Powell County v. 5 ROCKIN'MS ANGUS RANCH, INC., 03-800.

• Citation: 102 P.3d 1210,2004 MT 337,324 Mont. 204
• Decision Date: 30 November 2004
• Docket Number: No. 03-800.,03-800.
• Parties: POWELL COUNTY and Ralph and Charlotte Sievers, Plaintiffs and Respondents, v. 5 ROCKIN' MS ANGUS RANCH, INC., Defendant, Third-Party Plaintiff and Appellant, v. Donald T. Tamcke and Sharon Tamcke, Third-Party Defendants and Respondents.
• Court: United States State Supreme Court of Montana

102 P.3d 1210

2004 MT 337

324 Mont. 204

POWELL COUNTY and Ralph and Charlotte Sievers, Plaintiffs and Respondents, v. 5 ROCKIN' MS ANGUS RANCH, INC., Defendant, Third-Party Plaintiff and Appellant, v. Donald T. Tamcke and Sharon Tamcke, Third-Party Defendants and Respondents.

No. 03-800.

Supreme Court of Montana.

Submitted on Briefs June 15, 2004.

Decided November 30, 2004.

Rehearing Denied December 21, 2004.

For Appellant: Jon E. Doak, Doak & Associates, Billings, Montana.

For Respondents Powell County and Sievers: Bernard J. "Ben" Everett, Knight, Dahood, Everett & Sievers, Anaconda, Montana. Christopher G. Miller, Powell County Attorney, Deer Lodge, Montana.

For Respondents Tamcke: W. Arthur Graham, Missoula, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 Plaintiffs and Respondents Ralph and Charlotte Sievers ("Sievers") and Powell County initiated this action seeking declaratory judgment that two roads crossing through Defendant and Appellant 5 Rockin' MS Angus Ranch Inc.'s (the "Ranch") property are public roads. Sievers and Powell County (collectively "Respondents") further prayed for an order enjoining the Ranch from obstructing access to these roads.

¶ 2 The Ranch answered denying the roads were public roads. All parties moved for summary judgment.

¶ 3 The District Court granted summary judgment in favor of Respondents declaring the roads public and enjoining the Ranch from impeding or threatening to impede public access to such roads. The District Court denied the Ranch's motion for summary judgment. The Ranch appeals. We affirm the District Court.

¶ 4 The Ranch raises several issues on appeal which we restate as follows:

¶ 5 1. Did the District Court err in granting summary judgment declaring the Bielenberg and Danielsville roads public roads?

¶ 6 2. Did the District Court err in denying the Ranch's motion for summary judgment, that there was no ability to dedicate a road over Section 16?

¶ 7 3. Did the District Court err in finding a public prescriptive easement over Sections 15 and 17?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 8 The Ranch purchased the Powell County land in question in 2000. Third-party Defendants Donald and Sharon Tamcke were the Ranch's predecessors in interest. The sale agreement included Tamckes' assignment of a state lease on Section 16.

¶ 9 Sievers own Section 8, of Township 6 North, Range 10 West. Sievers' property is surrounded by the Ranch's property to the West, East and South. Sievers allege they use public roads that cross through the Ranch's property and that the Ranch has erected obstructions including fences and/or locked gates across the allegedly public roads.

¶ 10 Sievers use a road crossing the Ranch's property at Section 15 to access their property. There is no dispute over Sievers' right to access their property via this route, but the Ranch argues it is not a public road.

¶ 11 Respondents commenced this action seeking declaratory judgment and injunctive relief to establish that the alleged Bielenberg and Danielsville roads are public roads created in 1889 and 1903 respectively. The Ranch responded by denying the described roads are public and counterclaimed to quiet title to its property.

¶ 12 Respondents filed a motion for summary judgment. The Ranch filed a cross-motion for summary judgment. The District Court granted Respondents' motion for summary judgment, denied the Ranch's cross-motion, and granted Respondents' motion for an injunction. This appeal followed.

¶ 13 The general¹ location of the roads in question is shown below:

STANDARD OF REVIEW

¶ 14 We review a district court's decision to grant or deny a Motion for Summary Judgment de novo. Associated Press v. Crofts, 2004 MT 120, ¶ 11, 321 Mont. 193, ¶ 11, 89 P.3d 971, ¶ 11. To prevail, the moving party must demonstrate that no genuine issues of material fact exist; if successful, the burden shifts to the nonmoving party to establish that genuine issues of material fact exist. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. Unsupported conclusory or speculative statements on the part of the non-moving party as to what may have happened do not constitute issues of fact precluding summary judgment. Nelson v. Montana Power Co. (1993), 256 Mont. 409, 412, 847 P.2d 284, 286. If no genuine issues of fact exist, the court must determine whether the moving party is entitled to judgment as a matter of law. Bruner, 272 Mont. at 264-65, 900 P.2d at 903.

DISCUSSION

ISSUE 1

¶ 15 Did the District Court err in granting summary judgment declaring the Bielenberg and Danielsville roads public roads?

¶ 16 The Ranch first argues material issues of disputed fact exist concerning the "beginning, route, termini, dedication and opening of both roads" precluding summary judgment. However, the District Court concluded, and we agree, the record shows no material issues in dispute.

¶ 17 There are four ways a public highway could be established prior to 1895: "1) by action of the proper authorities in accordance with statutory provisions; 2) by prescriptive use for the period of time required by statute; 3) by opening and dedication by the private owner; and 4) on partition of real property." McCauley v. Thompson-Nistler, 2000 MT 215, ¶ 21, 301 Mont. 81, ¶ 21, 10 P.3d 794, ¶ 21.

¶ 18 There is no issue of material fact concerning whether the Bielenberg Road was statutorily created and was opened to the public on June 3, 1889. Respondents introduced Deer Lodge County Commissioners' meeting minutes from October 16, 1888, March 21, 1889, June 3, 1889, and Powell County Commissioners' Records from February 9, 1972, to establish the creation and dedication of the Bielenberg Road. To assist in establishing the "beginning, route, and termini," Respondents introduced the February 21, 1900, Bargain and Sale Deed from Henry and Margaret Quinlan to Patrick Joseph Quinlan. Respondents further reinforce their argument by producing several forest maps noting the location of the alleged public roads and providing the affidavit testimony of Charles Vanisko, a county resident since 1924. Mr. Vanisko states that throughout his lifetime he has used the Quinlan Road to "get firewood and attend school" and that he has observed others use the road for similar reasons. Mr. Vanisko described the location of the road as follows:

The Quinlan Road begins at its intersection with the road now called Yellowstone Trail. The course of the road travels west, abutting property which was previously owned by the Quinlans. The road continues in a westerly direction past the Quinlan School House and over a cattle guard ... The road continues in a westerly direction, along the property line of the old Martin property. The old Martin property is now owned by Ralph and Charlotte Sievers. The road continues west, through the Kelly property into the mountains and the forest service land. It is my understanding that the land owned by Mr. Kelly at one time is now owned by 5 Rockin MS Angus Ranch.

¶ 19 Mr. Vanisko highlighted the Quinlan Road on maps attached to his affidavit. Those maps indicate that the Quinlan Road follows the same route as the Bielenberg Road. Uncontested evidence submitted by Respondents indicates that the Bielenberg Road is also known as the Quinlan Road and/or Upper Race Track Road. There was no objection to the admission of any of this evidence.

¶ 20 The present dispute regarding allegedly public roads running through these sections is not the first. On September 10, 1993, Powell County Attorney, Christopher Miller, Don Tamcke, Ralph Sievers and two Powell County Commissions met to discuss the status of the Bielenberg Road. Correspondence between the above-mentioned individuals, as provided by the Ranch, indicates those present agreed "Bielenberg Road is a county road from it's sic eastern terminus to the corner common to sections 8, 9, 16, & 17."

¶ 21 In 1903, the relevant road creating statutes were Sections 2750 through 2771, Political Code of 1895 (repealed in 1922).

These statutes provide that ten freeholders can petition the county commissioner to establish a road described in the petition. The county commissioners then must appoint three persons to view the road and make recommendations on the need for and feasibility of building the proposed road. The statutes also provided for a hearing so the public could make its views known to the commissioners. If the commissioners decide in favor of a road, they order the road opened and order payment to the consenting landowners. In the case of nonconsenting landowners, they order payment after condemnation proceedings are completed. The statutes also required that either a written conveyance of the right-of-way be filed in the office of the county clerk and recorder or that a copy of the judgment be filed and recorded by the clerk in the event that the road is acquired by condemnation proceedings.

Reid v. Park County (1981), 192 Mont. 231, 234-35, 627 P.2d 1210, 1212-13.

¶ 22 Respondents introduced evidence establishing Danielsville Road was statutorily created and declared public in 1903. To establish Danielsville Road's creation and dedication, Respondents relied upon Commissioners' minutes from September 24, 1902, December 3, 1902, and June 2, 1903. Respondents also produced maps locating the site of the historic town of Danielsville. This evidence was unchallenged by the Ranch.

¶ 23 Respondents argue even if procedural problems existed in the creation and dedication of these roads, such problems were cured by § 2600, Montana Political Code of 1895 (codified in 1947 at RCM § 32-103 and repealed in 1959). We agree that § 2600 served to cure any procedural defects in the creation and dedication of the Bielenberg and Danielsville roads. See Garrison v. Lincoln County, 2003 MT 227, ¶ 15, 317 Mont. 190, ¶ 15, 77 P.3d 163, ¶ 15; Reid, 192 Mont. at 234, 627 P.2d at 1212. Section 2600 provides:

All highways, roads, ... laid

...