No. 8C-128 

IN THE SUPREPiE COUR'I' OF THE STA7'E OF' M0PITAF:A 

1980 

TOM RILEY AND PATRICIA RILEY, 

Plaintiffs and Respondents, 

-vsFRED G. CARL, JAMES L. LEE, COUNTY OF 

MISSOULA, WILLIAM WILLS, a/k/a BILL 

and WILLS, INC. , 

Defendants and Appellants. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula, The Honorable 

John S. Henson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Boone, Karlberg & Haddon, Missoula, Montana 

Robert L. Deschamps, 111, County Attorney, 

Missoula, Montana 

l&k&t?+~iekl- -Bale -.& Eye, Missoula, Montana 

For Respondent: 

Balyeat, Kzmmerer & Rodli, Missoula, Montaya 

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Submitted on Briefs: September 11, 1980 

Decided : JBF 1 " 1981 

Filed: m! 1 ' 1587 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Defendants Wills and Missoula County appeal from an order 

of the Fourth Judicial District Court, Missoula County, declaring 

Blixit Creek Road a county road subject to the duty of maintenance by Missoula County. 

Blixit Creek Road is located near Potomac, Montana, in 

Missoula County. The road was first assigned a county road 

number in 1965, and was continuously maintained by the county 

from that time until January, 1977. Missoula County formally 

accepted the road for maintenance in 1974 because it had been 

platted and in existence prior to 1960. 

Until 1978, William Wills, as an individual, and Wills 

Inc. of which William Wills was a corporate officer, owned the 

land traversed by Blixit Creek Road. Wills was aware of and 

materially benefitted from Missoula County Is maintenance of the 

road and apparently acquiesced in the general public's use of the 

road until 1976. 

In 1976 William Wills erected private road signs on Blixit 

Creek Road. Missoula County ceased its maintenance operations on 

the road in part because of the presence of the signs. This suit 

resulted from the subsequent deterioration of the road's condition in the spring of 1978. 

In August, 1977, Tom and Patricia Riley purchased land 

accessible only via Blixit Creek Road. The Riley's plans to 

build a home on the land the following spring were frustrated by 

the impassibility of the road. The Rileys therefore initiated 

this action on March 29, 1978. 

Plaintiff Is complaint was twice amended. Wills, Inc. was 

first named as a party defendant under the second amended 

complaint filed August 18, 1978. Wills, Inc. had previously 

transferred its interests in the affected property by deeds 

recorded March 2, 1978. The resulting owners of an undivided 

eighty percent interest in the property have not been joined and 

are not parties to this action. 
The complaint in its final form alleged breach of 

contract and misrepresentation against sellers Carl and Lee; a 

statutory duty to maintain and estoppel from cessation of roadway 

maintenance against the County of Missoula; and a prescriptive 

easement against William Wills a/k/a Bill Wills and Wills Inc. 

The sellers in turn filed a cross-complaint against Wills, 

alleging the county's prescriptive title to the road and estoppel 

against Wills, and seeking indemnity. 

The matter came to hearing on motions for summary 

judgment. The District Court found from the undisputed facts all 

elements necessary to establish prescriptive county title to 

Blixit Creek Road, and to estop the County of Missoula and Wills 

from denying said county ownership. Based on its findings, the 

District Court denied Missoula County's motion for summary 

judgment; granted seller's motion for summary judgment declaring 

Blixit Creek Road a county road; and granted Wills' motion for 

summary judgment as to the complaint and the indemnity assertion 

of seller's cross-complaint. 

Appellants attack on appeal the District Court's denial 

of the county's motion for summary judgment and granting 

of sellers' motion for summary judgment. 

We note at the outset that the denial of the county's 

motion for summary judgment is properly reviewable at this time. 

Although the order denying the motion was interlocutory, a final 

judgment has been rendered and nonappealable intermediate orders 

are reviewable on appeal from that final judgment. Brown v. 

Midland National Bank (1968), 150 Mont. 422, 429, 435 P.2d 878, 

882. 

The principles governing summary judgment under Rule 

56(c), M.R.Civ.P., are set forth in Harland v. Anderson (1976), 

169 Mont. 447, 450, 451, 548 P.2d 613, 615. The mvant has the 

initial burden of establishing the absence of any genuine issue of 

material fact, and when movant does so, the party opposing the 

motion must come forward with substantial evidence raising a 

- 3 - 
genuine issue of material fact. 

The county's motion was founded solely on plaintiffs' inability to demonstrate their personal reliance on county maintenance or on Wills ' acquiescence in county maintenance, where 

the county had ceased its maintenance operations sometime before 

plaintiffs purchased their land. Absent reliance, the county 

argues that plaintiff 's estoppel theory fails and summary 

judgment in its favor is appropriate. 

Neither the county nor Wills presented evidence to refute 

prescriptive public easement or reliance by the sellers, Carl and 

Lee, upon the actions of the county and Wills although both 

issues were raised by the pleadings. In light of appellants' 

failure to even address, much less refute those genuine issues, 

the movant's initial burden was not carried. 

Conversely, the sellers presented evidence in support of 

their motion alleging the presence of all necessary elements for 

both prescriptive public easement and for estoppel against the 

county and Wills. The movants thus met their burden of excluding 

any real doubt as to the existence of any genuine issue of 

material fact. Kober v. Stewart (1966), 148 Mont. 117, 122, 417 

P.2d 476, 478. 

The opponents, again, challenged neither prescription nor 

estoppel based on the sellers' reliance, but rather argued 

conclusively that Blixit Creek Road is not a county road. 

Nevertheless, the party opposing a motion has a standard of proof 

about equal to that imposed on the movant; and must present facts 

in proper form, not merely conclusions of law. Harland, 169 

Mont. at 451, 548 P.2d at 615. 

Plaintiffs and the sellers, Carl and Lee, demonstrated 

that there existed no genuine issues as to any material fact 

relating to sellers' motion for summary judgment. Wills 

and the County of Missoula failed to meet that same burden 

regarding their motion. The motions were thus respectively properly 

granted and denied by the District Court. Rule 

-4- 
56(c), M.R.Civ.P. 

Judgment affirmed. 

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Chief Justice 

Ju t ces v