Chennault v. Sager, 79-89

• Decision Date: 06 May 1980
• Docket Number: No. 79-89,79-89
• Citation: 610 P.2d 173,187 Mont. 455,37 St.Rep. 857
• Parties: C. B. CHENNAULT and Mrs. Chennault, Plaintiffs and Appellants, v. George SAGER, John Buttlemen, and Joy Nash, County Commissioners, Gallatin County, Defendants and Respondents.
• Court: Montana Supreme Court

Page 173

610 P.2d 173

187 Mont. 455

C. B. CHENNAULT and Mrs. Chennault, Plaintiffs and Appellants, v. George SAGER, John Buttlemen, and Joy Nash, County

Commissioners, Gallatin County, Defendants and

Respondents.

No. 79-89.

Supreme Court of Montana.

Submitted April 17, 1980.

Decided May 6, 1980.

Bennett & Bennett, Bozeman, Lyman H. Bennett, III, argued, Bozeman, for plaintiffs and appellants.

Donald E. White, County Atty., Bozeman, Leanne Schraudner, argued, Deputy County Atty., Bozeman, for defendants and respondents.

HARRISON, Justice.

This is an appeal from a judgment and order of the District Court of the Eighteenth Judicial District relieving respondents from the effects of a temporary restraining order. The restraining order was issued as partial relief prayed for in a complaint filed by appellants which sought to permanently enjoin respondents from authorizing or making any improvements upon certain property which had been originally designated and dedicated, under a subdivision plat, as a county road.

Appellants, Mr. and Mrs. C. B. Chennault, are the owners of Lots 9 and 10 of the Lionhead Homesites Subdivision in Gallatin County, Montana. These lots are situated adjacent to Central Avenue. Central Avenue is a street within the subdivision which was designated as a public street at the time of the recording of the subdivision plat.

During 1973 appellants contacted the Gallatin County commissioners regarding the possible abandonment of a portion of Central Avenue. A petition was thereafter drafted by the county on appellants' behalf. The petition requested the abandonment of the northerly 100 feet of Central Avenue. Appellants circulated the petition among the freeholders of their subdivision and obtained the signatures of four people endorsing the petition: C. B. Chennault, Orion L. Hendry, Geraldine Hendry, and Viril Gillespie. After the filing of the petition, the county commissioners appointed a board of viewers to inspect the portion of the street specified in the petition. The inspection was conducted on August 16, 1973. On August 23, 1973, the board of viewers filed a report recommending abandonment of the portion of the road.

On August 21, 1973, the Gallatin County road supervisor's officer sent notices to those people who had signed the petition informing them that a hearing would be held with respect to the petition on September 6, 1973. Notices were sent by certified mail to Orion L. Hendry, C. B. Chennault and Mrs. Viril Gillespie. However, notice was not given to any other adjoining landowners of record. The hearing regarding the petition was held on September 6, 1973. At the hearing, the commissioners accepted the recommendation of the board of viewers and resolved to abandon the requested portion of the street.

Subsequently, in 1976, the county attorney became aware that there were several inadequacies employed in the process to abandon the street. In a letter dated July 12, 1976, the county attorney notified the commissioners of the inadequacies and recommended that the order of abandonment be set aside as invalid and void. The letter stated that, under Montana law, too few people had signed the petition for abandonment and that notice was not properly served. Following the county attorney's recommendation, the commissioners invalidated the order for abandonment on July 14, 1976.

Upon being notified that the abandonment had been invalidated, appellants contacted the county attorney and were advised of the proper statutory procedures for abandonment. Apparently, appellants also received advice from one of the commissioners as to how they might cure any defects in their original petition for abandonment. While appellants did pursue some efforts to have the order of abandonment reinstituted, it is clear that they did not follow prescribed statutory procedures.

On September 4, 1978, appellants filed another petition in accordance with statutory requirements for the abandonment of a second and separate street within their subdivision. The street sought to be declared abandoned was known as First Street. First Street intersected Central Avenue and adjoined the Lionhead Subdivision with several lots of the Southfork Subdivision. A hearing was scheduled for September 5, 1978, regarding this petition. At the hearing, developers of the Southfork Subdivision submitted a letter opposing the request for abandonment because it would block access to their property. The county surveyor also testified that closure of First Street would block access to the Southfork Subdivision and to Lots 3 and 4 of the Lionhead Subdivision.

A compromise was reached between the parties: Central Avenue would remain open as an access to Lots 3 and 4 of the Lionhead Subdivision as well as the Southfork properties, and First Street would be abandoned except for that portion which crossed Central Avenue. The county commissioners adopted this compromise on September 22, 1978, and declared First Street abandoned pursuant to the agreement.

The county surveyor then granted the developers of the Southfork Subdivision permission to construct a gravel access road along Central Avenue, including the northerly 100 feet of the road for which the first abandonment had been invalidated. Appellants brought this action to restrain respondents from authorizing these improvements upon the road. As part of the relief requested, a temporary restraining order was issued by the District Court for respondents to show cause why a permanent injunction should not issue. A hearing was held regarding the matter, and the court entered findings of fact and conclusions of law. The court held that the attempt to abandon the northerly 100 feet of Central Avenue did not comply with statutory requirements and was void initially. Accordingly, it determined that this portion of the street had never been abandoned. An order relieving respondents from the effects of the temporary restraining order was entered by the court on August 10, 1979. It is from this judgment and order that appellants appeal.

A single issue is raised for our consideration: Were respondents, as Gallatin County commissioners, equitably estopped from reestablishing a portion of Central Avenue as a public roadway where the initial attempt to abandon the roadway did not comply with statutory procedures for abandonment?

Both parties agree in this case that Montana statutes set forth the exclusive method by which county roads must be abandoned. The statutory scheme for the abandonment of county roads is found in sections 7-14-2601 through 7-14-2621, MCA. To initiate proceedings, any ten or a majority of freeholders of a road district petition the board of county commissioners for the abandonment of a particular road. Section 7-14-2601, MCA. Within thirty days after the filing of the petition, the commissioners cause an investigation to be conducted regarding the merits of the petition. Section 7-14-2603, MCA. A public hearing is then scheduled and notice of the hearing is given. Section 7-14-2615(2), MCA. The results of the investigation and the hearing are considered by the commissioners, and a decision is entered whether to abandon the road. Within ten days after the decision, the commissioners cause notice of their decision to be sent to all owners of land abutting the road for which abandonment was sought. Section 7-14-2604, MCA.

The parties further agree that there must be substantial compliance with these statutes before the doctrine of equitable estoppel can be applied against respondents as commissioners of Gallatin County. The general rule regarding the application of the doctrine of equitable estoppel and the vacation, discontinuance, or abandonment of roads is stated by one authority as follows:

"While some limitations to its application are to be found, the rule appears to be quite general that where the procedure for the vacation, discontinuance, or alteration of a public street or highway by direct action of public authorities is prescribed by statute, it is necessary to adhere to such procedure in order that the vacation or alteration be effective; . . . nor are the public authorities precluded by principles of estoppel from denying the termination of the existence, or alteration, of the public way in the absence of substantial compliance with the statutory procedure . . ." 175 A.L.R. 760, 762 (1948).

The reluctance to apply equitable estoppel to governmental entities is founded upon public policy considerations. It is generally thought that lands held by the public are to be protected and only disposed of where there has been compliance with the law. The interests of the general public should not be defeated, for example, by the unauthorized or unlawful acts of public agents or officers. See Norman v. State (1979), Mont., 597 P.2d 715, 36 St.Rep. 1093.

The policy of protecting public lands and making statutes the exclusive method for the disposition of public lands is well recognized by our C...