-2-110, -227, MCA;Bryant
Dev. Ass'n v. Dagel, 166 Mont. 252, 256-57, 531 P.2d 1320, 1323 (1975).
¶21 In Bugli II, we held a board of county commissioners did not exceed its jurisdiction
in issuing findings of fact to support its decision to abandon a county road, but in so
holding, we did not conclude the statutes require a board to issue written findings when
abandoning a county road. After receiving a petition satisfying the requirements set forth
in §§ 7-14-2601 and -2602, MCA,4 "the board shall cause an investigation to be made of
the feasibility, desirability, and cost of granting the prayer ofthe petition. The investigation
shall be sufficient to properly deterrnine the merits or demerits of the petition."
Section 7-14-2603(1), MCA. In addition to its investigation ofthe petition, the board must
provide notice and a public hearing before abandoning the road to allow for public
4 The Plaintiff Landowners do not renew their objections to Carse's original petition in this appeal.
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comment. Section 7-14-2615(2), MCA. The board must make an entry of its decision to
abandon the road on the minutes and send notice of its decision by certified mail to all
owners of land abutting the road petitioned to be abandoned.
Sections 7-14-2603(3), -2604, MCA.
¶22 The record produced by the Board in response to the writ of review adequately
documents the Board followed this procedure. The Board appointed viewers to investigate
the petition and the viewers subrnitted their report to the Board. The record shows the
Board received historical records, written comrnents, and public testimony regarding the
road. It held multiple public meetings and hearings, to, as the Board explained, "further
educate themselves on this road issue" and "review all information received." The Board
made its decision to abandon the road on the minutes of its March 13, 2018 regular meeting
and sent notice of the decision through certified mail. The Board adequately docurnented
its decision as required under the statutes governing county road abandonment.
CONCLUSION
¶23 The District Court is affirmed.
Justice
We concur:
12
Justices
13
Williams v. Stillwater BOCC
Combined Opinion