Granite County v. Komberec

• Citation: 800 P.2d 166,245 Mont. 252
• Decision Date: 20 November 1990
• Docket Number: No. 90-312,90-312
• Parties: GRANITE COUNTY, a Political Subdivision, Plaintiff and Appellant, v. Charles KOMBEREC, Defendant, Appellant and Respondent.
• Court: United States State Supreme Court of Montana

Page 166

800 P.2d 166

245 Mont. 252

GRANITE COUNTY, a Political Subdivision, Plaintiff and Appellant, v. Charles KOMBEREC, Defendant, Appellant and Respondent.

No. 90-312.

Supreme Court of Montana.

Submitted on Briefs Sept. 20, 1990.

Decided Nov. 1, 1990.

As Changed on Denial of Rehearing

Nov. 20, 1990.

J. Allen Bradshaw, Granite County Atty., Philipsburg, for plaintiff and appellant.

Fred Thomson, Missoula, for defendant, appellant and respondent.

Robert L. Deschamps, III, County Atty., Martha E. McClain, Deputy County Atty., Missoula, for amicus.

McDONOUGH, Justice.

The defendant Charles Komberec appeals the judgment of the Montana Third Judicial District Court, Granite County, sitting without a jury, declaring a prescriptive right for a public road crossing Komberec's property and enjoining Komberec from obstructing the road. We affirm.

Komberec raises the following issues on appeal:

(1) Does Granite County have standing to bring an action for acquisition of a road based on prescription?

(2) Did the District Court err in holding that the public has a right of way by prescription across Komberec's property?

(3) Did the District Court err in ordering that "the Bureau of Land Management has the right to continue improvements and maintenance on a limited basis on the road"?

(4) Did the District Court err in denying attorney's fees and costs to Komberec on his motion to compel discovery?

Granite County raises the following issue on cross-appeal: Did the District Court err in concluding that the road was not a county road created by petition of the Deer Lodge County Commissioners in 1889?

Komberec owns a patented mining claim near Garnet, Montana. The property is not now enclosed nor has it ever been. A single lane road about eight feet wide crosses Komberec's property on an east west course and connects several other mining claims with the small community of Garnet on the west and a county road on the east.

Komberec presented evidence, including an 1896 Deer Lodge County road map, that this connecting county road on the east was originally a northerly spur from a county road created in 1889 which also ran west to Garnet, then called Mitchell, on a more southerly route. This route was known as the Springtown-Mitchell Road. Komberec's evidence tended to show that beyond this county spur a private road extended to the west connecting more mining claims, including Komberec's, with the county road spur on the east. Eventually this spur road again joined the county road at a point west of Komberec's claim. This connecting road became known as the Summit Cabin Road. The portion of Komberec's property through which this road runs became a part of Granite County in 1941. Komberec contended that at some time prior a portion of the southerly route of the Springtown-Mitchell Road was apparently abandoned in favor of using this northerly route which connected the several mining claims. Komberec produced photographic evidence of a southerly road that could potentially have been the original Springtown-Mitchell Road created by Deer Lodge County.

Komberec has owned his claim since 1984. In June of 1988 he placed a locked gate across the Summit Cabin Road going through his property. On October 28, 1988, the Granite County Commissioners, acting under the belief that the Summit Cabin Road was a county road, filed a complaint alleging that Komberec had obstructed a county road crossing his property and requesting a temporary injunction and a judicial determination of the road's status. A temporary restraining order was issued enjoining Komberec from interfering with public use of the road pending judicial determination of its status. After a non-jury trial, judgment was entered in favor of the County on March 6, 1990. The court held that while the Summit Cabin Road was not the county road created by petition in 1889, the public had nevertheless acquired a right to use the road through prescription. Komberec appealed the court's ruling on prescription and the County cross-appealed on the existence of a statutorily created road.

I.

Komberec contends that the County does not have standing to bring an action for acquisition of a public road based on prescription. Komberec concedes that the County has the authority under Sec. 7-14-2107(1), MCA, to acquire rights of way by eminent domain or petition. However, Komberec argues Article XI, Section 4 of the Montana Constitution precludes the County from acquiring roads by other means. He contends that Article XI, Section 4 gives counties only (1) those powers expressly granted to them by the legislature and (2) those necessarily implied from the express grants of power. This contention lacks merit. Article XI, Section 4 of the Montana Constitution provides:

Section 4. General Powers. (1) A local government unit without self-government powers has the following general powers:

....

(b) A county has legislative, administrative, and other powers provided or implied by law.

(2) The powers of incorporated cities and towns and counties shall be liberally construed.

The literal language of the Constitution calls for liberal construction of county powers. Komberec's contentions that a county's powers are limited to those expressly granted are based on "Dillon's rule", the former rule prior to the 1972 Constitution regarding the powers of local governments that was modified by the framers of the 1972 Montana Constitution. See Montana Constitutional Convention, v. II, p. 792-793, transcript pp. 2522-2524, 2530, 2534. Clearly, under liberal construction of a county's general powers and its power to acquire roads, the County has standing to maintain an action on behalf of the public for acquisition of a road by prescription. See generally Sec. 7-1-2103(1), MCA, and Sec. 7-14-2101, MCA, et seq.

II.

Komberec also contends that the District Court erred in finding that the Summit Cabin Road was a public road by prescriptive use. He argues that the County's evidence does not satisfy the requirements for a public prescriptive easement. We disagree.

Prescriptive easements may be proved by public or private use, but in either case, the party claiming the right must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement for the full statutory period. Graham v. Mack (1984), 216 Mont. 165, 172-173, 699 P.2d 590, 595. Recently, in Johnson v. McMillan (1989), 238 Mont. 393, 778 P.2d 395, we discussed public acquisition of a prescriptive easement on a private road:

That the public may acquire the right by prescription to pass over private land is undisputed and such is the law in Montana. To establish the existence of a public road by prescription it must be shown that the public followed a definite course continuously and uninterruptedly for the prescribed statutory period together with an assumption of control adverse to the owner....

By "continuous and uninterrupted use" is meant that the use was not interrupted by the act of the owner of the land, and that the right was not abandoned by the one claiming it....

This court has said that to establish a prescriptive right it must be shown that the use was adverse and not by permission of the landowner. However, the older a road the more difficult it usually is to produce the proof of actual adverse use because the witnesses are no longer usually available....

[Citations omitted.]

Johnson, 778 P.2d at 396, citing Kostbade v. Metier (1967), 150 Mont. 139, 142-145, 432 P.2d 382, 384-386.

It is also established that use of an alleged easement for the full statutory period, unexplained, creates a presumption of use adverse to the owner which may be overcome by evidence that the use is permissive. Johnson, 778 P.2d at 396, citing Lunceford v. Trenk (1974), 163 Mont. 504, 508-509, 518 P.2d 266, 268. District courts sitting as fact finders occupy the best position to determine if the use was permissive or adverse. Johnson, 778 P.2d at 396, citing Lunceford, 518 P.2d at 267.

In affirming the district court in Johnson, we noted that there was substantial evidence to support a finding that public travelers pursued a definite, fixed course, continuously and uninterruptedly, for a long period of time (nearly 100 years). Johnson, 778 P.2d at 396. In this case, there is substantial evidence to support the same. Various witnesses testified that their use of the road began as early as 1927 or 1928 and continued up until the present. The United States Bureau of Land Management (BLM) used the road for timber management. The BLM and Champion Timberlands, Inc. performed maintenance on a portion of the Summit Cabin Road passing through BLM land in connection with a timber sale, however, the evidence indicates that Komberec is the only person to ever perform maintenance on that portion of the Summit Cabin Road crossing his property. The witnesses who testified to using the road themselves also testified that they observed the general public using the road. Among the various purposes of the road testified to were recreational, timber management, fire protection, snowmobiling access, mining and logging traffic. The Granite County Commissioners consider the road to be a county road created by the petition of and acquired from Deer Lodge County.

Komberec argues that the County's evidence is insufficient to establish a public use that would support the creation of a prescriptive easement. Generally, seasonal use by hunters, fishermen, hikers, campers, use by neighbors visiting neighbors, and persons cutting Christmas trees and gathering firewood are not sufficient to establish such a use. See Medhus v. Dutter (1979), 184 Mont. 437, 443, 603 P.2d 669, 672; Oates v. Knutson (1979) 182 Mont. 195, 200, 595 P.2d 1181, 1184; Taylor v. Petranek (1975), 173 Mont. 433, 439, 568 P.2d 120, 123; Ewan v. Stenberg (1975), 168 Mont. 63, 68, 541 P.2d 60, 63. However, in this case there was evidence of uses other than recreational such...