### No. 8C-128 IN THE SUPREPiECOUR'I' 

### OF THE STA7'EOF' M0PITAF:A 1980



### TOM RILEYAND PATRICIA RILEY, Plaintiffsand Respondents,-vsFRED 

### G. CARL, JAMES L. LEE, COUNTY OF MISSOULA, WILLIAM WILLS, a/k/a BILL and WILLS, INC.

## , Defendantsand 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: 

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Filed: 

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# '1587Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Defendants Willsand 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 firstassigned a county road number in 1965, and was continuouslymaintained by the county from that timeuntil 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, WilliamWills, as an individual, and Wills Inc. of which WilliamWills

### was a corporate officer, owned the land traversed by Blixit Creek Road. Willswas aware of and materially benefitted fromMissoula CountyIsmaintenance of the road and apparently acquiesced in the general public's use of the road until 1976. In 1976WilliamWillserected 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. InAugust, 1977, Tom and Patricia Riley purchased land accessible onlyviaBlixit 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. PlaintiffIscomplaint was twice amended. Wills, Inc. was firstnamed as a party defendant under the second amended complaint filedAugust 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 statutoryduty 

### to maintain and estoppel from cessation of roadway maintenance against the County of Missoula; and a prescriptive easement againstWilliamWillsa/k/a BillWillsand WillsInc. The 

### sellers in turn filed a cross-complaint againstWills, alleging the county's prescriptive title to the road and estoppel againstWills, and seeking indemnity. The matter came tohearing on motions for summary judgment. The District Court found from the undisputed facts all elements necessary toestablishprescriptive county title to Blixit Creek Road, and toestop 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 attackon appeal the District Court's denial of the county's motion for summary judgment and granting of sellers' motion for summary judgment. Wenote atthe 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), 150Mont. 422, 429, 435 P.2d 878, 882. The principles governing summary judgment under Rule 56(c),M.R.Civ.P., are set forth inHarland v. Anderson (1976), 169Mont. 447, 450, 451, 548 P.2d 613, 615. The mvant has the initialburden 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 solelyon plaintiffs' inability to demonstrate their personal reliance on county maintenance oron Wills

## ' acquiescence in county maintenance, where the county had ceased its maintenance operations sometime before plaintiffspurchased their land. Absent reliance, the county argues that plaintiff's estoppel theory failsand summary judgment in its favor is appropriate. Neither the county nor Willspresented evidence to refute prescriptive public easement 

### or reliance by the sellers, Carl and Lee, upon the actions of the county and Willsalthough both issues 

### were raised by the pleadings. In lightof appellants' failure toeven address, much less refute those genuine issues, the movant's initialburden was not carried. Conversely, the sellers presented evidence in support of theirmotion alleging the presence of allnecessary 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), 148Mont. 117, 122, 417 P.2d 476, 478. The opponents, again, challenged neither prescriptionnor 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 inproper form, not merely conclusions of 

### law. Harland, 169 Mont. at451, 548 P.2d at615. 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 theirmotion. The motions 

### were thus respectivelyproperly granted and denied by the District Court. Rule -4-56(c), M.R.Civ.P. Judgment affirmed.

-,------,,,------------A--------------- Chief Justice

Ju t ces 

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