Reid v. Park County, 80-204

• Citation: 627 P.2d 1210,38 St.Rep. 631,192 Mont. 231
• Decision Date: 28 May 1981
• Docket Number: No. 80-204,80-204
• Parties: Charles F. REID, Plaintiff and Appellant, v. PARK COUNTY, Montana et al., Defendants and Respondents.
• Court: United States State Supreme Court of Montana

Page 1210

627 P.2d 1210

192 Mont. 231

Charles F. REID, Plaintiff and Appellant, v. PARK COUNTY, Montana et al., Defendants and Respondents.

No. 80-204.

Supreme Court of Montana.

Submitted on Briefs Sept. 17, 1980.

Decided April 30, 1981.

Rehearing Denied May 28, 1981.

Yardley & Yardley, Livingston, for plaintiff and appellant.

Bruce E. Becker, County Atty., Livingston, for defendants and respondents.

SHEA, Justice.

The landowner, Charles Reid, plaintiff, appeals from a judgment of the Park County District Court refusing to quiet title in a road crossing his property and also holding that Park County, one of the defendants, had established a public road pursuant to statutes then in effect.

The landowner brought the action in April 1979. Park County, as one of the defendants, claimed that the Park County Commission had created a public road in 1905, and, alternatively, that the road had become a public one by prescriptive use. The trial court held that the commissioners had created the road by statutory proceedings in 1905 and that any defects in the procedure were cured by section 32-103, R.C.M.1947 (now repealed). The trial court did not, however, rule on the County's claim that the road had also become public by prescriptive use. Unfortunately, neither party then asked the trial court to complete the trial picture by also ruling on the claim of prescriptive use.

The landowner first claims that the curative statute applied by the trial court does not cure jurisdictional defects, and therefore, that there is no basis for a ruling that the county commissioners had properly established a public road in 1905. The landowner also contends that in any event, the trial court cannot be affirmed because the evidence in any event fails to establish a basis for a finding of presumptive use. The landowner concedes, however, that the road to Vicars' Gate (described later) is a public road acquired by prescriptive use.

Based on Warren v. Choteau County (1928), 82 Mont. 115, 265 P. 676, which holds that no facts will be presumed in the aid of jurisdiction to establish a road and therefore that the jurisdiction must be shown on the face of the proceedings undertaken to create the road, the landowner contends that the curative statute could not cure the defects here. The landowner claims the proceedings of the commission were defective because: the County failed to produce a copy of the petition showing a description of the road or that it was signed by ten qualified petitioners (and this allegation is undisputed); that the records failed to show that the commissioners gave notice to the affected landowners (this allegation is undisputed).

The County, on the other hand, relies on a statutory presumption, section 26-1-602(15), MCA, which establishes a disputable presumption that official duty has been regularly performed. The County makes no attempt to distinguish the Warren case, but relies entirely on this presumption and on the curative statute, section 32-103, supra. The County failed to submit a brief on its alternative theory of prescriptive use and requests that if we reach this issue that we give the County the opportunity to set out the evidence in supporting a ruling of prescriptive use.

The trial court, relying on the curative statute (section 32-103) and on State v. Auchard (1898), 22 Mont. 14, 55 P. 361, ruled that the curative statute remedies all the defects in the proceedings undertaken to establish a public road. But even Auchard holds that the curative statute will not cure a jurisdictional defect. 22 Mont. at 16. The record of the county commissioner proceedings from 1903-1905 fails to establish that the county commissioners had originally acquired jurisdiction. Strict adherence to Auchard and Warren would require jurisdiction to be shown on the face of the proceedings creating a public road. Auchard was decided in 1898 and Warren in 1928. At those times, it was not an onerous duty to impose on a county that it show it had jurisdiction to create public roads on the face of the records. To presently adhere to the same requirement imposes an unrealistic burden on the public to prove on the face of the record that its public officials had jurisdiction to create a public road. We hold that it is sufficient if the record taken as a whole shows that a public road was created. The record is sufficient here.

We hold also that the public acquired a prescriptive use of the road in question. Even though the trial court did not rule on this issue, we are in a position to do so here because almost all of the evidence on this issue was submitted to the trial court through depositions rather than through live-witness testimony at trial.

We first proceed to the curative statute which the trial court applied. The trial court ruled that it cured any defects that may have taken place during the 1905 proceedings when an obvious effort was made by the county commissioners to establish a road. The curative statute, section 32-103, R.C.M.1947, in existence until 1959, provides:

"All highways, roads, ... 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 1905, this statute was codified as section 2600 of the Political Code of 1895. The trial court ruled that once jurisdiction was acquired by the petition of the landowners, which was accepted by the commissioners at their April 10, 1904, meeting, the statute remedied all defects. The problem, however, is that the proceedings of the commissioners of record fail to show on their face that the county commission had jurisdiction.

The pertinent road-creating statutes in effect in 1904 were sections 2750 through 2771, Civil Code 1895 (all of which were 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 provide 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 require 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.

To establish its case, the County introduced the minutes from six meetings of the county commissioners held between 1903 and 1905. The commissioners first considered the road on April 10, 1903. Its minutes show:

"Upon the petition of Fred Redfield et al. for the laying out of road, the Board appointed as viewers, Joe Murray, D. W. McLeod and George E. Reid to view proposed road and report that action may be taken by the Board at their June meeting."

Minutes from later meetings show that the commissioners took further steps toward establishing a road. On February 10, 1904, they ordered the road opened. The minutes on that day, show:

"In the road as petitioned for by Frank W. Redfield, et al., Fred J. Redfield, Patrick Richard, Frank Richard, and George T. Sevals came before the Board and spoke in favor of the granting of the petition, and agreeing to build the necessary fence on the East side of the land of Hollace A. Cook. The Board awarded the sum of $15.00 as damages to Hollace A. Cook, and ordered the road opened as petitioned for."

As we stated earlier, strict adherence to Auchard and Warren would require us to reverse the trial court in its ruling that the curative statute cured all defects. The record fails to establish jurisdiction to create the road within the requirement of Auchard and Warren. At a minimum, Warren requires that the county commissioner proceedings show the required number of petitioners signed the petition and that each of them were freeholders. There is no record here that ten people had petitioned to create a road, nor is there a record that those signing were freeholders. To strictly follow Warren now would mean that we would hold proceedings in 1905 to be jurisdictionally defective. That is why we now adopt the rule that it is sufficient if the record taken as a whole, shows that a public road was created. Otherwise, the burden on the public in a particular case to prove a public road was created so many years ago may well be unsurmountable. Here, the potential hardship is not bad because we also hold that the public acquired the road in question by prescriptive use. But, if we did not now overrule Auchard and Warren on the jurisdictional issue, a private landowner may, in a particular case, be able to keep the public from going through land because the public's records of a road no longer support a determination that the public had originally acquired jurisdiction to create the road.

We next decide the prescriptive-use issue. We first discuss the procedural problem created by the trial court not ruling on this issue and by counsel not asking the trial court to rule on this issue before an appeal was taken. In support of its alternative claim of prescriptive use, the County submitted testimony and evidence to show the use of the road involved over a period of many years. The County submitted proposed findings and conclusions in support of this theory. But the trial court ruled only on the first theory and held that the County had properly created and opened the road by use of the statutory proceedings, and that the curative statute cured any defects.

Both parties should have asked the trial court to rule on the...