NO. 90-312 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

GRANITE COUNTY, a Political Subdivision, Plaintiff and Appellant,

-vCHARLES KOMBEREC, Defendant,Appellant and sporid

APPEAL FROM: District Court of the Third Judicial District, In and for the County of Granite, The Honorable Ted L. Mizner, Judge presiding.

COUNSEL OF RECORD: For Appellant: J. Allen Bradshaw, ~ranite County Attorney, Philipsburg,Montana For Respondent: Fred Thomson,Missoula, Montana For Amicus: Robert L. Deschamps, 111, County Attorney; Martha E. McClain, Deputy County Attorney; Missoula, Montana

Filed: Submitted on Briefs: September 20, 1990 Qecided: November 1, 1990Justice R. C. McDonough delivered the Opinion of the Court.

The defendant Charles Komberec appeals the judgment of the Montana Third Judicial District Court, Granite County, sitting without a jury, declaring a prescriptive right for a public road crossing Komberec's property and enjoining Komberec from obstructing the road. We affirm. Kornberec raises the following issues on appeal: (1)Does Granite County have standing to bring an action for acquisition of a road based on prescription? (23 Did theDistrict Court err in holding that thepublic has a right of way by prescription across Komberec's property? (33 Did the District Court err in ordering that "the Bureau of Land Management has the right to continue improvements and maintenance on a limited basis on the road"? (43 Did the District Court err in denying attorney's fees and costs to Komberec on his motion to compel discovery? Granite County raises the following issue on cross-appeal: Did the District Court err in concluding that the road was not a county road created by petition of the Deer Lodge County Commissioners in 1889? Komberec owns a patented mining claim near Garnet, Montana. The property is not now enclosed nor has it ever been. 

### A single lane road about eight feet wide crosses Komberec's property on an eastwest course and connects several othermining claimswith the small community of Garnet on the west and a county road on the east. 2Ko~nberecpresented evidence, including an 1896 Deer Lodge County road map, that this connecting county road on the east was originally a northerly spur from a county road created in 1889 which also ran west to Garnet, then called Mitchell, on a more southerly route. This routewas known as the Springtown-Mitchell Road. Komberectsevidence tended to show that beyond this county spur a private road extended to the west connecting more mining claims, including Komberec's, with the county road spur on the east. Eventually this spur road again joined the county road at

a point west of Komberectsclaim. This connecting road became knownas theSummitCabinRoad. Theportion ofKomberect sproperty through which this road runs became a part of Granite County in 1941. EComberec contended that at some timeprior a portion of the southerly route of the Springtown-Mitchell Road was apparently abandoned in favor of using this northerly route which connected theseveralmining claims. Komberec producedphotographic evidence of a southerly road that could potentially have been the original Springtown-MitchellRoad created by Deer Lodge County. Komberec has owned his claim since 1984. In June of 1988 he placed a locked gate across the Summit Cabin Road going through his property. On October 28, 1988, the Granite County Commissioners, acting under thebelief that the Summit Cabin Road

was a county road, filed a complaint alleging that Komberec had obstructed a county road crossing his property and requesting a temporary injunction and a judicial determination of the road's status. A temporary restraining order was issued enjoiningKomberec from interfering with public use of the road pending judicial determination of its status. After a non-jury trial, judgmentwas entered in favor of the County onMarch 6,1990. The courtheld thatwhile the Summit CabinRoadwasnot the countyroad created by petition in 1889, the public had nevertheless acquired a right to use the road through prescription. Komberec appealed the courttsruling on prescription and the County cross-appealed

on the existence of a statutorily created road.

Komberec contends that the County does not have standing to bring an action for acquisition of a public road based on prescription. Komberec concedes that the Countyhas the authority under § 7-14-2107(1), MCA, to acquire rights of way by eminent domain or petition. However,Komberec argues ~rticle 

### XI, Section 4 of the Montana Constitution precludes the County from acquiring roadsby othermeans. He contends that Article XI, Section 4gives counties only (1) those powers expressly granted to them by the legislature and (2) those necessarily implied from the express grants of power. This contention lacks merit. Article 

### XI, Section 4 of the Montana Constitution provides: Section4. General Powers. (1) A localgovernment unit without self-government powers has the following general powers:



# .... (b) A countyhas legislative 

## ,administrative,and other powers provided or implied by law. (2) The powers of incorporated cities and towns and counties shall be liberally construed. The literal language of the Constitution calls for liberal construction of county powers. Komberectscontentions that acounty's powers are limited to those expressly granted are based

on "Dillon's rule1',the former rule prior to the 1972 Constitution regarding thepowers of local governments thatwasmodified by the framers of the 1972 Montana Constitution. See Montana Constitutional Convention,v. 11, p.792-793, transcript pp. 2522- 2524, 2530, 2534. Clearly, under liberal construction of a county's general powers and its power to acquire roads, the County has standing to maintain an action on behalf of the public for acquisition of a road by prescription. See senerally 5 7-1- 2103(1), MCA, and 58 7-14-2101, MCA, et seq. 11. Komberec also contends that the District Court erred in finding that the Summit Cabin Road was a public road by prescriptive use. He argues that the County's evidence does not satisfy the requirements for a public prescriptive easement. We disagree. Prescriptive easements may be proved by public or private use, but in either case, the party claiming the right must show open,notorious, exclusive, adverse, continuous and uninterrupted use of the easement for the full statutoryperiod. Grahamv. Mack

(1984), 216 Mont. 165, 172-173, 699 P.2d 590, 595. Recently, in Johnson v. McMillan (1989), 238 Mont. 393, 778 P.2d 395, we discussed public acquisition of a prescriptive easement on a private road: That thepublic may acquire the rightby prescription to pass over private land isundisputed and such is the law inMontana. To establish the existence of apublic road by prescription it must be shown that the publicfollowed a definite course continuously and uninterruptedly for the prescribed statutory period together with an assumption of control adverse to the owner. 

# . . . By wcontinuousand uninterrupted usew ismeant that the use was not interrupted by the act of the owner of the land, and that the right was not abandoned by the one claiming it. 

# .. . This court has said that to establish a prescriptive right itmust be shown that theusewas adverse and not by permission of the landowner. However, the older a road the more difficult it usually is to produce the proof of actual adverse use because thewitnesses areno longer usually available. 

# . . . [Citationsomitted.] Johnson, 778 P.2d at 396, citing Kostbade v. Metier (1967), 150 Mont. 139, 142-145, 432 P.2d 382, 384-386. It is also established that use of an alleged easement for the full statutory period, unexplained, creates a presumption of

use adverse to the owner which may be overcome by evidence that the use is permissive. Johnson, 778 P.2d at 396, citing Lunceford

v. Trenk (1974), 163 Mont. 504, 508-509, 518 P.2d 266, 268. District courts sitting as fact finders occupy the best position to determine if the use was permissive or adverse. Johnson, 778 P.2d at 396, citing Lunceford, 518 P.2d at 267. In affirming the district court in Johnson, we noted that there was substantial evidence to support a finding that public travelers pursued a definite, fixed course, continuously and uninterruptedly, for a long period of time (nearly 100 years). Johnson, 778 P.2d at 396. In this case, there is substantial evidence to support the same. Various witnesses testified that their use of the road began as early as 1927 or 1928 and continued up until thepresent. TheUnited States Bureau of LandManagement(BLM) used the road for timber management. The BLM and Champion Timberlands, Inc. performed maintenance on aportion of the Summit Cabin Road passing through BLM land in connection with a timber sale, however, the evidence indicates that Komberec is the only person to ever perform maintenance on that portion of the Summit Cabin Road crossing his property. The witnesseswho testified to using the road themselves also testified that they observed the general public using the road. Among the various purposes of the road testified to were recreational, timber management, fire protection, snowmobilingaccess, mining and logging traffic. The Granite County Commissionersconsider the road to be a county road created by thepetition of and acquired from Deer Lodge County. Komberec argues that the County's evidence is insufficientto establish a public use that would support the creation of a prescriptive easement. Generally, seasonal use by hunters, fisherman, hikers, campers, use by neighbors visiting neighbors, andpersons cuttingChristmas trees and gathering firewoodarenot sufficient to establish such a use. 

### See Medhus v. Dutter (1979), 184Mont. 437, 443, 603 P.2d 669, 672;Oatesv. Knutson (1979) 182 Mont. 195, 200, 595 P.2d 1181, 1184; Taylor v. Petranek (1975), 173Mont. 433,439, 568 P.2d 120, 123;Ewanv. Stenberg (1975), 168 Mont. 63, 68, 541 P.2d 60, 63. However, in this case there was evidence of uses other than recreational such asmining, logging, timber management, and fire protection. There is substantial evidence to support the elements of a use by the public over a fixed and definite route for the statutoryperiod.The element of adverse use is also satisfied. If all the other elements of open, notorious, exclusive, continuous, and uninterrupted use are demonstrated, the element of adverse use is establishedbypresumption. Parkerv. Elder (1988), 233Mont. 75, 78, 758 P.2d 292, 294. Komberec also contends that the County failed to satisfy all the elements of prescription because it must assert control tantamounttoadeclaration that theroad is apublic roadway. See Barnard Realty Co. v. City of Butte (1913), 48 Mont. 102, 136 P. 1064. The Barnard decision relies inpart on the case of Statev. Auchard (1898), 22 Mont. 14, 55 P. 361. However, the burden on a county of demonstrating that it acquired jurisdiction to create a road has been diminished with the overruling of both Auchard and Warren v. Choteau County (1928), 82Mont. 115, 265 P. 676 inReid

v. Park County (1980), 627 P.2d 1210, 1212-1213. We decline to apply the reasoning of this line of cases to cases where a county alleges that ithasacquired a roadbyprescription. Moreover, the Granite County Commissioners testified that they consider the Summit Cabin Road to be a county road, the one acquired by petition of Deer Lodge County in 1889. Thus, there was an assumption of controlby the County adverse toKomberec. There is substantial evidence to support the District Court's finding that the County acquired the Summit Cabin Road by prescription.

Komberec also contends that the District Court erred 

### in ordering "that the Bureau of Land Management has the right tocontinue improvements and maintenance on a limited basis on the road1'. The record indicates that on occasion the County and the BLM made verbal agreements for the BLM to maintain and improve portions of the Summit Cabin Road crossing land other than Komberec's. Komberec argues that the order is ambiguous as to whethermaintenance by the BLM is a permissive right or the BLM's duty. He further argues that it was error for the District Court to adjudicate rights or duties of the BLM, a non-party in this suit, and for the District Court to adjudicate maintenance of portions of the Summit Cabin Road other than that crossing Komberec's property, the only portion subject to this suit. We conclude that the order clearlygives the BLM apermissive right to maintain the road. We also note that such maintenance does not include a right to improve the road where the easement passes through Kombereclsproperty. Moreover, we decline to determine whether theorder regarding improvementsandmaintenance for the remainder of the road was proper. Regardless of its propriety, Komberec has failed to demonstrate how the court's ruling will adversely affect him. To be aggrieved by an order or judgmentand sobe entitled toappeal apartymust have an interest in the subject matter of litigationwhich is injuriouslyaffected by the judgment or order. Matter of DearbornDrainageArea (1988), 766 P.2d 228, 231, 234 Mont. 331, 336;Holmstrom Land Co. Inc. v. Meagher County Newlan Creek Water District (1979), 185Mont. 409, 425, 605P.2d 1060, 1069. Inthis case,becausewe have ruled that the County has a prescriptive right to the road, Komberec cannotbe aggrieved by the order because he no longer has an interest in the road that permissive maintenance by the BLM will adversely affect. See Rule l(b) M.R.App.Civ.P. We will not reverse unless error affects the substantial rights of a party. Dahlin v. Holmquist (1988), 235 Mont. 17, 21, 766 P.2d 239, 241. Thus, Komberec lacks standing to raise this issue on appeal. IV. Finally,Komberec contendsthat the District Court erred when itdenied attorney's feesand coststoKomberec following itsorder compelling discovery. An award of costs and fees on amotion to compel discovery is governed by Rule 37(a)(4) M.R.Civ.P., which provides in pertinent part: Rule 37(a). Motion for order compelling discovery.



# .... (4) Award of expenses ofmotion. If themotion is granted,the court shall,after opportunity forhearing, require theparty ordeponentwhose conductnecessitated themotion or theparty orattorneyadvising such conduct orboth of them topay tothemoving party thereasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust

# . The language of therulemakes an award of costsand feesmandatory unless oppositionto themotionwas either substantially justified or other circumstancesmake theaward unjust. Komberec argues that the lower court failed to specify either of these circumstances and denied the motion for costs and fees stating simply that sanctions are discretionary. It is within the District Court's discretion to decide what sanctions are to be imposed on a party who fails to comply with 10discoveryrules. Barrettv. Asarco (1988),234Mont. 229, 234,763 P.2d 27, 30; Sikorskiv. Olin (1977), 174Mont. 107, 111, 568 P.2d 571, 573;Wolfe 

### v. Northern Pacific Railway Co. (1966), 147Mont. 29, 40-41, 409 P.2d 528, 534. In interpreting discovery rules, this Courtwill reverse the trial judge only when his judgmentmay materially affect the substantial rights of the appellant and allow a possible miscarriage of justice. Sikorski, 568 P.2d at 573, Wolfe, 409 P.2d at 534. However, this does not mean that a trial court has inherent power to applydiscovery sanctions. State

ex rel. BurlingtonNorthernRailroad Co. 

### v. District Court (1989), 239 Mont. 207, 219, 220, 779 P.2d 885, 893. While the trial court has discretion in thesematters, thebreadth of thisdiscretion is available tothetrialcourtwithin the statutorylanguage ofRule 37 without any reference to an inherent power theory. Burlinqton Northern, 779 P.2d at 893. Here, although the trial court gave no other grounds for denying Komberec his costs and fees on his motion to compel other than its discretionary powers, there is evidence in the record to support a finding that the opposition to the motion was substantially justified or that other circumstanceswould make an award of expenses unjust. In responding to Komberecrsmotion to compel the County explained that the information requested was difficult togatherbecause the road in controversywas created by petition in 1889. The County also explained that the BLM had some of the materials requested and was slow in providing them. The trial judge,while declining in his discretion to award costs andattorneys fees did note in his memorandum opinion that such an awardwas a close issue in this case. consideringthe explanation givenby theCounty,this suggestsand therecord supports that the trial judge did find that the motion was substantially justified or that other circumstances would have made an award of expenses unjust

# . v. On crossappeal, the Countyand amicus curiae Missoula County argue that the current Summit Cabin Road is the road created by petition of the Deer Lodge County Commissioners in 1889 or that it is substantiallythe sameroad as the one created in 1889with some minor variations. The County relies primarily on Reid v. Park County, supra, where this Court held that it is sufficient if the record as a whole shows that a public road was created. Amicus 

### iss sou la County cites the case of Central pacific 

### ail way Company

v. County ofAlameda (1932), 284 U.S. 463, 468, 52 S.Ct. 225, 227, 76 L.Ed. 402, 408, for the rule that once the establishment of a county road has been shown, the continuing identity of that road must be presumed until overcomeby proof to the contrary. These cases are distinguishable from the case at bar. In those cases there was no contention that two distinct roads once existed. Here, Komberec does not challenge the existence of a county road created in 1889,as inReid, for the record as awhole indeed shows that a public road was created. Rather Komberec argues that the Summit Cabin Road is a different road than the springtown-Mitchell road created in 1889. Komberec presentedsubstantial evidence to the District Court to support his contention that the Summit CabinRoad is a different road than the county road created in 1889,thus we will not disturb the District Court's judgment. We affirm the District Court's denial of costs and fees on Komberec's motion to compel, it's order granting the BLM a permissive right tomaintain the road,and its conclusion that the public had acquired aprescriptive right for the Summit CabinRoad. AFFIRMED.

We Concur: 

# ~L#F+

Chief Justice