110. 82-299 

ITJ THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

RICHARD R. BUTTINGA, et al., 

Plaintiffs and Respondents, 

-vsGARY W. PRITJGLE, et al., 

Defendants and Appellants. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph B. Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Robert R. Throssell, Deputy County Attorney, argued, 

Bozeman, Montana 

Eleanor A. Parker, Dept. of Health, argued, Helena, 

Montana 

For Respondents: 

Page Wellcome; argued, Bozeman, &Tontana 

- 

Submitted: June 6, 1983 

Decided: September 8, 1983 

Filed: SEP 8 - 1983 

LClerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendants appeal from a judgment of the Eighteenth 

Judicial District Court, Gallatin County, granting a writ of 

mandamus to the plaintiffs directing Montana Department of 

Health and Environmental Sciences (DHES) to certify property 

described in a deed as not subject to sanitary restrictions, 

and directing the Clerk and Recorder of Gallatin County to 

record the deed. We reverse the judgment. 

Following are the dispositive issues: 

1. Did the Clerk and Recorder fail to perform a clear 

legal duty in refusing to file plaintiffs' certificate of 

survey and to record their warranty deed? 

2. Did the Gallatin County Health Department (GCHD) act 

as an agent of the DHES when it denied a county subsurface 

sewage disposal system permit to plaintiffs? 

3. Did the DHES violate a clear legal duty to grant 

plaintiffs approval of their subdivision? 

The key facts are contained in the uncontested findings 

of fact which include the following: In 1971 the plaintiffs 

planned to purchase five acres of land from J. Huttinga, 

father of Richard, for the purpose of erecting a home for the 

plaintiffs. Notwithstanding that the five acres was not a 

subdivision under the laws of Montana in 1971, plaintiffs 

filed an application for an individual sewage disposal 

installation permit with the GCHD. An inspection of the 

ground was made by Emery Nelson, Gallatin County Sanitarian. 

After the inspection, plaintiffs were never notified by the 

GCHD that the septic tank and sewage disposal system did not 

comply with the requirements of state law or the regulations 

of the County or the State Board of Health, predecessor to 

DHES. The District Court further found that at the time 

Emery Nelson inspected the installation, it was in the 
process of being constructed. At no time in the following 

six years did anyone notify plaintiffs that the installation 

would not be approved. 

The District Court next found that in 1978 the 

plaintiffs applied to the County Clerk and Recorder for the 

recording of a deed, which was refused without the sanitary 

restrictions being either approved or removed. Plaintiffs 

then consulted with GCHD and discovered that the department 

contended the system was not approved, even though it had 

been installed and used for seven years. Tests made in 1979 

showed no evidence of contamination of the water in the well. 

While not included in the District Court finding of 

facts, the uncontested evidence is that the Gallatin County 

Sanitarian assisted the plaintiffs with the design and 

specifications for the sewage system in 1971, and the 

plaintiffs installed the system in accordance with those 

plans. Although Sanitarian Nelson testified at trial that 

the system could not be approved because there was ground 

water in the drainfield trenches in 1971, and that the 

drainfield therefore violated the County regulations 

requiring a 2-foot separation between the bottom of the 

trench and the highest water table, the District Court 

specifically found that any such disapproval was not 

communicated to the plaintiffs. Mr. Huttinga, Richard's 

father, testified that one of the County sanitarians had 

"said it was ok to go ahead and fill it." The trench was 

then covered. Plaintiffs occupied the trailer house and used 

the completed septic system for over seven years. 

After the County Clerk and Recorder refused to record 

the deed in 1978, plaintiff Richard Huttinga and Sanitarian 

Nelson obtained water samples from above and below the septic 

system to test whether the system was polluting the water. 
Nelson testified he believed the State might approve an 

existing system "if it could be shown that water, the water 

table, was not being degraded." Nelson subsequently returned 

the $4.00 testing fee to the plaintiffs, explaining that the 

DHES would not pass the system for State subdivision review 

as it lacked County approval. In addition, without County 

approval, the DHES would not conduct subdivision review and 

would not issue its own certificate of approval indicating 

there were no sanitary restrictions. 

In May of 1979, plaintiffs attempted to file the 

certificate of survey and to record the deed of the 5.002 

acres. The Gallatin County Clerk and Recorder refused to 

file the same without the DHES certificate stating there were 

no sanitary restrictions. Without a filed survey, the deed 

itself could not be recorded by the County. 

In July of 1979, a tapwater sample was taken by the 

plaintiffs, tested by DHES, and found not to be contaminated. 

DHES informed the plaintiffs that "these results cannot be 

relied upon as indicating the safety of the water at all 

times unless the source is properly located and maintained." 

In August of 1979, GCHD notified plaintiffs that unless they 

complied with current, more stringent requirements for 

subsurface sewage disposal systems, GCHD would not approve 

the plaintiffs' system. 

On January 31, 1980, plaintiffs petitioned the District 

Court for a writ of mandamus ordering the Clerk and Recorder 

to file the certificate of survey and record the deed. 

Following a hearing, the District Court joined DHES as a 

party defendant and set a new hearing date. Prior to that 

hearing, the parties stipulated that no additional testimony 

would be given and the transcript from the first hearing 

would suffice. 
On April 5, 1982, the District Court entered judgment 

for the plaintiffs and issued a writ of mandamus ordering the 

defendants to certify that the property was subject to no 

sanitary restrictions and requiring the Clerk and Recorder to 

record the deed. By subsequent order, the Court awarded 

attorneys' fees of $1,539.13 to be borne equally by DHES and 

Gallatin County. Defendants appeal. 

During the pendency of this action, Gary W. Pringle 

succeeded Lucille Bridges as Clerk and Recorder of Gallatin 

County. Because the suit is against the Clerk and Recorder 

in his or her official capacity, Pringle has been substituted 

for Bridges as a party defendant pursuant to Rule 37(c) (I), 

M.R.App.Civ.P. 

Based upon the previously described findings of fact, 

which are not contested by the defendants, the District Court 

concluded that it was incumbent upon the Gallatin County 

Health Department to advise the plaintiffs of any 

disapproval, and that the failure to notify the plaintiffs 

for a period of six years after installation of the 

drainfield constituted grounds for estoppel under the law. 

While the parties agree that Gallatin County is estopped from 

disapproving the system, the defendants argue that it is not 

appropriate to estop either the Clerk and Recorder, who only 

has a duty to file and record or the DHES, which has not 

actually participated because no application has been made to 

it. 

The issue raised by the Clerk and Recorder is whether 

the Clerk and Recorder failed to perform a clear legal duty 

by refusing to file the certificate of survey and to record 

the deed of the plaintiffs. Our conclusion is determined by 

the statutes. Sections 76-3-101 through 76-3-614, MCA 

constitute the chapter entitled "Montana Subdivision and 
Platting Act." This chapter controls the survey required in 

the present case. Under section 76-3-104, MCA, a subdivision 

comprises a parcel less than 20 acres which has been 

separated from the original tract. Section 76-3-207(1), MCA 

provides that certain divisions of land, even though less 

than 20 acres, are not subdivisions under this particular 

chapter but are subject to surveying requirements. The 

Huttinga property meets one of these exceptions, that being a 

division outside of a platted subdivision for the purpose of 

a gift or sale to a member of the landowner's immediate 

family. Section 76-3-207(1) (b), MCA. As a result, the tract 

here involved is required to be surveyed under section 

76-3-401, MCA. Under this chapter, there is no specific 

requirement for sanitary restrictions. 

Sections 76-4-101 through 76-4-1251, MCA control sanitation 

restrictions in subdivisions. Section 76-4-102 (7), MCA 

defines subdivisions under this chapter as parcels containing 

less than 20 acres of land. The key provision is section 

76-4-122, MCA, which in relevant part provides: 

"(1) The county clerk and recorder shall not file 

or record any map or plat showing a subdivision 

unless it complies with the provisions of this 

wart. 

"(2) A county clerk and recorder may not accept a 

subdivision plat for filing until one of the 

following conditions has been met: 

"(a) The person wishing to file the plat has 

obtained approval of the local health officer 

having jurisdiction and has filed the approval with 

the department [DHES], and the department has 

indicated by stamp or certificate that it has 

approved the plat and plans and specifications and 

that the subdivision is subject to no sanitary 

restriction . . .." 

While the survey here involved is not a plat under the 

Montana Subdivision and Platting Act, it covers a tract 

defined as a subdivision under section 76-4-102(7), MCA which 

comes within the recording provisions referred to in section 
76-4-122, MCA. In addition, under section 76-4-125(2), MCA, 

the survey must be submitted for review by the DHES. We 

conclude that in the present case, before the plaintiffs 

could file their survey, they were required to obtain the 

approval of the local health officer having jurisdiction and 

the DHES was required to certify that the division was not 

subject to sanitary restrictions. 

The plaintiffs chose not to proceed by requesting 

approval of the local health officer or of the DHES, and 

instead have argued that all parties are estopped from any 

position other than an admission that the survey and plat are 

subject to - no sanitary restrictions. 

The statutes are sufficiently specific so that no 

contention can be made that the Clerk and Recorder was under 

a duty to file the survey and record the deed under the facts 

of this case. The Clerk and Recorder was statutorily 

required to refuse to file the survey and, in the absence of 

such a survey, to refuse to record the deed. In the absence 

of the required approvals from the appropriate health officer 

and DHES, the statutory obligation of the Clerk and Recorder 

to refuse a survey or plat should be enforced. The Clerk and 

Recorder lacks discretion to accept a survey absent 

compliance with the specific requirements of section 

76-4-122, MCA. We therefore hold that the Clerk and Recorder 

did not fail to perform a clear legal duty in refusing to 

file the plaintiffs' certificate of survey and to record 

their deed. 

Did the Gallatin County Health Department act as an 

agent of the Department of Health and Environmental Sciences 

when it denied a county subsurface sewage disposal system 

permit to the plaintiffs? Finding IX of the District Court 

in substance held that the GCHD was a representative and 
in substance held that the GCHD was a representative and 

agent of the DHES. As such, the Court found that if the 

septic tank and drainfield did not meet sanitary 

requirements, the defendants had a duty to notify plaintiffs 

when the system was being installed and to stop the 

installation. This was not done. The DHES contends there 

was no statute or legal principle which would make the GCHD 

an agent for the State in 1971. 

In 1971 when the application for the county permit was 

made by the plaintiffs, no subdivision review question was 

raised. All that the plaintiffs did was to seek a county 

permit from the GCHD. Plaintiffs have not cited and we have 

not located any statute or decision which establishes that in 

1971 the GCHD could be classed as agent for the DHES or its 

predecessor. It was not until 1977 that section 76-4-128, 

MCA was amended to allow the DHES to delegate to a local 

government the authority to review a subdivision if the local 

government has qualified personnel to review adequately the 

water supply and sewage disposal facilities. In State v. 

District Court of Thirteenth Jud. Dist. (1976), 170 Mont. 15, 

550 P.2d 382, this Court held that police officers are 

servants of the city and cannot be classed as servants or 

agents of the State. We reasoned that the State exercises no 

direct, detailed or daily supervision over a police officer 

and is powerless to avoid or prevent negligent acts by them. 

We pointed out that the State does not pay, hire or fire the 

policemen. In a similar manner, there is no indication here 

that the GCHD was in any way a servant or agent of the DHES, 

its predecessor or the State of Montana. The statutes show 

that the State and its agencies could not exercise any 

direct, detailed or daily supervision, or hire or fire 

employees, or otherwise provide the services, which were the 
function of the GCHD in 1971. The record does not show that 

the GCHD in any way acted as agent for the DHES in 1971. 

We hold that the GCHD did not act as an agent of the 

DHES when it denied the county sewage disposal system permit 

requested in 1971. 

The last issue is whether the DHES violated a clear 

legal duty to grant the plaintiffs approval of their 

subdivision. As previously discussed, sections 76-4-121 to 

76-4-123, MCA prohibit the filing of a map or plat with the 

Clerk and Recorder until DHES has certified that the 

subdivision is not subject to sanitary restrictions. Under 

the statutes, DHES has the authority and responsibility to 

set standards by rules for determining whether a given 

subdivision should be approved. Section 76-4-104, MCA sets 

forth the rules and standards to be adopted by the DHES, 

which include requiring that a copy of the plat or other 

documentation be furnished to DHES; evidence that a water 

supply is sufficient in terms of quality, quantity and 

dependability; evidence that the potability of water has been 

met; evidence that a sewage disposal facility is sufficient 

in terms of capacity and dependability; and standards and 

technical procedures applicable to sanitary sewer plans and 

designs, including soil percolation, testing and similar 

items for on-lot sewage disposal systems. 

As pointed out by the DHES, no application has ever been 

submitted to it. Thus, the DHES has no actual knowledge of 

the nature of plaintiffs' system, nor of the plaintiffs' 

answer to any of the information which is required to be 

furnished to the DHES prior to its determination regarding 

sanitary restrictions. Absent an appropriate application to 

the DHES, there is no factual or statutory basis for 

estopping the DHES. The plaintiffs have yet to apply to the 
DHES. We hold that the DHES has not violated a clear legal 

duty by failing to approve the plaintiffs' survey. 

We therefore reverse the judgment of the District Court 

which determined that the plaintiffs are entitled to a writ 

of mandamus directing the Montana Department of Health and 

Environmental Sciences to certify that the property described 

in the deed is subject to no sanitary restriction and 

requiring the Clerk and Recorder to record the deed. We also 

reverse the order granting attorneys' fees to the plaintiffs. 

While we do not give advisory opinions, we make the 

following comments with the aim of reducing further legal 

proceedings. With its briefs, DHES furnished to the parties 

a form E.S. 91B. That form describes the information 

required to be submitted to the DHES in connection with the 

sanitary facilities here in question, and requires the 

furnishing of a copy of the survey and other documents 

designed to allow assessment of the application. An 

application should now be made by the plaintiffs on form E.S 

91B to GCHD and DHES. GCHD properly may give its approval by 

virtue of the basis for estoppel shown in the trial of the 

present case. DHES then can proceed to complete the 

examination of the facilities in question and determine 

whether under all of the facts, an approval of the system is 

appropriate so far as it is concerned. 
We concur: 

Chief 

%dQ, 

Justice 

&e 

Justices 

Justice John C. Sheehy concurring and dissenting: 

I agree that Gallatin County Health Department is 

estopped from refusing to approve the Huttinga's sewage 

system. It is idle for this Court to suggest a new application 

addressed to the Department of Health and Environmental Sciences. 

It will automatically refuse to approve the new application. 

We should not allow the Huttingas here to suffer further 

from bureaucratic bungling.