No. 14711 

IN THE SUPREME COUHT OF THE STATE OF IvDIWANA 

1979 

ROBERT E. WYNIA and WINmm C. WYNIA, 

Plaintiffs and Appllants, 

THE CITY OF GRJ3?Q FAL;LS, AND THE SCHOOL 

DISTRICT #1 OF CASaDE COUNTY, 

Respondents and Defendants. 

Appeal fnmn: District Court of the Eighth Judicial District, 

Honorable Joel G. Fbth, Judge presiding. 

Counsel of Record: 

For Appellants: 

Jardine, Stephenson, Blett and Weaver, Great Falls, Mntana 

Jack L. Lewis argued, Great Falls, Mntana 

For Respondents: 

J. Fred Bourdeau, Comty Attorney, Great Falls, Mntana 

Carroll C. Blend argued, Deputy County Attorney, Great Falls, Mntana 

David V. GLiko argued, City Attorney, Great Falls, Mntana 

Filed: 

Suhitted: June 7, 1979 

mid&: SEP Y 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

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: I 

Rut, Sou+h 

- L,,,,l&5d I 

-2- 4+h hue. So&* 
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 22-1/2 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 22-1/2 feet north 

of the south risht-of-way line of 2nd Avenue South; 

and, segments oi 3rd ~11;~ South and 4th Alley 

South which are bounded on the west by a line which 

is 22-1/2 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 22-1/2 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 22-1/2 foot segment of 20th 

Street South and the 22-1/2 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 

22-1/2 foot segments of 20th Street South and ~hird 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. 

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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 22-1/2 

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 publicutility 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 22-1/2 foot segments. The plaintiffs 

point to the literal language of the three City Commission 

Resolutions which refer to the closure of 22-1/2 foot "segments" 

of the roadways. By pointing to the total effect of the 

"segment" closures, however, the City must take the position 

that the three resolutions were intended to have a broader 

impact than they show on their face. In essence, the entire 

two blocks of 20th Street South were "closed" to through 

traffic by the City's action, and - not just four 22-1/2 foot 

segments of 20th Street South and Third and Fourth Alleys 

South. 

Clearly, the entire two blocks were directly affected 

by the City's action. Plaintiffs contend that the City 

cannot argue concerning the total effect of the small closures, 

however, for to do so would modify or contradict the specific 

terms of the closure resolutions. 

It is true that as a general rule public records must 

speak for themselves. Evidence offered to contradict an 

official record is therefore inadmissible. See Eastman V. 

School Dist. No. 1 (1947), 120 Mont. 63, 72-73, 180 P.2d 

472, 476. Buell v. City of Bremerton (1972), 80 ~ash.2d 

518, 495 P.2d 1358, 1362. This rule does not extend so far 

as to prevent the drawing of a reasonable inference concerning 

the purpose of the proposed ordinance. "In construing a 

municipal ordinance, the courts will look to the ordinance 

as a whole to ascertain the intention of the lawmaking body 

and the purpose sought to be accomplished by the legislation." 

1 Antieau Municipal Corporation - Law S4.43 at 4-82 (1975). 

If possible, an attempt must be made to produce a harmonious 

whole from each and every part of a statute. City of Portland 

v. Kirk (0r.App. 1974), 518 P.2d 665, 666-67. 

-7- 
In this case a review of Resolution No. 7035 by itself 

shows that the City Commission contemplated the simultaneous 

closure of four 22-1/2 foot segments of street and alley. 

Considered as a whole, the intent to create a cul-de-sac is 

obvious. The Commission was not so much concerned with the 

22-1/2 foot segments themselves as with the two blocks of 

street between the northernmost and southernmost segments. 

The petition and resolutions do speak only of the 

closure of 22-1/2 foot segments, and section 7-14-4115, MCA, 

most naturally interpreted refers to the lot owners whose 

land is on the street actually to be closed. The statute 

does not speak in terms of those effected by the closure. 

Nor do the words "(75%) of the lot owners on the whole 

street or alley to be closed" support the City's argument 

that the statute is directed at those directly affected. In 

the first portion of the statute, the language refers to 

"any part" of a street or alley. Thus, if a part of a 

street is to be closed, the natural meaning of the statute 

is that the lot owners whose lots adjoin that whole part 

must be considered within the 75 percent. 

The problem, then, is that while the City intended to 

prevent through traffic along two blocks of 20th Street 

South, it officially acted to "close" only 45 feet of the 

street itself. In effect, the entire two blocks were "closed" 

in one sense. The general public can no longer utilize 20th 

Street South to get from Fourth Avenue South to Second 

Avenue South. Similarly, lot owners along 20th Street South 

have restricted access to their property. Whatever character 

20th Street South may now have, it is no longer a through 

roadway since it has been "closed" to that specific purpose. 
Thus, the City Commission resolution, viewed in 

completeness, "closed" not just several 22-1/2 foot segments 

of street and alley, but also "closed" two blocks of 20th 

Street South. The petitions and resolutions are not completely 

descriptive of their effect. But their effect is surely the 

closure of two blocks of 20th Street South, and the imposition 

of similarly limited access to the two alleys between 20th 

and 21st Streets South. 

Following this conclusion, then, all the lot owners along 

the affected two blocks of 20th Street South and along the 

affected two alleys were "lot owners on the whole street or 

alley to be closed". It was this entire group of lot owners 

which was relevant to the determination of the 75 percent 

requirement, despite the inartful drafting of the petitions 

and resolutions. 

Plaintiffs argue that the City Commission lacked authority 

to adopt Resolution No. 7035 permanently closing the street 

and alley adjoining their lots, because the petitions which 

were presented to the Commission requested only temporary 

closure. It is true that the second paragraph of the petition 

contains the words "with the understanding that such measures 

will be implemented on a trial basis." That paragraph, however, 

continues, "until a final determination has been made by the 

City Commission that the overall effect of the revision of 

traffic has been beneficial." 

By its wording, the petition appears to have intended 

that the City Commission have some form of continuing power 

after the trial basis closures were implemented, otherwise 

the phrase that begins "until a final determination" would 

have no meaning. Although the petition does not say what 

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that continuing power is, a fair inference is 

that the City would have the authority, following a trial 

period of closure, to permanently close the street and alleys. 

In fact, this appears to be precisely what the City did, for 

kesolution No. 6920, providing for temporary closure, was 

enacted in March 1977, while the final permanent closure 

resolution- No. 7035, was not adopted until December 1977. 

In a written interrogatory addressed to the City, plaintiffs 

asked, among other things, under what authority the City 

Commission had the right to declare the street and alley 

closures. The City answered: 

"Known at present but not limited to: Section 11- 

2801 R.C.M. 1947, Section 11-3308 R.C.M. 1947, 

Section 11-3208 R.C.M. 1947, Section 11-3201 

R.C.M. 1947." 

By this answer, plaintiffs contend that the City's 

expression of reliance upon section 7-3-4447(2), MCA, binds 

the City to follow its mandate. The section provides: 

"Improvement and vacation of streets and highways. 

When lt deemsit necessaryythe commission may cause 

any street, alley, or public highway to be opened, 

straightened, altered, diverted, narrowed, widened, 

or vacated." 

Plaintiffs correctly point out that if the City relies 

upon this statute, however, it must also follow the requirements of section 7-3-4448, dealing with vacation and name changes 

of streets. Section 7-3-4448, requires the city commission first 

to pass a resolution of intent to vacate the street and then 

requires the city manager to "cause notice of such resolution 

to be served in the manner that service of summons is required 

to be made in civil actions upon all persons whose property 

abuts upon the portion of the street affected . . . " It is 
conceded that the City did not give such notice to plaintiffs 

but relied instead upon the notice by publication provision 

of section 7-14-4114(3), MCA. A single newspaper notice 

appeared on March 1, 1977 in the Great Falls Tribune and no 

personal service of the resolution of intent was ever attempted. 

There is no doubt that the notice by publication on 

March 1, amply complied with the requirement of section 7-14- 

4114(3), MCA. The question then is whether the City was 

bound by sections 7-3-4447(2) and 7-3-4448. The plaintiffsp 

argument that the City is bound by these sections takes two 

directions. First, the plaintiffs argue that the City's 

reliance upon section 7-3-4447(2), PICA, in its answer to 

their interrogatory binds it to follow the section. The 

City's response to the interrogatory question, however, 

appears to be academic rather than an attempt to invoke its 

authority. It is clear from the resolution of March 15, 

1977 (No. 6920) that the City had proceeded under section 

7-14-4114(3), MCA. The City's brief on this appeal reiterates 

this conclusion. There seems no basis for holding the City 

to the notice requirements of Title 7, Chapter 11, Part 44, 

MCA, (formerly Title 11, Chapter 33, R.C.II. 1947) simply 

because a reference was made to that chapter in response to 

an interrogatory filed after the City's action was already 

complete. 

A nore serious question, however, is whether the City 

can elect to proceed under section 7-14-4115, PICA, and 

ignore the requirements of Chapter 11 when it closes a 

street. Plaintiffs argue that the words "vacate" and "close" 

are synonymous. Thus, they contend, that the City cannot 

avoid the requirements of sections 7-3-4447 (2) , PICA, and 

7-3-4448, MCA, simply by referring to the action as a "closure" 

rather than a "vacation". 

In State ex rel. Smart v. City of Big Timber (1974), 

165 Mont. 332, 335, 528 P.2d 688, 692, this Court noted that 

section 7-14-4114 is "the amalgam of the intent of a number 

of legislatures." The Court continued: 

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"This is important when this single statute 

purports to deal with the 'discontinuance', 

'closing', and 'vacation' of streets. It 

appears that the terms were thought of by the 

draftsmen as being interchangeable." 165 

Mont. at 335, 528 P.2d at 692. 

Smart, however, involved neither discontinuance, closing, 

nor vacation of a street, but only an alteration or improvement. 

165 Mont. at 335, 528 P.2d at 692. Thus, there was no need 

to determine whether, despite the thoughts of the draftsmen, 

there might be some legal distinction between "vacate" and 

"close". 

If there is no distinction between "vacate" and "close" 

the two statutes (section 7-14-4114 and '7-3-4448) overlap. 

Indeed, some overlap is inevitable because both sections 

contain the word "vacate." Further, the notice provision, 

section 7-14-4114(3), MCA, uses the word vacate: 

"Before acting upon such petition a notice must be 

published or posted in three public places, stating 

when such petition will be acted on, and what street 

or alley, or part thereof, is asked to be vacated. 

Such notice must be published in a newspaper or 

posted at least one week before the petition is 

acted on." (Emphasis added.) 

Thus, two separate statutes with separate, conflicting 

notice requirements purport to deal with the procedures for 

vacating a city street. We conclude, however, that the City 

closed, rather than vacated the street, and that the notice 

by publication was therefore adequate. 

Section 7-3-4448, dealing with vacation and changing 

names of streets declares that vacation operates as a 

revocation of the city's acceptance of the dedicated street 

or alleyway: 

. . . and such order of the commission vacating 

or narrowing a street or alley, which has been 

dedicated to public use by the proprietor, 

shall, to the extent that it is vacated or 

narrowed, operate -- as a revocation -- of the 

acceptance thereof -- by the commission,. . ." 

(Emphasis added.) 
It is plain that the City in this case did not intend to 

revoke its acceptance of two blocks of 20th Street South, 

but rather to alter its use by closing it to through traffic. 

It has not given up its interest in the street. The City 

therefore had the power to enact the closure resolution once 

it had followed the requirements of sections 7-14-4115 and 

7-14-4114(3), MCA. Had the City intended to revoke its 

acceptance of the street, to give it up, to vacate its legal 

interest in the street, it would have been necessary to 

follow the personal notice requirements of section 7-3-4448. 

Since, however, the City only closed the street to through 

traffic, the notice by publication was sufficient. 

Plaintiffs contend that the City's closure of the streets 

and alleys bordering their lots is void because of the City's 

failure to preserve an easement of way through the closed portions 

of roadway. The right-of-way requirement is included in the 

final clause of section 7-3-4448: 

". . . the right of way and easement therein of 

any lot owner shall not be impaired thereby." 

Thus, when a city vacates a street or alley, the abutting 

owners right of access through the vacated street must not 

be impaired. Once again the conflict between section 7-14-4115 

and section 7-3-4448, MCA, comes into view. Section 7-14-4115, 

which governs "closing" and "vacation" contains no similar 

requirement. 

As we have determined above, the City did not "vacate" 

the streets and alleys in the sense of revoking its acceptance 

of them under section 7-3-4448, MCA. Under section 7-14-4115, 

the City had the power to close the street and alter its use 

without any need of preserving easements. Since there was 

no "vacation" in the sense of section 7-3-4448, MCA, neither 

must there be a preservation of easements in conformity with 

that section. 

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Having concluded that the City properly "closed" the 

street and alley which adjoined the plaintiffs' lots we must 

determine what, if any interest, passes to the plaintiffs in 

those closed sections of street and alley. The plaintiffs 

contend that the City has vacated the street and alley and 

that they are therefore entitled to the half of the street 

and alley nearest their lot under a common-law reversion. 

Because we have already concluded that there is a difference 

between "closure" and "vacation" and that the City only 

closed, rather than vacated the street and alley, we must 

reject this contention. The City did not revoke its acceptance 

of the dedicated land, but has limited and altered its use 

for school purposes. Thus there can be no reversion to the 

adjoining landowner. The City has given up nothing. 

Assuming the City has power to create a cul-de-sac of 

one of the streets abutting the plaintiffs' lots, the plaintiffs 

further argue that such an action by the City causes compensable 

damage to their property. The question created by this 

contention is whether the plaintiffs have a property interest, 

unique from that of the public in general, in access to 

their lot from the nearest intersection in both directions. 

It is clear that a lot owner whose lot abuts upon a public 

roadway has some rights of easement that are distinct from those 

of the general public. It is the extent of the rights of the 

abutting lot owner which distinguishes the majority from the 

minority position. 

Perhaps a majority of courts have concluded that this right 

of access extends from the property owner's lot to the next 

adjoining intersections in both directions along the public street. 

Bacich v. Board of Control of California (1943), 23 Cal.2d 343, 

349-350, 144 P.2d 818, 823. Annot. 49 A.L.R. 330, 351 (1927), 

and 93 A.L.R. 639, 642 (1934). In Bacich, the California Supreme 

-14- 
Court created an easement in both directions in favor of the 

abutting lot owner. Having created the easement, it was a simple 

step to hold that cutting off half of the easement by allowing 

traffic in only one direction, the easement has been impaired 

and a right to damages is created. 23 Cal.2d at 354, 144 P.2d 

at 825. 

On the other hand, a minority position, perhaps best 

articulated by Justice Traynor in the Bacich dissent, agrees 

that there exists some right of access unique to the landowner 

whose lot abuts a public street, but denies that such a 

private right extends in both directions to the nearest 

intersection. Obviously, if no easement exists in both 

directions, the property owner "can have no recovery even 

though the value of the abutting property may be diminished 

as a result ofthe improvement." 23 Cal.2d at 369, 144 P.2d 

at 833, citations omitted (Traynor, J. dissenting). 

In his dissent, Justice Traynor observed that the right of 

ingress and egress is a creation of judicial decision which has 

protected lot owners from particular types of street improvements 

which would impair the use of their land. Nonetheless, the 

abutting owners' rights were always considered subordinate to 

"any reasonable use of the street made by public authorities to 

facilitate general travel." 23 Cal.2d at 370-371, 144 P.2d at 

833-834. Thus, so long as some "adequate and reasonable" 

means of access is preserved, an abutting landowner suffers no 

compensable injury from the closure of traffic from one direction: 

"The trust that arises from the appropriation 

of land for public thoroughfares is for the 

benefit of the public at large and only 

incidentally for the benefit of abutting owners. 

The extension of the abutting owner's rights in 

the present case makes the primary consideration 

the benefit of abutting owners rather than the 

benefit of the public. Hitherto no California 

case has ever defined the right of ingress or 

egress as inclusive of an easement to the next 
intersecting street. The rule has been that the 

right of ingress and egress is limited to adequate 

and reasonable access to the property from the 

street, that it does not extend to the full width 

of the street, or to the full length thereof, or 

even to all points upon the street in front of 

the abutting property. It is sufficient if there 

is access to a street that in turn connects with 

the general street system. Any improvement that 

does not materially interfere with such access 

does no compensable damage." 23 Cal.2d at 371, 144 

P.2d at 834. (Traynor, J. dissenting.) 

Public policy is better served by the minority position. 

Reasonable regulation of traffic often impairs total freedom 

of access by abutting lot owners. If a municipality were 

forced to compensate abutting owners each time it limited their 

two-directional access, the municipalities'incentive or ability 

to provide for the safe flow of traffic would be restricted. 

There are several instances, for example, in which a city may 

reregulate traffic without compensation to abutting owners: 

". . . city traffic ordinances abound with 

regulations that limit a property owner's freedom 

of movement upon the street on which his property 

abuts. Thus 'U' turns or the making of left turns 

upon emerging from a building or private driveway 

are frequently prohibited, and the diversion of 

traffic into one-way streets is common. Frequently 

traffic moving in opposite directions is separated 

by some physical barrier such as a raised curbing. 

These restrictions have the same effect whether 

they ensue from traffic regulations or physical 

obstructions and there is no more reason to allow 

compensation because of the resulting diminution in 

property values or the inconvenience of circuity of 

travel in the one case than in the other." Bacich, 

23 Cal.2d at 371-372, 144 P.2d at 834-835. 

In the present case, the closure was effected for the 

purpose of protecting pedestrian school children on their way 

to and from school, and to prevent automobile noises from 

disrupting classes on the east side of the school building. 

These purposes would be discouraged if a city were forced to 

compensate the abutting land owners for their loss of two-way 

access. Here, reasonable access of the plaintiffs to their 

property has been preserved. 
The minority position is not only more legally sound, but 

more realistically serves the needs of a community. 

The judgment of the District Court is affirmed. 

We Concur: 

Chief Justice 

Justices