NO. 84--28 

IN THE SUPREMF: COURT OF THE STATE OF MONTANA 

1984 

CARBON COUNTY, a political 

subdivision of the State of 

Plontana, 

Plaintiff and Appellant, 

ALBERT G. SCHWEND, et al. , 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Carbon, 

The Honorable Diane G. Barz, Judge presiding. 

COULSSEL OF RECORD: 

For Appellant: 

Hibbs, Sweeney, Colberg & Koessler; Jon E. Doak 

argued, Billings, Montana 

For Respondents : 

Sandal1 & Cavan; Addison Sessions argued, Billings, 

Montana (Parker, Schwend) 

Moulton, Bellingham, Longo & Mather, Billings, 

Montana (First Bank-Billings) 

Gary L. Beiswanger, Billings, Montana (Burleson) 

Peterson, Schofield & Leckie, Billings, Montana 

Eugene & Ruth Tippets, pro se, Colstrip, Montana 

Submitted: September 14, 1984 

Decided: October 11, 1994 

Filed: !JLi , 1 384 

-- -- - - - -- - -- 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Carbon County filed a lawsuit in the Thirteenth Judicial 

District Court of Montana against Albert G. Schwend, et. al., 

in 1976, claiming a right-of-way over the Sage Creek Road. 

Judgment was entered May 2, 1977, determining, among other 

things, section three of Sage Creek Road not to be public. 

On March 30, 1982, County filed an independent action in 

equity, pursuant to the last sentence of Rule 60(b), 

M.R.Civ.P., to reopen the 1977 judgment. County's complaint 

was based on newly discovered evidence that the Carbon County 

commissioners had, in 1912, dedicated section three of the 

Sage Creek Road in accordance with the statutory provisions 

for road dedication in effect in Montana at that time. 

Defendants Schwend, Parker and Reed filed a motion for 

judgment on the pleadings, to which County responded with a 

motion for summary judgment. Following a hearing, the trial 

judge issued an order on September 15, 1983, denying County's 

motion and finding that (1) reasonable diligence would have 

produced the "new evidence" in time for the 1976-77 lawsuit 

and (2) the "new evidence" would not have altered the results 

of the original trial. We affirm the order of the District 

Court. 

Section three of Sage Creek Road is basically an 

undeveloped road located in the Pryor Mountains in the 

southeast corner of Carbon County between the southern 

boundary of the Crow Indian Reservation and the Wyoming state 

line. It crosses Forest Service land in numerous locations, 

as well as land owned by some of the defendants to this suit. 

Carbon County began its efforts to have Sage Creek Road 

determined open and public in 1966. However, that lawsuit 

was dismissed for failure to prosecute in 1971. k private 
attorney, William Jensen, was then hired by County in 1976 to 

pursue its claim that Sage Creek Road is a county road. 

There are three ways by which a road may become open and 

public: common-law dedication by the private owners; adverse 

user or prescription; and statutory dedication by the county. 

In 1912, statutory dedication of public roads was controlled 

by sections 1340 and 1341, R.C.M. 1907 and sections 1390 

through 1410, R.C.M. 1907. Those sections set forth the 

following requirements for the opening of a road: 

1. A written petition, signed by any ten freeholders of 

a road district and requesting that the road he opened, must 

be presented to the county commissioners. 

2. Three viewers must be appointed by the county 

commissioners to view the road. They must also present a 

report to the commission containing the estimated cost of the 

opening and. their opinion as to whether or not the road 

should be opened. 

3. A hearing on the viewer's report must be held by the 

county commission. 

4. The county commission must declare by order that the 

road is to be public and open and that order must be recorded. 

in the commission's minutes. 

5. If the county commission orders a survey of the 

road, the county surveyor must survey and plat the road and 

record his notes with the county clerk. 

6. The county commission must determine the appropriate 

compensation to be given the owners of the affected land and 

order payment of that compensation. 

In preparation for the 1976-77 lawsuit, Jensen reviewed 

the Carbon County road index, the Carbon County road books 

and the Carbon County surveyor files. He also interviewed: 

Carbon County commissioners; Emery Lufkin, an original 
homesteader in the area; and Craig Silvernale, a Forest 

Service lands specialist. Mr. Lufkin, now deceased, stated 

in a deposition that the road had never been a county road. 

No Forest Service records brought to Jensen's attention by 

Silvernale supported County's claim. In short, little or no 

evidence of Sage Creek Road becoming a county road by any of 

the three methods was found, and County lost its 1976-77 

lawsuit. 

In August 1981, Gary Wetzsteon, a Forest Service lands 

specialist who replaced Silvernal-e when he retired, informed 

Jensen that the Forest Service had discovered references to a 

1912 county proceeding to dedicate the Sage Creek Road. In 

an affidavit , Wetzsteon stated that Mr. Eugene Tipperts 

brought him a 1912 map of Carbon County showing Sage Creek 

Road to be a county road and a.sked him to pursue an 

investigation to determine whether the Sage Creek Road was in 

fact statutorily dedicated as a county road. That map had 

been introduced by County as an exhibit in the 1976-77 trial. 

The 1912 map contained the names of all settlers along 

the Sage Creek Road, so Wetzsteon reviewed all Forest Service 

documents concerning those homestead entries. The documents 

were in Seattle. Those files made specific reference to 

proceedings before the county commissioners concerning the 

Sage Creek Road during the summer and fall of 1912. 

Therefore, Wetzsteon had George Schaller review all records 

of proceedings of that commission for calendar year 1912. 

Mr. Schaller found a petition requesting that the road be 

dedicated, a viewers' report of the road and the following 

four entries in the commissions' minutes referring to the 

Sage Creek Road. 

June loth, 1912 - "Road petition signed by Henry 

Spencer and others for road running up Sage Creek 

was examined and the following were named to view 
said road; C.R.. Beeler, John Brimrner and Chas. 

Lufkins. " 

June 26th, 1912 - "Viewers report on Sage Creek 

road was examined and the 25th day of June (sic - 

July) was the day set for hearing on said road." 

July 25th, 1912 - "Hearing on viewers report on 

Sage Creek road was taken up and report approved 

and County Surveyor was instructed to survey and 

plat said road as a county road." 

October 3rd, 1912 - "Government Supervisor Smith of 

this Division appeared before the Board and 

explained that he had at his disposal $1000 - a 

portion of the money distributed Montana from 

Forest Receive Sales; this money to be expended on 

improvement of roads in the Sage Creek country - he 

suggested that the County and Government unite on 

improving the Sage Creek Road -- an order was made 

by the Commissioners whereby Road Supervisor Beeler 

be authorized to do not to exceed $500 .OO work on 

the said road. 

"Surveyor was instructed to survey the said road & 

make an estimate of the work to be done thereon." 

No survey or plat of the road was ever located. 

On the basis of the information presented Jensen by 

Wetzsteon, County sought to reopen the 1977 judgment. The 

District Court refused to do so and County appeals. Numerous 

issues are raised. However, the only issues relevant to this 

decision are: 

1. Did County carry the burden of showing that it 

exercised reasonable or due diligence in attempting to 

discover the "new evidence" prior to the 1976 lawsuit? 

2. Would the "newly discovered evidence" have produced 

a different result in the 1976 trial? 

A basic criteria for granting new trials on newly 

discovered evidence is that the newly discovered evidence 

could not have been discovered and produced at trial with the 

exercise of reasonable or due diligence. Kartes v. Kartes 

(1977), 175 Mont. 210, 214, 573 P.2d 191, 193. County 

contends that the exercise of reasonable and due diligence by 

its attorney prior to the 1976-77 lawsuit failed to produce 
the necessary evidence for determining that the road had been 

statutorily dedicated. 

Jensen reviewed the records in which County's clerk had 

a duty to record any reference to statutory dedication of a 

road, duly examined living witnesses most likely to have 

firsthand knowl-edge of such a statutory dedication and souqht 

all relevant information from the Forest Service. However, 

despite the statutory mandates that roa.ds may only be opened 

by order of the county commission and that such orders must 

be recorded in the commission's minutes, as well as 

information indicating that such an order may have been made 

in 1912, County's attorney failed to search the commission's 

1912 minutes until 1981. 

The 1912 commission's minutes, the petition for the road 

and the road viewer's report have all been in County's 

possession since 1912. A diligent search in 1976 would. have 

resulted in their discovery. "Where the moving party in a 

motion for new trial on the ground of 'newly discovered' 

evidence has had the books and documents in possession, from 

which he later 'discovers' the 'new evidence', the motion 

will be denied, even though the evidence itself may be 

material. Rand v. Kipp (1902), 27 Mont. 138, 142, 69 P. 

714." Martes, 175 Mont. at 215, 573 P.2d at 194. 

Although material., the evidence discovered in 1981 is 

neither complete nor decisive with respect to whether or not 

Sage Creek Road was statutorily dedicated in 1912. However, 

our decisions, in Rand, supra, and Kartes, supra, make it 

unnecessary to determine the question of whether the evidence 

would have produced a different result at the 1976 trial. 

The trial court judge has wide discretion in determining 

whether or not to grant a motion for a new trial on the basis 

of newly discovered evidence. Kerrigan v. Kerrigan (1943) , 
115 Mont. 136, 139 P.2d 533. The trial court judge did not 

abuse her discretion in the case at bar. The October 6, 1983 

order of partial summary judgment by the District Court 

denying County's motion for a new tria w 

We concur: 

Chief Justice