### NO. 81-542 INTHE SUPREMECOURTOF THE STATEOF MONTANA 1982

BRUCE J. BAILEY and HELEN L. BAILEY et al., Plaintiffsand Respondents,

VS. 

### RAVALLICOUNTY,et al., Defendant andAppellant.

Appeal from: District Court of the FourthJudicialDistrict, In and for the County ofRavalli HonorableJohnHenson,Judgepresiding. Counsel of Record: ForAppellant: RobertB. Brown argued,CountyAttorney, Hamilton,

Montana For Respondents: Baldassin,Connell & 

### Beers,Missoula,Montana ThomasJ. Beers argued, Missoula,Montana ForAmicus Curiae: William Bogqs argued,Missoula, Montana

Submitted: 

### May 20,

### 1982 Decided: PToveinber3,1982 

### Filed: 

### NSV

## 3

# -198%Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This appeal arises from an action for quiet title to onehalf of the roadway adjoining lots owned by plaintiffs separately in Sunnyside Orchards No. 3, a platted orchard tract in Ravalli County, Montana. After trialon June 8, 1981, theDistrict Court of the Fourth Judicial District found the land in question had been abandoned and closed by the Ravalli County Commissioners in 1944 and, as a result, reverted to the abutting owners, each receiving tothe centerof the formerlyplatted road. From thatjudgment defendants appeal. The plat of Sunnyside Orchards No. 3was filed and recorded on October 16, 1909. The statutory certificate of dedication stated inpart: "The land included in all streets, avenues, alleys, parks and public square shown on said plat are hereby granted and dedicated to the use of the public forever

# ." On April 5, 1944, a petition for county road closure with twelve signatures 

### was filed with the Ravalli County Clerk and Recorder. The petition requested the closureof eightroads, six of which were portions of roads in Sunnyside Orchards subdivision. One of those six, the platted road between Blocks 10 and 11 to the north line of Lot 30, Block 10, and Lot 3, Block 11, is the subject of thisaction. H. H. Benson, the county surveyor, and Joel P. Antrim, a county commissioner and one of the petitioners, were appointed as viewers by the county commission

on April 51 1944. The viewersqreport recommended closing the roads. This report was filed with the county clerk and recorder May 4, 1944, afterhaving been accepted and ordered filed by the commissioners May 3, 1944. The Commissioners

### ' Minute Book recorded the proceeding on May 3, 1944, with the following statement: 

### "'We find the roads are not being used as public roads and 

### are not likely to be used as such, and closing of said roads would not inconvenience the public in any degree. Therefore 

### we recommend that the describedroads be closed as petitioned for. Upon motion made and seconded report was accepted and ordered filed." After 1944, neither the plaintiffs nor theirpredecessors in interest paid any taxes on any portion of the roadway, and no portion of the roadway 

### was fenced into the landsnow belonging to respondentsuntil the spring

### or summer of 1980. On October 24, 1980, the Board of Ravalli County Commissioners directed removal of obstructions in the roadway between Blocks 10and 11of SunnysideOrchardsNo. 3. Respondent Bailey had placed a fence along the center of the road prior 

### to the county commissioner's directive

# . The following issues are presented for consideration by this Court: 1. Whether a statutory dedication of lands designated for streets and alleys in a 1909 township creates a public roadway? 2. Whether the platted road in Sunnyside Orchards No. 3 between Blocks 10 and 11 to the north line of Lot 30, Block 10, and Lot 3, Block 11, 

### was closed and abandoned by the Ravalli County Commissioners on May 3, 1944? 3. If so, whether the land which made up thatroad reverted to the abutting owners each receiving 

### to the center line of the formerlyplatted road? 4. Whether a subsequent purchaser of land adjoining a dedicated roadway, where the purchase does not include any portion of the roadway, acquires any interest therein if the roadway has been closed? 5. Whether the plaintiffsare entitled to a decree quieting title in them to the lands, under claim of acquisition by operation of the law, without payment of taxes or being inpossession of the premises for the statutory period of time? 6. Whether Ravalli County should be ordered to pay respondents1attorney fees? Did the statutorydedicationof landsdesignated for streets and alleys in the 1909 plat create a public highway?In our analysis of the controlling statutes during the periods here involved, 

### we emphasize that there has been constant and continuous amendment and modification of the statutes pertaining 

### to streets, roads and highways from the 1895code

on down through to the present. It therefore becomes critically necessary to consider the statutes 

### as actually in effect at any specificdate. As previously stated, the 1909 certificate of dedication in pertinentpart stated: "The land included in all 

### streets, avenues, alleys,

# .. . shown on said plat 

### are hereby granted and dedicated to the use of the public forever.

### " In the making of this plat, the owners complied with Section 3470, Revised Codes of Montana 1907, which had been in effect since 

### at least 1895. 

### In addition, section 3475, Revised Codes of Montana 1907, as also in effect since 1895, provided inpertinentpart: "Every

# .

# ..grant 

### to the public

# ...marked 

### or noted as such on the plat of the city 

### or town, or addition, must be considered, to all intents and purposes, as a deed to the said donee." We, therefore, find that there 

### was compliance with the 1907 codes in the making of the dedication, and that such dedication must be considered as a deed to the public. The effect of that dedication is described in section 1337, Revised Codes of Montana 1907

## ,which inpertinentpart 

### states: "All highways, roads, 

### streets, alleys, 

# .

# .. laidout

# . . .by the public

# . .

# .,or if laid out 

### or erected by others, dedicated 

### or abandoned to the public, 

# .

# . . are public highways.

### " The foregoing sectionwas enacted as a part of chapter44 of the 1903 Session Laws. In addition, in the same session 

### laws, section 1342, Revised Codes of Montana 1907, 

### was enacted which in pertinentpart stated: "By taking

### or accepting land fora highway the public acquire only the right of way and the incidents necessary 

### to enjoying and maintainingthe 

### same

# . .

# ."

### We, therefore, conclude that by the dedication, the roadway 

### or streethere inquestionwas classifiedby the 1907codes asbeing

a "public highway." Inaddition, 

### we hold that inaccordance with the statutes, the plat dedication 

### to the public 

### was the equivalentof a right-of-way deed under which the public acquired only the right-of-way and incidents necessary to enjoying and maintaining the public highway. We, therefore, hold thatthe dedication did 

### create a public roadway or highway in 1909. 

### Was the platted road closed and abandoned by the Ravalli County Commissioners on May 3, 1944? Section 1635, R.C.M. 1935, provides that ten, 

### or a majority of the freeholdersof a road district,may petition, inwriting, theBoard of County Commissioners to discontinue any public highway. The record here establishesthatsuch a petition

### was filed. Section 1637, R.C.M. 1935, describes the procedure to be followed on investigating the feasibility and desirability of granting the prayer of the petition, but is not pertinent here. Section 1638, R.C.M. 1935, is the section which describes the actiontobe taken by the commissioners on thepetition forvacationand inpertinentpart states: "After the commissioners shallhave considered the petition, provided that not more than one member of the board of county commissioners and the county surveyor shall 

### act as viewers in making the investigation, they shall make an entry on their minutes 

### af their decision with reference thereto, and cause notice of their action on said petition 

### to be sent by registered 

### mail 

### to the petitioners and to all landowners 

### as disclosed by the 

### lastassessment 

### rolls of the county, owning land abutting the roadway proposed 

### to be

# .. .discontinued

# ."

As previously described, the county commissioners complied with thissection. They determined thatthe roadswere not being used

as public roads and closing the same would not inconvenience the public and concluded and recommended that the described roads be closed 

### as petitioned for. These actions 

### are sufficient 

### to constitute an entry of the decision of the county commissioners intheirminutes as required under the code section. With regard 

### to notice of their action, section 1638 doesrequire thatnotice be sentby registered mail to the petitioners and 

### to alllandowners owning land abutting the roadway, but only after the abandonment. The record does not positivelydisclose that such notice was given. However, 

### we find that any question which could be raised in thatregard is answered by section 1651, R.C.M. 1935, which in pertinent part 

### states: "None of the proceedings authorized by this chapter shall be invalid by reason of any defect

## , informality 

### or irregularity therein which does not

# ..

# .prejudice the substantial rights of property owners immediately concerned.

### " As contained in section 1638, the power of the commissioners 

### to vacate was not dependent upon the giving of notice to either the petitioners orabutting landowners. The purpose obviously

### was to give an opportunity on the part of such parties 

### to object after the abandonment, should they choose todo so. The evidence shows that at no time since abandonment in 1944 have the roads in question been used for street and road purposes. In the absence of any question being raised by abutting landowners 

### or petitioners in the subsequent period of more than thirty years, 

### we conclude that the proceedings cannot now be questioned. Wedohave an additionalquestion raised by theprovisions of section 1614, R.C.M. 1935, which in pertinent part states: "All public highways once established must continue 

### to be public highways until abandoned by operation of law, 

# .

# .. or by the order of the Board of County Commissioners of the county inwhich they are situated; but no order to abandon any highway shall be valid unless preceded by due notice and hearing as provided in this act; 

# . . ." (Emphasis added.) On its face, this code section, which was in effect on the date of abandonment, appears torequire due notice and a hearing prior -- to the order of abandonment. As we review the history of this section, we find that it was a part of "theGeneral Highway Law"

asenacted in Chapter 72 of the 1913 SessionLaws. Chapter 72, contained various provisions with regard to the procedure 

### to be followed upon creating orabandoning highways, and inparticular, indicated a requirement thatcertainreports

### are required, noticeof a dateof hearing is required, and a hearing required prior to action. However, those provisions regarding not

### ice and hearing

asset forth inthe 1913law were eliminated by subsequent amendments 

### to the highway 

### laws. The resultwas that in 1944, 

### we have the general statement of section 1614 that an order to abandon shall not be valid unless preceded by due notice and hearing as "provided in this act," and the 1935 codes did not provide for suchnotice and hearing. We, therefore, conclude thatthe provision for due notice and hearing as described in section 1614, R.C.M. 1935, had been eliminated by subsequent amendments. Asa result, 

### we have concluded that no prior notice and hearing 

### was required, and that the procedure followed by the county commissioners in 1944did comply with the code sections as then in effect. Appellants next argue thateven if the road was closed by the county commissioners' action, title 

### to the roadway does not vest in the adjoining landowners but remains in the public unaffected by the discontinuance. As stated above, the interest the public acquired by the originaldedicationhad the effectof an easement forroad purpose, not a fee simple transfer. Section70-17-101, MCA, provides: "The following land burdens 

### or servitudes upon land may be attached 

### to other land as incidentsorappurtenances and 

### are then called easements:

"(4)the right-of-way;" The grant of an easement is the grant of a use and not a grant of title to the land. Bolinger v. City of Bozeman (1972), 158 Mont. 507, 493 P.2d 1062. As the original dedication was only a grant of use and not one of title, title was never vested inthe public. Since title 

### was not vested in the public atany 

### time, there

### was no 

### titlewhich can be said to now remainwith the public. A highway which 

### is lawfullyvacated 

### or abandoned 

### ceases 

### to be

a highway and, insofar 

### as the public has a 

### mere easement of way,the title reverts to the owners of the fee discharged from the servitude. 39 Am.Jur.2d Highways, 

### 5 142 at 514. This Court chooses to follow the rule adopted ina number of states and was stated in the Oregon case of Portland Baseball Club v. City of Portland (1933), 142Or. 13, 18P.2d 811, 812: 

### "[wlhere land has been dedicated or appropriated for a public street, the fee in the street remains in the original owner subject only to the public easement, and, upon the vacation of the street, it reverts to the owner of the abutting premises freed from the easement." Therefore, 

### we hold upon abandonment that the fee in the street reverts to the abutting landowners, with each abutting landowner taking fee from the edge of his

### or her property to the center of the street. Appellants further argue that a subsequent purchaser of land ad joining a dedicated roadway, where the purchase does not includeanyportionof the roadway, does not acquire any interest therein if the roadway has been closed. Section70-16-202, MCA, provides: "An owner of land bounded by a road 

### or street 

### ispresumed 

### to own to the center thereof, but the contrary may be shown." Section 70-20-307, MCA, provides: "A transfer of land bounded by a highway passes the title of the person whose estate is transferred to the soilof the highway in front of the center thereof unless 

### a different intent appears from the grant." In interpreting the above-named statutes, thisCourt adopted theminority rulethata boundary to and with the sideof a street carries the fee 

### to the center of the 

### street unless the contrary intent appears from the deed. McPherson v. Monegan (1947)r 120 Mont. 454, 187 P.2d 542. We quoted from Salter v. Jonas, 39 N.J.L. 469, 470, 23Am.Rep. 229: 

# ".

. . In our practice, in the conveyance 

### of lotsbounded by 

### streets, theprevailing belief 

### is that the street 

### to its centre is conveyed with the lot. Among the 

### mass of people it is undoubtedly supposed that the 

### street belongs as an appurtenance, 

### to the contiguous property, and that the title 

### to the 

### latter carrieswith it a 

### title to the former.

# .."

As plaintiffs did not argue that they 

### are entitled 

### to adecree quieting title in them under a claim of adverse possession, 

### wewillnot comment upon that issue. Respondent asks thatappellantbe ordered 

### to pay respondent's attorney fees. Where there 

### is a reasonable ground for appeal, a respondent 

### is not entitled 

### to recover damages under Rule 32, M.R.App.Civ.P. Erdman v. C & C Sales, Inc. (1978), 176 Mont. 177, 184, 577 P.2d 55, 59. Here, the ownership of the land was reasonably in issue, and the respondent's request for attorney feeson appealmust be denied. Affirmed

# .