Warren v. Chouteau County
| Decision Date | 17 March 1928 |
| Docket Number | 6279. |
| Parties | WARREN v. CHOUTEAU COUNTY. |
| Court | Montana Supreme Court |
Appeal from District Court, Chouteau County; W. H. Meigs, Judge.
Action to quiet title by J. Y. Warren against Chouteau County. From a judgment of dismissal, plaintiff appeals. Reversed and remanded, with directions.
Vernon E. Lewis, of Ft. Benton, for appellant.
W. E MacDonald, of Ft. Benton, L. A. Foot, Atty. Gen., and C. N Davidson, Asst. Atty. Gen., for respondent.
The plaintiff, J. Y. Warren, has appealed from a judgment of dismissal entered in an equitable action brought to quiet title to certain lands owned by him and situated in Chouteau county as against a certain right of way for a county road, claimed by the county of Chouteau.
After issue was joined, the cause was submitted to the court, sitting without a jury, on an agreed statement of facts which superseded the pleadings and became the court's findings of fact. The undisputed facts on which the judgment of dismissal was entered are therefore substantially as follows:
The plaintiff is the owner of the tract of land described, and has been in the possession thereof since the year 1903. In 1896, seven years prior to plaintiff's acquisition of title, fourteen "citizens and taxpayers of road district No. 4" of Chouteau county, in which district the land is situated, petitioned the board of county commissioners to have "viewed, laid out, and opened" a road "from the southern end of the 'Nottingham sawmill road' to a suitable point on McDonald creek in the S.E. corner of said co. through the Highwood Mts." As a description of the termini and course of the proposed road, the petition recites that it "commences near the H. A. Nottingham's ranch; thence up the middle fork of Shonkin creek; thence over the divide between Shonkin and McDonald creeks to its terminus"; that it passes over the lands of Nottingham and one Morrow, who will not claim damages, and thence over government lands. It is evident that the Warren ranch was government land at the time the petition was filed and acted upon by the board.
On presentation, the petition was "allowed and viewers appointed." The viewers performed their duty, and reported to the board in writing, which report was filed, and by the board "accepted," and, by entry upon the back of the report, copied into the proceedings of the board. The county surveyor was "ordered to survey and plat said road." The order was complied with, and the plat filed. This plat shows the course of the road as surveyed across the Warren ranch.
The commissioners' proceedings disclose no order declaring the road a public highway and ordering the road supervisor to open it to the public. The road was never actually opened to the public, and there never has been an open road across the Warren ranch, but fences have been maintained across it at various places, although there are gates in the fences at points near where the road is supposed to cross the land.
The agreed statement recites that the road has never been traveled by the general public, and the travel thereon has not been sufficient to mark a trail over most of the distance where it is supposed to traverse the lands of the plaintiff; that such persons as have traveled the alleged road have done so on horseback or in a light buggy, and this has occurred on an average of not more than four or five times a year.
It is further agreed that the county has never expended any money whatsoever in working the road, and has never done any work thereon, with the exception of a small amount of work on the divide before the road enters the plaintiff's land, which work was done approximately 30 years ago.
As to the qualifications of the signers, the petition, as well as the commissioners' proceedings, is silent, but it is agreed that the tax rolls of Chouteau county show that three thereof were assessed on real property in 1895 and 1896, and five were assessed on personal property only, while four were assessed on personal property only in 1896, but not in 1895. One signed was assessed on personal property only in 1895, and on real and personal property in 1896. The tax rolls further show that one of the signers assessed on real property in 1895 and 1896 was taxable on property located in road district No. 1, and not in road district No. 4.
It is agreed that the final proof record in the office of the assessor of the county shows proofs made by but four of the signers up to 1899, and the deed record shows that one of these deeded the same land on which he made final proof to an outsider in 1890.
While counsel for plaintiff and defendant have argued the question of road or no road at length, the trial court did not decide that question, as clearly appears from its order or "decision" dismissing the case. Therein the court adopts the agreed statement as its findings of fact, cites the statutory provisions applicable to the establishment of a highway by prescription, and concludes therefrom, as a matter of law, that a road is "open" to all persons desiring to use it, in spite of fences, if gates are left therein, and, if open to all persons desiring to use the road, it is immaterial how many or how few persons do actually use it. The court then canvasses the law on the subject of vacating and abandoning highways, and the procedure to be followed for that purpose, and declares that "it is elementary that equity will not interfere where the remedy at law is adequate," and decides that, although "taking a strict view of the facts agreed upon, a decision for the plaintiff, giving reasons therefor with citation of a number of cases, could be made," this is an equitable action, and, in such a case, "no person or persons, be they occasional users or otherwise, should be foreclosed of any probable right without giving them an opportunity for their day in court." The court then holds, in effect, that the remedy provided by statute for the abandonment of a road is adequate, and the question of the legality of the road should be determined by the board of county commissioners in such a proceeding.
1. While it is true that a public highway, "once established," can only be abandoned "by operation of law, or by judgment of a court of competent jurisdiction, or by the order of the board of county commissioners," and no such order shall be valid unless preceded by due notice and hearing (section 1614, Rev. Codes 1921; Barnard Realty Co. v. City of Butte, 48 Mont. 102, 136 P. 1064), the proceeding which the court suggests as an adequate remedy at law lies only for the purpose of vacating or abandoning a road which has been lawfully established, and to require the plaintiff to resort to such a proceeding would be to compel him to admit that the grounds on which he contends there is no easement across his land do not exist, and to assert that a road once established is no longer necessary to the public convenience. If the court's position is sound, then a person situated as plaintiff alleges he is would have no redress where a road, necessary to the public, had been illegally extended across his land.
As the cause was submitted on an agreed statement of the facts, that statement has the effect of findings of fact upon which the judgment is pronounced (section 9372, Rev. Codes 1921), and our office on this appeal goes no further than to ascertain and determine whether the trial court drew the correct inference from the facts stipulated and rendered the proper judgment (Read v. Lewis and Clark County, 55 Mont. 412, 178 P. 177). A conclusion of law contradictory of the agreed statement is sufficient to vitiate the judgment. Birney v. Warren, 28 Mont. 64, 72 P. 293.
The only conclusion of law found in the court's decision, other than those concerning the remedy by proceedings to vacate an established public highway, that is, the conclusion with reference to gates on a highway and the number of persons necessary to constitute public travel, is based upon statutes and decisions having to do with the establishment of a highway by prescription. Section 2603, Political Code of 1895, provides in part:
"No...
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