Barnard Realty Co. v. City of Butte

• Decision Date: 11 December 1913
• Citation: 48 Mont. 102
• Parties: BARNARD REALTY CO. v. CITY OF BUTTE.
• Court: Montana Supreme Court

48 Mont. 102

BARNARD REALTY CO.

v.CITY OF BUTTE.

Supreme Court of Montana.

Oct. 15, 1913.

On Rehearing, Dec. 11, 1913.

Appeal from District Court, Silver Bow County; John B. McClernan, Judge.

Action by the Barnard Realty Company, a corporation, against the City of Butte. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

E. B. Howell and E. M. Lamb, both of Butte, for appellant.

Alex Mackel, Wm. F. Davis, John A. Smith, N. A. Rotering, and H. L. Maury, all of Butte, for respondent.

BRANTLY, C. J.

The plaintiff brought this action on July 19, 1911, to obtain a decree quieting its title to the property described in the complaint, which is situated within the corporate limits of the city of Butte and consists of a strip of land extending from the south line of the alley immediately south of Galena street to the north line of Silver street. Its boundaries are indicated on the subjoined diagram by the heavy lines inclosing the area A, B, C, D, a part of the area designated as the Barnard placer; the dotted line being the western boundary of the latter. The question involved is whether the described area is a part of Alabama street. The defendant, admitting that the record title is in plaintiff, pleaded as a defense that for the full period of ten years prior to the bringing of the action it had been in the open, notorious, uninterrupted, exclusive, and adverse possession of the disputed area and used

IMAGE

the same as a public street, and was therefore the owner of an easement over it for a public street. The district court found the issues in favor of the defendant and entered a decree accordingly. The plaintiff has appealed from the decree and an order denying its motion for a new trial.

Counsel have made many assignments of error in their brief; but, since the only substantial argument made is confined to the assignment that the evidence is insufficient to sustain the findings, we shall deem the other assignments waived and devote our attention to the single question thus submitted.

The evidence introduced by the defendant tends to establish the following:

The area shown on the diagram to the north of the alley and east of the dotted line was originally a part of the Barnard placer. In the year 1889 Barnard, the owner, caused it to be subdivided into blocks and lots and made it an addition to the city. The portion of this area north of the south line of the alley was thus formally dedicated to the use of the public, presumably as an extension of Alabama street from the north. The dedication apparently included also the extension of the alley to the east. The area to the west of the dotted line from Galena street south is embraced in three distinct additions made to the city by other persons at about the same date; the portion north of the alley being a part of the Columbia addition, that between the alley and Mercury street a part of the Saturn addition, and that further south a part of the Neptune addition. All the portions of these areas designated as streets and alleys up to the dotted line were thus formally dedicated to public use. The rest of the Barnard placer east of the dotted line has been uninclosed and accessible to public travel. The fractional lots lying west of the line have been held and sold by the respective plat owners as fractional lots; the plaintiff and its predecessor having at all times refused to sell any portion of the area between the dotted line and the west line of the disputed area. Many of the lots in the Saturn and Neptune additions are now occupied by dwellings, some of which were erected more than ten years prior to the bringing of this action, and others of them within ten years. One of these, situated on lot 1 in the Saturn addition at the corner marked “A,” fronts to the east. A narrow sidewalk constructed of boards extends from the north line of Silver street along the course of the dotted line to the south line of Mercury street. This has been constructed from time to time by owners of lots bordering on the Barnard placer to facilitate access toward Galena street from the south, but without permission of plaintiff or its predecessor. Extending north from Mercury street there is a sidewalk which follows the direction of the east line of the Saturn addition and encroaches slightly upon the disputed area. It does not appear who constructed this. During the year 1905 the area designated as Silver street east of the dotted line was, as a result of negotiations had with Barnard, opened as a public street and has since been graded and used as such. These negotiations had no relation to an extension of Alabama street; the purpose entertained by the city apparently being only to extend Silver street to the east to accommodate the residents along it toward the west.

Some time subsequent to the beginning of the year 1901 a ditch theretofore constructed along the west side of the dedicated portion of Alabama street and probably across the alley was extended south to and across Silver street. This was done by men employed by the street commissioner of the city and at the expense of the city; the purpose being to divert the surface water which tended to follow the natural slope of the country toward Missoula gulch on the east and prevent it from cutting up the surface of the roadway toward the south and obstructing travel in that direction. At that time there were two lines of travel well defined, one on the east side of the line of the ditch and the other west of it; the one or the other being used according as it suited the convenience of the traveler. Later culverts were constructed at the points indicated on the diagram to facilitate access to the streets and alleys toward the west. Prior to 1889 placer mining operations were extended from Missoula gulch toward the west as far as the west line of the disputed area and north to about the south line of Mercury street, leaving the surface in such a condition, by reason of excavations and scattered débris, that travel over the area south to Silver street, though practical, was not convenient. The surface of this portion was leveled off by the city in 1905 and 1906. About the same time lines of wires were erected along the east and west sides of the disputed area to supply the residents to the west with light and telephone service. Arc lights were thereafter maintained by the city at Silver and Mercury streets. All of these improvements were made without the consent of the plaintiff, though its officers and agents had knowledge of them at the time. As a result, the area gradually assumed the appearance of an improved, much-traveled street.

Some time during the years subsequent to 1900 the city caused Mercury street to be graded. The grading operations stopped at the west boundary of the Barnard placer. The disputed area has never been made to conform to the grade established for that street. Later Silver street was graded throughout. Much evidence was introduced as to the character and amount of travel over the disputed area from the time the various additions were made to the city. If, however, the testimony of defendant's witnesses be taken as uncontroverted and at its utmost worth, it does not tend to establish a definite, fixed line of travel over any part of the area prior to 1896. As late as that year there were no buildings toward the west. The area in that direction was unoccupied, and persons having occasion to travel south and west from Galena street, after reaching the alley, took that direction which best suited their convenience and did not usually follow any definite, fixed route. Gradually, as the lots in these additions became occupied during the subsequent years, travel was forced eastward until it finally followed uniformly the two lines parallel with the line of the ditch. This had been the condition only from a date not earlier than the year 1896. The date at which the ditch was constructed was fixed by the defendant's one witness who testified on the subject as in the summer of 1901, in June or July. The construction work occupied two or three days. One of plaintiff's witnesses, who was assistant city engineer from 1898 to 1906 and city engineer during 1908 and 1909 and was familiar with the streets of the city, stated that the ditch was not constructed until 1907 or 1908. These were the only witnesses who undertook to fix a definite date at which the city authorities assumed to exercise control over the disputed area.

The district court did not make special findings but found generally for the defendant. It proceeded upon one of two theories, viz.: That the assumption of jurisdiction by the city authorities by the doing of this work was definitely shown by the first witness to have taken place more than ten years prior to the commencement of the action, and hence that the right by prescription had then already accrued; or that it was wholly immaterial when the city authorities assumed jurisdiction and that a mere user by the public for the statutory period of ten years was sufficient to establish the right. Without considering the testimony introduced by the plaintiff as to when the work was done, it seems clear that the defendant's evidence does not warrant any finding other than that it was commenced and finished during the last three days of July, 1901.

Since the defendant relied exclusively upon a right acquired by adverse use, it assumed the burden of...