No. 14711
I N THE S P E E COUHT O THE STATE O IvDIWANA
UR M F F
1979
ROBERT E. WYNIA and WINmm C. WYNIA,
P l a i n t i f f s and A p p l l a n t s ,
THE CITY O GRJ3?Q FAL;LS, AND THE SCHOOL
F
DISTRICT #1O CASaDE COUNTY,
F
Respondents and Defendants.
Appeal fnmn: D i s t r i c t Court of the Eighth Judicial D i s t r i c t ,
Honorable J o e l G. Fbth, Judge presiding.
Counsel of Record:
For Appellants:
Jardine, Stephenson, B l e t t and W e a v e r , Great F a l l s , Mntana
Jack L. Lewis argued, Great F a l l s , Mntana
For Respondents:
J. Fred Bourdeau, Comty Attorney, Great F a l l s , Mntana
Carroll C. Blend argued, Deputy County Attorney, Great F a l l s , Mntana
David V. GLiko argued, City Attorney, Great F a l l s , Mntana
Suhitted: June 7, 1979
mid&: SEP Y
Filed:
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
This appeal is brought by Robert and Winona Wynia from
an order of the District Court, Cascade County, dismissing
their action for declaratory judgment against the City of
Great Falls and School District Number One of Cascade County.
The Wynias had sought a declaration that the City's act of
closing and barricading a street and alley which adjoined
their residential lot was illegal. In the alternative, they
had sought a declaration that if the street and alley had
been legally closed, the City nonetheless was illegally
restricting their use and enjoyment of the private legal
interests which they retained in the roadway which their
property abutted.
Plaintiffs own two adjoining residential lots on the
northwest corner of the block in Great Falls. The lots are
bounded on the north by Second Avenue South, on the west by
20th Street South, and on the south by Third Alley South.
Great Falls High School is located just west of plaintiffs'
property, across 20th Street South.
In October and November 1976, the School District
circulated petitions which requested the City to close four
intersections leading into a two block segment of 20th
Street South. The affected segments of 20th Street South,
Third Alley South, and Fourth Alley South are indicated on
the diagram:
I
Rut, Sou+h
- L,,,,l&5d I
-2- 4+h hue. So&*
The effect of the closures is to create a cul-de-sac of
the two block sections of 20th Street South on the east of
Great Falls High School. All of the lot owners along both
sides of the affected two blocks of 20th Street South, with
the exception of plaintiffs, signed the petitions. Of the
nine lot owners whose property abuts on Third Alley South,
seven, excluding the plaintiffs signed the petitions.
The petitions which were presented to the plaintiffs
and to the other lot owners on their block and along the two
block section of 20th Street South did - mention the
not
closure of the entire alley between 20th and 21st Street, or
of the entire - blocks between Second Avenue South and
two
Fourth Avenue South. Instead, the petitions referred to the
closure of 22-1/2 foot "segments" of the street and alleys:
"We, the undersigned adjoining property owners
hereby petition the City Commission of the City
of Great Falls to close those segments of 20th
Street South, 3rd Alley South, and 4th Alley
South described hereinbelow:
"'a segment of 20th Street South which is bounded
on the south by the south right-of-way line of
2nd Avenue South, and bounded on the north by a
line which is parallel to and 22-1/2 feet north
of the south risht-of-way line of 2nd Avenue South;
and, segments oi 3rd ~ 1 1 ; ~
South and 4th Alley
South which are bounded on the west by a line which
is 22-1/2 feet west of the east right-of-way line
of 20th Street South, and bounded on the east by
the east right-of-way line of 20th Street South.'
"We further petition the City Commission of the
City of Great Falls to take all measures necessary
to make effective the revision of traffic in the
vicinity of Great Falls High School, with the
understanding that such measures will be imple-
mented on a trial basis until a final determination
has been made by the City Commission that the
overall effect of the revision of traffic has been
beneficial."
On February 22, 1977, the City Commission adopted Resolution
No. 6905, stating its intent to close the segments noted in the
petition and provided for notice of publication in the Great
Falls Tribune, a newspaper of general circulation in the affected
area. On March 15, 1977, the Commission passed Resolution
No. 6920, providing for a closure of the 22-1/2 foot segments
of 20th Street South and Third and Fourth Alleys South on a
temporary basis. The Resolution contained a preamble which
recited that the City Manager had caused notice of Resolution
No. 6905 to be published in accordance with section 7-14-4114,
MCA, on March 1, 1977.
On December 20, 1977, the City Commission passed Resolution
No. 7035 providing for the permanent closure of two segments
of 20th Street South, at the intersections of Second and
Fourth Avenues South and one segment each of Third and
Fourth Alleys South where they joined 20th Street South.
In the complaint filed on June 2, 1978, the plaintiffs
sought a declaration that the percentage of owners whose
lots abutted to the northernmost 22-1/2 foot segment of 20th
Street South and the 22-1/2 foot segment of Third Alley
South was insufficient to give the City authority to close
those segments. Plaintiffs also sought, on that basis, to
have Resolution Nos. 6905, 6920, and 7035, declared invalid,
and the closure of the segments of 20th Street South and
Third Alley South adjoining their property, declared illegal
and void. The complaint sought a removal and permanent
injunction against further placement of barricades on the
22-1/2 foot segments of 20th Street South and ~ h i r dAlley
South which their lots abutted. Finally, in the event the
District Court held the closures valid, the plaintiffs
sought a declaration that upon the closure of the segments
they became owners of the half of the closed segments nearest
their lot and were entitled to unencumbered use and ownership
of that land.
On December 19, 1978, the District Court denied all
relief sought by plaintiffs and granted the defendants'
motion for summary judgment and dismissal of the complaint.
-4-
The principal issues presented for this Court's deter-
mination are whether the City of Great Falls followed the proper
statutory procedures for closure of the segments of 20th
Street South and Third Alley South abutting on plaintiffs'
lots; and alternatively, if the City did properly close the segments of
street and alley, does the closure effect a reversion of half
of each of those segments to plaintiffs?
The plaintiffs' first issue is broken down into four
categories. They contend first that the petitions requesting
closure of the two segments of street and alley abutting on
their property did not contain the required percentage of
signatures from lot owners on the segments to be closed.
Plaintiffs maintain that the City could not close the 22-1/2
foot segments of 20th Street South and of Third Alley South
until it was presented with a petition signed by 75 percent
of the lot owners whose property abutted those segments - be
to -
closed. They contend the City was without authority to consider
the signatures of those lot owners who did not live on the
portions of 20th Street South and Third Alley South which were
not closed by the terms of the Resolutions.
Plaintiffs argue that the proper determination of the
required percentage of signatures must be made in reference to
those lots which abut on the segments to be closed. When that
approach is followed, they point out, the only lot owners whose
land abuts on the closed segment of 20th Street South are
themselves and the School District. Similarly, the only lot
owners whose property abuts on the closed segment of Third Alley
South are themselves and their across-alley neighbors, the
Skinners. In each case, then, the percentage of lot owners
whose lots abut on the closed segments who signed the
petition was 50 percent, not 75 percent as required by statute.
Second, plaintiffs contend that the final resolution of
the City Commission (No. 7035) was void because the petitions
had requested only a temporary closure, not a permanent
closure of the street and alley segments.
Third, plaintiffs argue that the closure is void because
the City Commission did not give notice as required by section
7-3-4448, MCA, and that notice by publication was insufficient.
Fourth, plaintiffs claim that the ordinance of closure is
void because it fails to preserve their private right-of-way
and easement as required by section 7-3-4448, MCA.
Section 7-14-4115, MCA, provides for the dis-
continuance of streets and alleys. A series of amendments
between 1887 and 1945 however, have left the statute with three
different terms to describe the action which a city might
take :
"The council, or county commissioners if the town
-
be unincorporated, may discontinue a street or alley,
or any part thereof, in a city or town or unincor-
porated town or townsites, upon the petition in
-
writing of all owners of lots on the streets or
alleys, if it can be done without detriment to the
public interest; provided that where the street or
alley is to be closed for school purposes, a petition
signed by seventy-five per cent (75%) of the lot
owners on the whole street or alley to be closed,
will be required; provided further that such vacation
shall not affect the right of any publicutility to
continue to maintain its plant and equipment in
any such streets or alleys." (Emphasis added.)
That the City in this case is acting "for school purposes"
is not challenged. The plaintiffs' contention is only that
the percentage of signatures obtained on the petition was
inadequate because only those signatures of lot owners on the
segments which were to be closed can be considered.
The difference between plaintiffs' and the City's
position stems from a differing perception of the effect of
the closure of the various 22-1/2 foot segments. The plaintiffs
point to the literal language of the three City Commission
Resolutions which refer to the closure of 22-1/2 foot "segments"
of the roadways. By pointing to the total effect of the
"segment" closures, however, the City must take the position
that the three resolutions were intended to have a broader
impact than they show on their face. In essence, the entire
two blocks of 20th Street South were "closed" to through
traffic by the City's action, and - just four 22-1/2 foot
not
segments of 20th Street South and Third and Fourth Alleys
South.
Clearly, the entire two blocks were directly affected
by the City's action. Plaintiffs contend that the City
cannot argue concerning the total effect of the small closures,
however, for to do so would modify or contradict the specific
terms of the closure resolutions.
It is true that as a general rule public records must
speak for themselves. Evidence offered to contradict an
official record is therefore inadmissible. See Eastman V.
School Dist. No. 1 (1947), 120 Mont. 63, 72-73, 180 P.2d
472, 476. Buell v. City of Bremerton (1972), 80 ~ash.2d
518, 495 P.2d 1358, 1362. This rule does not extend so far
as to prevent the drawing of a reasonable inference concerning
the purpose of the proposed ordinance. "In construing a
municipal ordinance, the courts will look to the ordinance
as a whole to ascertain the intention of the lawmaking body
and the purpose sought to be accomplished by the legislation."
1 Antieau Municipal Corporation - S4.43 at 4-82 (1975).
Law
If possible, an attempt must be made to produce a harmonious
whole from each and every part of a statute. City of Portland
v. Kirk (0r.App. 1974), 518 P.2d 665, 666-67.
-7-
In this case a review of Resolution No. 7035 by itself
shows that the City Commission contemplated the simultaneous
closure of four 22-1/2 foot segments of street and alley.
Considered as a whole, the intent to create a cul-de-sac is
obvious. The Commission was not so much concerned with the
22-1/2 foot segments themselves as with the two blocks of
street between the northernmost and southernmost segments.
The petition and resolutions do speak only of the
closure of 22-1/2 foot segments, and section 7-14-4115, MCA,
most naturally interpreted refers to the lot owners whose
land is on the street actually to be closed. The statute
does not speak in terms of those effected by the closure.
Nor do the words "(75%) of the lot owners on the whole
street or alley to be closed" support the City's argument
that the statute is directed at those directly affected. In
the first portion of the statute, the language refers to
"any part" of a street or alley. Thus, if a part of a
street is to be closed, the natural meaning of the statute
is that the lot owners whose lots adjoin that whole part
must be considered within the 75 percent.
The problem, then, is that while the City intended to
prevent through traffic along two blocks of 20th Street
South, it officially acted to "close" only 45 feet of the
street itself. In effect, the entire two blocks were "closed"
in one sense. The general public can no longer utilize 20th
Street South to get from Fourth Avenue South to Second
Avenue South. Similarly, lot owners along 20th Street South
have restricted access to their property. Whatever character
20th Street South may now have, it is no longer a through
roadway since it has been "closed" to that specific purpose.
Thus, the City Commission resolution, viewed in
completeness, "closed" not just several 22-1/2 foot segments
of street and alley, but also "closed" two blocks of 20th
Street South. The petitions and resolutions are not completely
descriptive of their effect. But their effect is surely the
closure of two blocks of 20th Street South, and the imposition
of similarly limited access to the two alleys between 20th
and 21st Streets South.
Following this conclusion, then, all the lot owners along
the affected two blocks of 20th Street South and along the
affected two alleys were "lot owners on the whole street or
alley to be closed". It was this entire group of lot owners
which was relevant to the determination of the 75 percent
requirement, despite the inartful drafting of the petitions
and resolutions.
Plaintiffs argue that the City Commission lacked authority
to adopt Resolution No. 7035 permanently closing the street
and alley adjoining their lots, because the petitions which
were presented to the Commission requested only temporary
closure. It is true that the second paragraph of the petition
contains the words "with the understanding that such measures
will be implemented on a trial basis." That paragraph, however,
continues, "until a final determination has been made by the
City Commission that the overall effect of the revision of
traffic has been beneficial."
By its wording, the petition appears to have intended
that the City Commission have some form of continuing power
after the trial basis closures were implemented, otherwise
the phrase that begins "until a final determination" would
have no meaning. Although the petition does not say what
-9-
that continuing power is, a fair inference is
that the City would have the authority, following a trial
period of closure, to permanently close the street and alleys.
In fact, this appears to be precisely what the City did, for
kesolution No. 6920, providing for temporary closure, was
enacted in March 1977, while the final permanent closure
resolution- No. 7035, was not adopted until December 1977.
In a written interrogatory addressed to the City, plaintiffs
asked, among other things, under what authority the City
Commission had the right to declare the street and alley
closures. The City answered:
"Known at present but not limited to: Section 11-
2801 R.C.M. 1947, Section 11-3308 R.C.M. 1947,
Section 11-3208 R.C.M. 1947, Section 11-3201
R.C.M. 1947."
By this answer, plaintiffs contend that the City's
expression of reliance upon section 7-3-4447(2), MCA, binds
the City to follow its mandate. The section provides:
"Improvement and vacation of streets and highways.
When lt deemsit necessaryythe commission may cause
any street, alley, or public highway to be opened,
straightened, altered, diverted, narrowed, widened,
or vacated."
Plaintiffs correctly point out that if the City relies
upon this statute, however, it must also follow the require-
ments of section 7-3-4448, dealing with vacation and name changes
of streets. Section 7-3-4448, requires the city commission first
to pass a resolution of intent to vacate the street and then
requires the city manager to "cause notice of such resolution
to be served in the manner that service of summons is required
to be made in civil actions upon all persons whose property
abuts upon the portion of the street affected . . ." It is
conceded that the City did not give such notice to plaintiffs
but relied instead upon the notice by publication provision
of section 7-14-4114(3), MCA. A single newspaper notice
appeared on March 1, 1977 in the Great Falls Tribune and no
personal service of the resolution of intent was ever attempted.
There is no doubt that the notice by publication on
March 1, amply complied with the requirement of section 7-14-
4114(3), MCA. The question then is whether the City was
bound by sections 7-3-4447(2) and 7-3-4448. The plaintiffsp
argument that the City is bound by these sections takes two
directions. First, the plaintiffs argue that the City's
reliance upon section 7-3-4447(2), PICA, in its answer to
their interrogatory binds it to follow the section. The
City's response to the interrogatory question, however,
appears to be academic rather than an attempt to invoke its
authority. It is clear from the resolution of March 15,
1977 (No. 6920) that the City had proceeded under section
7-14-4114(3), MCA. The City's brief on this appeal reiterates
this conclusion. There seems no basis for holding the City
to the notice requirements of Title 7, Chapter 11, Part 44,
MCA, (formerly Title 11, Chapter 33, R.C.II. 1947) simply
because a reference was made to that chapter in response to
an interrogatory filed after the City's action was already
complete.
A nore serious question, however, is whether the City
can elect to proceed under section 7-14-4115, PICA, and
ignore the requirements of Chapter 11 when it closes a
street. Plaintiffs argue that the words "vacate" and "close"
are synonymous. Thus, they contend, that the City cannot
avoid the requirements of sections 7-3-4447 (2), PICA, and
7-3-4448, MCA, simply by referring to the action as a "closure"
rather than a "vacation".
In State ex rel. Smart v. City of Big Timber (1974),
165 Mont. 332, 335, 528 P.2d 688, 692, this Court noted that
section 7-14-4114 is "the amalgam of the intent of a number
of legislatures." The Court continued:
-11-
"This is important when this single statute
purports to deal with the 'discontinuance',
'closing', and 'vacation' of streets. It
appears that the terms were thought of by the
draftsmen as being interchangeable." 165
Mont. at 335, 528 P.2d at 692.
Smart, however, involved neither discontinuance, closing,
nor vacation of a street, but only an alteration or improvement.
165 Mont. at 335, 528 P.2d at 692. Thus, there was no need
to determine whether, despite the thoughts of the draftsmen,
there might be some legal distinction between "vacate" and
"close".
If there is no distinction between "vacate" and "close"
the two statutes (section 7-14-4114 and '7-3-4448) overlap.
Indeed, some overlap is inevitable because both sections
contain the word "vacate." Further, the notice provision,
section 7-14-4114(3), MCA, uses the word vacate:
"Before acting upon such petition a notice must be
published or posted in three public places, stating
when such petition will be acted on, and what street
or alley, or part thereof, is asked to be vacated.
Such notice must be published in a newspaper or
posted at least one week before the petition is
acted on." (Emphasis added.)
Thus, two separate statutes with separate, conflicting
notice requirements purport to deal with the procedures for
vacating a city street. We conclude, however, that the City
closed, rather than vacated the street, and that the notice
by publication was therefore adequate.
Section 7-3-4448, dealing with vacation and changing
names of streets declares that vacation operates as a
revocation of the city's acceptance of the dedicated street
or alleyway:
.
. . and such order of the commission vacating
or narrowing a street or alley, which has been
dedicated to public use by the proprietor,
shall, to the extent that it is vacated or
narrowed, operate - -a revocation - -
as of the
acceptance thereof - - commission,. . ."
by the
(Emphasis added.)
It is plain that the City in this case did not intend to
revoke its acceptance of two blocks of 20th Street South,
but rather to alter its use by closing it to through traffic.
It has not given up its interest in the street. The City
therefore had the power to enact the closure resolution once
it had followed the requirements of sections 7-14-4115 and
7-14-4114(3), MCA. Had the City intended to revoke its
acceptance of the street, to give it up, to vacate its legal
interest in the street, it would have been necessary to
follow the personal notice requirements of section 7-3-4448.
Since, however, the City only closed the street to through
traffic, the notice by publication was sufficient.
Plaintiffs contend that the City's closure of the streets
and alleys bordering their lots is void because of the City's
failure to preserve an easement of way through the closed portions
of roadway. The right-of-way requirement is included in the
final clause of section 7-3-4448:
". . . the right of way and easement therein of
any lot owner shall not be impaired thereby."
Thus, when a city vacates a street or alley, the abutting
owners right of access through the vacated street must not
be impaired. Once again the conflict between section 7-14-4115
and section 7-3-4448, MCA, comes into view. Section 7-14-4115,
which governs "closing" and "vacation" contains no similar
requirement.
As we have determined above, the City did not "vacate"
the streets and alleys in the sense of revoking its acceptance
of them under section 7-3-4448, MCA. Under section 7-14-4115,
the City had the power to close the street and alter its use
without any need of preserving easements. Since there was
no "vacation" in the sense of section 7-3-4448, MCA, neither
must there be a preservation of easements in conformity with
that section.
-13-
Having concluded that the City properly "closed" the
street and alley which adjoined the plaintiffs' lots we must
determine what, if any interest, passes to the plaintiffs in
those closed sections of street and alley. The plaintiffs
contend that the City has vacated the street and alley and
that they are therefore entitled to the half of the street
and alley nearest their lot under a common-law reversion.
Because we have already concluded that there is a difference
between "closure" and "vacation" and that the City only
closed, rather than vacated the street and alley, we must
reject this contention. The City did not revoke its acceptance
of the dedicated land, but has limited and altered its use
for school purposes. Thus there can be no reversion to the
adjoining landowner. The City has given up nothing.
Assuming the City has power to create a cul-de-sac of
one of the streets abutting the plaintiffs' lots, the plaintiffs
further argue that such an action by the City causes compensable
damage to their property. The question created by this
contention is whether the plaintiffs have a property interest,
unique from that of the public in general, in access to
their lot from the nearest intersection in both directions.
It is clear that a lot owner whose lot abuts upon a public
roadway has some rights of easement that are distinct from those
of the general public. It is the extent of the rights of the
abutting lot owner which distinguishes the majority from the
minority position.
Perhaps a majority of courts have concluded that this right
of access extends from the property owner's lot to the next
adjoining intersections in both directions along the public street.
Bacich v. Board of Control of California (1943), 23 Cal.2d 343,
349-350, 144 P.2d 818, 823. Annot. 49 A.L.R. 330, 351 (1927),
and 93 A.L.R. 639, 642 (1934). In Bacich, the California Supreme
-14-
Court created an easement in both directions in favor of the
abutting lot owner. Having created the easement, it was a simple
step to hold that cutting off half of the easement by allowing
traffic in only one direction, the easement has been impaired
and a right to damages is created. 23 Cal.2d at 354, 144 P.2d
at 825.
On the other hand, a minority position, perhaps best
articulated by Justice Traynor in the Bacich dissent, agrees
that there exists some right of access unique to the landowner
whose lot abuts a public street, but denies that such a
private right extends in both directions to the nearest
intersection. Obviously, if no easement exists in both
directions, the property owner "can have no recovery even
though the value of the abutting property may be diminished
as a result o f t h e improvement." 23 Cal.2d at 369, 144 P.2d
at 833, citations omitted (Traynor, J. dissenting).
In his dissent, Justice Traynor observed that the right of
ingress and egress is a creation of judicial decision which has
protected lot owners from particular types of street improvements
which would impair the use of their land. Nonetheless, the
abutting owners' rights were always considered subordinate to
"any reasonable use of the street made by public authorities to
facilitate general travel." 23 Cal.2d at 370-371, 144 P.2d at
833-834. Thus, so long as some "adequate and reasonable"
means of access is preserved, an abutting landowner suffers no
compensable injury from the closure of traffic from one direction:
"The trust that arises from the appropriation
of land for public thoroughfares is for the
benefit of the public at large and only
incidentally for the benefit of abutting owners.
The extension of the abutting owner's rights in
the present case makes the primary consideration
the benefit of abutting owners rather than the
benefit of the public. Hitherto no California
case has ever defined the right of ingress or
egress as inclusive of an easement to the next
intersecting street. The rule has been that the
right of ingress and egress is limited to adequate
and reasonable access to the property from the
street, that it does not extend to the full width
of the street, or to the full length thereof, or
even to all points upon the street in front of
the abutting property. It is sufficient if there
is access to a street that in turn connects with
the general street system. Any improvement that
does not materially interfere with such access
does no compensable damage." 23 Cal.2d at 371, 144
P.2d at 834. (Traynor, J. dissenting.)
Public policy is better served by the minority position.
Reasonable regulation of traffic often impairs total freedom
of access by abutting lot owners. If a municipality were
forced to compensate abutting owners each time it limited their
two-directional access, the municipalities'incentive or ability
to provide for the safe flow of traffic would be restricted.
There are several instances, for example, in which a city may
reregulate traffic without compensation to abutting owners:
". .
. city traffic ordinances abound with
regulations that limit a property owner's freedom
of movement upon the street on which his property
abuts. Thus 'U' turns or the making of left turns
upon emerging from a building or private driveway
are frequently prohibited, and the diversion of
traffic into one-way streets is common. Frequently
traffic moving in opposite directions is separated
by some physical barrier such as a raised curbing.
These restrictions have the same effect whether
they ensue from traffic regulations or physical
obstructions and there is no more reason to allow
compensation because of the resulting diminution in
property values or the inconvenience of circuity of
travel in the one case than in the other." Bacich,
23 Cal.2d at 371-372, 144 P.2d at 834-835.
In the present case, the closure was effected for the
purpose of protecting pedestrian school children on their way
to and from school, and to prevent automobile noises from
disrupting classes on the east side of the school building.
These purposes would be discouraged if a city were forced to
compensate the abutting land owners for their loss of two-way
access. Here, reasonable access of the plaintiffs to their
property has been preserved.
The minority position is not only more legally sound, but
more realistically serves the needs of a community.
The judgment of the District Court is affirmed.
We Concur:
Chief Justice
Justices