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No. 00-301
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 339
EUGENE PEDERSON, COLLEEN PEDERSON,
TERRY PEDERSON, DAVID WILBURN,
COLETTE WILBURN, GREG HAGENSTON,
and EVELYN HAGENSTON,
Plaintiffs and Appellants,
v.
DAWSON COUNTY, and BOARD OF COUNTY
COMMISSIONERS FOR DAWSON COUNTY, by
and through DOUGLAS E. BARONE, HAROLD
SKARTVED, and KATHLEEN A. ALLEY,
DAWSON COUNTY COMMISSIONERS,
Defendants and Respondents.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Dawson,
The Honorable Richard A. Simonton, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
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Court E. Ball, Towe, Ball, Enright, Mackey & Sommerfeld, P.L.L.P.,
Billings, Montana
For Respondents:
Jacque W. Best, Habedank & Best, Sidney, Montana
Submitted on Briefs: September 7, 2000
Decided: December 19, 2000
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
¶1 The Plaintiffs, Eugene Pederson, Colleen Pederson, and other owners of property
accessed by Park View Loop and Park View Drive brought a complaint for a Declaratory
Judgment in the District Court for the Seventh Judicial District in Dawson County in
which they asked that the two roads be declared county roads. Following a nonjury trial,
the District Court found that county roads had never been created. The Plaintiffs appeal.
We affirm the judgment of the District Court.
¶2 The Appellants raise the following issues on appeal:
¶3 1. Did the District Court err by relying on § 60-1-201, MCA (1999), instead of the 1997
version of the statute?
¶4 2. Did the District Court err when it concluded that there was insufficient evidence to
prove the creation of a county road?
FACTUAL BACKGROUND
¶5 Eugene and Colleen Pederson, two of the Plaintiffs, owned property in Dawson
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County. In 1975, they decided to divide their land into several 20-acre tracts. To access
this subdivision, the Pedersons needed roads built through the subdivision, connecting the
various tracts to the county road known as Pederson Drive. In order to facilitate the
building of these roads, Eugene Pederson dealt primarily with Alvin Mathison, a county
commissioner assigned to Pederson's section of the county in his efforts to secure county
cooperation.
¶6 A county construction crew built the road. However, Pederson was billed
approximately $2300 for culverts and dirt work. On June 23, 1981, Pederson and his wife
gave a right-of-way easement to the County. According to Pederson, the County requested
an easement from them. This easement is the only document or writing recorded in
Dawson County to indicate any agreement between the County and Pederson. Dawson
County records do not show any sign that the two roads were dedicated, petitioned for, or
accepted by Dawson County as county roads.
¶7 Until 1996, the County periodically maintained the roads, usually at the request of
residents in the area. When Greg and Evelyn Hagenston, also parties to this lawsuit,
moved into the subdivision, the County widened Park View Road and Park View Loop to
enable them to move their house onto their property.
¶8 In 1995 Pederson began arguing with county maintenance workers about how to
maintain the roads. Joe Foran, the county road foreman, met with Pederson and
subsequently checked into the status of Park View Drive and Park View Loop. He learned
that the roads were not recorded as county roads. The County, then, notified the Pedersons
and the other homeowners in the subdivision that it was not responsible for maintaining
these roads. This suit for declaratory judgment followed. Following trial, judgment was
entered for the County.
DISCUSSION
ISSUE 1
¶9 Did the District Court err by relying on § 60-1-201, MCA (1999) instead of the 1997
version of the statute?
¶10 The Pedersons contend that the District Court erred when it relied on the 1999 version
of § 60-1-201, MCA, instead of the 1997 version in effect when their complaint was filed.
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The 1999 version of the statute provides that "[a]ll highways that are not designated,
selected, or established by the commission or constructed or maintained by the department
may be designated as county roads or city streets upon the acceptance of the county or
city." The 1997 version does not include the words "upon the acceptance of the county or
city." In the lower court's decision, the court found that this section "indicate[d] that some
affirmative action by the County is required." Appellants contend that county action is
unnecessary pursuant to the 1997 version.
¶11 We agree that the 1997 version of the statute applies to this case. However, no error
by the district court is grounds for setting aside the judgment of the district court unless
the error affects the substantial rights of the parties. We must disregard any error or defect
in the proceeding that does not affect the substantial rights of the parties. Rule 61, M.R.
Civ.P. We conclude that this error was harmless.
¶12 Both the 1997 and the 1999 versions of § 60-1-201, MCA provide in subsection (3)
that "[c]ounty roads are those opened established, constructed, maintained, changed,
abandoned, or discontinued by a County in accordance with Title 7, Chapter 14." The
District Court recognized that the controlling law was found in Title 7, chapter 14 when it
stated that "[w]hile Title 60 (specifically 60-1-201, MCA) appears to possibly conflict
with Title 7, Title 60 deals with state highway classifications and administration whereas
Title 7 deals specifically with the creation of county roads." It is clear that the District
Court did not rely on Title 60 for its conclusion that a county road had not been created
and therefore, its mistaken reference to the 1999 version of § 60-1-201, MCA was
harmless error.
ISSUE 2
¶13 Did the District Court err when it concluded that there was insufficient evidence to
prove the creation of a county road?
¶14 The Pedersons contend that the District Court misconstrued the evidence in
concluding that insufficient evidence existed to prove the existence of a county road.
When we review a district court's findings of fact, the standard of review is whether those
findings are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d
904, 906. When we review a district court's conclusions of law, the standard of review is
whether those conclusions are correct. Carbon County v. Union Reserve Coal Co. (1995),
271 Mont. 459, 469, 898 P.2d 680, 686.
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¶15 The District Court found that on June 23, 1981, Pedersons granted an easement to
Dawson County which was subsequently recorded by the County. No other document or
writing recorded in Dawson County was offered which would indicate that the two roads
were dedicated, petitioned for, or ever accepted by Dawson County as county roads.
Furthermore, undisputed testimony showed that there was no resolution or even an
unrecorded agreement by the majority of the Dawson County Commissioners accepting
Park View Loop and Park View Drive as county roads.
¶16 Prior to 1996, Pederson failed to make any claim that these roads were county roads.
He did testify at trial that Alvin Matheson indicated to him that they were county roads.
However, no other evidence substantiates this testimony. In Mathison's own deposition,
Mathison claimed that he did not recall anything officially being done for the roads.
Furthermore, Robert (Tubby) Ziegler, a commissioner from 1981-93, stated that the two
roads were never considered county roads. He testified that the board would be required to
vote on them before they could become county roads. A vote on these roads never
occurred. The current commissioners have also taken the position that Park View Loop
and Park View Drive are not county roads. After reviewing county records, they could not
find any indication that these roads were accepted in any fashion as county roads.
¶17 The District Court also concluded that county roads can only be created pursuant to
Title 7, Chapter 14, that there has been no substantial compliance with the statutory
process, and that there is no evidence of intent by the County to create a county road as
appears to be necessary from our decisions in Reid v. Park County (1981), 192 Mont 231,
627 P.2d 1210 and Sheldon v. Flathead County (1985), 218 Mont 270, 707 P.2d 540.
¶18 The Pedersons contend that because the County constructed the roads, maintained the
roads, and accepted a right-of-way easement for the roads, its actions are tantamount to
acceptance of the roads as county roads.
¶19 The record, however, also reflects that as an inducement to complete the roads,
Pederson indicated that he would pay for their construction and did pay for part of the road
work and culverts. The roads were occasionally maintained at the request of residents but
it was the custom of county officials to do so when asked without regard to the official
designation of the road. Furthermore, although the process has been expanded by
amendments in 1999, Title 7, Chapter 14 in its 1997 form simply did not allow for the
creation of county roads in the manner suggested by the Plaintiffs.
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¶20 Section 7-14-2107, MCA (1997) authorized boards of county commissioners to
acquire right-of-way for county roads. Section 7-14-2108, MCA (1997) provided that
instruments which transfer a right-of-way must be filed with the county clerk. These
sections described the process for acquiring and recording the right-of-way easement
before a county road is created. However, only §§7-14-2601 to -2606, MCA (1997)
referred to the process for the creation of county roads. Section 7-14-2601 provided for the
creation of county roads pursuant to petition by a majority of the freeholders of a road
district. Section 7-14-2603, MCA, then required an affirmative decision by the board of
county commissioners before the county road was established. Once the board of
commissioners agreed to create a county road, the board was required to immediately open
the road and declare it to be a county road. Section 7-14-2605, MCA (1997). Implicit in all
of Title 7, Chapter 14 as well as our prior decisions is that county roads cannot be created
without the county's intent, expressed through its board of commissioners, to do so.
¶21 In Peasley v. Trosper (1936), 103 Mont. 401, 64 P.2d 109, even though the
superintendent of Indian lands in Montana signed a consent form to create a public road,
the court held that the statutory procedures must still be followed. The court found that
"the road had never been laid out or opened . . . in conformity with the laws of the State of
Montana." Peasley, 103 at 410, 64 P.2d at 112. Therefore, we held that the road in
question was not a public road.
¶22 We conclude that the Pedersons offered no evidence that the statutory requirements
for the creation of a county road were followed. According to the record, no petition was
ever filed, no public hearing was held, and no evidence of a board resolution regarding the
roads exists.
¶23 Furthermore, a public easement is not the equivalent of a county road. An easement is
a nonpossessory interest in land. Kuhlman v. Rivera (1985), 216 Mont. 353, 358, 701 P.2d
982, 985. Regardless of whether Pederson believed a right-of-way easement was sufficient
to create a county road, the easements grants only the right to use. Bolinger v. City of
Bozeman (1972), 158 Mont 507, 511, 493 P.2d 1062, 1064. Nor have the Pedersons cited
authority for the conclusion that a right-of-way easement creates a county road. We
conclude, therefore, that the District Court did not err when it concluded that the facts in
this case were insufficient to establish creation of a county road.
¶24 The judgment of the District Court is affirmed.
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/S/ TERRY N. TRIEWEILER
We Concur:
/S/ JAMES C. NELSON
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
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