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 - 1980 
Mr. 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 District relieving 

respondents from the effects of a temporary restraining 

order. The restraining order was issued as partial relief 

prayed for in a complaint filed by appellants wT;lch sought 

to permanently enjoin respondents from authorizing or making 

any improvements upon certain property 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 in Gallatin County, Montana. These lots are situated 

adjacent to Central Avenue. Central Avenue is a street 

within the subdivision which was designated as a public 

street at the time of the recording of the subdivision plat. 

During 1973 appellants contacted the Gallatin County 

commissioners regarding the possible abandonment of a portion of Central Avenue. A petition was thereafter drafted 

by the county on appellants' behalf. The petition requested 

the abandonment of the northerly 100 feet of 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 Viril Gillespie. After the filing of 

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 sent by certified mail to Orion L. Hendry, C. B. Chennault ard Mrs. Viril Gillespie. However, notice was not 

given to any other adjoining landowners of record. The 

hearing regarding the petition was held on September 6, 

1973. At the 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 in the process 

to abandon the street. In a letter dated 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 statutory procedures for abandonment. Apparently, appellants also received advice from 

one of the commissioners as to how they might cure any 

defects in their original petition for abandonment. While 

appellants did pursue some efforts to have the order of 

abandonment reinstituted, it is clear that they did not 

follow prescribed statutory procedures. 
On September 4, 1978, appellants filed another petition 

in accordance with statutory requirements for the abandonment of a second and separate street within their subdivision. The street sought to be declared abandoned was known 

as First Street. First Street intersected Central Avenue 

and adjoined the Lionhead Subdivision with several lots of 

the Southfork Subdivision. A hearing was scheduled for 

September 5, 1978, regarding this petition. At the hearing, 

developers of the Southfork Subdivision submitted a letter 

opposing the request for abandonment because it would block 

access to their property. The county surveyor also testified that closure of First Street would block access to the 

Southfork Subdivision and to Lots 3 and 4 of the Lionhead 

Subdivision. 

A compromise was reached between the parties: Central 

Avenue would remain open as an access to Lots 3 and 4 of the 

Lionhead Subdivision as well as the Southfork properties, 

and First Street would be abandoned except for that portion 

which crossed Central Avenue. The county commissioners 

adopted this compromise on September 22, 1978, and declared 

First Street abandoned pursuant to the agreement. 

The county surveyor then granted the developers of the 

Southfork Subdivision permission to construct a gravel 

access road along Central Avenue, including the northerly 

100 feet of the road for which the first abandonment had 

been invalidated. Appellants brought this action to restrain respondents from authorizing these improvements upon 

the road. As part of 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 the 
court entered findings of fact and conclusions of law. The 

court held that the attempt to abandon the northerly 100 

feet of Central Avenue did not comply with statutory requirements and was void initially. Accordingly, it determined 

that this portion of the street had never been abandoned. 

An order relieving respondents from the effects of the 

temporary restraining order was entered by the court on 

August 10, 1979. It is from this judgment and order that 

appellants appeal. 

A single issue is raised for our consideration: Were 

respondents, as Gallatin 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 statutory procedures for abandonment? 

Both parties agree in this case that Montana statutes 

set forth the exclusive method by which county roads must be 

abandoned. The statutory scheme for the abandonment of 

county roads is found in sections 7-14-2601 through 7-14- 

2621, MCA. To initiate proceedings, any ten or a majority 

of freeholders of a road district petition the board of 

county commissioners for the abandonment of a particular 

road. Section 7-14-2601, MCA. Within thirty days after the 

filing of the petition, the commissioners cause an investigation to be conducted regarding the merits of the petition. 

Section 7-14-2603, MCA. A public hearing is then scheduled 

and notice of the hearing is given. 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 decision 
to be sent to all owners of land abutting the road for which 

abandonment was sought. Section 7-14-2604, MCA. 

The parties further agree that there must be substantial compliance with these statutes before the doctrine of 

equitable estoppel can be applied against respondents as 

commissioners of Gallatin County. The general rule regarding the application of 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 

to be found, the rule appears to be quite general that where the procedure for the vacation, 

discontinuance, or alteration of a public street 

or highway by direct action of public authorities is prescribed by statute, it is necessary 

to adhere to such procedure in order that the 

vacation or alteration be effective; . . . nor 

are the public authorities precluded by principles of estoppel from denying the termination 

of the existence, or alteration, of the public 

way in the absence of substantial compliance 

with the statutory procedure . . ." 175 A.L.R. 

760, 762 (1948). 

The reluctance to apply equitable estoppel to governmental entities is founded upon public policy considerations. It is generally thought that lands held by the 

public are to be 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 acts of public agents or officers. 

See Norman v. State (1979), - Mont. , 597 P.2d 715, 

The policy of protecting public lands and making 

statutes the exclusive method for the disposition of public 

lands is well recognized by our Const:itution. Article X, 

Section 11 of the 1972 Montana Constitution states: 
" (1) All lands of the /state that have been or 

may be granted by congress, or acquired by gift 

or grant or devise from any person or corporation, shall be public lands of the state. They 

shall be held in trust for the people, to be 

disposed of as hereafter provided, for the respective purposes for which they have been or 

may be granted, donated or devised. 

" (2) ---- No such land or any estate or interest 

therein shall -- ever be disposed ofexcept in 

pursuancegeneral laws providing -- for such 

disposition, or until the full market value of 

the estate or interest disposed of, to be ascertained in such manner as may be-provided by 

law, has been paid or safely secured to the 

state. " (Emphasis added. ) 

As a result of these policy considerations, we have 

stated in previous cases that the application of the doctrine of equitable estoppel to governmental entities will be 

looked upon with disfavor. The doctrine will only be applied in exceptional circumstances or where there is manifest injustice. Von Tobel v. City of Lewistown (1910), 41 

Mont. 226, 108 P. 910; Billings v. Pierce Co. (1945), 117 

Mont. 255, 161 P.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, is dependent upon whether there was substantial 

compliance with Montana statutes regarding the abandonment 

of roads. 

In this case, respondents suggest as one of their arguments that appellants did not obtain a sufficient number of 

signatures to substantially comply with the requirements of 

section 7-14-2601, MCA. That statute, as has been previously stated, requires a petition to contain the signatures 

of either ten or a majority of freeholders of the road 

district where abandonment is sought. Appellants' :?et:ition 

obviously does not comply with the first part of the statute, since it only contains four signatures. 
It also appears, under the facts presented, that compliance with the second part was impossible. During oral 

argument, the parties informed us that the entire Gallatin 

County comprises only one road district, in which 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 to require only the signatures of "a majority 

of those directly affected" by the abandonment. It is urged 

under such a construction that simply the signatures of 

those owning land which immediately adjoins the land sought 

to be abandoned would be sufficient. Although there are 

several persons owning land on Central Avenue in this case, 

only three landowners own lots immediately adjoining the 

northerly 100 feet of the street. 

We decline 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 in construing a statute is simply to ascertain and declare its substance and not to insert what 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, as one alternative, 

the signatures of a "majority of freeholders of the road 

district." The statute does not say "a majority of those 

directly affected." Nor is there any legislative intent 

expressed that this was the desire of the legislature. 

Further, even if we were to adopt appellants' interpretation, it is doubtful whether this would 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 is one or many road districts in a county, it 

may be reasonable to attempt to obtain a majority in some 

circumstances while it is unreasonable in others. 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 lots immediately adjacent to the 

land sought to be abandoned. Conceivably, other landowners 

besides these are affected by the abandonment. 

A number of cases have held that a required number of 

signatures specified in a statute for the abandonment, vacation or termination of a road is a material element and that 

the failure to obtain such signatures falls short of substantial compliance. See 175 A.L.R. 760, 771, for an extensive list of cases. For example, where a statute for 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 act with 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. at 221. In dealing with the same 

statute in another case where seven of seventeen petitioners 

filed a written withdrawal of their names from a petition 

for vacation before there was an assumption of jurisdiction, 

the court held the commissioners were without authority to 
assume jurisdiction and consider the matter. Current v. 

Current (19201, 72 Ind-App. 363, 125 N.E. 779. 

In this case, we do not think it was an unreasonable 

burden for appellants to obtain ten signatures on their 

abandonment petition. The District Court correctly held 

that, because there was a failure to substantially comply 

with the statutes on 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 in the 

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 acts of the county. County employees prepared appellants' petition providing space for only six 

signatures, and a county commissioner apparently gave appellants improper advice as to how to cure defects in the 

petition once the order for abandonment had been invalidated. 

Although appellants had, arguably, equal access to the 

law, we think in general 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 

in our minds lies with the protection of the public interest. 

This countervailing public policy has taken on such importance that it is expressed in our Constitution. Where 

public lands are disposed of and there has been insufficient 
compliance with laws providing for their disposition, the 

public interest must be protected. In Norman, 597 P.2d at 

719, 36 St.Rep. at 1098, 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 to protect is that of the 

citizens of this State to receive the highest 

value from the sale of the lands their State 

government holds in trust for them. Strict 

compliance with the constitutional and statutory provisions relating to those lands is 

the best mode to insure that protection. It 

is generally conceded that while estoppel may 

be effected against State government, it may 

not be asserted where it would interfere with 

the protection of the public's interest in 

lands. [Citations omitted. 1 " 

Accordingly, we hold, without addressing the remaining 

arguments raised by appellants, that the District Court 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 District Court has no basis for even considering 

the application of the doctrine. The order for abandonment 

was void initially because the commissioners did not have 

the authority to act. The District Court did not abuse its 

discretion and, accordingly, the judgment of the District 

Court is affirmed. 

We 

%ap% 

concur: