No. 92-037 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

N. DALE HERREID and MARLENE A. 

HERREID, Husband and Wife, va..,:7,,.: i-i 

F>>>*,d ,.,: % :, 

Plaintiffs and Appellants & 2:" ..j 

CLIFFORD S. HAUCK and SANDRA K. 

HAUCK, Husband and Wife, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert S. Keller, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Lawrence H. Sverdrup, Sverdrup & Barnes, Libby, 

Montana 

For Respondents: 

David W. Harman, Attorney at Law, Libby, Montana 

Filed: 

Submitted on Briefs: April 2, 1992 

Decided: October 15, 1992 
Justice ~illiam E, Hunt, Sr., delivered the opinion of the Court. 

Appellants brought this action in the Nineteenth Judicial 

District Court, Lincoln County, to quiet title to a portion of 

Spruce Street which had been vacated by the City of ~ibby and 

Lincoln County. The District Court held that the Herreids were the 

owners of the south half of the vacated street and that the Haucks 

were the owners of the portion of the north half of the vacated 

street which abutted their property. 

We affirm. 

Appellants raise two issues for our consideration: 

1. Does 76-3-305, MCA, require that a vacated street 

revert to the adjacent property owner within the subdivision? 

2. Does a vacated street which was a "right of use" only 

revert to the successors of the grantor of the "right of useM? 

Additionally, respondents cross-appealed with the issue of 

whether they obtained ownership of the disputed property through 

adverse possession or prescriptive easement. However, the District 

Court did not address this issue in its order, and therefore, the 

issue will not be discussed in this opinion. 

On April 18, 1952, George Hennessy executed a quitclaim deed 

to Lincoln County covering the vacated property. Lincoln County 

appeared in this action and disclaimed any ownership interest in 

the vacated property. All of such property was annexed by the City 

of Libby on October 2, 1967. 
The property in dispute is a portion of a 30-foot wide strip 

of Spruce Street that was vacated by the City of Libby pursuant to 

Ordinance 985 on October 3, 1977, abutting in part the real 

property of the respondents on the north and the real property of 

the appellants on the south, as shown below. 

Since 1977, no one has paid property taxes on the abandoned 

portion of the Spruce Street strip, nor has the county assessed any 

property taxes since 1977 because the property has been listed as 

"exempt" for county and state property taxation. 

In 1977, the City of Libby assessed the vacated Spruce Street 

property for lighting, road maintenance, and sprinkling. The city 

special assessments have been forwarded to the County Treasurer and 

placed on the real property tax rolls continuously since 1977. The 
method of the assessment by the City of Libby was to divide the 

vacated Spruce Street in half. The appellants were assessed on a 

square footage basis for the entire south 15 feet of the vacated 

street. Respondents and their neighbors have been assessed for the 

north one-half of the vacated street. Respondents have been 

assessed for the north one-half of the vacated street that extends 

beyond their east boundary. Respondents have paid their 

assessments to the City of Libby. 

By stipulation, respondents have abandoned any claim to the 

following described property: 

All that portion of vacated Spruce street lying East of 

the following described line: Commencing at the South 

East corner of Lot 2, Block 4, Frary and Olson Addition 

to Libby Montana, thence south on a line parallel to the 

East line of Section 9, Township 30 North, Range 31 West 

P.M.M. a distance of 15 feet, more or less, to a point on 

the center line of Spruce Street vacated by the city of 

Libby pursuant to Ordinance 985 on October 3, 1977. 

With these findings of fact, the District Court ruled that the 

quitclaim deed executed by George Hennessy on April 18, 1952, was 

a grant of use and not a grant of title to the land. In addition, 

the District Court held that the fee in Spruce Street reverted to 

the abutting landowners, with each abutting landowner taking from 

the edge of his or her property to the center of the street, It is 

from this order that appellants appeal. 

Does 5 76-3-305, MCA, require that a vacated street revert to 

the adjacent property owner within the subdivision? 
Appellants argue that because they are the only abutting 

landowners from the original plat, the entire abandoned street 

reverts to them pursuant to 5 76-3-305, MCA. Section 76-3-305 (1) , 

MCA, states in pertinent part: 

Any plat prepared and recorded as herein provided 

may be vacated either in whole or in part as provided by 

7-5-2501, 7-5-2502, subsections (1) and (2) of 7-14-2616, 

7-14-2617, subsections (1) and (2) of 7-14-4114, and 

7-14-4115, and upon such vacation the title to the 

streets and alleys of such vacated portions to the center 

thereof shall revert to the owners of the properties 

within the platted area adjacent to such vacated 

portions. 

We agree with the District Court that the statute is clearly 

dispositive as to the southern half of Spruce Street but does not 

deal. directly with the disposition of the northern half of the 

street which abuts another subdivision, Because respondents' 

property is not located within the Nennessy Plat nor the Amended 

Hennessy Plat, respondents would take nothing under 5 76-3-305, 

MCA. There are, however, some statutes and case law which will. 

serve as light posts down this dark abandoned road. 

We have stated that: 

A highway which is lawfully vacated or abandoned 

ceases to be a highway and, insofar as the public has a 

mere easement of way, the title reverts to the owners of 

the fee discharged from the servitude. 

Bailey v. Ravalli County (1982), 201 Mont. 138, 146, 653 P.2d 139, 

Section 70-16-202, MCA, states that an owner whose land is 

bounded by a road is presumed to own to the center of the road 
unless the contrary is shown. In addition, 5 70-20-307, MCA, 

explains that: 

A transfer of land bounded by a highway passes the 

title of the person whose estate is transferred to the 

soil of the highway in front of the center thereof unless 

a different intent appears from the grant. 

This Court interpreted the above statutes to mean that a 

boundary to and with the side of a street carries the fee to the 

center of the street unless a contrary intent appears from the 

deed. This Court also held that: 

[Ulpon abandonment that the fee in the street reverts to 

the abutting landowners, with each abutting landowner 

taking fee from the edge of his or her property to the 

center of the street. 

Bailey, 653 P.2d at 143. 

Although the quitclaim deed executed by George Hennessy 

denominated four strips of property, including the vacated street, 

as llright-of-way land" to Lincoln County, the deed is a normal 

quitclaim deed with the clear intent to transfer all right, title, 

and interest in the property to the county. When the county 

disclaimed any interest in the property, the abandonment of the 

street by the city was sufficient to transfer title to the abutting 

landowners. Therefore, we hold that the District Court did not err 

in ruling that upon the City of Libby's abandonment of Spruce 

Street, that the fee in the street reverted to the abutting 

landowners, with each landowner taking fee from the edge of their 

property to the center of the street. 
We need not discuss the second issue because of our holding 

above. 

Af f inned. 

1" 

Justice 

We concur: 

-1 

Jus 
October 15, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Lawrence H. Sverdrup 

Sverdrup & Barnes 

503 California Ave. 

Libby, MT 59923 

David W. Harman 

Attorney at Law 

120 W. Sixth St. 

Libby, MT 59923 

Scott B. Spencer 

Lincoln County Attorney 

512 California Ave. 

Libby, MT 59923 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATKOF MONTANA 

BY: p 

Depu