Wynia v. City of Great Falls

• Decision Date: 05 September 1979
• Docket Number: No. 14711,14711
• Citation: 36 St.Rep. 1589,183 Mont. 458,600 P.2d 802
• Parties: Robert E. WYNIA and Winona C. Wynia, Plaintiffs and Appellants, v. The CITY OF GREAT FALLS, and the School District # 1 of Cascade County, Respondents and Defendants.
• Court: Montana Supreme Court

Page 802

600 P.2d 802

183 Mont. 458

Robert E. WYNIA and Winona C. Wynia, Plaintiffs and Appellants, v. The CITY OF GREAT FALLS, and the School District # 1 of Cascade County, Respondents and Defendants.

No. 14711.

Supreme Court of Montana.

Submitted June 7, 1979.

Decided Sept. 5, 1979.

Jardine, Stephenson, Blewett & Weaver, Great Falls, Jack L. Lewis, argued, Great Falls, for plaintiffs and appellants.

J. Fred Bourdeau, County Atty., Great Falls, Carroll C. Blend, argued, Deputy County Atty., Great Falls, David V. Gliko, argued, City Atty., Great Falls, for respondents and defendants.

SHEA, Justice.

This appeal is brought by Robert and Winona Wynia from an order of the District Court, Cascade County, dismissing their action for declaratory judgment against the City of Great Falls and School District Number One of Cascade County. The Wynias had sought a declaration that the City's act of closing and barricading a street and alley which adjoined their residential lot was illegal. In the alternative, they had sought a declaration that if the street and alley had been legally closed, the City nonetheless was illegally restricting their use and enjoyment of the private legal interests which they retained in the roadway which their property abutted.

Plaintiffs own two adjoining residential lots on the northwest corner of the block in Great Falls. The lots are bounded on the north by Second Avenue South, on the west by 20th Street South, and on the south by Third Alley South. Great Falls High School is located just west of plaintiffs' property, across 20th Street South.

In October and November 1976, the School District circulated petitions which requested the City to close four intersections leading into a two block segment of 20th Street South. The affected segments of 20th Street South, Third Alley South, and Fourth Alley South are indicated on the diagram:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The effect of the closures is to create a cul-de-sac of the two block sections of 20th Street South on the east of Great Falls High School. All of the lot owners along both sides of the affected two blocks of 20th Street South, with the exception of plaintiffs, signed the petitions. Of the nine lot owners whose property abuts on Third Alley South, seven, excluding the plaintiffs signed the petitions.

The petitions which were presented to the plaintiffs and to the other lot owners on their block and along the two block section of 20th Street South did Not mention the closure of the Entire alley between 20th and 21st Street, or of the Entire two blocks between Second Avenue South and Fourth Avenue South. Instead, the petitions referred to the closure of 221/2 foot "segments" of the street and alleys:

"We, the undersigned adjoining property owners hereby petition the City Commission of the City of Great Falls to close those segments of 20th Street South, 3rd Alley South, and 4th Alley South described hereinbelow:

" 'a Segment of 20th Street South which is bounded on the south by the south right-of-way line of 2nd Avenue South and bounded on the north by a line which is parallel to and 221/2 feet north of the south right-of-way line of 2nd Avenue South; and, Segments of 3rd Alley South and 4th Alley South which are bounded on the west by a line which is 221/2 feet west of the east right-of-way line of 20th Street South, and bounded on the east by the east right-of-way line of 20th Street South.'

"We further petition the City Commission of the City of Great Falls to take all measures necessary to make effective the revision of traffic in the vicinity of Great Falls High School, with the understanding that such measures will be implemented on a trial basis until a final determination has been made by the City Commission that the overall effect of the revision of traffic has been beneficial."

On February 22, 1977, the City Commission adopted Resolution No. 6905, stating its intent to close the segments noted in the petition and provided for notice of publication in the Great Falls Tribune, a newspaper of general circulation in the affected area. On March 15, 1977, the Commission passed Resolution No. 6920, providing for a closure of the 221/2 foot segments of 20th Street South and Third and Fourth Alleys South on a temporary basis. The Resolution contained a preamble which recited that the City Manager had caused notice of Resolution No. 6905 to be published in accordance with section 7-14-4114, MCA, on March 1, 1977.

On December 20, 1977, the City Commission passed Resolution No. 7035 providing for the permanent closure of two segments of 20th Street South, at the intersections of Second and Fourth Avenues South and one segment each of Third and Fourth Alleys South where they joined 20th Street South.

In the complaint filed on June 2, 1978, the plaintiffs sought a declaration that the percentage of owners whose lots abutted to the northernmost 221/2 foot segment of 20th Street South and the 221/2 foot segment of Third Alley South was insufficient to give the City authority to close those segments. Plaintiffs also sought, on that basis, to have Resolution Nos. 6905, 6920, and 7035, declared invalid, and the closure of the segments of 20th Street South and Third Alley South adjoining their property, declared illegal and void. The complaint sought a removal and permanent injunction against further placement of barricades on the 221/2 foot segments of 20th Street South and Third Alley South which their lots abutted. Finally, in the event the District Court held the closures valid, the plaintiffs sought a declaration that upon the closure of the segments they became owners of the half of the closed segments nearest their lot and were entitled to unencumbered use and ownership of that land.

On December 19, 1978, the District Court denied all relief sought by plaintiffs and granted the defendants' motion for summary judgment and dismissal of the complaint.

The principal issues presented for this Court's determination are whether the City of Great Falls followed the proper statutory procedures for closure of the segments of 20th Street South and Third Alley South abutting on plaintiffs' lots; and alternatively, if the City did properly close the segments of street and alley, does the closure effect a reversion of half of each of those segments to plaintiffs?

The plaintiffs' first issue is broken down into four categories. They contend first that the petitions requesting closure of the two segments of street and alley abutting on their property did not contain the required percentage of signatures from lot owners on the segments to be closed. Plaintiffs maintain that the City could not close the 221/2 foot segments of 20th Street South and of Third Alley South until it was presented with a petition signed by 75 percent of the lot owners whose property Abutted those segments to be closed. They contend the City was without authority to consider the signatures of those lot owners who did not live on the portions of 20th Street South and Third Alley South which were not closed by the terms of the Resolutions.

Plaintiffs argue that the proper determination of the required percentage of signatures must be made in reference to those lots which abut on the segments to be closed. When that approach is followed, they point out, the only lot owners whose land abuts on the closed segment of 20th Street South are themselves and the School District. Similarly, the only lot owners whose property abuts on the closed segment of Third Alley South are themselves and their across-alley neighbors, the Skinners. In each case, then, the percentage of lot owners whose lots abut on the closed segments who signed the petition was 50 percent, not 75 percent as required by statute.

Second, plaintiffs contend that the final resolution of the City Commission (No. 7035) was void because the petitions had requested only a temporary closure, not a permanent closure of the street and alley segments.

Third, plaintiffs argue that the closure is void because the City Commission did not give notice as required by section 7-3-4448, MCA, and that notice by publication was insufficient.

Fourth, plaintiffs claim that the ordinance of closure is void because it fails to preserve their private right-of-way and easement as required by section 7-3-4448, MCA.

Section 7-14-4115, MCA, provides for the discontinuance of streets and alleys. A series of amendments between 1887 and 1945 however, have left the statute with three different terms to describe the action which a city might take:

"The council, or county commissioners if the town be unincorporated, may Discontinue a street or alley, or any part thereof, in a city or town or unincorporated town or townsites, upon the petition in writing of all owners of lots on the streets or alleys, if it can be done without detriment to the public interest; provided that where the street or alley is to be Closed for school purposes, a petition signed by seventy-five per cent (75%) of the lot owners on the whole street or alley to be closed, will be required; provided further that Such vacation shall not affect the right of any public utility to continue to maintain its plant and equipment in any such streets or alleys." (Emphasis added.)

That the City in this case is acting "for school purposes" is not challenged. The plaintiffs' contention is only that the percentage of signatures obtained on the petition was inadequate because only those signatures of lot owners on the segments which were to be closed can be considered.

The difference between plaintiffs' and the City's position stems from a differing perception of the effect of the closure of the various 221/2 foot segments. The plaintiffs point to the literal language of the three City Commission Resolutions which refer to the closure of 221/2 foot "segments" of the roadways. By pointing to the total Effect of the "segment"...