No. 86-290 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

DANIEL J. O'NEILL, HELEN P. O'NEILL, 

Plaintiffs and. Appellants, 

STATE OF MONTANA, acting by and through 

THE DEPARTMENT OF HIGHWAYS of the State 

of Montana, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver BOW, 

The Honorable Robert Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Dunlap & Caughlan; Deirdre Caughlan, Butte, Montana 

For Respondent: 

Stephen F. Garrison, Dept. of Highways, Helena, 

Montana 

Submitted on Briefs: Oct. 30, 1986 

Decided: February 19, 1987 

Filed: FEB 19 B87 

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Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Daniel and Helen O'Neill appeal a Silver Bow County 

District Court order granting summary judgment to the 

defendant State of Montana. The issues on appeal are: 

(1) whether the District Court erred in refusing to consider 

an affidavit that appellants submitted at the summary 

judgment hearing, and (2) whether the District Court 

properly ruled that there was not a "taking" by the State of 

a strip of appellants' real property. We affirm. 

The appellants own a parcel of land situated at the 

intersection of Harrison Avenue and Lowell Avenue in Butte, 

Montana. Both streets have been public thoroughfares in the 

City of Butte since the early 1900's. Appellants purchased 

the real property in question in 1972. The deed which 

appellants received for the property in 1972 describes the 

lot's eastern boundary as extending to approximately the 

center of Harrison Avenue and the lot's southern boundary as 

extending to approximately the center of Lowell Avenue. 

In 1983, the State widened and improved both Harrison 

and Lowell Avenues. The State maintains that Harrison Avenue 

has a 100 foot right-of-way, that Lowell Avenue has an 80 

foot right-of-way, and that the construction project stayed 

within those right-of-ways. In July 1984, the appellants 

filed a complaint in Silver Bow County District Court 
charging that the State's construction project took strips of 

appellants' real property without paying just compensation to 

appellants. Appellants sought no compensation for any land 

encompassed in the pre-1983 Harrison and Lowell Avenues. 

In December 1984, the State filed an answer denying 

appellants' allegations and alleging several affirmative 

defenses. In September 1985, the State moved for summary 

judgment on appellants' complaint. On February 7, 1986, the 

court held a hearing on the motion for summary judgment. At 

the hearing, appellants presented to the court a brief and an 

affidavit in opposition to the motion. The State objected to 

consideration of the documents on the basis that they were 

untimely filed. The court agreed with the State's objection 

and refused to consider the appellants' brief and affidavit. 

On February 11, 1986, the court granted the State's motion 

for summary judgment. The court ruled that the State had a 

prescriptive right to use the disputed land for public 

highway purposes. This appeal followed. 

The first issue is whether the District Court erred in 

refusing to consider appellants' brief and affidavit 

presented at the hearing on the motion for summary judgment. 

This Court's decision in Marcus Daly Memorial Hospital v. 

Borkoski (Mont. 1981), 624 P.2d 997, 38 St.Rep. 322, 

addressed a similar issue. 
Rules 6(d) and 56(c), M.R.Civ.P., require 

the party opposing the motion for summary 

judgment, to file opposing affidavits 

before the date of the hearing. 

(Emphasis in original.) 

Borkoski, 624 P.2d at 1000. Here, the trial court found, and 

we agree, that appellants made no showing expressing their 

reason for the untimely filing. Moreover, appellants' brief 

on appeal advances no compelling reason for their tardiness. 

Therefore, as in Borkoski, we find that the trial court did 

not abuse its discretion in refusing to consider the brief 

and affidavit . 

The second issue is whether the District Court properly 

ruled that there was not a "taking" by the State of a strip 

of appellants' real property. The State filed a number of 

affidavits with the trial court in support of its motion for 

summary judgment. Among the affidavits was one sworn to by 

Raymond Grant, District Engineering Services Supervisor for 

the State Department of Highways. Grant's affidavit states 

that, (1) he has reviewed the available public records 

concerning Harrison Avenue and the appellants' lot; 

(2) Harrison Avenue and its right-of-way are, and have been, 

centered on a section line; (3) the roadway surface of 

Harrison Avenue has existed in increasing widths since at 

least the early 1900's; (4) Harrison Avenue has been a public 

road throughout that period; (5) Lowell Avenue intersects 

with Harrison Avenue at the section's quarter corner and has 
existed in the same location in various roadway widths since 

at least the early 1900's; (6) that he has reviewed at least 

five official county plats from as early as 1907-1908, all of 

which show Harrison Avenue's right-of-way at the disputed 

location as extending fifty feet from the section line on 

both sides and totalling one hundred feet in width; (7) the 

same plats, including the earliest but with one exception, 

show Lowell Avenue's right-of-way to be eighty feet in width, 

not centered on the section's quarter corner line; (8) the 

one exception mentioned in (7) shows the right-of-way as 

sixty feet; (9) the 1983 project widening Harrison Avenue, 

installing sidewalks, and improving the intersection with 

Lowell Avenue stayed within Harrison Avenue's one hundred 

foot right-of-way and Lowell Avenue's eighty foot 

right-of-way; (10) that the affiant reviewed an official 

plat which the county commission had adopted and ordered 

filed in March 1921, and which was filed with the county 

clerk and recorder in March of that year; (11) that the 1921 

plat shows Harrison Avenue as having a one hundred foot 

right-of-way; and (12) that it is difficult to determine 

much of the history of either avenue due to the age of the 

roads and because many relevant records and documents have 

been lost or destroyed. 

Robert Fischer, a District Utility Agent for the 

Highway Department, also submitted an affidavit. In regard 
to the Harrison Avenue right-of-way abutting appellants' 

property, his affidavit stated that, (1) phone lines have 

been located on the right-of-way to within approximately 

eleven feet of the State's claimed boundary since 1910; 

(2) a water line has been located on the right-of-way since 

1914; (3) a sewer line has been located on the right-of-way 

to within one foot of the State's claimed boundary since 

1971. 

Addressing the Lowell Avenue right-of-way abutting 

appellants' property, Fischer's affidavit states that, (1) 

underground telephone lines have been located to within 

sixteen feet of the State's claimed boundary since 1972; 

(2) a gas line (since 1943), a sewer line (since 1971) and 

telephone lines (since 1973) are all located within the 

right-of-way; and (3) that the affiant has no record that 

appellants or their predecessors in interest have ever 

previously complained to the utility companies about these 

utility lines (on Harrison or Lowell Avenues). 

Joseph Micheletti, the Highway Department Field 

Right-of-way Supervisor, also submitted an affidavit. His 

affidavit states, (1) that the Department purchased a small 

triangle of property located at the corner of Harrison and 

Lowell Avenues, from the appellants; (2) that on January 22, 

1982, the appellants signed a deed which clearly showed the 

right-of-ways on Harrison and Lowell Avenues as claimed by 
the State; and (3) the appellants did not object to the 

deed, or right-of-way as shown on the deed, during the 

negotiations for that sale. 

There is no evidence in the record to support 

appellants' contention that the Harrison Avenue right-of-way 

and the Lowell Avenue right-of-way are not one hundred feet 

and eighty feet, respectively, as claimed by the State. 

Appellants did not introduce into evidence any affidavits or 

depositions to refute the evidence presented by the State. 

In Sheldon v. Flathead County (Mont. 1985), 707 P.2d 

540, 542, 42 St.Rep. 1573, 1576, this Court recently 

reaffirmed the rule that: 

" [i]t is sufficient if the record taken 

as a whole, shows that a public road was 

created. Otherwise, the burden on the 

public in a particular case to prove a 

public road was created so many years ago 

may well be unsurmountable. . . . [ilf we 

did not now overrule Auchard and Warren 

on the jurisdictional issue, a private 

landowner may, in a particular case, be 

able to keep the public from going 

through land because the public's records 

of a road no longer support a 

determination that the public had 

originally acquired jurisdiction to 

create the road. " (Quoting Reid v. Park 

County (Mont. 1981), 627 P.2d 1210, 1213, 

38 St.Rep. 631, 634.) 

We hold that the record shows that Harrison Avenue and 

Lowell Avenue were created with the right-of-ways as claimed 

by the State. The 1983 construction project occurred 

entirely within those right-of-ways. Thus, there could be no 
"taking" by the State. The official plats showing those 

right-of-ways, coupled with the utilities' long, continuous 

use of the right-of-ways without objection from appellants, 

are sufficient to establish the creation of those avenues. 

The record in this case is as adequate, if not more so, than 

the record in Reid which this Court found sufficient to 

establish the creation of a road. 

The District Court properly granted summary judgment to 

the State. Affirmed. 7 

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Justice,& / 

We concur: 

Justices