Peasley v. Trosper

• Decision Date: 05 December 1936
• Docket Number: 7607.
• Citation: 64 P.2d 109,103 Mont. 401
• Parties: PEASLEY v. TROSPER et ux.
• Court: Montana Supreme Court

64 P.2d 109

103 Mont. 401

PEASLEY v. TROSPER et ux.

No. 7607.

Supreme Court of Montana

December 5, 1936

Rehearing Denied Jan. 23, 1937.

Appeal from District Court, Lake County; Alfred Bescanson, Judge.

Action by Thomas O. Peasley against Belford P. Trosper and wife. Judgment for plaintiff, and defendants appeal.

Reversed and remanded, with directions.

Lloyd I. Wallace and R. H. Wiedman, both of Polson, for appellants.

John G Brown and William A. Brown, both of Helena, and Mark H. Derr of Polson, for respondent.

ANDERSON Justice.

Plaintiff an adjoining landowner of the defendants, brought this action seeking an injunction restraining the latter from obstructing an alleged road.

The lands owned by these parties are within the Flathead Indian Reservation; those now owned by the plaintiff having been acquired by him by deed dated August 15, 1933, from Julia McLeod. Julia McLeod was a member of the Flathead Tribe and an allottee of these lands for which she received a fee patent on November 15, 1917. The lands owned by the defendants were allotted to Nancy McLeod, a member of the Flathead Tribe, who received a fee patent to them on January 24, 1930; subsequently, she conveyed the lands to the defendant.

Across the allotment of Nancy McLeod there existed for many years a road or trail, with gates maintained thereon. This road or trail led from a public highway to the lands of the plaintiff and was used generally for many years by persons desiring to visit the premises of the plaintiff. This is the road which plaintiff asserts is a public road and seeks by this action to prevent its obstruction by the defendant, who has nailed up the gates and thereby prevented its use.

Over objection on the trial plaintiff was permitted to offer in evidence an application made by the board of county commissioners of Lake county to establish a highway substantially on the location of this alleged road or trail which bore the date of July 26, 1929, and which was approved, subject to the provisions of certain Acts of Congress and regulations of the Department of the Interior, by the superintendent of the Flathead Indian Agency. As a part of this document is a consent signed by Nancy McLeod, the allottee, on July 26, 1929, and approved by the same agency superintendent on November 7, 1929. None of these documents are acknowledged, and, although found in the office of the county clerk of Lake county, they bore no filing mark indicative of their being a part of the records of that county.

The evidence is to the effect that this road or trail was during the course of its existence not along a fixed and definite course, but was changed, particularly on one end of it, at least twice, and some witnesses testified as to its having been changed four different times.

The cause was tried before the court sitting without a jury. Both parties to the action submitted proposed findings of fact and conclusions of law. Following this, the court adopted its findings of fact from among those submitted, refused certain of those proposed, and made its conclusions of law. A judgment was entered in conformity with the findings of fact and conclusions of law, requiring the defendant to remove the gates and obstructions from the road, and enjoining and restraining the defendant perpetually from the obstruction of, or the interference with the free use and travel of this strip of land. The court found that no highway was established by prescription. The appeal is from the judgment.

Defendants have made many specifications of error upon the admission of testimony over objection, findings of the court, its refusal to make certain requested findings, the conclusions of law as made by the court, failure to make requested conclusions of law, and in rendering the judgment and decree.

The primary question for solution in this case is, Was the evidence sufficient to warrant the trial court in finding that this particular road was a public road? Public highways are defined or enumerated by section 1612 of the Revised Codes, as follows: "All highways, roads, lanes, streets, alleys, courts, places, and bridges laid out or erected by the public, or now traveled or used by the public, or if laid out or erected by others, dedicated or abandoned to the public, or made such by the partition of real property, are public highways."

In the case of Barnard Realty Co. v. City of Butte, 48 Mont. 102, 136 P. 1064, 1067, this court in construing the above statute said: "We think, however, as we said in State v. Auchard, 22 Mont. 14, 55 P. 361, that the intention was to declare those only to be public highways which had been established by the public authorities, or were recognized by them and used generally by the public, or which had become such by prescription or adverse use at the time the provision was enacted. Any other views would, in our opinion, render the legislation open to serious constitutional objection. Constitution, § 14, art. 3."

Although no cross-assignment of error is made on behalf of the plaintiff, it is intimated, if not urged, in his brief that the court was in error in not finding that a road had been established by prescription. The evidence, in addition to that set forth, disclosed that the county had never graded the road. Some relief workers in charge of a road supervisor of the county and using county-owned tools and appliances at one time made some repairs on a bridge across an irrigation ditch on this road; the relief workers were not paid by the county. What we said in the case of Maynard v. Barra, 96 Mont. 302, 30 P.2d 93, 95, demonstrates conclusively that the trial court was correct in holding that no road was established by prescription or user; therein it was written: "In order to establish a public highway by prescription, without color of title, by proof of travel over it for the statutory period, the testimony must definitely show a use of the identical strip of land over which the right is claimed. Pope v. Alexander, 36 Mont. 82, 92 P. 203, 565. This court in the case of Violet v. Martin, supra [62 Mont. 335, 205 P. 221], said: 'To arrive at a conclusion that a way over the lands of another is a public road, the evidence must be convincing that the public have pursued a definite, fixed course, continuously and uninterruptedly, and coupled it with an assumption of control and right of use adversely under claim or color of right, and not merely by the owner's permission, over it for the statutory period (5 years before the adoption of the 1895 Code and 10 years since), without which prescriptive rights cannot attach.' This statement was quoted with approval by this court in the case of Moulton v. Irish, supra [67 Mont. 504, 218 P. 1053]. A fixed and definite course does not permit of any deviation. Violet v. Martin, supra. The occupancy or use by the public of one portion of the road does not avail it in its claim to another portion not occupied by it. In any case the public may obtain title by adverse possession of that only which it has occupied during the full statutory period. Scott v. Jardine Gold M. & M. Co., 79 Mont. 485, 257 P. 406. *** Before a road may be established by prescription over the lands of another, the evidence must be clear and convincing that the use of the road by the public was adverse and not merely permitted by the landowner. Violet v. Martin, supra. The fact that the passage of a road has been for years barred by gates or other obstructions to be opened and closed by the parties passing over the land, has always been considered as strong evidence in support of a mere license to the public to pass over the designated way. Quinn v. Anderson, 70 Cal. 454, 11 P. 746; Huffman v. Hall, 102 Cal. 26, 36 P. 417; De la Guerra v. Striedel, 159 Cal. 85, 112 P. 856. Our own decision in the Violet Case, supra, with reference to the obstruction of a road by gates, is in accordance with the foregoing statement. Evidence of use by the public of a road obstructed by gates, standing alone, is insufficient to establish a highway by prescription."

The question is thus narrowed, so that the inquiry now is: Was this road established as a public road by some other method? As we understand, it is the contention of the plaintiff that when the superintendent of the Indian agency approved the application of the board of county commissioners it, together with his approval of the consent of the allottee, amounted to a grant of a right of way for the road which was accepted by the public as...