DA 11
- 0068 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 11 MT 220N HILTRUD SCHROEDER and JOCHEN SCHROEDER, Plaintiffs and Appellants,
v. LEWIS AND CLARK COUNTY, BRENT BAUCH, MARK KELLER and DAVID BURDA, Defendants and Appellees.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis and Clark, Cause No. CDV 09
- 236 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD:

For Appellants: Steven J. Shapiro, Attorney at Law; Montana City, Montana For Appellee s: Leo Gallagher, Lewis and Clark County Attorney; K. Paul Stahl, Deputy Lewis and Clark County Attorney; Helena, Montana (Attorneys for Lewis and Clark County) David K. W. Wilson; Morrison, Motl & Sherwood, PLLP; Helena, Montana (Attorneys for Appellees Bauch, Reller and Burda) Submitted on Briefs: August 10, 2011 Decided: September 6, 2011 Filed:

__________________________________________ Clerk September 6 20112

Justice Jim Rice deliveredthe Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, th is case is decided by memorandum opinion and does not serve as precedent. Its case title, cause number , a nd disposition shall be includedin this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Hiltrud Schroeder and Jochen Schroeder appeal from the order entered by the First Judicial District Court, Lewis and Clark County, which grant edsummary judgment to the Defendantsand declared thatE agle Ridge Road is a public road, including the portion thattraverses Schroeders’ property, over which lies a thirty
- foot public easement for use of the road
. The order also required Schroeders to remove their gate and the portion of their fence thathinders access to the road or infringes upon use of the public easement. ¶3 The District Court set forth facts , w hich it deemed to be undisputed , a nd thatare not expressly challenged on appeal . Eag le Ridg e Roadruns east from Birdseye Road in Lewis and Clark County, crossing s ev eral tracts before reaching Schroeders’ property, and then continu ese ast, where it provides access to Birdseye Road for additional properties, including those of Defendants Mark Reller and David Burda. The public record related to Schroeders’ property contains several references to the road, first within
a 1973 warranty deed that transferred the property to a predecessor of Schroeders “subject to a right
- of

- way fo r roads thirty feet in w idth.” In 1993, landowners who used Eagle Ridge Road petitioned the Lewis and Clark County Commission for c reat ion of a road improvement district pursuant to then
- go verning statutes. The district was created3

by resolution and thereafter was ostensibly re placed by a rural improvement district (Eagle Ridge RID) . I

n 1995, the Eag

le Ridg e Road Association entered into a contract with the County to provide maintenance of the road. ¶4 The property was conv eyed to Schroeders in 2006. In 2007, Schroeders built a f e nce along the right
- of

- way thatprecipitated a letter from the Eagle Ridge RID advising Schroederso f the easement across their property and encouraging them to relocate the fence , s o it would not hamper snow removal efforts. In 2008, Schroeders construc ted a gate across Eagle Ridge Road, which prompted a notification from the County that the road was a public road and thatefforts to close the road w ould result in legal action. In March 2009, Schroeders filed ad eclaratory judgment action against Lewis and Clark County seeking a declaration that Eagle Ridge Road , as it crossed their property , was not a public road. In November 2009, they filed an action against Brent Bauch, Mark Reller , and David Burda, seeking to enjoin them from use of Eag le Ridge Roa d. These cases were consolidated, and Defendants Bauch, Reller , and Burda filed counterclaims, seeking
a declaration that Eagle Ridge Road was a public road, either by recorded easements or by prescriptive use , and requesting injunctive relief
. ¶5 After di scovery and the filing of motions for su mmary judgment by Schroeders and the Defendants, the District Court concluded that the road was a public road upon a n easement across the northern thirty feet of Schroeders’ property, created by prescriptive
use . O nappeal, Schroeders argue that the District Court’s conclusion that a public easement exists across Eag le Ridge Road as it crosses their property i sc ontrary to the4

ev idence in the record, because the “access between the land owners[sic] was marked by
some deg ree of cooperation for years which demonstrated more a permissive use or neighborly accommodation rather than prescriptive us e.” Alternatively, Schroeders briefly arg

ue that, if a prescriptive easement exists, the District Court erred by concluding the easement was 30 feet wide because the evidence of historical use supports a width of 20 to 24 feet. They also argue that they should not be r equired to remove their gate or the portion of their fence. D e fendants argue generally in support of the District Court’s judgment, although the County contendsthat the District Court’s order for removal of Schroeders’ gate and fence infringed upon the County’s statutory authority to direct the removal of

r oad encroachments. However, the County did not file a cr oss - appeal from the District Court’s judgment. ¶6 We hav

e determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable me morandum opinions. The issues in this case are legal and are contr olled by settled Montana law, which the District Court correctly interpret ed. I ts conclusions of law are supported by substantial, undisputed evidence
. The relief ordered by the District C ourt was proper. ¶7 Affirmed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ PATRICIA COTTER /S/ JAMES C. NELSON