NO. 81-542 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

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

Plaintiffs and Respondents, 

VS. 

RAVALLI COUNTY, et al., 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Ravalli 

Honorable John Henson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Robert B. Brown argued, County Attorney, Hamilton, 

Montana 

For Respondents: 

Baldassin, Connell & Beers, Missoula, Montana 

Thomas J. Beers argued, Missoula, Montana 

For Amicus Curiae: 

William Bogqs argued, Missoula, Montana 

Submitted: May 20, 1982 

Decided: PToveinber 3, 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 trial on June 8, 1981, the District 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 to the center of the formerly platted road. 

From that judgment defendants appeal. 

The plat of Sunnyside Orchards No. 3 was filed and recorded 

on October 16, 1909. The statutory certificate of dedication 

stated in part: 

"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 closure of eight roads, 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 this action. 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 viewersq report recommended closing the 

roads. This report was filed with the county clerk and recorder 

May 4, 1944, after having 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. 

Theref ore we recommend that the described 
roads be closed as petitioned for. Upon 

motion made and seconded report was accepted 

and ordered filed." 

After 1944, neither the plaintiffs nor their predecessors in 

interest paid any taxes on any portion of the roadway, and no 

portion of the roadway was fenced into the lands now belonging to 

respondents until 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 10 and 11 of Sunnyside Orchards No. 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 that road reverted 

to the abutting owners each receiving to the center line of the 

formerly platted 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 plaintiffs are 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 in possession 

of the premises for the statutory period of time? 

6. Whether Ravalli County should be ordered to pay 

respondents1 attorney fees? 

Did the statutory dedication of lands designated 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 1895 code 

on down through to the present. It therefore becomes critically 

necessary to consider the statutes as actually in effect at any 

specific date. 

As previously stated, the 1909 certificate of dedication in 

pertinent part 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 in pertinent part: 

"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 in pertinent part states : 

"All highways, roads, streets, alleys, . . . laid out . . . by the public . . ., or if laid 

out or erected by others, dedicated or abandoned to the public, . . . are public highways. " 

The foregoing section was enacted as a part of chapter 44 of the 

1903 Session Laws. In addition, in the same session laws, section 1342, Revised Codes of Montana 1907, was enacted which in 

pertinent part stated: 

"By taking or accepting land for a highway the 

public acquire only the right of way and the 

incidents necessary to enjoying and maintaining the same . . ." 
We, therefore, conclude that by the dedication, the roadway or 

street here in question was classified by the 1907 codes as being 

a "public highway." In addition, we hold that in accordance with 

the statutes, the plat dedication to the public was the equivalent of 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 that the 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 freeholders of a road district, may petition, in writing, 

the Board of County Commissioners to discontinue any public highway. The record here establishes that such 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 

action to be taken by the commissioners on the petition for vacation and in pertinent part states: 

"After the commissioners shall have 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 last assessment 

rolls of the county, owning land abutting the 

roadway proposed to be . . . discontinued ." 

As previously described, the county commissioners complied with 

this section. They determined that the roads were 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 

in their minutes as required under the code section. 

With regard to notice of their action, section 1638 does 
require that notice be sent by registered mail to the petitioners 

and to all landowners owning land abutting the roadway, but only 

after the abandonment. The record does not positively disclose 

that such notice was given. However, we find that any question 

which could be raised in that regard 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 or abutting landowners. The purpose obviously was to 

give an opportunity on the part of such parties to object after 

the abandonment, should they choose to do 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. 

We do have an additional question raised by the provisions 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 in which 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 to require 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 "the General Highway Law" 

as enacted in Chapter 72 of the 1913 Session Laws. Chapter 72, 

contained various provisions with regard to the procedure to be 

followed upon creating or abandoning highways, and in particular, 

indicated a requirement that certain reports are required, notice 
of a date of hearing is required, and a hearing required prior to 

action. However, those provisions regarding not ice and hearing 

as set forth in the 1913 law were eliminated by subsequent amendments to the highway laws. The result was 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 

such notice and hearing. We, therefore, conclude that the provision for due notice and hearing as described in section 1614, 

R.C.M. 1935, had been eliminated by subsequent amendments. As a 

result, we have concluded that no prior notice and hearing was 

required, and that the procedure followed by the county commissioners in 1944 did comply with the code sections as then in 

effect. 

Appellants next argue that even 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 original dedication had the effect of an easement 

for road purpose, not a fee simple transfer. 

Section 70-17-101, MCA, provides : 

"The following land burdens or servitudes 

upon land may be attached to other land as 

incidents or appurtenances 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 

in the public. Since title was not vested in the public at any 

time, there was no title which can be said to now remain with the 

public. 

A highway which is lawfully vacated 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 in a number of states and was 

stated in the Oregon case of Portland Baseball Club v. City of 

Portland (1933), 142 Or. 13, 18 P.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 

include any portion of the roadway, does not acquire any interest 

therein if the roadway has been closed. Section 70-16-202, MCA, 

provides: "An owner of land bounded by a road or street is presumed 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 soil of the highway in front of the center 

thereof unless a different intent appears from the grant." 

In interpreting the above-named statutes, this Court adopted 

the minority rule that a boundary to and with the side of 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, 23 Am.Rep. 229: 

". . . In our practice, in the conveyance of 

lots bounded by streets, the prevailing 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 

carries with it a title to the former. . ." 

As plaintiffs did not argue that they are entitled to a 
decree quieting title in them under a claim of adverse 

possession, we will not comment upon that issue. 

Respondent asks that appellant be 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 

fees on appeal must be denied. 

Af f irmed .