No. 12020 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

HARRY A. BOLINGER, JR,, 

Executor of the Last Will and Testament 

of Mary E. Bolinger, Deceased and 

Lucille B. Wood, 

Plaintiffs and ellant ants, 

CITY OF BOZEMAN, a Municipal Corporation 

of the State of Montana, et ale, 

Defendants and Respondents. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable Victor H. Fall, Judge presiding. 

Counsel of Record: 

For Appellants : 

Bolinger and Wellcome, Bozeman, Montana. 

H, A. Bolinger argued, Bozeman, Montana, 

For Respondents: 

Berg, ~'~onnell, Angel and Andriolo, Bozeman, Montana. 

Ben E. Berg argued, Bozeman, Montana. 

Submitted : January 10, 1972 

Decided : FED 9 - 1$J@& 17 9,c 4;.t.*J. I 1 -' 

Filed : ff8 - 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a judgment entered by the district 

court in Gallatin County, Hon. Victor H. Fall presiding. The 

case was tried by the court without a jury and judgment was 

entered pursuant to findings of fact and conclusions of law, in 

favor of defendant. Plaintiff, Harry A. Bolinger, Jr., executor 

of the last will and testament of Mary E. Bolinger, deceased, 

filed exceptions to the findings and a motion to amend and make 

additional findings. The exceptions and motion were not ruled 

upon within the permissible time period, thereupon, the exceptions and motion being deemed denied, plaintiff perfected this 

appeal from the judgment. 

This Court rendered an opinion on October 4, 1971, subsequently by order granted a limited rehearing, limited as to the 

disposition on reversal of the judgment; reheard that limited 

matter; and subsequently by order dated December 6, 1971, withdrew its original opinion and granted a full rehearing. The 

matter was reheard on January 10, 1972. 

The case involves a county road in Gallatin County designated as county road No. 61, which runs in a north-south direction 

in close proximity to the city limits of the city of Bozeman. The 

property through which the road runs is not contiguous to the 

city, so as to permit an application for annexation under existing statutes. 

In March 1969, the city of Bozeman obtained an "Encroachment Application and Permit" from Gallatin County to " * * * construct, install, operate and maintain a sanitary sewer line together with necessary appurtenances thereto, on and within the 
right of way of the County Road Number Sixty (61)" (sic). This 

permit is expressly authorized by section 16-1114, R.C.M, 1947. 

In the district court there were two plaintiffs, Bolinger 

and a neighboring property owner, Lucille B. Wood. These plaintiffs own the fee of a portion of lands over which county road 

No. 61 runs; but the instant appeal is taken only by Harry A. 

Bolinger, Jr., as executor of the last will and testament of 

Mary E. Bolinger. 

The road in question was established March 7, 1891, by 

the board of county commissioners of Gallatin County upon petition 

of residents in the area traversed by the road. At the time of 

the filing of plaintiffs' complaint the road was neither graded 

nor surfaced, 

Defendants were advised of the plaintiffs' objections to 

the sewer prior to undertaking the digging of the sewer line in 

county road No. 61 across plaintiffs' property. Plaintiffs' 

objections were based upon the fact that defendants had no easement or right of way agreement and for this reason could not encroach upon the fee interest of the plaintiffs. Defendant city 

of Bozeman had advised plaintiffs that they could not attach to 

the sewer when it was completed, since their property was not 

within the city limits. 

Defendant, city of Bozeman, proceeded with and completed 

the construction of the sewer in spite of the intervention of 

this suit seeking a mandatory injunction to compel the removal of 

any pipe which had been placed at that time and to enjoin the 

trespass by defendants. Following completion of the sewer line 
the case was tried and the district court found that defendants 

had a right to lay a sewer line under the right of way of county 

road No. 61 by virtue of the encroachment permit from Gallatin 

County. 

Appellant poses the question here as--what right does 

Gallatin County possess in the fee underlying county road No. 61, 

which might be assigned to the city of Bozeman for a sewer system? 

Respondent poses the question here as--may a municipal 

sewer be installed in a public road by permission of the county 

without consent of the adjoining property owners? 

Subsidiary to both questions posed are these inquiries: 

What is the nature and extent of a public easement in a highway? 

That is, insofar as the sewer line here is concerned, is the public easement restricted to the use of a roadway for the movement 

of vehicular traffic only? 

Clearly, and we think it needs no citation of authority 

to support, the governing authority can regulate use of the easement. Here, this governing body, the Board of County Commissioners, 

has statutory authority to issue the permit and did so. So the 

question really is, whether the rights of the fee owner have 

been invaded. 

The district court in its finding of fact No. 11, found: 

"That Gallatin County Road No. 61 is a public 

road created by order of the Board of County 

Commissioners on March 7, 1891 * * *." 

The fact that appellant's predecessor was one of fifteen 

'householders" who petitioned the county for a county road, which 

is the subject matter of this suit, is not in dispute and is 
supported by the record, as is the granting of the petition by 

the county. 

In 1891 Montana had no statute governing dedication of 

privately owned lands to the public. Hence, the recording of a 

grant constituted a common-law dedication. City of Billings v. 

Pierce Co., 117 Mont. 255, 161 P.2d 636. By a common-law dedication the interest vested in the public is an easement. 23 Am Jur 2d, 

Dedication, 8 57. The grant of an easement is the grant of a use 

and not a grant of title to the land. 28 C.J.S. Easements 8 28, p. 

Appellant approaches the problem by distinguishing between city streets and rural or county roads insofar as there 

is a differentiation in rights of the public as f01fsws~ 

The present section pertaining to county roads is section 

32-4001, R.C.M. 1947, which provides as follows: 

"Rights of way for county roads * * * 

"(2) By taking or accepting interests in real 

property for county roads, the public acquires 

only the right of way and the incidents necessary to enjoying and maintaining it." (Emphasis 

supplied) 

The foregoing section was enacted as part of the revised 

highway laws of 1965. Prior to the recodification of this law, 

the section appeared as section 32-107, R.C.M. 1947, and provided 

as follows: 

"Rights acquired by public in hiqhway. By 

taking or accepting land for a highway, the 

public acquires only the right of way and the 

incidents necessary to enjoying and maintaining the same, subject to the regulations in 

this act and code provided." 

The section was originally enacted as section 2620 of 

the 1895 Political Code in almost the identical language. 
The Montana code provision was adopted from the California 

code which had contained a similar section since 1883. The California Code at the time of the adoption of the same provision by 

the Montana legislature, provided as follows: 

"section 2631, California Political Code. 

"By taking or accepting land for a highway, 

the public acquire only the right of way, and 

the incidents necessary to enjoying and maintaining the same, subject to the regulations in 

this and the Civil Code provided." 

As opposed to the clear-cut legislation indicating that 

the county only acquires a right of way over lands where a county 

road is laid out or dedicated, the city of Bozeman obtained a fee 

interest in its streets by virtue of section 11-3304, R.C.M. 1947, 

which provides as follows: 

"The map or plat recorded under the provisions 

of the foregoing act shall thereupon be sufficient conveyance to vest in the municipality 

the fee of the parcel of land designated or intended for streets, alleys, ways, commons, or 

other public uses, to be held in the corporate 

name in trust to and for the uses and purposes 

in the instrument set forth, expressed, designated, or intended." (Emphasis supplied) 

The use to which streets may be placed is much broader 

than the use to which county highways may be placed, particularly 

in view of the fee interest which a city obtains, and also in 

view of the fact that the owners of property in the city are 

benefited by the various instrumentalities which utilize the street 

for conducting their operations. 

In California the sections pertaining to county roads, 

which we have set forth hereinabove, have received extensive interpretation throughout the years. Prior to the adoption of the 

Montana statute, the California Supreme Court had considered the 
applicable California section in McRose v. Bottyer, 81 Cal. 122, 

22 P. 393, 394, (Decided October 11, 1889), where that court 

stated as follows: 

"'By taking or accepting land for a highway, 

the public acquire only the right of way, and 

the incidents necessary to enjoying and maintaining the same, subject to the regulations in 

this and the Civil Code provided.' Pol.Code, 

52631. 'The extent of a servitude is determined 

by the terms of the grant, or the nature of the 

enjoyment by which it was acquired,' (Civil 

Code, 5806;) and is extinguished, 'when the 

servitude was acquired by enjoyment, by the 

disuse thereof by the owner of the servitude 

for the period prescribed fox acquiring title 

by enjoyment,' (Id.5811.) These provisions are 

part of chapter 3, pt.2, tit.2, of the Civil 

Code, which relates to private easements and 

servitudes; but they are made applicable to a 

public easement of the character in question 

by section 2631 of the Political Code, supra * * **'I 

The same holding was followed in Smith v. City of San Luis Obispo, 

95 Cal. 463, 30 P. 591, 593. 

Thus, from the foregoing discussion of appellant's view 

of a distinction between urban and rural streets, appellant urges 

that an easement is limited to "only the right of way and the 

incidents necessary to enjoying and maintaining the same * * *." 

This, appellant urges, does not include granting permission to a 

city to lay a sewer line. 

Appellant cites 26 Am Jur 2d, Eminent Domain, § 225, as 

follows : 

" * * * In states in which a distinction between 

urban and rural servitudes is recognized, it is 

uniformly held that a pipeline for the conveyance of natural gas cannot be laid beneath the 

surface of a country road without dompensation 

to the owners of the fee. A like rule is applied 

with respect to a water main. The laying of 

water mains in a country highway to furnish 

connection with other pipes, and not to supply 
the residents upon the highway with water, 

is an additional servitude, although the location is adjacent to a well-settled comrnunity. * * *" 

However, that same section cites cases to the contrary. The 

mere distinction between city and rural roads does not, in our 

view, answer the question of whether the rights of the fee owners 

have been invaded. 

Much litigation has arisen over the years concerning the 

use of public right of ways for utility purposes. Most of the 

earlier cases were challenges by abutting landowners to the utilities' right to locate their facilities in the public way, but the 

later cases have concerned the use of public funds to relocate 

utility lines in the construction of interstate highways, where 

the utilities' initial right to use the highway was again reviewed. 

In this respect, Montana's legal history has paralleled that of 

other states. Although the recent decisions are not uniform, 

they are generally distinguishable by reference back to the policy 

established in the early decisions. 

Perhaps the leading early case in the west is Cater v. 

Northwestern Tel. Exch. Co., 60 Minn. 539, 63 N.W. 111, 112, which 

involved the construction of a telephone line between the cities 

of Minneapolis and St. Cloud along a rural highway, the fee of 

which, subject to the public easement, belonged to the plaintiff, 

an abutting landowner. The line was built without his consent, 

but pursuant to a statute which granted to utilities the right to 

use public highways for the purpose of erecting transmission lines 

provided their installation did not interfere with ordinary travel 

on the road. As the court put it, the plaintiff "plants himself 
squarely upon the proposition that the erection and maintenance 

of telephone poles and wires is not within the public easement 

in a highway, but constitutes the imposition of an additional 

servitude upon his land". Similarly, the court framed the question in this language: "[Wlhat is the nature and extent of the 

public easement in a highway?" It was to this question that the 

Minnesota court addressed itself, saying: 

"If there is any one fact established in the 

history of society and of the law itself, it 

is that the mode of exercising this easement 

is expansive, developing and growing as civilization advances. * * * Hence it has become 

settled law that the easement is not limited 

to the particular methods of use in vogue when 

the easement was acquired, but includes all new 

and improved methods, the utility and general 

convenience of which may afterwards be discovered and developed in aid of the general purpose 

tor which h ghways are des gned. * * * Another 

proposition, which we believe to be sound, is 

that the public easement in a highway is not 

limited to travel or transportation of persons 

or property in movable vehicles. * * * But - it 

is now universally conceded that urban highways 

may - - - be used for constructing sewers and laying 

pipes for the transmission of gas, water, and 

the like for public use. * * * The uses referred to of urban streets are not in aid of travel, 

but are themselves independent and primary uses, 

although all within the general purpose for 

which highways are designed. Neither can a distinction between urban and rural ways be sustained on the ground that such uses were contemplated 

when the public easement was acquired in the 

former, but not when the easement was acquired 

in the latter. As a matter of fact, most of 

these uses were unknown when the public easement 

was acquired in many of the streets in the older 

cities. Indeed, many of what are now urban 

highways were merely country roads when the 

public acquired its easement in them, and doubtless many highways that are now merely country 

roads will in time become urban streets. When 

such changes occur, will the abutting owners 

be entitled to new compensation before the 

public can build sewers or lay water or gas 
pipes in these streets? 

"It seems to us that a limitation of the 

public easement in highways to travel and 

the transportation of persons and property 

in movable vehicles is too narrow. In our 

judgment,public highways whether urban or 

rural, are designed as avenues of communication; and, if the original conception 

of a highway was limited to travel and 

transportation of property in movable vehicles, 

it was because these were the only modes of 

communication then known; that as a civilization advanced, and new and improved methods 

of communication and transportation were developed, these are all in aid of and within the 

general purpose for which highways are designed. 

Whether it be travel, the transportation of 

persons and property, or the transmission of 

intelligence, and whether accomplished by old 

methods or by new ones, they are all included 

within the public 'highway easement,' and impose no additional servitude on the land, 

provided they are not inconsistent with the 

reasonably safe and practical use of the highway in other and usual and necessary modes, 

and provided they do not unreasonably impair 

the special easements of abutting owners in 

the street for purposes of access, light, 

and air. " (Emphasis supplied. ) 

Montana in its earl-y cases adopted a similar concept of 

the extent and nature of a public easement. For example, in 

Hershfield v. Rocky Mt. B. T. Co., 12 Mont. 102, 118, 29 P. 883, 

where the plaintiff, a property owner on ~elena's Main Street, 

attempted to enjoin the erection of a telephone pole in front of 

his property, the court denied the injunction, saying: 

"We think that to use the street in a reasonable manner, and to a reasonable extent, for 

this purpose, is just and proper, and is within the uses to which the street may lawfully 

be put, when such use is sanctioned by the 

public through its duly-authorized municipal 

agents. " 

The Montana Supreme Court does not always distinguish 

between urban and rural easements. Thus, in Howard v. Flathead 

Independent Tel. Co., 49 Mont. 197, 141 P. 153, it was held that 
a guy wire to support a telephone pole in a rural road was not 

a trespass on the public right of way. This was a negligence 

case. 

In Kipp v. Davis-Daly Copper Co., 41 Mont. 509, 516-518, 

110 P. 237, which involved the installation of railroad tracks 

on Mercury Street in Butte for rail transportation of ore, this 

Court in sustaining that use of the public street, adopted and 

embellished the same ideas promulgated by the Minnesota court in 

Cater : 

"But it is not important to inquire where 

the fee is vested. The respective rights of the 

abutting owner and the public are dependent upon the fact of dedication. In view of these 

provisions as well as of the rule of law recognized everywhere, the authorities which control 

streets and highways may use or permit the use 

of them in any manner or for any purpose which 

is reasonably incident to the appropriation of 

them to public travel and to the ordinary uses 

of streets or highways under the different conditions which arise from time to time. (White 

v. Blanchard Bros. Granite CO., 178 Mass. 363, 

59 N.E. 1025.) For a highway is created for 

the use of the public, not only in view of its 

necessities and requirements as they exist, - 

but also in view of the constantly changing modes 

and conditions of travel and transportation, 

brought about by improved methods and required 

by the increase of population and the expansion 

in volume of traffic due to the ever-increasinq 

needs of society, Were this not SO, any change 

in these respects would require a readjustment 

of rights as between the public and the abutting property owner, because the result of it would 

of necessity be held an imposition of a new burden 

upon the highway, and hence upon the property of 

the abutting - owner. For these changing public 

uses the owner must be presumed to have received 

compensation when the highway was created. * * * 

"It is often difficult to determine whether a 

new use is such an invasion of the rights of 

an abutting owner as entitles him to damages 
within the meaning of the limitation. If 

it is, compensation must be made before the 

use is installed. But it must be borne in 

mind that the way was created for all uses 

to which it might reasonably be put in view 

of improved methods and the increasing needs 

of the public; and the limitation is to be 

given a construction which will not defeat 

this original purpose. And if the particular 

use to which consent has been given by the 

municipal authorities is in the nature of a 

public use, and is not more burdensome than 

other public uses which have been held to be 

within possible contemplation at the time the 

way was created, it is not a taking or damaging 

of the rights of the owner, within the purview of the limitation. " (Emphasis supplied. ) 

As indicated, recently the courts have had occasion to 

review the principles announced in these early cases. This has 

been true in Montana as elsewhere. Thus, in Jones v. Burns, 138 

Mont. 268, 287, 357 P.2d 22, this Court was asked to decide the 

constitutionality of a statute authorizing the State Highway 

Commission to participate in the cost of relocating utility lines 

in public roads including privately owned gas lines. In reviewing the decisions of other states, the Court noted that only Idaho 

and Maine, with similar constitutional provisions, had declared 

such statutes unconstitutional. To distinguish the Idaho decision, the Court compared the policy of the Idaho court with the 

early decisions in Minnesota, especially the holding in Cater: 

"There is further reason why this court 

should not follow the decision of the Idaho 

court, but rather the decision of the Minnesota court, This is based on the fact that 

Idaho has a different policy than Montana or 

Minnesota on what is to be regarded as a 

primary and proper use for which highways are 

designed, 

"In Minneapolis Gas Co. v. Zimmerman, supra, 

253 Minn, 164, 91 N.W.2d 642, 649, the Minnesota court, after quoting the following from 

Cater v. Northwestern Tel, Exch. Co., 60 Minn. 
539, 63 N.W. 111, 112, 28 L.R.A. 310: 

11 I It * * * the public easement in a highway 

is not limited to travel or transportation 

of persons or property in movable vehicles. 

* * * But it is now universally conceded that 

urban highways may be used for constructing 

sewers and laying pipes for the transmission 

of gas, water, and the like for public use. 

* * * The uses referred to of urban streets 

are not in aid of travel, but are themselves 

independent and primary uses, although all 

within the general purpose for which highways 

are designed. Neither can a distinction between urban and rural ways be sustained. * * *", 

stated at page 649 of 91 M.W.2d: 

"'Clearly since the Cater decision in 1895, 

Minnesota has been definitely committed to 

the view that the use of riqhts-of-way by 

utilities for locatinq their facilities is 

one of the proper and primary purposes for 

which hiqhways are designed even though their 

principal use is for travel and the transportation of persons and property.' 

"Such use of the streets and highways is 

conducive to the public welfare and serves 

one of the purposes for which they are dedicated. 

"In Hershfield v. Rocky Mt. B. T. Co., 12 

Mont. 102, at page 118, 29 Pac. 883, at page 

887, this court also committed itself to this 

view when it stated 'We think that to use the 

street in a reasonable manner, and to a reasonable extent, for this purpose [placing telephone 

poles and lines along the streets] is just and 

proper, and is within the uses to which the 

street may lawfully be put, when such use is 

sanctioned by the public through its dulyauthorized municipal agents.' 

"In State ex rel. Rich v. Idaho Power Company, 

81 Idaho 487, 346 P.2d 596, the Idaho court 

expressly held that it was not committed to this 

view." (Emphasis supplied.) 

It is also worth noting the course of recent cases in 

New Mexico where the Supreme Court in State Highway Com'n. v. 

Southern Union Gas Co., 65 N.M. 84, 332 P.2d loto, 1016, first 

held its Utility Relocation Financing statute unconstitutional 
and in distinguishing the Minnesota cases, said: 

"It might be explained that Minnesota is committed to the view, as stated at page 649 of 

91 N.W.2d: 

"' * * * the use of rights-of-way by utilities 

for locating their facilities is one of the 

proper and primary purposes for which highways 

are designed.' [Emphasis ours.] 

"Needless to say, such has never been the policy 

of New Mexico. " 

But, in the later case of State v. Lavender, 69 N.M. 220, 

365 P.2d 652, 661, upon reflection and reconsideration the New 

Mexico court reversed itself, saying: 

"The statement in Southern Union that New 

Mexico has never recognized that one of the 

primary purposes for which highways are 

designed is for location of utility facilities, 

was made in order to distinguish the leading 

contrary case, Minneapolis Gas Company v. 

Zimmerman, 1958, 253 Minn. 164, 91 N.W.2d 642. 

Actually, the statement is erroneous when it 

is considered there has been unquestioned 

statutory authority for such use of highway 

rights-of-way for more than fifty years. * * * 

The Minnesota decision was soundly based on a 

prior decision of that court in Cater v. 

Northwestern Tel. Exch. Co., 60 Minn. 539, 63 

N.W. 111, 28 L.R.A. 310, which held that the 

use of highway easements for utility services 

was within the general purpose for which highways are designed, in addition to their use 

for transportation of movable vehicles. We 

agree. To hold otherwise would be to ignore 

the practical, as well as the legal, aspects 

of the situation." 

Furthermore, the courts of California, appellant's citations to the contrary notwithstanding, agree with Minnesota, New 

Mexico, and Montana as to the extent and nature of the public 

easement in a dedicated public road. In Collopy v. United Railroads 

of San Francisco, 67 C.A. 716, 228 P. 59, 61, the court approvingly cites Cater: 
"As civilization advances and new and improved 

methods of transportation are developed, these 

are in aid of and within the general purposes 

for which highways are designed. Cater v. 

Northwestern, etc., 60 Minn. 539, 63 N.W. 111, 

28 L.R.A. 310, 51 Am. St. Rep. 543. An abutting 

owner, therefore, is not entitled to be compensated anew for every improvement in street or 

vehicle, or with every change made imperative 

by such improvement, and especially so where 

he has made a conveyance in full contemplation 

and knowledge of such change. Such in effect 

is the principle established in Montgomery v. 

Railway Co., 104 Cal. 186, 37 Pac. 786, 25 

L.R.A. 654, 43 Am. St. Rep. 89, and Hayes v. 

Handley, 182 Cal. 273, 187 Pac. 952. See, 

also, Albany v. United States, etc., 38 Cal. 

App. 466, 176 Pac. 705. 

"Where land is conveyed for a public highway 

the implication must be that it will be used 

as the convenience and welfare of the public. 

may demand, although that demand may be augmented by the increase of population, The 

benefits which an owner of the servient estate receives from the increase in population 

and consequent building up of the community 

usually far more than compensate him for the 

increased burden he may claim to have suffered." 

(Emphasis supplied. ) 

In Waeon v. Eldridge, 207 Cal. 314, 278 P. 236, 238, 

the question was whether the canals of Venice, California, could 

be filled and converted to surface highways without compensation 

to abutting landowners. Holding that this change of use was 

justified, the Supreme Court of California said: 

"The real question always is, therefore, 

whether the use in a particular case, and for 

aqdesignated purpose is, consistentfor inconsistent with such primary object. Whether or not 

a particular use amounts to a diversion from 

that for which the dedication was made depends 

on the circumstances of the dedication and the 

intention of the party making it, It has been 

held that such use is authorized as is fairly 

within the terms of the dedication and reasonably serves to fit the property for enjoyment 

by the public in the manner contemplated. 

[Citing cases.] In other words, the dedicator 
is presumed to have intended the property 

to be used in such way by the public as will 

be most convenient and comfortable and accord1% 

known at the time of the dedication but also 

to those justified by lapse of time and chanqe 

of conditions." (Emphasis supplied.) 

See also Airways Water Co. v. Los Angeles County, 106 

C.A.2d 787, 236 P.2d 199; State v. Board of Com'rs of Walla Walla 

County, 28 Wash.2d 891, 184 P.2d 577, 172 ALR 1001. 

Finally, appellant's argument that the public easement 

in a rural county road is so much different and more limited 

than an easement in a city street is also disposed of by the 

Supreme Court of Oregon in Huddleston v. City of Eugene, 34 Ore. 

343, 55 P. 868, 871, where that court said: 

"It is argued that the uses to which streets 

are ordinarily put are greater and more numerous 

than those to which a county road is subjected, 

and particularly so with reference to the laying of pipes and the construction of drains, 

sewers, and culverts in streets. 2 Dill Mun. 

Corp. 5 688. But Judge Elliott, in his work on 

Roads and Streets (page 311), anticipating such 

contention, says: 'Where land is dedicated or 

appropriated for a suburban road, the implication must be that it shall be used as the convenience and welfare of the public may demand, 

although that demand may be augmented by the 

increase in population, or by a town or city 

springing up in the territory traversed by the 

road. ' " 

Appellant would distinguish most of the foregoing analysis 

on two points: First, that in Cater the Court assumed that the 

telephone line there involved was for the use of the public upon 

payment of certain charges. This assumption, appellant urges, 

distinguishes that case and those based on that rationale from 

the instant case, because appellant is not allowed to hook onto 

the sewer. Second, that in most of the cases involved there were 
statutory dedications while here we are dealing with what we 

have heretofore described as a common law dedication (being prior 

to statutory authority). We hold that neither of these distinctions, if they be that, are sufficient to remove this case from 

the rationale expressed heretofore. 

Accordingly, we affirm the judgment. However, in considering costs on this appeal, much of the additional costs we find 

were brought about by the respondent from the inception of the 

sewer project. We have not developed the facts and circumstances 

showing this, in this opinion. we do assess costs under Rule 33, 

Montana Rules of Appellate Civil Procedure, against respondent. 

~ssod&e Justice 

/ Associate Justices v