No. 14711 INTHE SUPREMECOUHT OFTHE STATEOFIvDIWANA 1979

ROBERT E. WYNIA andWINmmC. WYNIA, PlaintiffsandAppllants,



### THECITYOF GRJ3?Q FAL;LS, ANDTHE SCHOOL DISTRICT #1OFCASaDE COUNTY, Respondents andDefendants.

Appeal fnmn: DistrictCourt of theEighthJudicial District, HonorableJoelG. Fbth, Judgepresiding. Counselof Record: ForAppellants: Jardine, Stephenson, BlettandWeaver, GreatFalls, Mntana JackL. Lewis argued, GreatFalls, Mntana For Respondents: J. FredBourdeau, ComtyAttorney, GreatFalls, Mntana CarrollC. Blendargued, DeputyCountyAttorney, GreatFalls, Mntana DavidV. GLikoargued, CityAttorney, GreatFalls, Mntana

Filed: Suhitted: June 7, 1979 mid&: 

### SEP YMr. JusticeDaniel J. Shea delivered the Opinion of the Court.

This appeal is brought by Robert and WinonaWynia from

an order of the District Court,Cascade County,dismissing their action fordeclaratory 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 lotwas illegal. In the alternative, they had sought a declaration that if the street and alley had been legally closed, the City nonethelesswas illegally restricting their use and enjoyment of the private legal interestswhich they retained in the roadwaywhich 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 justwest 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 twoblock segment of 20th Street South. The affected segmentsof 20th Street South, ThirdAlley South,and FourthAlley South are indicated on the diagram: 

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### 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 sidesof the affected two blocks of 20th Street South,with the exception of plaintiffs, signed the petitions. Of the nine lot ownerswhose property abuts on Third Alley South, seven, excluding theplaintiffs 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 - notmention the closure of the entire alley between 20th and 21st Street,or of the entire 

### - twoblocks between SecondAvenue South and FourthAvenue 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, 3rdAlley South,and 4thAlley Southdescribed hereinbelow: "'a segment of 20th Street South which isbounded on the southby the south right-of-way line of 2nd Avenue South,and bounded on the north by a line which isparallel to and 22-1/2 feet north of the south risht-of-way line of 2nd Avenue South; and, segmentsoi 3rd ~11;~ South and 4thAlley South which are bounded on the west by a linewhich 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 furtherpetition the City Commission of the City of Great Falls to take all measures necessary tomake effective the revision of traffic in the vicinity of Great Falls High School,with the understanding that suchmeasures 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 affectedarea. On March 15, 1977, the Commissionpassed Resolution No. 6920,providingfor a closure of the 22-1/2 foot segments of 20th Street South and Third and FourthAlleys South on a temporarybasis. The Resolution contained a preamblewhich recited that the City Manager had caused notice of Resolution No. 6905 to be published in accordancewith 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 intersectionsof Second and FourthAvenues South and one segment each of Third and FourthAlleys 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 Southwas insufficient to give the City authority to close those segments. Plaintiffsalso 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 Southwhich their lots abutted. Finally, in the event the District Court held the closuresvalid, the plaintiffs sought a declaration that upon the closure of the segments they became ownersof the half of the closed segmentsnearest their lot and were entitled to unencumbered use and ownership of that land. On December 19, 1978, the District Court denied all relief soughtby plaintiffs and granted the defendants' motion for summary judgment and dismissal of the complaint. -4-The principal issuespresented for this Court's determination arewhether 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 segmentsof 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 segmentsof 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 signaturesof those lot owners who did not live on the portions of 20th Street South and Third Alley Southwhich 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 SchoolDistrict. Similarly,the only lot

ownerswhose 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 ownerswhose lots abut on the closed segmentswho signed the petition was 50percent, not 75percent 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 isvoid because the City Commissiondid not give notice as required by section 7-3-4448,MCA, and that notice by publicationwas insufficient. Fourth,plaintiffs claim that the ordinanceof 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 1945however, have left the statutewith three different terms to describe the action which a citymight take:"The council,or county commissioners if the town - be unincorporated,may discontinue a streetor 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 schoolpurposes, a petition signed by seventy-fiveper 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." (Emphasisadded.) 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 inadequatebecause only those signatures of lot owners on the segmentswhich were to be closed can be considered.The differencebetween 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 Citymust 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 sowould modify or contradict the specific terms of the closure resolutions. It is true that as a general rule public recordsmust speak for themselves. Evidence offered to contradictan 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 lawmakingbody and the purpose sought to be accomplished by the legislation." 1Antieau 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. 7035by 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 Commissionwas not somuch concerned with the 22-1/2 foot segments themselves aswith the two blocks of street between the northernmost and southernmost segments. The petition and resolutionsdo speak only of the closure of 22-1/2 foot segments, and section 7-14-4115,MCA, most naturally interpreted refers to the lot ownerswhose land is on the street actually to be closed. The statute does not speak in terms of those effected by the closure. Nor do thewords "(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 thatwhole 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 theirproperty. Whatever character 20th Street South may now have, it is no longer a through roadway since ithas been "closed"to that specificpurpose.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. Thepetitions 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 alleyswere "lot owners on the whole street or alley to be closed". Itwas 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. 7035permanently 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 suchmeasures will be implemented on a trial basis." Thatparagraph, 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 nomeaning. Although the petition does not saywhat -9-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 kesolutionNo. 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 11-3308R.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 itsmandate. The sectionprovides: "Improvementand vacation of streets and highways. When lt deemsitnecessaryythe 

### commissionmay cause any street, alley,orpublic highway to be opened, straightened, altered, diverted, narrowed, widened, or vacated." Plaintiffs correctly point out that if the City relies upon this statute, however, itmust also follow the requirements of section 7-3-4448, dealingwith 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 citymanager to "cause notice of such resolution to be served in themanner 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 isconceded 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 onMarch 1, 1977 in the Great Falls Tribune and no personal service of the resolution of intentwas 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 iswhether 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 seemsno 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 referencewasmade 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 11when 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 Stateex rel. Smart v. City of Big Timber (1974), 165Mont. 332, 335, 528 P.2d 688, 692, this Court noted that section 7-14-4114 is "theamalgam of the intent of a number of legislatures."The Court continued: -11-"This is importantwhen this single statute purports to dealwith 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. 165Mont. at 335, 528 P.2d at 692. Thus, therewas no need to determine whether, despite the thoughts of the draftsmen, theremight be some legal distinction between "vacate" and "close". If there isno distinction between "vacate" and "close" the two statutes (section 7-14-4114and '7-3-4448) overlap. Indeed, some overlap is inevitable because both sections contain theword "vacate." Further, the notice provision, section 7-14-4114(3), MCA, uses the word vacate: "Before acting upon suchpetition a notice must be published orposted in three public places, stating when such petition will be acted on, and what street or alley, orpart thereof, is asked to be vacated. Such noticemust be published in a newspaper or posted at least oneweek before the petition is acted on." (Emphasisadded.) Thus, two separate statuteswith separate,conflicting notice requirements purport to dealwith 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, dealingwith vacation and changing names of streets declares thatvacation operates as a revocation of the city's acceptance of the dedicated street

or alleyway:



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# . . and such order of the commissionvacating or narrowing a street or alley,which has been dedicated topublic use by the proprietor, shall, to the extent that it isvacated or narrowed, operate -- as a revocation -- of the acceptance thereof by -- the commission,. 

# . ." (Emphasisadded.)It isplain 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. Ithas 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, itwould 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 publicationwas 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: 

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# .. the right of way and easement therein of any lot owner shallnot be impaired thereby." Thus,when a city vacates a street or alley, the abutting

owners right of access through the vacated streetmust 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" containsno 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 conformitywith that section. -13-Having concluded that the City properly "closed" the street and alley which adjoined the plaintiffs' lotswe must determinewhat, 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 schoolpurposes. 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 iswhether 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 ownerwhich distinguishes the majority from the minority position. Perhaps amajority 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 93A.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, aminority 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 fromparticular 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 streetmade 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 ispreserved, an abutting landowner suffers no compensable injury from the closure of traffic from one direction: "Thetrust 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 nextintersecting 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 itdoes not extend to the fullwidth of the street,or to the full length thereof, or even to allpoints upon the street in front of the abuttingproperty. It is sufficient if there is access to a street that in turn connectswith the general street system. Any improvement that does notmaterially interfere with such access does no compensabledamage." 23 Cal.2d at 371, 144 P.2d at 834. (Traynor,J. dissenting.) Publicpolicy isbetter served by the minority position. Reasonable regulation of traffic often impairs total freedom of accessby abutting lot owners. If amunicipality were forced to compensate abutting owners each time it limited their two-directionalaccess, themunicipalities'incentiveor ability to provide for the safe flow of traffic would be restricted. There are several instances, for example, inwhich a city may reregulate traffic without compensation to abutting owners: 

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# . city traffic ordinances abound with regulations that limit a property owner's freedom ofmovement 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 closurewas effected for the purpose of protecting pedestrian school children on theirway to and from school,and to prevent automobile noises from disrupting classes on the east side of the school building. Thesepurposeswould 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.Theminority 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