Flynn v. Beaverhead County

• Decision Date: 17 June 1914
• Docket Number: 3393.
• Citation: 141 P. 673,49 Mont. 347
• Parties: FLYNN v. BEAVERHEAD COUNTY.
• Court: Montana Supreme Court

141 P. 673

49 Mont. 347

FLYNN v. BEAVERHEAD COUNTY.

No. 3393.

Supreme Court of Montana

June 17, 1914

Appeal from District Court, Beaverhead County; Wm. A. Clark, Judge.

Action by Thomas Flynn against Beaverhead County. From a judgment for defendant, plaintiff appeals. Affirmed.

Norris Hurd & Smith, of Dillon, for appellant.

D. M Kelly, Atty. Gen., and H. G. Rodgers and Roy S. Stephenson both of Dillon, for respondent.

BRANTLY C.J.

Action in ejectment. The complaint is in the usual form, alleging title and right of possession in plaintiff to certain lands described, and ouster therefrom by the defendant, to plaintiff's damage, etc. The answer consists of a denial of all the material allegations of the complaint, and matters alleged as affirmative defenses upon which issue was joined by reply. At the close of plaintiff's evidence the court granted the defendant a nonsuit and directed judgment in its favor for the costs of the action. The plaintiff has appealed.

The evidence discloses these facts: Some time prior to September 15, 1908, a number (more than ten) of the residents of defendant county and owners of land therein presented to the board of commissioners of the county a petition asking for the establishment of a new road from the vicinity in which their lands are situated to Dillon, the county seat. The proposed road, as described in the petition, was to extend through the lands of the plaintiff, and thence through adjoining lands owned by Mrs. R. A. Reynolds and others, so as to give the plaintiff an outlet toward Dillon more direct than was furnished by the old road or a new road established on any other line. It was recited that all the owners of lands through which the proposed road would pass consented to its establishment without cost to the county for right of way, except Mrs. Reynolds. It was asked that, upon the establishment of the proposed road, the old road should be abandoned. Mrs. Reynolds also signed the petition but attached, to the consent thus given, certain conditions as to fences, ditches, gates, etc., along the right of way with which the county authorities should comply as compensation for the portion of her lands taken. Upon the presentation of the petition the board appointed viewers, who made their report. The report was approved. An order was thereupon made establishing the road as proposed, upon the condition that the county was not to pay compensation to any of the petitioners for any portion of the right of way; the only expense being that of opening the road and putting it in condition for travel. The old road, which passed through other parts of the lands then owned by the plaintiff and others subsequently purchased by him, was ordered abandoned; plaintiff fencing the portions located on his lands. The record of the proceedings had by the board of commissioners at the time the petition was presented to and considered by it showed that the plaintiff had joined in the petition without any condition or reservation. He was permitted to testify that, when he signed the petition, he did so upon certain conditions expressed in a written communication to the board which was before it at the time the viewers were appointed and the order establishing the road was made; but that, upon a search of the files in the clerk's office for the original petition and communication, he had ascertained that both had been lost or destroyed. He was then permitted, over objection of counsel for defendant, to testify further as to what these conditions were, viz.: That the proposed road should extend from the line of his lands straight through Mrs. Reynolds' lands, and thence on a direct route to Dillon, and that the right of way through his lands should be inclosed by a fence constructed as described in the petition. He then stated:

"The conditions imposed upon the board, * * * with reference to this road, were never complied with. The conditions at the bottom set out that any failure to put a straight road through would make the agreement null and void. From time to time I tried to induce the board to comply with my conditions. Q. Did you ever intend to give the board, or give Beaverhead county, a right of way unless such board accepted the conditions and fulfilled them? * * * A. No, sir. They accepted them, too, on the day they met. I was there when they met. They said they accepted my conditions. The board was in session at the time they accepted my conditions. They were meeting in the board room. * * * After the road reached the line of the Reynolds ranch, the board stopped work on it; they would not do anything further. I asked them why they would not put it through. They said they could not because the conditions would not permit them to do it. That is the time that I served that notice that is now in evidence in this case."

It appears from other evidence that the work was stopped because the board was of the opinion that the expense of construction was too great. What change, if any, was made does not appear but there is ground for the inference that the plaintiff can conveniently reach Dillon by traveling another road deviating somewhat from the line of the proposed road after it leaves his lands. About September 28, 1909, the plaintiff notified the board in writing that, unless the...