Pub. Lands Access Ass'n, Inc. v. Bd. of Cnty. Comm'rs of Madison Cnty.

• Decision Date: 16 January 2014
• Docket Number: No. DA 12–0312.,DA 12–0312.
• Citation: 321 P.3d 38,373 Mont. 277
• Parties: PUBLIC LANDS ACCESS ASSOCIATION, Inc., Petitioner and Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF MADISON COUNTY, State of Montana, and C. Ted Coffman, Frank G. Nelson and David Schultz, constituting members of said Commission; and Robert R. Zenker, in his capacity as the County Attorney for Madison County, State of Montana, Respondents and Appellees. James C. Kennedy, Montana Stockgrowers Association and Hamilton Ranches, Inc., Respondent/Intervenor and Cross–Appellant.
• Court: Montana Supreme Court

373 Mont. 277

321 P.3d 38

PUBLIC LANDS ACCESS ASSOCIATION, Inc., Petitioner and Appellant,

v.The BOARD OF COUNTY COMMISSIONERS OF MADISON COUNTY, State of Montana, and C. Ted Coffman, Frank G. Nelson and David Schultz, constituting members of said Commission; and Robert R. Zenker, in his capacity as the County Attorney for Madison County, State of Montana, Respondents and Appellees.

James C. Kennedy, Montana Stockgrowers Association and Hamilton Ranches, Inc., Respondent/Intervenor and Cross–Appellant.

No. DA 12–0312.

Supreme Court of Montana.

Argued April 29, 2013.

Submitted May 15, 2013.

Decided Jan. 16, 2014.

For Appellant: J. Devlan Geddes (argued), Goetz, Gallik & Baldwin, P.C.; Bozeman, Montana.

For Appellees: Susan B. Swimley (argued), Attorney and Counselor at Law; Bozeman, Montana Tara DePuy, Attorney and Counselor at Law; Livingston, Montana.

For Appellee and Cross–Appellant: Colleen M. Dowdall, Worden Thane P.C.; Missoula, Montana, Peter D. Coffman (argued), Matthew T. Parrish, Dow Lohnes PLLC; Atlanta, Georgia.

For Intervenor State of Montana: Timothy C. Fox, Montana Attorney General, Matthew T. Cochenour (argued), Assistant Attorney General; Helena, Montana.

For Amici: Rebecca R. Swandal, Swandal, Douglass & Gilbert, P.C.; Livingston, Montana (Attorney for Property and Environment Center), Matthew O. Clifford, Attorney at Law; Oakland, California (Attorney for Montana Council of Trout Unlimited), Margo B. Ogburn, Wittich Law Firm, P.C.; Bozeman, Montana (Attorney for United Property Owners of Montana).

Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

¶ 1 Public Lands Access Association, Inc. (PLAA) appeals from a 2012 judgment of the Fifth Judicial District Court, Madison County, denying the public access to the Ruby River at Seyler Lane and Seyler Bridge.

¶ 2 James Kennedy (Kennedy) cross-appeals from a 2008 judgment of the Fifth Judicial District Court, Madison County, granting PLAA summary judgment on the issue of public access to the Ruby River from Lewis Bridge. We affirm in part, reverse in part, and remand for further proceedings.

¶ 3 We have consolidated the appeal and cross-appeal issues into the following issues:

1. Did the District Court correctly define the width of the public right-of-way at the intersection of Seyler Lane and the Ruby River?

2. In determining the width of the public right-of-way at the intersection of Seyler Lane and the Ruby River, did the District Court err by excluding evidence of recreational use?

3. Is the use of a public road right-of-way established by prescription limited to historic use, or does it extend to all public uses, including recreation?

4. Did the District Court err by rejecting certificates of survey (COS) as evidence of the width of the existing public right-of-way at the intersection of Seyler Lane and the Ruby River?

5. Did the District Court effectuate an unconstitutional taking of Kennedy's property when it ruled that the public may access the Ruby River via the right-of-way granted by the Lewis Lane deed?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 Duncan District Road, Lewis Lane, and Seyler Lane are county roads in Madison County, Montana. All three roads cross the Ruby River by way of bridges. The bridges were constructed by, and are currently maintained by, Madison County. Kennedy owns land that abuts the public rights-of-way on both Seyler Lane and Lewis Lane.

¶ 5 PLAA filed a complaint against Madison County in May 2004, alleging that individuals who owned property adjacent to the three bridges had erected fences along each county road to the ends of each bridge, preventing the public from using the rights-of-way to access the Ruby River. PLAA twice amended its complaint and ultimately sought, among other things, a declaratory judgment that the public may use Duncan District Road, Lewis Lane, and Seyler Lane, and their bridges and bridge abutments, to access the Ruby River. Kennedy intervened as a defendant.¹

¶ 6 The parties moved for summary judgment, and, after holding a hearing on the matter, the District Court issued an order on October 1, 2008. The court held, in part, that the public rights-of-way at Duncan DistrictRoad and Lewis Lane are each 60 feet wide, and the public is entitled to use the entire 60 foot width to access the Ruby River. With respect to Seyler Lane, the court determined at the hearing that, because the right-of-way was established by prescriptive use as opposed to statutory petition (Duncan District Road) or dedication or grant (Lewis Lane), additional fact finding was necessary to determine the width of the right-of-way and whether the public could use it to access the Ruby River. Summary judgment pertaining to Seyler Lane was therefore denied, and a trial was ordered to resolve the remaining issues.

¶ 7 The parties stipulated to the facts set forth below, through paragraph 15, prior to trial. Seyler Lane and Seyler Bridge were constructed by Madison County, but there are no records which verify the date of their original construction. Madison County re-constructed Seyler Bridge in its present location after a 1976 flood. Kennedy owns the fee title to the land underlying Seyler Bridge and the bridge approaches on Seyler Lane, including the bed and banks of the Ruby River. The Seyler Bridge surface is 24 feet wide. The area of the bridge surface between the guard rails on the bridge is 21.35 feet wide. The paved portion of the road approaching the bridge is approximately 20 feet wide and sits atop road fill that slopes down and away from the edge of the pavement. The bottom edge of the road fill is referred to as “toe of road fill.”

¶ 8 In June 2004, Madison County issued Kennedy an “Encroachment Permit for Fence on County Bridge Right–of–Way Madison, Montana” (the “Encroachment Permit”). Pursuant to the Encroachment Permit, Kennedy installed private fences at three of the bridge corners at Seyler Bridge. Some of the fences are located at the toe of road fill, while others are inside or outside the toe of road fill. The fences do not impede, block, or intimidate the public from reaching the Ruby River.

¶ 9 Madison County has assumed jurisdiction over Seyler Lane and Seyler Bridge and is responsible for maintaining them. Madison County maintains the paved surface of Seyler Lane, including the toe and shoulder, as well as the areas beyond the travelled surface and adjacent subsurface, by mowing, snow plowing, and weed spraying. Madison County also maintains the subjacent and lateral support of Seyler Bridge, including the bridge abutments, wing walls, and bridge spans.

¶ 10 Finally, and of particular import to this appeal, the parties agreed upon the following fact:

Seyler Bridge and its approaches on Seyler Lane is a county road right-of-way that was established by prescriptive use. There is no dispute that the public has the right to use the paved portion of Seyler Bridge and its approaches on Seyler Lane for travel across Seyler Bridge over the Ruby River.

¶ 11 A bench trial was held January 9–11, 2012, at which both parties presented exhibits and witness testimony. On April 16, 2012, the District Court issued its findings of fact, conclusions of law, and final judgment. We will refer to the findings and conclusions in more detail below. The gist of the District Court's decision, however, was that PLAA failed to prove the existence of a public prescriptive easement beyond the fences at Seyler Bridge by clear and convincing evidence.

¶ 12 The final judgment provides:

1. Westerly and southerly of the Seyler Bridge, the public has a prescriptive right to travel and to use Seyler Lane between the fences and likewise upon the Seyler Bridge.

2. Madison County has a prescriptive right independent and separate from public use to lateral and subjacent support for Seyler Lane and Seyler Bridge, together with such additional land as is reasonable and necessary for maintenance and repair.

3. Except as described in paragraph 2 above, there is no public right whatsoever on either side of Seyler Lane outside the fences or beyond the traveled way where there is no fence.

¶ 13 PLAA appeals this decision, and Kennedy cross-appeals from the court's order regarding the parties' motions for summary judgment.

STANDARD OF REVIEW

¶ 14 We review for clear error a district court's findings of fact. Boyne USA, Inc. v. Spanish Peaks Dev., LLC, 2013 MT 1, ¶ 28, 368 Mont. 143, 292 P.3d 432. Clear error exists if substantial credible evidence fails to support the findings of fact, if the district court misapprehended the evidence's effect, or if we have a definite and firm conviction that the district court made a mistake. Spanish Peaks, ¶ 28. We review for correctness a district court's conclusions of law. Spanish Peaks, ¶ 28.

¶ 15 We review a district court's ruling on motions for summary judgment de novo, using the same M.R. Civ. P. 56 criteria used by the district court. Mt. West Bank, N.A. v. Cherrad, LLC, 2013 MT 99, ¶ 25, 369 Mont. 492, 301 P.3d 796.

DISCUSSION

¶ 16 The issues PLAA raises on appeal relate to one overarching question: May the public use the Seyler Lane right-of-way to access the Ruby River? This inquiry breaks down into two subsets of questions: What is the width of the Seyler Lane right-of-way, and may the public use the right-of-way for recreational purposes? We address these issues in turn.

¶ 17 Issue One: Did the District Court correctly define the width of the public right-of-way at the intersection of Seyler Lane and the Ruby River?

¶ 18 The parties stipulated, and the District Court found, that Seyler Bridge and its approaches on Seyler Lane is a county road right-of-way that was established by prescriptive use. Despite this finding, the court determined that the public could only use the portion of the right-of-way “between the fences and ... upon the Seyler Bridge.” It reserved use of the areas necessary for maintenance and repairs, which included lateral and subjacent support for Seyler...