No. 14457 

IN THE SUPREME COURT OF THE STATE OF MNTANA 

STATE ex rel. DEPAKIT@2W OF 

HEALTH AND -AL SClEKEs, 

Plaintiff and Appellant, 

DONNA LASORI'E, Clerk and Recorder of 

Glacier County et al., 

Defendants and Respondents. 

Appeal fram: District Court of the Ninth Judicial District, 

Honorable R. D. Whillips, Judge presiding. 

Counsel of Record: 

For Appellant: 

Stan Bradshaw argued, Helena, Wntana 

For Respondents: 

Smith, l31~mns, Baillie and Walsh, Great Falls, Pbntana 

James R. Walsh argued, Great Falls, Wntana 

James C. Nelson,County Attorney, Cut Bank, Pbntana 

For Amicus Curiae: 

Hon. Mike Greely, Attorney General, Helena, Pbntana 

Mike Karter argued, Assistant Attorney General, Helena, Mntana 

Filed: 

Suhnitted: March 21, 1979 

Decided: JUN 18 1979 
Honorable John M. McCarvel, District Judge, sitting in place 

of Mr. Justice Sheehy, delivered the Opinion of the Court. 

Plaintiff appeals from an order of the Glacier County 

District Court dismissing its amended complaint. 

On June 10, 1977, William and Mary Kessner of Great 

Falls, Montana, initiated a series of twenty-six conveyances 

involving a 14.457 acre tract of land in Glacier County. They 

transferred the entire 14.457 acre parcel to Kenneth and Mary 

Kessner by warranty deed. Kenneth and Mary Kessner, in turn, 

transferred 13.446 acres to Louis Fontana, and at the same time 

deeded the remaining 1.034 acres back to William and Mary Kessner. 

Louis Fontana then made a similar conveyance, transferring all 

but approximately one acre of land to the third party and quitclaiming the remaining acre back to William and Mary Kessner. A 

chain of conveyances continued until the original owners held 

title to the entire tract of land again, but instead of holding the original deed, they had thirteen deeds, evidencing 

thirteen separate and distinct parcels of land. The twenty-six 

deeds were all dated June 10, 1977, and were recorded in sequence 

on June 16, 1977, together with certificates of survey for each 

of the thirteen new lots. These certificates of survey were 

characterized as certificates of survey for occasional sales. 

The Department reviewed none of the transactions. 

It is obvious from the foregoing that the transactions 

thus made were designed to evade the provisions of the Montana 

Subdivision and Platting Act, section 11-3859 et seq., R.C.M. 

1947, now section 76-3-101 et seq. MCA, and the Sanitation 

in Subdivisions Act, section 69-5001 et seq., R.C.M. 1947, now 

section 76-4-101 et seq. MCA. The amended complaint and the 

issues raised in the lower court by the appellant were directed 

only to alleged violations of the Sanitation in Subdivisions 

Act, section 69-5001 et seq., R.C.M. 1947, now section 76-4- 

101 et seq. MCA. 
The District Court entered judgment dismissing the 

amended complaint with prejudice on August 7, 1978. The District Court based its dismissal on the fact that section 

69-5003(1) of the Sanitation in Subdivisions Act gives the 

Department authority to approve plats before filing, but not 

certificates of survey, and that certificates of survey were 

properly used in this case because the transfers were "occasional sales" under the Montana Subdivision and Platting Act, 

section 11-3859 et seq., R.C.M. 1947, now section 76-3-101 et. 

seq. MCA. 

Notice of appeal was filed by the Department on August 

10, 1978. On August 24, 1978, Mike Greely, Attorney General 

of the State of Montana, filed a motion in this Court requesting that he be permitted to appear and participate in the case 

on appeal as amicus curiae, due to his interest in the enforcement of the Subdivision and Platting Act. The motion was granted 

on August 25, 1978. 

On appeal, the Department raises two issues: 

1. Does the word "plat" as it is used in the Sanitation 

in Subdivisions Act, contemplate review of certificates of survey 

by the Department of Health and Environmental Sciences? 

2. Does the Department of Health and Environmental 

Sciences have the authority under the Sanitation in Subdivisions 

Act (as it existed prior to the 1977 amendments) to review 

certificates of survey for occasional sales? 

In his role of amicus curiae, the Attorney General is concerned with only one issue: 

Were the conveyances in the instant case made in an 

attempt to evade the purposes of the Subdivision and Platting 

Act and therefore not subject to the "occasional sales" exception? 

At the outset, we note that the critical facts of this 
case arose prior to July 1, 1977, the effective date of subsequent amendments to the Act. 

The Montana Subdivision and Platting Act, section 11-3859 

et seq., R.C.M. 1947, now section 76-3-101 et seq. MCA, was 

enacted in 1973 for the purpose of promoting the public health, 

safety, and general welfare by regulating the subdivision of 

land. It requires that every subdivision of land (a division 

of land which creates one or more parcels containing less than 

twenty acres) shall be surveyed and platted in conformance with 

the Act. County clerks and recorders are prohibited from recording any instrument which purports to transfer title to or 

possession of a parcel of land which is required to be surveyed 

by the act unless the required certificate of survey or subdivision plat has been filed with the Clerk and Recorder. 

The terms "certificate of survey" and "plat" are given 

distinct definitions under the act: 

"'Certificate of survey' means a drawing of 

a field survey prepared by a registered surveyor for the purpose of disclosing facts 

pertaining to boundary locations." Section 

11-3861(1), R.C.M. 1947, now section 76-3- 

103(1) MCA. 

"'Plat' means a graphical representation of 

a subdivision showing the division of land 

into lots, parcels, blocks, streets, and 

alleys, and other divisions and dedications." 

Section 11-3861 (6) , R.C.M. 1947, now section 

76-3-103 (9) MCA. 

A plat must be filed for every subdivision of land, but 

a certificate of survey need only be filed when required by 

section 11-3872, R.C.M. 1947, as amended, now section 76-3-404 MCA. 

"11-3872. Certificate of survey--when required--contents--form. (1) Within one 

hundred eighty (180) days of the completion 

of a survey the registered land surveyor 

responsible for the survey, whether he is 

privately or publicly employed, shall prepare 

and file for record a certificate of survey 

in the county in which the survey was made 

if the survey: 

"(a) provides material evidence not appearing on any map filed with the county clerk 
and recorder or contained in the records of 

the United States bureau of land management; 

" (b) reveals a material discrepancy in such 

map ; 

"(c) discloses evidence to suggest alternate 

locations of lines or points; 

"(d) establishes one or more lines not shown 

on a recorded map the positions of which are 

not ascertainable from an inspection of such 

map without trigonometric calculations." 

Certain divisions of land are exempt from the Act's 

numerous requirements for subdivisions. One such division of 

land is the "occasional sale". An occasional sale is "one sale 

of a division of land within any twelve month period." Section 

11-3861(13), R.C.M. 1947, now section 76-3-103(7) MCA. The 

statutory exemption applies unless the occasional sale is adopted 

for the purpose of evading the Act. Section 11-3862(6), now 

section 76-3-207 MCA. If an occasional sale is made in an attempt 

to evade the Act, then the division of land is treated as any other 

subdivision. 

Section 69-5001 et seq., R.C.M. 1947, now section 76-4- 

101 et seq. MCA, commonly referred to as the Sanitation in Subdivisions Act, was passed in 1967, and rewritten in 1973 to 

conform with the Montana Subdivision and Platting Act. The Act's 

definition of subdivision is identical to that found in the 

Subdivision and Platting Act. However, the terms "certificate 

of survey" and "plat" are not defined. 

Administration and enforcement of the Sanitation in 

Subdivisions Act rests with the Department of Health and Environmental Sciences. Section 69-5003(1), R.C.M. 1947, now section 

76-4-123 MCA states: 

"69-5003. Approval of plans for facilities in 

subdivisions. (1) A person may not file a 

subdivision plat with a county clerk and recorder, 

make disposition of any lot within a subdivision, 

erect any building or shelter in a subdivision 

which requires facilities for the supply of water 

or disposal of sewage or solid waste, or occupy 
any permanent building in a subdivision until 

the department has indicated that the subdivison 

is subject to no sanitary restriction." 

Additional review authority is granted to the Department under section 69-5003(3), R.C.M. 1947, now section 76- 

4-124 MCA: 

"When a subdivision as defined in this chapter 

is excluded from the provisions of Title 11, 

Chapter 38, section 11-3862, R.C.M. 1947, 

[e.g. occasional sales] except section 11- 

3862(8), R.C.M. 1947 and the subdivision is 

otherwise subject to the provisions of this 

chapter, plans and specification of the subdivisions shall be submitted to the department 

and the department shall indicate by certificate that it has approved the plans and specifications and that the subdivision is not subject 

to a sanitary restriction." 

The Department relies on sections 69-5003(1) and (3), 

(as they appear above in the form prior to the 1977 amendments) 

in its attempt to block the filing of the certificates of survey 

in this case. 

Although section 69-5003 makes no mention of certificates 

of survey, the Department published MAC (ARM) 16-2.14 (10) - 

S14340, adopted April 9, 1976, subsection (1) (j) defined "plat" 

as follows: 

"'Plat', for the purposes of this rule and Section 69-5003, R.C.M. 1947, means a graphical 

representation of a subdivision showing the 

division of lots, parcels, blocks, streets, alleys, 

and other divisions and dedications, and any 

document which geographically describes a division 

of land, including a certificate of survey." 

(Emphasis added.) 

The Department's definition of "plat" is in direct conflict with statutory definitions which distinguish plat and 

certificate of survey. The Department's contention that it has 

broad authority in defining the term plat by virtue of the lack 

of a statutory definition under the Sanitation in Subdivisions 

Act is without merit. "Whenever the meaning of a word or phrase 

is defined in any part of [the] code, such definition is applicable to the same word or phrase wherever it occurs, except where 
a contrary intention plainly appears." Section 12-215, R.C.M. 

1947, now section 1-2-107 MCA. The definition of plat found 

under the Montana Subdivision and Platting Act is clearly 

applicable to the Sanitation in Subdivisions Act. 

The significance of the distinction between plats and 

certificates of survey was discussed in State ex rel. Swart v. 

Stucky (1975), 167 Mont. 171, 174, 175, 536 P.2d 762: 

"The terms 'certificate of survey', 'plat', 

and 'subdivision' have important technical 

meanings that are established by the definition 

section of the Act . . . 

"The classification of the instrument as a subdivision 'plat' or as a 'certificate of survey' 

is important since the Act requires different 

treatment, depending upon the classification. 

If the instrument is classified as a 'plat', 

it must be submitted to the city or town governing body for review and approval prior to filing. 

The governing body can approve or reject the plat 

within 60 days after it has been submitted and 

after a public hearing has been held. Section 

11-3866, R.C.M. 1947." 

Two years ago, in State ex rel. Swart v. Casne (1977) 

Mont. , 564 P.2d 983, 34 St-Rep. 394, this Court determined 

that the Department of Health and Environmental Sciences had improperly relied on the Department of Community Affairs' regulations which were in direct conflict with section 11-3862 of the 

Subdivision and Platting Act. The invalid regulations eliminated 

the statutory exemption as applied to "resubdivisions or redesign" 

of platted and recorded subdivisions. They required an amended 

plat reviewed and approved by the governing body to be filed with 

the Clerk and Recorder in direct contradiction to the statutory 

exemption. They engrafted additional and contradictory requirements 

on the statute in the guise of defining and implementing the evasion of statutory requirements. Finally, they frustrated the purpose of the "occasional sale" exemption of the Act. In striking 

down the regulations, the Court said: "It is axiomatic that a 

statute cannot be changed by administrative regulations." (Citation 

omitted.) "An administrative agency is not a 'super legislature' 
empowered to change statutory law under the cloak of an assumed 

delegated power." Nor can an administrative agency engraft 

additional and contradictory requirements on the statute under 

the guise of definition. 

M.A.C. 516-2.14 (10) - S14340, subsection (1) (j) , being 

in direct conflict with the statutory distinction between "plat" 

and "certificate of survey", is hereby declared to be void on 

its face. Section 69-5003(1) , R.C.15. 1947, now section 76-4- 

123 MCRgives the Department authority "to indicate that [a] subdivision is subject to no sanitary restriction" only before a plat 

is filed. 

We hold that the word "plat", as it is used in the Sanitation in Subdivisions Act does not contemplate review of certificates of survey by the Department of Health and Environmental 

Sciences. 

The Department finds support for its contention that 

section 69-5003(3) R.C.M. 1947, gives the Department authority to 

review certificates of survey in the Casne decision. The Court, 

after excising a paragraph of the Casne opinion, inserted the 

following paragraph on June 9, 1977: 

"While MDH has the statutory authority under 

section 69-5003(3) to review a certificate of 

survey regarding sanitary restrictions, this 

provides no justification either for the MDH 

br the clerk-and recorder to refuse to process 

relator's certificate of survey. MDH's authority to review a certificate of survey under 

section 69-5001 et seq., R.C.M. 1947, relates 

to sewage disposal, water quality and availability, solid waste disposal and other environmental factors such as recreation and wildlife. 

Section 69-5001, R.C.M. 1947. Here it is admitted that no such problems existed with respect to relator's certificate of survey. Rather, 

the sole reason for MDH's refusal to process 

relator's certificate of survey was its reliance 

on the invalid DCA regulations." (Emphasis added.) 

Section 69-5003(3), R.C.M. 1947, does not - give the Department authority to review certificates of survey. Only "plans 

and specifications" of facilities are to be submitted to the 
Department for review under subsection (3). Although the 

precise holding of Casne was well-founded (that the sole 

reason for the Department's refusal to process relator's certificate of survey was its reliance on the invalid DCA regulations) the amended language of the opinion incorrectly expands 

the statutory authority of the Department. 

We hold that the Department had no authority under the 

Sanitation in Subdivisions Act (as it existed prior to the 1977 

amendments) to review certificates of survey for occasional 

sales. 

The Attorney General has maintained two roles in the 

instant case. The pleadings were filed in District Court by the 

Department through the Attorney General pursuant to section 

69-4111, R.C.M. 1947, now section 50-1-102 MCA, which names 

the Attorney General as the legal advisor to the Department. 

The suit was brought to enforce the Sanitation in Subdivisions 

Act. On appeal, the Attorney General has been permitted to participate as amicus curiae due to his interest in the enforcement of the Subdivision and Platting Act. 

Throughout the proceedings, counsel for the Department 

(who are acting as special assistant attorney generals) have 

contended that the Department has authority to review certificates of survey under the Sanitation in Subdivisions Act. The 

Department has not challenged Kessner's method of disposition 

as being adopted for the purpose of evading the Subdivision and 

Platting Act. The Attorney General is counsel of record in 

this case. However, the Attorney General chose to raise this 

challenge for the first time as amicus curiae in the appellate 

court. 

An amicus curiae cannot raise separate issues not raised 

by the parties. Montana Department of Social and Rehabilitation 

Services v. Angel (1978) , Mont . , 577 P.2d 1223, 35 St. 

Rep. 532. 
A party complaining of error must stand or fall upon 

the grounds relied upon in the trial court, State Highway Commission v. Voyich (1963), 142 Mont. 355, 384 P.2d 765. 

Therefore, because the Attorney General, as amicus 

curiae, cannot raise separate issues on appeal and because the 

Department must stand or fall on the grounds relied upon in 

the trial court, we cannot set aside the conveyances in this 

case on the ground that they were made for the purpose of evading the I?lontana Subdivision and Platting Act. 

The legislature has amended the statutes involved herein, 

effective July 1, 1977, which will eliminate the problems involved herein. 

The District Court's dismissal of the amended complaint 

with prejudice is affirmed. 

HO#. John 14. McCarvel, District 

~uhge, sitting in place of Mr. JUStice John C. Sheehy. 

We concur: 

~h$& Justice - 

.............................. 

Justices 

Mr. Justice John C. Harrison dissents. 

Mr. Justice Daniel J. Shea will file a dissent at a later date.