No. 85-478 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

MAURICE A. WARNER, JR., Plaintiffand Appellant,

THE COUNTY COYU'4ISSIONEFS OF GALLATIN COUNTY, et al., Defendantsand Respondents.

APPEAL FR.OM: District Court of the Eiahteenth JudicialDistrict, In and for the County of Gallatin, The Honorable Frank Davis,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Michael P. Sand,Rozeman,Montana
For Respondent: A. Michael Salvagni,CountyAttorney, Bozenan,Montana ThomasAnacker, Deputy CountyAtty., l3ozema.n

Filed: Submitted on Briefs: Jan. 30, 1986 Decided:March 20, 1986 

## MAR

## 20

## 1986

ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.

Maurice Warner, Jr. brought an action in the District Court of the Eighteenth JudicialDistrict,Gallatin County to enjoin the defendants from assessing any costs for improvements under Rural Improvement DistrictNo. 337 and to declare the resolution creating the district null and void. The District Court granted summary judgment in favor of defendants. Plaintiff appeals. We affirm. There is one issue in this case: in fixing boundaries of a rural improvement district, can a board of county commissioners include less than the entire lot within the district so as to equalize costs borne by each lot? In May 1984, 

### a petition to create a rural improvement district relating to roads and entrance lighting was circulated for signatures inMiddle Creek Meadow Subdivisions Nos. 

### 1 and 3. The petition provided, 

### " 

# . .

# . each lot in the District shall pay an equal share for the costs and expenses of such District,regardlessof size." The resolution 

### of intention to create 

### a rural improvement districtpassed by the Gallatin County Commission included 2,000 square feet of each lot closest to the roadway in the boundaries of the district, although the lots varied in size from approximately 38,000 square feet to approximately 312,000 square feet. The boundaries were drawn in this manner so that the assessment against each lot would be equal. Appellant argues this method of assessment is contrary 

### to 

### 9 7-12-2151.,MCA (1983)which provides in pertinent part:

### The board shall assess the entire cost of 

### such improvements against the entiredistrict. Each lot or parcel of land assessed in such district shall be assessed with that part of the whole costwhich its area bears to the area of the entire district, exclusive of streets, avenues, alleys, and public places. Appellant contends that this statutemeans the entire area of all lots must be included within the rural improvement districtboundaries. However, in Ricker 

### v. City of Helena (1923), 68 

### Mont. 350, 218 P. 

### 1049 this Court upheld a rural improvement district which included only the front twenty-five feet of the lots in itsboundaries. We held the city councilhas the power to fix theboundaries of the district regardless of the size of lots owned. "Having the power to fix the boundaries of the district, the council must have the right to fix the same, independently of the ownership of the particular tracts
orparcels abutting upon the improvement,otherwise,

# .. . it might be obliged to fix the boundaries in such amanner that gross inequality of costs and benefit would result." Id. at 

### - Although R.ickerinvolved a special improvement district created by 

### a city council, we hold the ca.se is equally applicable to rural improvement districts created by county commissions. Under S 

### 7-12-2103(2), MCA (1983) 

### the county commission must describe the boundaries of a proposed rural improvement district and that power is not affected by the size of existing lots. The summary judgment for defendants granted by the District Court is affirmed.We Concur: