DA 06
- 0815 IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 70
ROE FAMILY, L.L.C., Plaint iff and Appellee.
v. LINCOLN COUNTY BOARD OF COMMISSIONERS, SCOTT BYE, APRIL BYE, JOHN AUSTIN SARFF, LESTER BUHLER, JONI BUHLER, GARY W. MASON, SANDRA MASON, and DOES I THROUGH V, Defendant sand Appellant s .
APPEAL FROM: District Court of the Nineteenth Judicial District,

In and For the County

of Linco ln, Cause No. DV 20 05
- 129 Honorable Michael C. Prezeau, Presiding Judge COUNSEL OF RECORD:

For Appellant: Amy N
. Guth , Attorney

at Law, Libby, M ontana For Appellee: Debra D. Parker, Attorney at Law, Missoula, Montana
Submitted on Briefs: October 31, 2007 Decided: February

26, 20 08 Filed:

__________________________________________ Clerk February 26 20082

Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 On November 2 1, 2006, the District Court of the Nineteenth Judicial District, Lincoln County, granted a declaratory judgment to Plaintiff Roe Family, LLC (Roe Family). The declaratory judgment established a county road between a piece of property owned by the Roe Family and an existing county road known as Black Lake Road. The road established by the declaratory judgmenttraverses the property of appell ant John Austin Sarff (S arff). O f the named defendants to this action, Sarff alone appeals the District Court’s decision. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND ¶2 The Roe Family and Sarff own neighboring properties in north Lincoln County
. Th e Roe Property was purchased by Willard Roe in 1961, and later transferred to the Roe Family. T he Sarff Property was purchased by Sarff in 1991. Scott and April Bye , and Sandra and Gary Masonown interests inadjacent propertieswhich were formerly part of
a larger property known as the Madden Ranch

. The Madden Ranchb orders the Roe Property to the east
. The southeast corner of the Roe Property touches the southwe st
corner of the Madden Ranc h

. The Sarff Property is directly south of b oth of these properties, and shares a portion of its northern border with each. ¶3 In the early 20th century, Lincoln County was a part of Flathead County. In 1906, the Flathead County C ommissioners established a road (1906 Road) which was approximately two and a half miles long, and traversed what is now the Roe Property from the north , ending at the southeast corner of the Roe Property. The ex act location of3

the entire route of the1 906 Road isnot known with precision todayand discrepancies exist amo ng the description s of the route as contained in the Road Petition, the Notice of Road Opening, and various maps for the area . However, the instruments creating the 1906 Road do establishthree undisputed facts: (1) the 1906 Road was approximately two and ah alf miles long, starting north of the Roe Property and running in southeasterly direction to the southeast corner o f the Roe Property ; (2) the 1906 Road connected with
an established public highway located near the Madden Ranch ; and (3) the 1906 Road
w as intended to provide access to a new school house. ¶4 The Black Lake Road is a county road in the vicinity of these three properties and
was established by Flathead County in 1902
. Around 1906, a school house was constructed on Black Lake Road. As currently located, this road enters the Sarff Property from the west , eventually turning north until it reaches the border of the Sarf f P roperty and Madden Ranch

. F rom that point, ith ead s d ue east along the southern border of the Madden Ranch. ¶5 The only current access to the Roe Property is via a short road that splits off from Black Lake Road at a point approximately 330 feet from the southeast corner of the Roe Property , heading due west until it reaches that p roperty
. This 330 foot s ection of road (Roe Road) lies entirely on the Sarff Property. F or many years , o wners of the Roe Property have used the Roe Road to reach their property . In 2002, Sarff blocked the use of the Roe Road. ¶6 On September 7 , 2005, the Roe Family filed suit against Sarff and the other named defendants, seeking a declaratory judgment that the Roe Road was a part of the 19064

Road formerly established by the county , and a writ of mandamus directing the Lincoln County Board of Commissioners to take such steps as necessary to keep the road open. A bench trial was held on November 14, 2006. The District Court heard expert testimony from al icensed land surveyor hired by the Roe Family named Dawn Marquardt , the executive assistant tothe Lincoln County Commissioners , as well as local resident s with knowledge of the area and surrounding roads. At trial, both the Roe Family and Sarff were allowed to admit into evidence exhibits which had not been exchanged prior to trial

. One of these exhibits was a map prepared by Ms. Marquardt which describe d the location of the various roads in that area, and was relied upon to support her opinion that the Roe Road should be declared an established county road. ¶7 The District Court ultimately denied the writ of mandamus, but granted the Roe Family’s claim for

declaratory relief. The District Court declared that the Roe Road was
a part of the 1906 Road , and thus an established county road. It i s from the District Court’s decision that Sarff timely appeals. ISSUES ¶8 We state the issues on appeal as follows: ¶9 Issu e One : Did the District Court abuse its discretion by allowing the Roe Family to admit exhibits w

hich were not exchanged prior to trial? ¶10 Issue Two : Did the District Court err in declaring that the Roe Road was an established county road? STANDARD OF REVI EW5

¶11 “Admissibility of evidence is within the sound discretion of the trial court and we will reverse the trial court only if it abused its discretion. ” Miranti v. Orms , 253 Mont. 231, 235, 833 P.2d 164, 166 (1992). “An abuse of discretion occurs when a di strict court acts arbitrarily without conscientious judgment or exceeds the bounds of reason. ” State v. McCaslin , 2004 MT 212, ¶ 15, 322 Mont. 350, ¶ 15, 96 P.3d 722, ¶ 15. ¶12 “We review a district court’ s findings of fact to ascertain whether they are clearly
erroneous. A finding is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if our review of the record convinces us that a mistake has been committed. The standard of revi ew of a district court’ s conclusi ons of law is whether the court’ s interpretation of the law is correct. ” Gelderloos v. Duke , 2004 MT 94, ¶ 22, 321 Mont. 1, ¶ 22, 88 P.3d 814, ¶ 22 (citations omitted)

. DISCUSSION ¶13 Issue One: Did the District Court abuseits discretion by allowing the Roe Family to admit exhibit

sw hich were not exchanged prior to trial? ¶14 During

testimony from Ms. Marquardt, the Roe Family offered four exhibits which had not been exchanged among the parties before trial. These included a map prepared by Ms. Marquadt to aid in her testimony , two publicly available tract map so f the area , and a deed to thes chool house which had been built on Black Lake Road. At trial, Sarff objected to the admission of these exhibitsb ecause a minute entrydated October 17, 2006, ordered that all exhibits to be used at trial be exchanged by Friday, October 20. The District Court noted the objection and expressed frustration that some of6

these exhibits had not been previously exchanged, but admitted them no netheless. L ater on in the trial, Sarff also introduced an exhibitwhich had not been previ ously exchanged. This exhibit wasadmitted as well. ¶15 Sarff now argues that the District Court abused its discretion in allowing the Roe Family to admit these exhibits into evidence. To prevail on his argument , Sarff must show that

in admitting thee xhibits the District C ourt “act[ed] arbitrarily without
c onscientious judgment or exceed[ed] the bounds of reason. ” McCaslin , ¶ 15. Sarff has failed to meet thisburden. ¶16 Sarff argues the District Court erred in failing to deny the admission of these exhibits, forcing him to “shoot from the hip” in responding to them. In this c ase, however, the admission of the exhibits was not arbitrary or unreasonable. A s noted by the District Court during the objections, the map prepared by Ms. Marquadt could have been done during her expert testimony, but simply w ould have taken mo re time. Moreover, the underlying map s u pon whi ch Ms. Marquadt’s map was based w ere public record s accessible to all parties. Furthermore, the two tract maps and deeds were also public records to which all parties had access prior to trial. F inally, we note that Sarff himself was allowed to admit a similar exhibit which had not been exchange d p rior to trial. Under these circumstances, Sarff has failed to demonstrate that the decision to admit the exhibits tendered by the Roe Family was an abuse of discretion by the District Court. ¶17 Issue Two: Did the District Court err in declaring that the Roe Road was an established county road?7

¶18 Sarff argues that the District Court erred in declaring that the Roe Road was the final portion of the 1906 Road b ecause the record did not permit the District Court to “reasonably identify” the Roe Road from the records establishing the existenceo f the Black Lake Roadand the 1906 Road. Sarff does not dispute that the 1906 Road connects with the Black Lake Road. H owever, Sarff asserts the records creating the 1906 Road demonstrate that it traveled in a southeasterly direc tion until it met the Black Lake Road , unlike the Roe Road which travels due east from the southeast corner of the Roe Property until it meet s Black Lake Road . S arf f further notes that he himself testified there are still remnants of the 1906 Road in the northwest area of his p roperty which continuein a southeasterly direction until joining with the Black Lake Road. S arff asserts that these remnants represent the true course of the 1906 Road. By declaring the Roe Road

— which travels due east from the southeast corner of the Roe Property, instead of southeast as the 1906 Road was described

—to be a portion of the 1906 Road, Sarff argues the District Court committed reversible error

. ¶19 The Roe Family urges us to affirm. The Roe Family maintains the 1906 Road connected with the Black Lake Road , these roads had never been abandoned, and that the Roe Road still follows the path of an established county road. Roe Family concedes the exact point at which the 1906 Road originally met Black Lake Road might not be known with precision today , but asserts that even if the location of the Black Lake Road has migrated , and the 1906 Road has lengthened tomake the connection with it, the Roe Road still travel s the path of an established, and never

- abandoned , county road.8

¶20 Our reviewthe record leads us to conclude the District Court did not err in declaring that the Roe Road was an established county road. As we stated in Galassi v. Lincoln Co. Bd. of Comm rs. , 2003 MT 319, 318 Mont. 288, 80 P.3d 84, “ ‘ it is sufficient if the record, taken as a whole, shows that a public road was created. O therwise, the burden on the public in a particular case to prove a public road was created so many years ago may well be unsurmountable.’ ” Galassi , ¶ 12 (quoting Reid v. Park Co. , 192 M ont. 231, 236, 627 P.2d 1210, 12 13 (1981)). ¶21 Here, the record , taken as a whole, indisputably establishes that the 1906 Road connects with the Black Lake Road

. While the rec ord does not pinpoint precisely where they met, neither does it establish that th e Roe Road is not where the 1906 Road or the Black Lake Road was originally located. In other words, there wa s inconclusive proof on either side of the issue. ¶22 Knowing this , the Roe Family retained an expert witness who visited the area and examined the Ro ad Petition, the Notice of Road Opening, and a plethora of maps in the
area of these roads. H er credentials and the basis for her opinionwere never challenged, and Sarff pres ented no expert testimony of his o wn to contradict Ms. Marquardt

. In addition to the development of her testimony by Roe Family, and her cross examination by Sarff, the District Court questioned Ms. Marquardt at length concerning her expert testimony. Based on Ms. Maquardt’s testimony, the District Court concluded that the discrepancies among the various descriptions of the 1906 Road were not unusual, and returned to the fact that the descriptions all agreed that the 1906 Road connected with the Black Lake Road near the Madden Ranch. The current location of the Roe Road is9

consistent with this description, even though the location of th e 1906 Road heading in a northwesterly direction through the Roe Property is difficult to ascertain. While Sarff provided testimony of his own that there was another route which was the 1906 Road, it
was not clearly erroneous for the District Court to base its findings on the expert testimony of Ms. Marquadt , and give lessweight to Sarff’s testimony

. ¶23 Moreover, as noted by the District Court , the Roe Road was the only road that all witnesses said theyu sedto reach the Roe Property. F urther, the District Court observed that even if the intersection point between Black Lake Road and the 1906 Road had migrated at some point, both roads were nonetheless established county roads which had
never been abandoned. F inally, the District Court observed that there was confusion about the entirety of the 1906 Road, but that there was sufficient evidence before it to conclude that the final segment of the 1906 Road connected with the Black Lake Road , and that thelocation of the Roe Road was an established county road consistent with this description. S arff has not identified any evidence establishingthat these findings were clearly erroneous, or that the conclusion that the “record as a whole” showed the Roe Ro ad was an establish ed county road was in error. CONCLUSION ¶24 We conclude the District Court did not abuse its discretion in admitting the exhibits which had not been exchanged prior to trial. F urther, we conclude that the District Court’s findings of fact w ere not clearly erroneous, and that it c orrectly determined that the Roe Road was an established county road. Thus, we affirm the District Court.10 /S/ PATRICIA COTTER

We Concur: /S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ JOHN WARNER /S/ JIM RI CE