State ex rel. Christian, Spring, Sielbach and Associates v. Miller

• Decision Date: 04 February 1976
• Docket Number: No. 13019,13019
• Citation: 545 P.2d 660,169 Mont. 242
• Parties: STATE of Montana ex rel. CHRISTIAN, SPRING, SIELBACH & ASSOCIATES, a Montana Corporation, and James B. Spring, Individually, Plaintiffs and Petitioners, v. Bonnie MILLER, Powell County Clerk and Recorder, et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 660

545 P.2d 660

169 Mont. 242

STATE of Montana ex rel. CHRISTIAN, SPRING, SIELBACH &amp ASSOCIATES, a Montana Corporation, and James B Spring, Individually, Plaintiffs and Petitioners, v. Bonnie MILLER, Powell County Clerk and Recorder, et al Defendants and Respondents.

No. 13019.

Supreme Court of Montana.

Submitted Nov. 6, 1975.

Decided Feb. 4, 1976.

Poore, McKenzie, Roth, Robischon & Robinson, P.C., Butte, Urban L. Roth, argued, Butte, David J. Wing argued, Butte, for plaintiffs and petitioners.

James H. Goetz, argued, Bozeman, James Masar, appeared, Deer Lodge, for defendants and respondents.

JOHN C. HARRISON, Justice.

Appellant James B. Spring of the firm Christian, Spring, Sielbach & Associates filed an action on June 27, 1974, against the Clerk and Recorder and Commissioners of Powell County, seeking to compel by writ of mandamus the acceptance and recordation of a 'certificate of survey'. Hearing was had in late July 1974 and judgment for respondents was entered in the district court, Powell County in October 1974.

Several days before this action arose, the Powell County Board of County Commissioners met at special session to pass a resolution termed a 'Temporary Interim Zoning Regulation' pursuant to section 16-4711, R.C.M.1947, which provides:

'Interim zoning map or regulation. If a county is conducting, or in good faith intends to conduct studies within a reasonable time, or has held or is holding a hearing for the purpose of considering a master plan or zoning regulations or an amendment, extension, or addition to either pursuant to this chapter, the board of county commissioners in order to promote the public health, safety, morals, and general welfare may adopt as an emergency measure a temporary interim zoning map or temporary interim zoning regulation, the purpose of which shall be to classify and regulate uses and related matters as constitutes the emergency. Such interim resolution shall be limited to one (1) year from the date it becomes effective. The board of county commissioners may extend such interim resolution for one (1) year, but not more than one (1) such extension may be made.'

The regulation stated that a master plan was or would be under consideration within a reasonable time to cover all private land in the North Powell Soil Conservation District in the Big Blackfoot drainage area of Powell County.

Prior to the passage of that regulation, Spring contacted Bonnie J. Miller, the Powell County clerk and recorder, to inquire whether a certificate of survey regarding this area would be accepted for recordation. Spring was advised the certificate would be recorded if it properly complied with Montana law. Spring then directed his employees to survey the land in question and on June 27, 1974, presented the resulting certificate of survey for recordation, along with the statutory recording fee. By that date, the interim regulation had been passed and the clerk and recorder sought advice as to its effect. She was informed by letter of the Powell County attorney that:

'* * * the intent of the resolution was to prevent further subdivision in the north Powell Soil Conservation area * * * for an interim period while further studies could be made. While the filing of a Certificate of Survey does not necessary imply an intent to subdivide, it is my opinion that no other purpose is served by such filing and in order to implement and execute the purpose and intent of the resolution it is my recommendation that you not accept any Certificates of Survey which may be tendered to you for recording or filing until the expiration of the 90 day moratorium which may be extended.'

Guided by this opinion, the clerk and recorder rejected both the certificate and the recording fee when Spring tendered them for filing.

The parties do not dispute that the certificate of survey complied in all technical respects with the requirements of Montana law, or that the notice provisions of section 16-4705, R.C.M.1947, were not followed by the board of...