### NO. 79-89 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

C. B. CHENNAULT and MRS. CHENNAULT, Plaintiffs and Appellants,

GEORGE SAGER, JOHN BUTTLEMEN, and JOY NASH, COUNTY COMMISSIONERS, GALLATIN COUNTY, Defendants and Respondents.

Appeal from: District Court of the Eighteenth Judicial District, In and for the County of Gallatin. Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellants: Bennett ard Bennett, Bozeman, Montana Lyman H. Bennett I11 argued, Bozeman,Montana For Respondents: Donald White, County Attorney, Bozeman,Montana Leanne Schraudner argued,Deputy County Attorney,

Bozeman, Montana

Submitted: April 17, 1980 Decided: 

## 6

# - 1980Mr. Justice John Conway Harrison delivered the Opinion of the Court. his 

### is an appeal from 

### a judgment and order of the 

### ~istrict Court of the Eighteenth Judicial Districtrelieving respondents from the effects of 

### a temporary restraining order. The restraining order was issued aspartialrelief prayed for ina complaint filedby appellants wT;lchsought topermanently enjoin respondents from authorizing ormaking any improvements upon certainproperty which had been originally designated and dedicated, under a subdivision plat,

as

### a county road. Appellants, Mr. and Mrs. C. B. Chennault, 

### are the

owners of Lots 9 and 10 of the Lionhead Homesites Subdivision inGallatinCounty, Montana. These lots

### are situated adjacent toCentralAvenue. Central Avenue 

### is

### a street within the subdivision which was designated asa public streetatthe 

### timeof the recording of the subdivisionplat. During 1973 appellants contacted the Gallatin County commissioners regarding the possible abandonment of a portion of CentralAvenue. A petition was thereafter drafted by the county on appellants' behalf. The petition requested the abandonment of the northerly 100 feetof Central Avenue. Appellants circulated the petition among the freeholders of their subdivision and obtained the signatures of four people endorsing the petition: C. B. Chennault, Orion L. Hendry, Geraldine Hendry, and VirilGillespie. After the filingof the petition, the county commissioners appointed a board of viewers to inspect the portion of the 

### street specified in the petition. The inspection was conducted on August 16, 1973. On August 23, 1973, the board of viewers filed a report recommending abandonment of the portion of the road.On August 21, 1973, the Gallatin County road supervisor's officer Sent notices to those people who had signed the petition informing them that a hearing would be held with respect to the petition on September 6, 1973. Notices

were sentby certified

### mailtoOrion L. Hendry, C. B. Chennault ardMrs. VirilGillespie. However, notice

### was not given to any other adjoining landowners of record. The hearing regarding the petition was held on September 6, 1973. Atthe hearing, the commissioners accepted the recommendation of the board of viewers and resolved to abandon the requested portion of the 

### street. Subsequently, in 1976, the county attorney became 

### aware that there 

### were several inadequacies employed inthe process to abandon the 

### street. In a letterdated July 

### 12, 1976, the county attorney notified the commissioners of the inadequacies and recommended that the order of abandonment be 

### set aside as invalid and void. The letter stated that, under Montana 

### law, too few people had signed the petition for abandonment and that notice

### was not properly served. Following the county attorney's recommendation, the commissioners invalidated the order for abandonment on July 

### 14, 1976.Upon being notified that the abandonment had been invalidated, appellants contacted the county attorney and

were advised of the proper statutoryprocedures for abandonment. Apparently, appellants alsoreceived advice from

one of the commissioners astohow they might cure any defects intheir original petition for abandonment. While appellants did pursue some efforts tohave the order of abandonment reinstituted, 

### it isclear that they did not follow prescribed statutory procedures.

### On September 4, 1978, appellants filed another petition inaccordance with statutoryrequirements for the abandonment of a second and separate 

### streetwithin their subdivision. The 

### street sought tobe declared abandoned 

### was known



### as First Street. First 

### Streetintersected CentralAvenue and adjoined the Lionhead Subdivision with several lotsof the Southfork Subdivision. A 

### hearing 

### was scheduled for September 5, 1978, regarding thispetition. At

### the hearing, developers of the Southfork Subdivision submitted 

### a letter opposing the request for abandonment because 

### itwould block

access to their property. The county surveyor also 

### testified that closure of FirstStreetwould block access to the Southfork Subdivision and toLots 3 

### and 4 of the Lionhead Subdivision. A 

### compromise 

### was reached between the parties: Central Avenue would remain open asan access toLots 3 

### and 4 

### of the Lionhead Subdivision 

### as

### wellas the Southfork properties, and First Streetwould be abandoned except for thatportion which crossed CentralAvenue. The county 

### commissioners adopted this compromise on September 22, 

### 1978, and declared First Streetabandoned pursuant to the agreement. The county surveyor then granted the developers of the Southfork Subdivision permission toconstruct a gravel



### access road along Central Avenue, including the northerly 100 feetof the road forwhich the firstabandonment had been invalidated. Appellants brought this action to restrainrespondents from authorizing these improvements upon the road. As

### partof the relief requested, a temporary restraining order 

### was issued by the District

### Court for respondents to show cause why a permanent injunction should not issue. A 

### hearing 

### was held regarding the xatter, and thecourt entered findings of factand conclusions of 

### law. The courtheld that the attempt toabandon the northerly 100 

### feet of Central Avenue did not comply with statutory requirements and 

### was void initially. Accordingly, 

### it determined that thisportion of the streethad never been abandoned. An order relieving respondents from the effects of the temporary restraining order 

### was entered by the courton August 10, 1979. It 

### is from thisjudgment and order that appellants appeal. A single issue 

### israised for our consideration: 

### Were respondents, asGallatin County commissioners, equitably estopped from reestablishing a portion of Central Avenue 

### as

a public roadway where the initial attempt to abandon the roadway did not comply with statutoryprocedures for abandonment? Both parties agree inthis

### case thatMontana statutes 

### set forth the exclusivemethod by which county roads must be abandoned. The statutory scheme for the abandonment of county roads 

### is found insections 7-14-2601 through 7-14- 2621, MCA. To initiateproceedings, any ten or a majority of freeholders of a road districtpetition the board of county commissioners for the abandonment of 

### a particular road. Section 7-14-2601, MCA. Within thirtydays after the filingof the petition, the commissioners cause an investigation to be conducted regarding the

### meritsof the petition. Section 7-14-2603, MCA. A public hearing 

### is then scheduled and notice of the hearing isgiven. Section 7-14-2615(2), MCA. The results of the investigation and the hearing 

### are con;i,je.ced by the commissioners, and a decision is entered whether to abandon the road. Within ten days after the decision, the commissioners cause notice of their decisiontobe sent to allowners of land abutting the road for which abandonment was sought. Section 7-14-2604, MCA. The parties further agree that there must be substantialcompliance with these statutesbefore the doctrine of equitable estoppel can be applied against respondents 

### as commissioners of Gallatin County. The general rule regarding the applicationof the doctrine of equitable estoppel and the vacation, discontinuance, or abandonment of roads 

### is stated by one authority as follows: "While some limitations to 

### its application are tobe found, the rule appears tobe quite general thatwhere the procedure for the vacation, discontinuance, or alteration of a public street orhighway by direct action of public authori

### ties 

### isprescribed by statute, 

### it 

### isnecessary to adhere to such procedure inorder that the vacation or alterationbe effective; 

# . . . nor are the public authoritiesprecluded by principles of estoppel from denying the termination of the existence, or alteration, of the public way inthe absence of substantial compliance with the statutory procedure 

# .. ." 175A.L.R. 760, 762 (1948). The reluctance toapply equitable estoppel togovernmental entities is founded upon public policy considerations. It 

### isgenerally thought that lands held by the public are tobe protected and only disposed of where there has been compliance with the law. The interests of the general public should not be defeated, for example, by the unauthorized or unlawful actsof public agents or officers. See Norman v. State (1979), -Mont. 

## , 597 P.2d 715,

The policy of protecting public lands and making statutes the exclusivemethod for the disposition of public lands 

### iswellrecognized by our Const:itution. Article X, Section 11 of the 1972 Montana Constitution states:

### "(1)Alllands of the

### /state thathave been or may be granted by congress, or acquired by gift or grant ordevise from any person orcorporation, shallbe public lands of the state. They shall be held intrust for the people, tobe disposed of ashereafter provided, for the 

### respectivepurposes forwhich they have been or may be granted, donated ordevised. 

### "(2) No such land or

### any estate or interest 

### ---- therein shall ever be disposed ofexcept in -- pursuancegeneral 

### lawsproviding 

### -- for such disposition, oruntil the fullmarket value of the estate or interestdisposed of, tobe ascertained in such manner asmay be-providedby law, has been paid or safely secured to the state.

### " (Emphasis added.) As a result of these policy considerations, we have stated inprevious 

### cases that the applicationof the doctrine of equitable estoppel togovernmental entities

### willbe looked upon with disfavor. The doctrine 

### willonly be applied inexceptional circumstances orwhere there 

### ismanifestinjustice. Von Tobel v. City of Lewistown (1910), 

### 41 Mont. 226, 108P. 910; Billings v. Pierce Co. (1945), 117 Mont. 255, 161P.2d 636. We must determine, under the particular facts and circumstances of this case, whether the doctrine should be applied here. That determination, of course, 

### isdependent upon whether there 

### was substantial compliance withMontana statutesregarding the abandonment of roads. In this case, respondents suggest 

### as one of their arguments that appellants did not obtain a sufficientnumber of signatures to substantiallycomply with the requirements of section 7-14-2601, MCA. That statute, ashas been previously stated, requires a petition tocontain the signatures of either ten or a majority of freeholders of the road districtwhere abandonment 

### is sought. Appellants' :?et:ition obviously does not comply with the firstpart of the statute, since it only contains four signatures.It also appears, under the facts presented, that compliance with the second partwas impossible. During oral argument, the parties informed us that the entire Gallatin County comprises only one road district, inwhich there are well over 40,000 residents. A "majority," therefore, would be more than 20,000 signatures. Because of the absurdity of this requirement, appellants suggest that the statute should be construed torequire only the signatures of "a majority of those directly affected" by the abandonment. It 

### isurged under such a construction that simply the signatures of those owning land which immediately adjoins the land sought tobe abandoned would be sufficient. Although there 

### are several persons owning land on Central Avenue in this case, only three landowners own lotsimmediately adjoining the northerly 100 feetof the street. Wedecline to adopt the interpretation advanced by appellants. Adopting that interpretation would force us to exceed our proper role in the construction of statutes. The role of a court inconstruing a statute 

### is simply to 

### ascertain and declare 

### its substance and not to insertwhat has been omitted. Section 1-2-101, MCA. In this connection, the legislative intent to the statute 

### is to be pursued if possible. Section 1-2-102, MCA. Here, the statute simply 

### states that the petition must contain, asone alternative, the signatures of a "majority of freeholders of the road district." The statutedoes not say "amajority of those directly affected." Nor is there any legislative intent expressed that thiswas the desire of the legislature. Further, even if

### we were to adopt appellants' interpretation, it 

### isdoubtful whether thiswould rid any problems of application. The present problem with applying the"majority requirement" 

### is that the size of road districts and the number of freeholders therein vary. Depending upon whether there 

### isone ormany road districts in

### a county, it may be reasonable toattempt to obtain a majority in some circumstances while 

### it isunreasonable inothers. Similarly, the problem with appellants' proposed construction 

### lies in determining which landowners are directly affected. It 

### is

an oversimplification to say that "directly affected landowners" are those who own lotsimmediately adjacent to the land sought tobe abandoned. Conceivably, other landowners besides these areaffected by the abandonment. A number of cases have held that a required number of signatures specified ina statute for the abandonment, vacation or termination of a road 

### is a material element and that the failure toobtain such signatures falls shortof substantial compliance. See 175A.L.R. 760, 771, for an extensive 

### list of cases. For example, where a statutefor the vacation of 

### a public highway required the signatures of twelve freeholders of the county, and appellant submitted a petition for vacation containing only one signature, a court held that the board of commissioners was without authority to actwith respect to the vacation. Eads v. Kumley (1918), 67 1nd.App. 361, 119 N.E. 219. There the court stated that the commissioners had only such powers as 

### were conferred upon them by statute, and where procedures enunciated by statute

### were not complied with, the proceeding was a nullity. Eads, 119 N.E. at221. Indealing with the same statute inanother 

### case where seven of seventeen petitioners filed a written withdrawal of their names from a petition forvacation before there was an assumption of jurisdiction, the court held the commissioners 

### were without authority toassume jurisdiction and consider the matter. Current v. Current (19201, 72 Ind-App. 363, 125N.E. 779. In this case, 

### we do not think it was an unreasonable burden for appellants toobtain ten signatures on their abandonment petition. The DistrictCourt correctly held that, because there was a failure to substantially comply with the statuteson abandonment, the proceeding was void initially. The comrnissioners 

### were without authority to act with respect to the abandonment. Appellants here rely heavily on the fact that county officials and employees 

### were intricately involved inthe attempted abandonment. Appellants contend that the county should be estopped from invalidating the abandonment because the acts constituting noncompliance with the statutes

### were the unilateral actsof the county. County employees prepared appellants' petition providing space for only six signatures, and a county commissioner apparently gave appellants improper advice 

### as tohow to cure defects inthe petition once the order for abandonment had been invalidated. Although appellants had, arguably, equal access to the law, 

### we think ingeneral that the public has a right to rely upon the advice and actions of public employees and officials. In this connection, 

### we note that the county attorney properly advised appellants of the statutory procedures for abandonment. Irrespective of the negligence of public employees and officials, however, the foremost consideration inour minds 

### lies with the protection of the public interest. This countervailing public policy has taken on such importance that it 

### isexpressed inour Constitution. Where public lands aredisposed of and there has been insufficientcompliance with laws providing for their disposition, the public interest must be protected. InNorman, 597 P.2d at 719, 36 St.Rep. at1098, 

### we stated: "We recognize that it

### was the negligence of the State's agents that caused the situation which gave rise to this appeal. However, the interest

### we seek toprotect is that of the citizens of this State toreceive the highest value from the sale of the lands their State government holds intrust for them. Strict compliance with the constitutional and statutory provisions relating to those lands is the best mode to insure thatprotection. It is generally conceded thatwhile estoppel may be effected against Stategovernment, it may not be assertedwhere it would interferewith the protection of the public's interest in lands. [Citationsomitted.

### 1" Accordingly, 

### we hold, without addressing the remaining arguments raised by appellants, that the DistrictCourt did not err in failing to apply the doctrine of equitable estoppel against the county. Appellants have not substantially complied with statutory procedures for abandonment. Therefore, the DistrictCourt has no basis for even considering the application of the doctrine. The order for abandonment

was void initiallybecause the commissioners did not have the authority to act. The DistrictCourt did not abuse 

### its discretion and, accordingly, the judgment of the District Court 

### is affirmed.

Weconcur: 

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