Bolinger v. City of Bozeman

• Decision Date: 09 February 1972
• Docket Number: No. 12020,12020
• Citation: 493 P.2d 1062,158 Mont. 507
• Court: Montana Supreme Court
• Parties: Harry A. BOLINGER, Jr., Executor of the Last Will and Testament of Mary E. Bolinger, Deceased and Lucille B. Wood, Plaintiffs and Appellants, v. CITY OF BOZEMAN, a Municipal Corporation of the State of Montana, et al., Defendants and Respondents.

Page 1062

493 P.2d 1062

158 Mont. 507

Harry A. BOLINGER, Jr., Executor of the Last Will and Testament of Mary E. Bolinger, Deceased and Lucille B. Wood, Plaintiffs and Appellants, v. CITY OF BOZEMAN, a Municipal Corporation of the State of Montana, et al., Defendants and Respondents.

No. 12020.

Supreme Court of Montana.

Submitted Jan. 10, 1972.

Decided Feb. 9, 1972.

Bolinger & Wellcome, H. A. Bolinger, Jr. (argued), Bozeman, for appellants.

Berg, O'Connell, Angel & Andriolo, Ben E. Berg, Jr. (argued), Bozeman, for respondents.

CASTLES, Justice.

This is an appeal from a judgment entered by the district court in Gallatin County, Hon. Victor H. Fall presiding. The case was tried by the court without a jury and judgment was entered pursuant to findings of fact and conclusions of law, in favor of defendant. Plaintiff, Harry A. Bolinger, Jr., executor of the last will and testament of Mary E. Bolinger, deceased, filed exceptions to the findings and a motion to amend and make additional findings. The exceptions and motion were not ruled upon within the permissible time period, thereupon, the exceptions and motion being deemed denied, plaintiff perfected this appeal from the judgment.

This Court rendered an opinion on October 4, 1971, subsequently by order granted a limited rehearing, limited as to the disposition on reversal of the judgment; reheard that limited matter; and subsequently by order dated December 6, 1971, withdrew its original opinion and granted a full rehearing. The matter was reheard on January 10, 1972.

The case involves a county road in Gallatin County designated as county road No. 61, which runs in a north-south direction in close proximity to the city limits of the city of Bozeman. The property through which the road runs is not contiguous to the city, so as to permit an application for annexation under existing statutes.

In March 1969, the city of Bozeman obtained an 'Enroachment Application and Permit' from Gallatin County to '* * * construct, install, operate and maintain a sanitary sewer line together with necessary appurtenances thereto, on and within the right of way of the County Road Number Sixty (61)' (sic). This permit is expressly authorized by section 16-1114, R.C.M.1947.

In the district court there were two plaintiffs, Bolinger and a neighboring property owner, Lucille B. Wood. These plaintiffs own the fee of a portion of lands over which county road No. 61 runs; but the instant appeal is taken only by Harry A. Bolinger, Jr., as executor of the last will and testament of Mary E. Bolinger.

The road in question was established March 7, 1891, by the board of county commissioners of Gallatin County upon petition of residents in the area traversed by the road. At the time of the filing of plaintiffs' complaint the road was neither graded nor surfaced.

Defendants were advised of the plaintiffs' objections to the sewer prior to undertaking the digging of the sewer line in county road No. 61 across plaintiffs' property. Plaintiffs' objections were based upon the fact that defendants had no easement or right of way agreement and for this reason could not encroach upon the fee interest of the plaintiffs. Defendant city of Bozeman had advised plaintiffs that they could not attach to the sewer when it was completed, since their property was not within the city limits.

Defendant, city of Bozeman, proceeded with and completed the construction of the sewer in spite of the intervention of this suit seeking a mandatory injunction to compel the removal of any pipe which had been placed at that time and to enjoin the trespass by defendants. Following completion of the sewer line the case was tried and the district court found that defendants had a right to lay a sewer line under the right of way of county road No. 61 by virtue of the encroachment permit from Gallatin County.

Appellant poses the question here as-what right does Gallatin County possess in the fee underlying county road No. 61, which might be assigned to the city of Bozeman for a sewer system?

Respondent poses the question here as-may a municipal sewer be installed in a public road by permission of the county without consent of the adjoining property owners?

Subsidiary to both questions posed are these inquiries: What is the nature and extent of a public easement in a highway? That is, insofar as the sewer line here is concerned, is the public easement restricted to the use of a roadway for the movement of vehicular traffic only?

Clearly, and we think it needs no citation of authority to support, the governing authority can regulate use of the easement. Here, this governing body, the Board of County Commissioners, has statutory authority to issue the permit and did so. So the question really is, whether the rights of the fee owner have been invaded.

The district court in its finding of fact No. II, found:

'That Gallatin County Road No. 61 is a public road created by order of the Board of County Commissioners on March 7, 1891 * * *.'

The fact that appellant's predecessor was one of fifteen 'householders' who petitioned the county for a county road, which is the subject matter of this suit, is not in dispute and is supported by the record, as is the granting of the petition by the county.

In 1891 Montana had no statute governing dedication of privately owned lands to the public. Hence, the recording of a grant constituted a common-law dedication. City of Billings v. Pierce Packing Co.,117 Mont. 255, 161 P.2d 636. By a common-law dedication the interest vested in the public is an easement. 23 Am.Jur.2d, Dedication, § 57. The grant of an easement is the grant of a use and not a grant of title to the land. 28 C.J.S. Easements § 28, p. 682.

Appellant approaches the problem by distinguishing between city streets and rural or county roads insofar as there is a differentiation in rights of the public as follows.

The present section pertaining to county roads is section 32-4001, R.C.M.1947, which provides as follows:

'Rights of way for county roads * * *

'(2) By taking or accepting interests in real property for county roads, the public acquires only the right of way and the incidents necessary to enjoying and maintaining it.' (Emphasis supplied)

The foregoing section was enacted as part of the revised highway laws of 1965. Prior to the recodification of this law, the section appeared as section 32-107, R.C.M.1947, and provided as follows:

'Rights acquired by public in highway. By taking or accepting land for a highway, the public acquires only the right of way and the incidents necessary to enjoying and maintaining the same, subject to the regulations in this act and code provided.'

The section was originally enacted as section 2620 of the 1895 Political Code in almost the identical language.

The Montana code provision was adopted from the California code which had contained a similar section since 1883. The California Code at the time of the adoption of the same provision by the Montana legislature, provided as follows:

'Section 2631, California Political Code.

'By taking or accepting land for a highway, the public acquire only the right of way, and the incidents necessary to enjoying and maintaining the same, subject to the regulations in this and the Civil Code provided.'

As opposed to the clear-cut legislation indicating that the county only acquires a right of way over lands where a county road is laid out or dedicated, the city of Bozeman obtained a fee interest in its streets by virtue of section 11-3304, R.C.M.1947, which provides as follows:

'The map or plat recorded under the provisions of the foregoing act shall thereupon be sufficient conveyance to vest in the municipality the fee of the parcel of land designated or intended for streets, alleys, ways, commons, or other public uses, to be held in the corporate name in trust to and for the uses and purposes in the instrument set forth, expressed, designated, or intended.' (Emphasis supplied)

The use to which streets may be placed is much broader than the use to which county highways may be placed, particularly in view of the fee interest which a city obtains, and also in view of the fact that the owners of property in the city are benefited by the various instrumentalities which utilize the street for conducting their operations.

In California the sections pertaining to county roads, which we have set forth hereinabove, have received extensive interpretation throughout the years. Prior to the adoption of the Montana statute, the California Supreme Court had considered the applicable California section in McRose v. Bottyer, 81 Cal. 122, 22 P. 393, 394, (Decided October 11, 1889), where that court stated as follows:

"By taking or accepting land for a highway, the public acquire only the right of way, and the incidents necessary to enjoying and maintaining the same, subject to the regulations in this and the Civil Code provided.' Pol.Code, § 2631. 'The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired,' (Civil Code, § 806;) and is extinguished, 'when the servitude was acquired by enjoyment, by the disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment,' (Id. § 811.) These provisions are part of chapter 3, pt. 2, tit. 2, of the Civil Code, which relates to private easements and servitudes; but they are made applicable to a public easement of the character in question by section 2631 of the Political Code, supra * * *.'

The same holding was followed in Smith v. City of San Luis Obispo, 95 Cal. 463, 30 P. 591, 593.

Thus, from the foregoing discussion of appellant's view of a distinction between urban and rural streets, appellant urges that an easement is limited to 'only the right of way, and the incidents necessary to enjoying and maintaining the same * * *.' This, appellant urges, does not include granting permission to a city to...