Pub. Land/Water Access Ass'n, Inc. v. Robbins

Citation2021 MT 75,403 Mont. 491,483 P.3d 1102
Decision Date30 March 2021
Docket NumberDA 20-0145
Parties PUBLIC LAND/WATER ACCESS ASSOCIATION, INC., Plaintiff and Appellant, v. Mark L. ROBBINS and Deanna M. Robbins; Robert "Robin" E. Fink (a/k/a Robert "Robin" Eli Fink) and Kathie Fink; David D. Murray ; Cleo Boyce, Mary D. Boyce, Dan Boyce and Laura Boyce; Joanne Owens Pierce, and the Marabeth Owens Ostwald Revocable Trust Dated November 27, 2012; and The State of Montana; Fergus County, Montana, Defendants and Appellees.
CourtUnited States State Supreme Court of Montana

For Appellant: J. Troy Redmon, Keeley McKay, Redmon Law Firm, PC, Bozeman, Montana, Paul Grigsby, Grigsby Law PLLC, Bozeman, Montana

For Appellees Robin Fink, Kathie Fink, Mark Robbins, Deanna Robbins, Cleo Boyce, Mary Boyce, Dan Boyce, Laura Boyce, and David Murray : William W. Mercer, Matthew H. Dolphay, Holland & Hart LLP, Billings, Montana

For Appellee State of Montana: Danna R. Jackson, Chief Legal Counsel, Ada Cordelia Montague, Special Assistant Attorney General, Montana Department of Natural Resources and Conservation, Helena, Montana

For Appellee Fergus County: Kent M. Sipe, Fergus County Attorney, Lewistown, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Public Land/Water Access Association, Inc. ("PLWA"), appeals the Tenth Judicial District Court's judgment concluding that a Fergus County road was private because PLWA had not proven the existence of a public road by petition or by prescriptive easement. PLWA argues that (1) the District Court failed to apply the correct legal standard for its review, and (2) the record establishes the District Court clearly erred in its conclusion that the road was private. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 At issue in this case are certain segments of a road or trail north of Roy, Montana, extending approximately twelve miles from the historical Murray ranch home off of Mabee Road north to Knox Ridge Road.1 The parties and the District Court variously referred to the disputed segments of road as part of "Mabee Road," "the Trail," or "a two-track trail"; we refer to it for clarity and ease of reference as the "Disputed Road." The parties' dispute began in 2007; the Robbins Family (named Defendants) placed a "no trespass" sign with the Robbins's phone number on it across the gate at Section 35—land they previously leased and had recently purchased—that hunters Russel Offerdahl and Richard Hjort had used in the past to access the Fink property and nearby Bureau of Land Management land. In September 2007, Offerdahl and Hjort entered the gate without permission and proceeded down the Disputed Road. Mark Robbins confronted the hunters to tell them the Disputed Road was private and he did not give permission for its use.2 Offerdahl and Hjort returned the next day and proceeded down the trail. After Robbins alerted Montana Department of Fish, Wildlife and Parks, a game warden confronted the hunters. Later in the week, the game warden cited Offerdahl and Hjort for criminal trespass.3 Mark Robbins then locked the gate entering the Robbins's and Fink's property at Section 35.

¶3 In January 2008, the PLWA, a non-profit membership organization dedicated to promoting access to publicly owned lands in Montana, sought a declaration from the Fergus County Commissioners that the Disputed Road was a statutorily created public road. The Commissioners referred the matter to the County Attorney, who reviewed county records and applicable law. The County Attorney issued a legal opinion on January 12, 2010, concluding that the Disputed Road was not a statutorily created road. The County Attorney found no evidence to support PLWA's position, stating that "neither [Mabee Road] petition addresses any portion of the [Disputed Road] as it travels through the property." The County Attorney did not address PLWA's theory of prescriptive easement but did note, based on PLWA's provided affidavits, that it was "highly unlikely" PLWA could show the Disputed Road was public by prescriptive easement.

¶4 On August 30, 2012, PLWA filed a complaint in District Court against the State of Montana, Fergus County officials, and the local ranch families that own or lease land on the Disputed Road, including Robert and Kathie Fink, Mark and Deanna Robbins, Cleo and Mary Boyce, Dan and Laura Boyce, David Murray, and others (collectively, "Landowners").4 The complaint sought: (1) a declaration that the Disputed Road was a public road pursuant to either 43 U.S.C. § 932 (previously identified as 27 R.S. § 2477), landowner petition under §§ 7-14-2601 through -2614, MCA, or prescriptive easement; (2) a permanent injunction enjoining the Robbins Family or any other Landowners from impeding the public's access to and use of the Disputed Road; and (3) a writ of mandamus ordering the County Commissioners and County Attorney to enforce the public status of the Disputed Road to ensure public access. The District Court dismissed the petition for writ of mandamus for failure to state a claim.

¶5 The District Court held a five-day bench trial, hearing testimony from twenty-seven fact witnesses and two expert witnesses, considering over eighty exhibits, and conducting a site visit of the Disputed Road. The District Court issued Findings of Fact and Conclusions of Law ("Order") in July 2019. It concluded that the Disputed Road was private, having never been made public by landowner petition or by prescription.

¶6 We begin our review of the case with a brief history.

Landowners

¶7 The Landowners are a group of ranch families that have lived and worked in the area north of Roy, Montana, for generations.5 The Fink family are original homesteaders from 1912 whose house is located just off Mabee Road and south of the beginning of the Disputed Road.

Robert E. "Bob" Fink owned and operated the Fink family ranch prior to his death in August 2013. Bob had a relationship with Offerdahl and Hjort, to whom he gave permission to hunt on his land. But the parties disputed the veracity of Offerdahl's and Hjort's testimony that Bob had said the Disputed Road was public and its use not subject to his permission. Kathie Fink, Bob's widow and wife of 41 years, and Robin Fink, Bob's son, testified that Bob believed the Disputed Road was private and never stated that it was public. Kathie additionally testified that Bob's relationship with Offerdahl and Hjort changed when they hunted on his land without permission and ran over a gate; she testified that Bob then told the hunters to stay out of their property. Bob Fink's daughter, Toni Keller, however, testified that she believed the road to be public.

¶8 The District Court disregarded the alleged statements as hearsay, noting that Bob Fink died after PLWA had filed suit and neither party had deposed him. It concluded that the statement was "not inherently reliable," and "though introduced without objection by the Defendants, the [c]ourt is not persuaded by Offerdahl's testimony in light of the conflicting substantial credible evidence that undermines the statement." The District Court further concluded that the statement would have "provide[d] Offerdahl no legal authorization to cross lands owned by [other Landowners]" because no evidence existed suggesting Bob Fink was acting as an agent for the other Landowners.

¶9 The other Landowners include the Robbins family, who have ranched in the area for several decades; they expanded their ranch in 2007, purchasing land along the Disputed Road that they had leased from the Fink family since 1998. The Boyce family has owned property in the area for three generations; it was their grandfather who granted access across another of his properties to create Knox Ridge Road. The Murray family has owned land on the Disputed Road since 1940, but the Robbinses purchased the Murrays' property after PLWA filed suit in this case. It is the Murray family's historic gate that stands at the entrance of the Disputed Road.

Mabee Road

¶10 Mabee Road is a statutorily created, well-maintained, gravel road that originates near Roy, Montana, and ends about thirteen miles north between Sections 14 and 15 in Township 20 N, Range 22 E.6 Mabee Road provides access to a Malmstrom Intercontinental Nuclear Missile Silo and to a Roy Public School bus route. Two petitions created and extended north Mabee Road: Petition 842 and Petition 2041. County records document Petition 842's exacting compliance with Montana law. Landowners in that petition sought to abandon another road7 and to establish Mabee Road from the "SW corner sec. 34" to "the SE corner of the SW 1/4 section 14." The Road Viewers Report provided the same defined end point, and the petition map prepared by the road viewers shows the same end point at Section 14. The Commissioners granted this petition in 1919. County records also document Petition 2041's exacting compliance with Montana law. Landowners submitted this petition in 1949, seeking to extend Mabee Road south to "the south side of sections 29 and 30" and north to "the 1/4 corner between section[s] 14 and 15." The petition maps also show Sections 14 and 15 to be the petition's end point.

¶11 Finally, landowners in the area unsuccessfully petitioned again to extend Mabee Road in 1965. This petition sought northward expansion of Mabee Road from the "SW 1/4, Section 14," "thence east 1 mile to the Section line between Sections 14 and 13" and then "North 2 1/4 miles" to Sections 1 and 2. The District Court noted that this petition did not mention the Disputed Road, though it would be reasonable to infer the petition would have identified it had it been considered a county road at the time, and the petition's requested extension does not follow the path of the Disputed Road. As documented in the 1968 Commission Journals, the Commissioners denied this petition because they found "insufficient use and cost too great" to justify the expansion, which would "only be used in summer and by hunters."

¶12 The...

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