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No. 00-301 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 339 

EUGENE PEDERSON, COLLEEN PEDERSON, 

TERRY PEDERSON, DAVID WILBURN,

COLETTE WILBURN, GREG HAGENSTON, 

and EVELYN HAGENSTON,

Plaintiffs and Appellants,

v.

DAWSON COUNTY, and BOARD OF COUNTY

COMMISSIONERS FOR DAWSON COUNTY, by

and through DOUGLAS E. BARONE, HAROLD

SKARTVED, and KATHLEEN A. ALLEY, 

DAWSON COUNTY COMMISSIONERS,

Defendants and Respondents.

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Dawson,

The Honorable Richard A. Simonton, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

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Court E. Ball, Towe, Ball, Enright, Mackey & Sommerfeld, P.L.L.P., 

Billings, Montana

For Respondents:

Jacque W. Best, Habedank & Best, Sidney, Montana

Submitted on Briefs: September 7, 2000 

Decided: December 19, 2000

Filed:

__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1 The Plaintiffs, Eugene Pederson, Colleen Pederson, and other owners of property 

accessed by Park View Loop and Park View Drive brought a complaint for a Declaratory 

Judgment in the District Court for the Seventh Judicial District in Dawson County in 

which they asked that the two roads be declared county roads. Following a nonjury trial, 

the District Court found that county roads had never been created. The Plaintiffs appeal. 

We affirm the judgment of the District Court.

¶2 The Appellants raise the following issues on appeal:

¶3 1. Did the District Court err by relying on § 60-1-201, MCA (1999), instead of the 1997 

version of the statute?

¶4 2. Did the District Court err when it concluded that there was insufficient evidence to 

prove the creation of a county road?

FACTUAL BACKGROUND 

¶5 Eugene and Colleen Pederson, two of the Plaintiffs, owned property in Dawson 

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County. In 1975, they decided to divide their land into several 20-acre tracts. To access 

this subdivision, the Pedersons needed roads built through the subdivision, connecting the 

various tracts to the county road known as Pederson Drive. In order to facilitate the 

building of these roads, Eugene Pederson dealt primarily with Alvin Mathison, a county 

commissioner assigned to Pederson's section of the county in his efforts to secure county 

cooperation.

¶6 A county construction crew built the road. However, Pederson was billed 

approximately $2300 for culverts and dirt work. On June 23, 1981, Pederson and his wife 

gave a right-of-way easement to the County. According to Pederson, the County requested 

an easement from them. This easement is the only document or writing recorded in 

Dawson County to indicate any agreement between the County and Pederson. Dawson 

County records do not show any sign that the two roads were dedicated, petitioned for, or 

accepted by Dawson County as county roads. 

¶7 Until 1996, the County periodically maintained the roads, usually at the request of 

residents in the area. When Greg and Evelyn Hagenston, also parties to this lawsuit, 

moved into the subdivision, the County widened Park View Road and Park View Loop to 

enable them to move their house onto their property. 

¶8 In 1995 Pederson began arguing with county maintenance workers about how to 

maintain the roads. Joe Foran, the county road foreman, met with Pederson and 

subsequently checked into the status of Park View Drive and Park View Loop. He learned 

that the roads were not recorded as county roads. The County, then, notified the Pedersons 

and the other homeowners in the subdivision that it was not responsible for maintaining 

these roads. This suit for declaratory judgment followed. Following trial, judgment was 

entered for the County.

DISCUSSION 

ISSUE 1 

¶9 Did the District Court err by relying on § 60-1-201, MCA (1999) instead of the 1997 

version of the statute?

¶10 The Pedersons contend that the District Court erred when it relied on the 1999 version 

of § 60-1-201, MCA, instead of the 1997 version in effect when their complaint was filed. 

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The 1999 version of the statute provides that "[a]ll highways that are not designated, 

selected, or established by the commission or constructed or maintained by the department 

may be designated as county roads or city streets upon the acceptance of the county or 

city." The 1997 version does not include the words "upon the acceptance of the county or 

city." In the lower court's decision, the court found that this section "indicate[d] that some 

affirmative action by the County is required." Appellants contend that county action is 

unnecessary pursuant to the 1997 version. 

¶11 We agree that the 1997 version of the statute applies to this case. However, no error 

by the district court is grounds for setting aside the judgment of the district court unless 

the error affects the substantial rights of the parties. We must disregard any error or defect 

in the proceeding that does not affect the substantial rights of the parties. Rule 61, M.R.

Civ.P. We conclude that this error was harmless.

¶12 Both the 1997 and the 1999 versions of § 60-1-201, MCA provide in subsection (3) 

that "[c]ounty roads are those opened established, constructed, maintained, changed, 

abandoned, or discontinued by a County in accordance with Title 7, Chapter 14." The 

District Court recognized that the controlling law was found in Title 7, chapter 14 when it 

stated that "[w]hile Title 60 (specifically 60-1-201, MCA) appears to possibly conflict 

with Title 7, Title 60 deals with state highway classifications and administration whereas 

Title 7 deals specifically with the creation of county roads." It is clear that the District 

Court did not rely on Title 60 for its conclusion that a county road had not been created 

and therefore, its mistaken reference to the 1999 version of § 60-1-201, MCA was 

harmless error.

ISSUE 2 

¶13 Did the District Court err when it concluded that there was insufficient evidence to 

prove the creation of a county road?

¶14 The Pedersons contend that the District Court misconstrued the evidence in 

concluding that insufficient evidence existed to prove the existence of a county road. 

When we review a district court's findings of fact, the standard of review is whether those 

findings are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 

904, 906. When we review a district court's conclusions of law, the standard of review is 

whether those conclusions are correct. Carbon County v. Union Reserve Coal Co. (1995), 

271 Mont. 459, 469, 898 P.2d 680, 686.

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¶15 The District Court found that on June 23, 1981, Pedersons granted an easement to 

Dawson County which was subsequently recorded by the County. No other document or 

writing recorded in Dawson County was offered which would indicate that the two roads 

were dedicated, petitioned for, or ever accepted by Dawson County as county roads. 

Furthermore, undisputed testimony showed that there was no resolution or even an 

unrecorded agreement by the majority of the Dawson County Commissioners accepting 

Park View Loop and Park View Drive as county roads. 

¶16 Prior to 1996, Pederson failed to make any claim that these roads were county roads. 

He did testify at trial that Alvin Matheson indicated to him that they were county roads. 

However, no other evidence substantiates this testimony. In Mathison's own deposition, 

Mathison claimed that he did not recall anything officially being done for the roads. 

Furthermore, Robert (Tubby) Ziegler, a commissioner from 1981-93, stated that the two 

roads were never considered county roads. He testified that the board would be required to 

vote on them before they could become county roads. A vote on these roads never 

occurred. The current commissioners have also taken the position that Park View Loop 

and Park View Drive are not county roads. After reviewing county records, they could not 

find any indication that these roads were accepted in any fashion as county roads. 

¶17 The District Court also concluded that county roads can only be created pursuant to 

Title 7, Chapter 14, that there has been no substantial compliance with the statutory 

process, and that there is no evidence of intent by the County to create a county road as 

appears to be necessary from our decisions in Reid v. Park County (1981), 192 Mont 231, 

627 P.2d 1210 and Sheldon v. Flathead County (1985), 218 Mont 270, 707 P.2d 540. 

¶18 The Pedersons contend that because the County constructed the roads, maintained the 

roads, and accepted a right-of-way easement for the roads, its actions are tantamount to 

acceptance of the roads as county roads.

¶19 The record, however, also reflects that as an inducement to complete the roads, 

Pederson indicated that he would pay for their construction and did pay for part of the road 

work and culverts. The roads were occasionally maintained at the request of residents but 

it was the custom of county officials to do so when asked without regard to the official 

designation of the road. Furthermore, although the process has been expanded by 

amendments in 1999, Title 7, Chapter 14 in its 1997 form simply did not allow for the 

creation of county roads in the manner suggested by the Plaintiffs.

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¶20 Section 7-14-2107, MCA (1997) authorized boards of county commissioners to 

acquire right-of-way for county roads. Section 7-14-2108, MCA (1997) provided that 

instruments which transfer a right-of-way must be filed with the county clerk. These 

sections described the process for acquiring and recording the right-of-way easement 

before a county road is created. However, only §§7-14-2601 to -2606, MCA (1997) 

referred to the process for the creation of county roads. Section 7-14-2601 provided for the 

creation of county roads pursuant to petition by a majority of the freeholders of a road 

district. Section 7-14-2603, MCA, then required an affirmative decision by the board of 

county commissioners before the county road was established. Once the board of 

commissioners agreed to create a county road, the board was required to immediately open 

the road and declare it to be a county road. Section 7-14-2605, MCA (1997). Implicit in all 

of Title 7, Chapter 14 as well as our prior decisions is that county roads cannot be created 

without the county's intent, expressed through its board of commissioners, to do so. 

¶21 In Peasley v. Trosper (1936), 103 Mont. 401, 64 P.2d 109, even though the 

superintendent of Indian lands in Montana signed a consent form to create a public road, 

the court held that the statutory procedures must still be followed. The court found that 

"the road had never been laid out or opened . . . in conformity with the laws of the State of 

Montana." Peasley, 103 at 410, 64 P.2d at 112. Therefore, we held that the road in 

question was not a public road. 

¶22 We conclude that the Pedersons offered no evidence that the statutory requirements 

for the creation of a county road were followed. According to the record, no petition was 

ever filed, no public hearing was held, and no evidence of a board resolution regarding the 

roads exists. 

¶23 Furthermore, a public easement is not the equivalent of a county road. An easement is 

a nonpossessory interest in land. Kuhlman v. Rivera (1985), 216 Mont. 353, 358, 701 P.2d 

982, 985. Regardless of whether Pederson believed a right-of-way easement was sufficient 

to create a county road, the easements grants only the right to use. Bolinger v. City of 

Bozeman (1972), 158 Mont 507, 511, 493 P.2d 1062, 1064. Nor have the Pedersons cited 

authority for the conclusion that a right-of-way easement creates a county road. We 

conclude, therefore, that the District Court did not err when it concluded that the facts in 

this case were insufficient to establish creation of a county road. 

¶24 The judgment of the District Court is affirmed.

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/S/ TERRY N. TRIEWEILER 

We Concur:

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

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