No. 80-204
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
CHARLES F. REID,
Plaintifff and Appellant,
-vs-
PARK COUNTY, MONTANA, et al.,
Defendants and Respondents.
Appeal from: District Court of the Sixth Judicial District,
In and for the County of Park, The Honorable
Jack D. Shanstrom, Judge presiding.
Counsel of Record:
For Appellant:
Yardley and Yardley, Livingston, Montana
For Respondent:
Bruce E. Becker, County Attorney, Livingston,
Montana
Submitted on Briefs: September 17, 1980
Decided : APR 3 0 1 .
s;
Filed: ApR 3 6 ~9f3
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The landowner, Charles Reid, plaintiff, appeals from a
judgment of the Park County District Court refusing to quiet
title in a road crossing his property and also holding that
Park County, one of the defendants, had established a public
road pursuant to statutes then in effect.
The landowner brought the action in April 1979. Park
County, as one of the defendants, claimed that the Park
County Commission had created a public road in 1905, and,
alternatively, that the road had become a public one by
prescriptive use. The trial court held that the commissioners
had created the road by statutory proceedings in 1905 and
that any defects in the procedure were cured by section 32-
103, R.C.M. 1947 (now repealed). The trial court did not,
however, rule on the County's claim that the road had also
become public by prescriptive use. Unfortunately, neither
party then asked the trial court to complete the trial
picture by also ruling on the claim of prescriptive use.
The landowner first claims that the curative statute
applied by the trial court does not cure jurisdictional
defects, and therefore, that there is no basis for a ruling
that the county commissioners had properly established a
public road in 1905. The landowner also contends that in
any event, the trial court cannot be affirmed because the
evidence in any event fails to establish a basis for a
finding of presumptive use. The landowner concedes, however,
that the road to Vicars' Gate (described later) is a public
road acquired by prescriptive use.
Based on Warren v. Choteau County (1928), 82 Mont. 115,
265 P. 676, which holds that no facts will be presumed in
the aid of jurisdiction to establish a road and therefore
that the jurisdiction must be shown on the face of the
proceedings undertaken to create the road, the landowner
contends that the curative statute could not cure the defects
here. The landowner claims the proceedings of the commission
were defective because: the County failed to produce a copy
of the petition showing a description of the road or that it
was signed by ten qualified petitioners (and this allegation
is undisputed); that the records failed to show that the
commissioners gave notice to the affected landowners (this
allegation is undisputed).
The County, on the other hand, relies on a statutory
presumption, section 26-1-602(15), MCA, which establishes a
disputable presumption that official duty has been regularly
performed. The County makes no attempt to distinguish the
Warren case, but relies entirely on this presumption and on
the curative statute, section 32-103, supra. The County
failed to submit a brief on its alternative theory of prescriptive
use and requests that if we reach this issue that we give
the County the opportunity to set out the evidence in supporting
a ruling of prescriptive use.
The trial court, relying on the curative statute (section
32-103) and on State v. Auchard (1898), 22 Mont. 14, 5 5 P.
361, ruled that the curative statute remedies all the defects
in the proceedings undertaken to establish a public road.
But even Auchard holds that the curative statute will not
cure a jurisdictional defect. 22 Mont. at 16. The record
of the county commissioner proceedings from 1903-1905 fails
to establish that the county commissioners had originally
acquired jurisdiction. Strict adherence to Auchard and
Warren would require jurisdiction to be shown on the face of the
proceedings creating a public road. Auchard was decided in
1898 and Warren in 1928. At those times, it was not an
onerous duty to impose on a county that it show it had
jurisdiction to create public roads on the face of the
records. To presently adhere to the same requirement imposes
an unrealistic burden on the public to prove on the face of
the record that its public officials had jurisdiction to
create a public road. We hold that it is sufficient if the
record taken as a whole shows that a public road was created.
The record is sufficient here.
We hold also that the public acquired a prescriptive
use of the road in question. Even though the trial court
did not rule on this issue, we are in a position to do so
here because almost all of the evidence on this issue was
submitted to the trial court through depositions rather than
through live-witness testimony at trial.
We first proceed to the curative statute which the
trial court applied. The trial court ruled that it cured
any defects that may have taken place during the 1905 pro-
ceedings when an obvious effort was made by the county
commissioners to establish a road. The curative statute,
section 32-103, R.C.M. 1947, in existence until 1959, provides:
"All highways, roads, ...
laid out or erected
by the public, or now traveled or used by the
public, or if laid out or erected by others,
dedicated or abandoned to the public, or made
such by the partition of real property, are
public highways."
In 1905, this statute was codified as section 2600 of
the Political Code of 1895. The trial court ruled that once
jurisdiction was acquired - - petition of - landowners,
by the - the
which was accepted - - commissioners -- -April 10,
by the at their
1904, meeting, the statute remedied all defects. The problem,
however, is that the proceedings of the commissioners of record
fail to show on their face that the county commission had
jurisdiction.
The pertinent road-creating statutes in effect in 1904
were sections 2750 through 2771, Civil Code 1895 (all of
which were repealed in 1922). These statutes provide that
ten freeholders can petition the county commissioner to
establish a road described in the petition. The county
commissioners then must appoint three persons to view the
road and make recommendations on the need for and feasibility
of building the proposed road.
The statutes also provide for a hearing so the public
could make its views known to the commissioners. If the
commissioners decide in favor of a road, they order the road
opened and order payment to the consenting landowners. In
the case of nonconsenting landowners, they order payment
after condemnation proceedings are completed. The statutes
also require that either a written conveyance of the right-
of-way be filed in the office of the county clerk and recorder
or that a copy of the judgment be filed and recorded by the
clerk in the event that the road is acquired by condemnation
proceedings.
To establish its case, the County introduced the
minutes from six meetings of the county commissioners held
between 1903 and 1905. The commissioners first considered
the road on April 10, 1903. Its minutes show:
"Upon the petition of Fred Redfield et al. for
the laying out of road, the Board appointed as
viewers, Joe Murray, D. W. McLeod and George
E. Reid to view proposed road and report that
action may be taken by the Board at their June
meeting. l1
Minutes from later meetings show that the commissioners
took further steps toward establishing a road. On February
10, 1904, they ordered the road opened. The minutes on
that day, show:
"In the road as petitioned for by Frank W.
Redfield, et al., Fred J. Redfield, Patrick
Richard, Frank Richard, and George T. Sevals
came before the Board and spoke in favor of
the granting of the petition, and agreeing to
build the necessary fence on the East side of
the land of Hollace A. Cook. The Board awarded
the sum of $15.00 as damages to Hollace A.
Cook, and ordered the road opened as petitioned
for.I'
As we stated earlier, strict adherence to Auchard and
Warren would require us to reverse the trial court in its
ruling that the curative statute cured all defects. The
record fails to establish jurisdiction to create the road
within the requirement of Auchard and Warren. At a minimum,
Warren requires that the county commissioner proceedings
. show the required number of petitioners signed the petition
and that each of them were freeholders. There is no record
here that ten people had petitioned to create a road, nor is
there a record that those signing were freeholders. To
strictly follow Warren now would mean that we would hold
proceedings in 1905 to be jurisdictionally defective. That
is why we now adopt the rule that it is sufficient if the
record taken as a whole, shows that a public road was created.
Otherwise, the burden on the public in a particular case to
prove a public road was created so many years ago may well
be unsurmountable. Here, the potential hardship is not bad
because we also hold that the public acquired the road in
question by prescriptive use. But, if we did not now overrule
Auchard and Warren on the jurisdictional issue, a private
landowner may, in a particular case, be able to keep the
public from going through land because the public's records
of a road no longer support a determination that the public
had originally acquired jurisdiction to create the road.
We next decide the prescriptive-use issue. We first
discuss the procedural problem created by the trial court
not ruling on this issue and by counsel not asking the trial
court to rule on this issue before an appeal was taken. In
support of its alternative claim of prescriptive use, the
County submitted testimony and evidence to show the use of
the road involved over a period of many years. The County
submitted proposed findings and conclusions in support of
this theory. But the trial court ruled only on the first
theory and held that the County had properly created and
opened the road by use of the statutory proceedings, and
that the curative statute cured any defects.
Both parties should have asked the trial court to rule on
the prescriptive-use issue. If we reversed the trial court
on the curative statute issue, it would be in the County's
interest to also have a judgment holding that the public had
acquired the road by prescriptive use. Its application of
the curative statute, the absence of a ruling on the alternative
prescriptive-use theory would mean that the case would have
to be remanded for a decision on that issue. A decision may
well have prompted another appeal by either party receiving
the adverse decision. This Court would then be faced with
deciding two appeals which could have been decided in one
appeal where the trial court had ruled on all the issues
raised.
Either party could have secured a ruling from the trial
court on the alternative theory by asking the trial court to
amend and supplement its findings and conclusions by ruling
also on the issue of prescriptive use. As it now stands, we
are faced with a record sufficient to establish a prescriptive
use, but with no trial court ruling on this issue. In the
future, we urge both sides of a lawsuit to take proper
action to get rulings on all issues raised so that we do not
have to decide appeals on a piece-meal basis.
Fortunately, because of the nature of the evidence
presented to the trial court on the prescriptive-use issue,
we are able to rule on this issue without an initial ruling
by the trial court. Almost all of the testimony on this
issue was submitted to the trial court through depositions
rather than through live-witness testimony at trial. Nine
depositions were admitted in evidence, and all of these were
offered on the issue of prescriptive use. In the normal
case, it would be the task of the trial court to weigh the
credibility and demeanor of the witnesses who appear before
it at trial, and therefore, we would not be at liberty to
dispose of this case on appeal in the absence of a trial
court ruling, But where a case is submitted on an issue
based almost exclusively on depositions, we are in just as
good a position as the trial court to assess the testimony.
The trial judge had before him only a written record of the
testimony, and we have the same written record before us.
We are able to review the depositions just as the trial
judge is able to review them. See, Kostbade v. Metier
(1967), 150 Mont. 139, 141, 432 P.2d 382, 384; In Re Estate
of Jensen (1969), 152 Mont. 495, 500, 452 P.2d 418, 421.
The landowner implicitly acknowledges that this Court
can rule on the prescriptive-use issue, for he devotes a
good portion of his brief to this issue and does so on the
basis that this Court "will affirm a correct result though
achieved by a wrong theory." He contends, nevertheless,
that there is no substantial evidence in the record to
justify a conclusion that a public road has been established
by adverse use beyond the Vicars' Gate. (The landowner
concedes that the public has established a road by adverse
use to the north side of the Vicars' Gate. )
The County, unfortunately, has not responded at all on
the issue of prescriptive use, but rather has asked this
Court to allow it to file an additional brief if we believe
it necessary to reach this issue. That, of course, is more
than a little presumptuous on the part of the County. Cases
on appeal cannot be decided on a piece-meal submission of
issues and the County should know this. Therefore, the
County should have filed a brief reaching the issue of
prescriptive use. Having failed to do so, it has made the
task of this Court immensely more difficult.
For the public to acquire a prescriptive use it must be
shown that the road followed a definite course, continuously
and uninterruptedly for the prescribed period of time.
Peasley v. Trosper (1936), 103 Mont. 401, 406, 64 P.2d 109,
110. The statutes then in effect required that the adverse
use continue for at least a period of ten years. The trial
court made several findings on the use of the road, with
which we agree. It found that the road had followed a
definite course since the early 1900's when it was first
established; that this road had been used from 1904 to 1970
without interruption; but i+ made no finding that the public
used the road crossing the landowner's property in a manner
adverse to the interest of the owner. The facts clearly
show an early attempt by the Park County Commissioners to
create a road, and later use of the road by the public with
which no one interferred with for a period of almost 70
years. The landowner concedes this, however, he claims that
the public's use of this road stopped at the VicarsJ Sate,
the'place where his agent erected the barricade in 1970.
Testimony on the use of the road came from thirteen
witnesses. Eleven of these thirteen witnesses testified to
the use of the road before 1969, the period during which the
prescriptive right was claimed to have come into existence.
Of these eleven witnesses, nine of them testified by way of
deposition.
The area involved is located about seven miles south
of Livingston. Through this property runs a road known as
the Little Mission Creek Road. This road travels south
across the landowner's property for about one mile and
continues for a short distance beyond. The road provides
access to National Forest Land and to other private land.
The Little Mission Creek Road forks near the center of
the landowner's land. One fork turns west for less than
one-half mile and ends at the nearby "Seval Ranch." The
other fork, the one at issue in this lawsuit, continues
south. Immediately to the south of this fork is a gate
commonly known as "Vicars' Gate." As previously mentioned,
the landowner concedes that the public has established a
prescriptive use of the road up to the north side of the
"Vicars' Gate." Just south of the Vicars' Gate are buildings
once owned by the Vicar family, but now owned by the landowner
who here started the quiet title action after barricading
the Vicars' Gate. His agent testified the barricade was con-
structed in order to prevent injury to the road by vehicular
travel of the public.
Although there was a clear attempt to create a road,
the County, for some reason did not obtain a deeded right of
way for the road which crossed the property involved. It is
clear, however, that James Vicars, the plaintiff's predecessor
in interest, received a deed from the Northern Pacific
ÿ ail way Company on August 3, 1946, which expressly noted
that the land was subject to an easement "in the public for
any public roads heretofore laid out or established, and now
existing over and across any part of the premises." This
deed covers the land involved in this lawsuit.
There is clear evidence that the County did lay out a
road in the early 1900's in the area involved. Although we
have held that the records of the County in the early 1900's
fail to establish that the county commissioners acquired
jurisdiction to create the road by the statutory procedures
then in effect, the evidence is nonetheless clear and undisputed
that the County did assume control over the road and maintained
it for many years.
A surveyor's field book shows that the road had been
surveyed and that the County had worked on the road during
the years 1905, 1909 and 1910. The surveyor's book does not
show, however, what parts of the road the County had worked
during these years. It was also established that the County
had maintained the road to the north side of "Vicars' Gate"
from 1934 through 1968. One witness, J. L. Lawellin, who
worked for the County in 1936, testified that during that
year, the County graded the road past the Vicars-ate all
the way to the National Forest. George Stebbins, an employee
of the County Road Department from 1937 to 1968, testified
that the road was graded by his crew once or twice a year--
but only as far as Vicars' Gate. Several witnesses testified
that maintenance of the road south of vicar^' Gate was
performed by the local farmers and ranchers.
This evidence undisputably establishes that the County,
for at least 63 years (1905 through 1968) was asserting an
interest in the road and maintaining the road in some fashion.
his would not be likely unless the County felt there was a
legal obligation to do so. This brings us to Vicars' Gate.
In face of all the evidence, the landowner here admits that
the public acquired a prescriptive use of the road to the
north side of Vicars' Gate. But, he claims that the public
use stopped at that point.
The evidence establishes that when Vicars' Gate was
first placed across the road, it was not for the purpose of
blocking public traffic, but for the purpose of keeping
cattle and other livestock from wandering south of the gate.
The evidence also establishes that the public regularly used
the road south of the Vicars' Gate.
John Hayden, who formerly lived on the land now owned
by the plaintiff-landowner, says he first built the gate at
Vicars' Place between the years 1922 and 1934, but that he
could not remember the year. He said that he did not build
the gate to keep the public out, but rather to keep the
neighbors' milk cows from straying too far up the road.
Most of the witnesses remembered a gate to be located at
Vicars1 Place, and some even thought there were several
gates. But there was no evidence that the gate was ever
locked before 1969,wh the plaintiff-landowner first locked
the gate and later erected a barricade.
There is no question that people regularly used that
part of the road extending to the south of Vicars' Gate.
Erna Haskins, who lived south of Vicars' Place, used the
road from 1912 to 1918 to get to school. After 1918, she
and her family continued to use the road several times a
year when they went to town. Ilma Malcolm, who lived on the
Seval's Ranch from 1906 to 1924, used the road south of
Vicars' Place "hundreds of times." Even after she moved
away from the ranch in 1924, she continued to use the road
to visit neighbors. Margaret Seiveno used the road from
1925 to 1949 to drive cattle to the National Forest Land,
and to go to her parents' ranch during branding seasons and
fall round-up. Ethyl Alt and her family used the road to
look for huckleberries during the 1920's and 1930's and to
go fishing and camping with her husband during the 1940's.
J. L. Lawellin and George Urbach used the road from the
1930's until 1969, when it was barricaded by the plaintiff-
landowner. During this time, Lawellin used the road at
least six times a year.
Two people who appeared at trial to testify, said that
during the 1930's and 1940's they used the road to help
their uncle trail sheep and that they used the road every
week or two to pick up their mail and supplies. These
witnesses, Donald Wood, and Harry Dodge, are nephews of
Louie Olson, who lived south of the Vicars' Place.
The road was never ideal for traveling. Erna Haskins
said that during the 1 9 1 0 ' ~ ~ was just a cow trail.
it Other
witnesses described the road as "just a dirt, kind of rocky
road," "poor condition," "rutty," etc. Several witnesses
testified that in the early years of the road, a horse and
buggy or wagon, or a high-centered car, could be taken over
the road. According to John Hayden, who lived at the Vicars'
Place from about 1923 to 1935, horse and buggies were the normal
means of transportation during that time, because there were
very few automobiles. Two witnesses testified that during
the spring, the road was not passable with a car and that it
was necessary to walk.
As we already mentioned, it appears that most of the
time the County maintained the road to the south side of
Vicars1 Gate, and that local residents and ranchers maintained
most of the road on the south side of the Vicars1 Bridge.
Several witnesses testified that they had always
thought the road was a public road. Not one witness testi-
fied that he had ever asked permission to use the road, even
beyond Vicars ' Gate.
The evidence overwhelmingly supports a ruling that by
the time the plaintiff-landowner locked the gate and later
barricaded the road, the public had long since established
its right to use the road as a public road.
The judgment is affirmed. The District Court is
directed to enter an appropriate order and judgment declaring
that a public road was established by use of statutory
proceedings then in existence and that a prescriptive use
was also established for the public to use the road in
question.
We Concur:
Chief Justice
A
Justices
This cause submitted prior to January 5, 1981.