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, 1990 
Justice 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 the District Court err in holding that the public 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 

east west course and connects several other mining claims with the 

small community of Garnet on the west and a county road on the 

east. 

2 
Ko~nberec presented 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 route was known as the Springtown-Mitchell 

Road. Komberects evidence 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 Komberects claim. This connecting road became 

known as the Summit Cabin Road. The portion of Komberect s property 

through which this road runs became a part of Granite County in 

1941. EComberec contended that at some time prior a portion of the 

southerly route of the Springtown-Mitchell Road was apparently 

abandoned in favor of using this northerly route which connected 

the several mining claims. Komberec produced photographic evidence 

of a southerly road that could potentially have been the original 

Springtown-Mitchell Road 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 the belief 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 enjoining 
Komberec from interfering with public use of the road pending 

judicial determination of its status. After a non-jury trial, 

judgment was entered in favor of the County on March 6, 1990. The 

court held that while the Summit Cabin Road was not the county road 

created by petition in 1889, the public had nevertheless acquired 

a right to use the road through prescription. Komberec appealed 

the courtts ruling 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 County has 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 

roads by other means. He contends that Article XI, Section 4 gives 

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: 

Section 4. General Powers. (1) A local government 

unit without self-government powers has the following 

general powers: .... 

(b) A county has 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. Komberects contentions that a 
county's powers are limited to those expressly granted are based 

on "Dillon's rule1', the former rule prior to the 1972 Constitution 

regarding the powers of local governments that was modified 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 statutory period. Graham v. 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 the public may acquire the right by prescription to 

pass over private land is undisputed and such is the law 

in Montana. To establish the existence of a public road 

by prescription it must be shown that the public 
followed a definite course continuously and 

uninterruptedly for the prescribed statutory period 

together with an assumption of control adverse to the 

owner. . . . By wcontinuous and uninterrupted usew is meant 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 it must be shown that the use was 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 the witnesses are no 

longer usually available. . . . [Citations omitted.] 

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 the present. The United States Bureau of Land Management 
(BLM) used the road for timber management. The BLM and Champion 

Timberlands, Inc. performed maintenance on a portion 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 witnesses who 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, snowmobiling access, mining and logging traffic. The 

Granite County Commissioners consider the road to be a county road 

created by the petition of and acquired from Deer Lodge County. 

Komberec argues that the County's evidence is insufficient to 

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, 

and persons cutting Christmas trees and gathering firewood are not 

sufficient to establish such a use. See Medhus v. Dutter (1979), 

184 Mont. 437, 443, 603 P.2d 669, 672; Oates v. Knutson (1979) 182 

Mont. 195, 200, 595 P.2d 1181, 1184; Taylor v. Petranek (1975), 

173 Mont. 433, 439, 568 P.2d 120, 123; Ewan v. Stenberg (1975), 168 

Mont. 63, 68, 541 P.2d 60, 63. However, in this case there was 

evidence of uses other than recreational such as mining, 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 statutory period. 
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 

established by presumption. Parker v. Elder (1988), 233 Mont. 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 

tantamount to a declaration that the road is a public roadway. See 

Barnard Realty Co. v. City of Butte (1913), 48 Mont. 102, 136 P. 

1064. The Barnard decision relies in part on the case of State v. 

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), 82 Mont. 115, 265 P. 676 in Reid 

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 it has acquired a road by prescription. 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 control by the County adverse to Komberec. 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 to 
continue 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 

whether maintenance 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 clearly gives the BLM a permissive 

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 Komberecls property. Moreover, we decline to 

determine whether the order regarding improvements and maintenance 

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 

judgment and so be entitled to appeal a party must have an interest 

in the subject matter of litigation which is injuriously affected 

by the judgment or order. Matter of Dearborn Drainage Area (1988), 

766 P.2d 228, 231, 234 Mont. 331, 336; Holmstrom Land Co. Inc. v. 

Meagher County Newlan Creek Water District (1979), 185 Mont. 409, 

425, 605 P.2d 1060, 1069. In this case, because we have ruled that 

the County has a prescriptive right to the road, Komberec cannot 
be 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 contends that the District Court erred when 

it denied attorney's fees and costs to Komberec following its order 

compelling discovery. An award of costs and fees on a motion 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 of motion. If the motion is 

granted, the court shall, after opportunity for hearing, 

require the party or deponent whose conduct necessitated 

the motion or the party or attorney advising such conduct 

or both of them to pay to the moving party the reasonable 

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 the rule makes an award of costs and fees mandatory 

unless opposition to the motion was either substantially justified 

or other circumstances make the award 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 

10 
discovery rules. Barrett v. Asarco (1988), 234 Mont. 229, 234, 763 

P.2d 27, 30; Sikorskiv. Olin (1977), 174 Mont. 107, 111, 568 P.2d 

571, 573; Wolfe v. Northern Pacific Railway Co. (1966), 147 Mont. 

29, 40-41, 409 P.2d 528, 534. In interpreting discovery rules, 

this Court will reverse the trial judge only when his judgment may 

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 apply discovery sanctions. State 

ex rel. Burlington Northern Railroad Co. v. District Court (1989), 

239 Mont. 207, 219, 220, 779 P.2d 885, 893. While the trial court 

has discretion in these matters, the breadth of this discretion is 

available to the trial court within the statutory language of Rule 

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 circumstances would make an 

award of expenses unjust. In responding to Komberecrs motion to 

compel the County explained that the information requested was 

difficult to gather because the road in controversy was 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 and 
attorneys fees did note in his memorandum opinion that such an 

award was a close issue in this case. considering the explanation 

given by the County, this suggests and the record 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 cross appeal, the County and 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 substantially the same road as the one created in 1889 with 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 of Alameda (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 overcome by 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 in Reid, for the record as a whole 

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 presented 
substantial evidence to the District Court to support his 

contention that the Summit Cabin Road 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 to maintain the road, and its conclusion that the 

public had acquired a prescriptive right for the Summit Cabin Road. 

AFFIRMED. 

We Concur: ~L#F+ 

Chief Justice