No. 80-204 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

CHARLES F. REID, 

Plaintifff and Appellant, 

-vsPARK COUNTY, MONTANA, et al., 

Defendants and Respondents. 

Appeal from: District Court of the Sixth Judicial District, 

In and for the County of Park, The Honorable 

Jack D. Shanstrom, Judge presiding. 

Counsel of Record: 

For Appellant: 

Yardley and Yardley, Livingston, Montana 

For Respondent: 

Bruce E. Becker, County Attorney, Livingston, 

Montana 

Submitted on Briefs: September 17, 1980 

Decided : 

Filed: ApR 3 6 ~9f3 

APR 3 0 1s.; 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

The landowner, Charles Reid, plaintiff, appeals from a 

judgment of the Park County District Court refusing to quiet 

title in a road crossing his property and also holding that 

Park County, one of the defendants, had established a public 

road pursuant to statutes then in effect. 

The landowner brought the action in April 1979. Park 

County, as one of the defendants, claimed that the Park 

County Commission had created a public road in 1905, and, 

alternatively, that the road had become a public one by 

prescriptive use. The trial court held that the commissioners 

had created the road by statutory proceedings in 1905 and 

that any defects in the procedure were cured by section 32- 

103, R.C.M. 1947 (now repealed). The trial court did not, 

however, rule on the County's claim that the road had also 

become public by prescriptive use. Unfortunately, neither 

party then asked the trial court to complete the trial 

picture by also ruling on the claim of prescriptive use. 

The landowner first claims that the curative statute 

applied by the trial court does not cure jurisdictional 

defects, and therefore, that there is no basis for a ruling 

that the county commissioners had properly established a 

public road in 1905. The landowner also contends that in 

any event, the trial court cannot be affirmed because the 

evidence in any event fails to establish a basis for a 

finding of presumptive use. The landowner concedes, however, 

that the road to Vicars' Gate (described later) is a public 

road acquired by prescriptive use. 

Based on Warren v. Choteau County (1928), 82 Mont. 115, 

265 P. 676, which holds that no facts will be presumed in 
the aid of jurisdiction to establish a road and therefore 

that the jurisdiction must be shown on the face of the 

proceedings undertaken to create the road, the landowner 

contends that the curative statute could not cure the defects 

here. The landowner claims the proceedings of the commission 

were defective because: the County failed to produce a copy 

of the petition showing a description of the road or that it 

was signed by ten qualified petitioners (and this allegation 

is undisputed); that the records failed to show that the 

commissioners gave notice to the affected landowners (this 

allegation is undisputed). 

The County, on the other hand, relies on a statutory 

presumption, section 26-1-602(15), MCA, which establishes a 

disputable presumption that official duty has been regularly 

performed. The County makes no attempt to distinguish the 

Warren case, but relies entirely on this presumption and on 

the curative statute, section 32-103, supra. The County 

failed to submit a brief on its alternative theory of prescriptive 

use and requests that if we reach this issue that we give 

the County the opportunity to set out the evidence in supporting 

a ruling of prescriptive use. 

The trial court, relying on the curative statute (section 

32-103) and on State v. Auchard (1898), 22 Mont. 14, 55 P. 

361, ruled that the curative statute remedies all the defects 

in the proceedings undertaken to establish a public road. 

But even Auchard holds that the curative statute will not 

cure a jurisdictional defect. 22 Mont. at 16. The record 

of the county commissioner proceedings from 1903-1905 fails 

to establish that the county commissioners had originally 

acquired jurisdiction. Strict adherence to Auchard and 

Warren would require jurisdiction to be shown on the face of the 

proceedings creating a public road. Auchard was decided in 
1898 and Warren in 1928. At those times, it was not an 

onerous duty to impose on a county that it show it had 

jurisdiction to create public roads on the face of the 

records. To presently adhere to the same requirement imposes 

an unrealistic burden on the public to prove on the face of 

the record that its public officials had jurisdiction to 

create a public road. We hold that it is sufficient if the 

record taken as a whole shows that a public road was created. 

The record is sufficient here. 

We hold also that the public acquired a prescriptive 

use of the road in question. Even though the trial court 

did not rule on this issue, we are in a position to do so 

here because almost all of the evidence on this issue was 

submitted to the trial court through depositions rather than 

through live-witness testimony at trial. 

We first proceed to the curative statute which the 

trial court applied. The trial court ruled that it cured 

any defects that may have taken place during the 1905 proceedings when an obvious effort was made by the county 

commissioners to establish a road. The curative statute, 

section 32-103, R.C.M. 1947, in existence until 1959, provides: 

"All highways, roads, . . . laid out or erected 

by the public, or now traveled or used by the 

public, or if laid out or erected by others, 

dedicated or abandoned to the public, or made 

such by the partition of real property, are 

public highways." 

In 1905, this statute was codified as section 2600 of 

the Political Code of 1895. The trial court ruled that once 

jurisdiction was acquired -- by the petition of -- the landowners, 

which was accepted -- by the commissioners -- at - their April 10, 

1904, meeting, the statute remedied all defects. The problem, 

however, is that the proceedings of the commissioners of record 
fail to show on their face that the county commission had 

jurisdiction. 

The pertinent road-creating statutes in effect in 1904 

were sections 2750 through 2771, Civil Code 1895 (all of 

which were repealed in 1922). These statutes provide that 

ten freeholders can petition the county commissioner to 

establish a road described in the petition. The county 

commissioners then must appoint three persons to view the 

road and make recommendations on the need for and feasibility 

of building the proposed road. 

The statutes also provide for a hearing so the public 

could make its views known to the commissioners. If the 

commissioners decide in favor of a road, they order the road 

opened and order payment to the consenting landowners. In 

the case of nonconsenting landowners, they order payment 

after condemnation proceedings are completed. The statutes 

also require that either a written conveyance of the rightof-way be filed in the office of the county clerk and recorder 

or that a copy of the judgment be filed and recorded by the 

clerk in the event that the road is acquired by condemnation 

proceedings. 

To establish its case, the County introduced the 

minutes from six meetings of the county commissioners held 

between 1903 and 1905. The commissioners first considered 

the road on April 10, 1903. Its minutes show: 

"Upon the petition of Fred Redfield et al. for 

the laying out of road, the Board appointed as 

viewers, Joe Murray, D. W. McLeod and George 

E. Reid to view proposed road and report that 

action may be taken by the Board at their June 

meeting. l1 

Minutes from later meetings show that the commissioners 

took further steps toward establishing a road. On February 
10, 1904, they ordered the road opened. The minutes on 

that day, show: 

"In the road as petitioned for by Frank W. 

Redfield, et al., Fred J. Redfield, Patrick 

Richard, Frank Richard, and George T. Sevals 

came before the Board and spoke in favor of 

the granting of the petition, and agreeing to 

build the necessary fence on the East side of 

the land of Hollace A. Cook. The Board awarded 

the sum of $15.00 as damages to Hollace A. 

Cook, and ordered the road opened as petitioned 

for. I' 

As we stated earlier, strict adherence to Auchard and 

Warren would require us to reverse the trial court in its 

ruling that the curative statute cured all defects. The 

record fails to establish jurisdiction to create the road 

within the requirement of Auchard and Warren. At a minimum, 

Warren requires that the county commissioner proceedings 

. show the required number of petitioners signed the petition 

and that each of them were freeholders. There is no record 

here that ten people had petitioned to create a road, nor is 

there a record that those signing were freeholders. To 

strictly follow Warren now would mean that we would hold 

proceedings in 1905 to be jurisdictionally defective. That 

is why we now adopt the rule that it is sufficient if the 

record taken as a whole, shows that a public road was created. 

Otherwise, the burden on the public in a particular case to 

prove a public road was created so many years ago may well 

be unsurmountable. Here, the potential hardship is not bad 

because we also hold that the public acquired the road in 

question by prescriptive use. But, if we did not now overrule 

Auchard and Warren on the jurisdictional issue, a private 

landowner may, in a particular case, be able to keep the 

public from going through land because the public's records 

of a road no longer support a determination that the public 

had originally acquired jurisdiction to create the road. 
We next decide the prescriptive-use issue. We first 

discuss the procedural problem created by the trial court 

not ruling on this issue and by counsel not asking the trial 

court to rule on this issue before an appeal was taken. In 

support of its alternative claim of prescriptive use, the 

County submitted testimony and evidence to show the use of 

the road involved over a period of many years. The County 

submitted proposed findings and conclusions in support of 

this theory. But the trial court ruled only on the first 

theory and held that the County had properly created and 

opened the road by use of the statutory proceedings, and 

that the curative statute cured any defects. 

Both parties should have asked the trial court to rule on 

the prescriptive-use issue. If we reversed the trial court 

on the curative statute issue, it would be in the County's 

interest to also have a judgment holding that the public had 

acquired the road by prescriptive use. Its application of 

the curative statute, the absence of a ruling on the alternative 

prescriptive-use theory would mean that the case would have 

to be remanded for a decision on that issue. A decision may 

well have prompted another appeal by either party receiving 

the adverse decision. This Court would then be faced with 

deciding two appeals which could have been decided in one 

appeal where the trial court had ruled on all the issues 

raised. 

Either party could have secured a ruling from the trial 

court on the alternative theory by asking the trial court to 

amend and supplement its findings and conclusions by ruling 

also on the issue of prescriptive use. As it now stands, we 

are faced with a record sufficient to establish a prescriptive 

use, but with no trial court ruling on this issue. In the 
future, we urge both sides of a lawsuit to take proper 

action to get rulings on all issues raised so that we do not 

have to decide appeals on a piece-meal basis. 

Fortunately, because of the nature of the evidence 

presented to the trial court on the prescriptive-use issue, 

we are able to rule on this issue without an initial ruling 

by the trial court. Almost all of the testimony on this 

issue was submitted to the trial court through depositions 

rather than through live-witness testimony at trial. Nine 

depositions were admitted in evidence, and all of these were 

offered on the issue of prescriptive use. In the normal 

case, it would be the task of the trial court to weigh the 

credibility and demeanor of the witnesses who appear before 

it at trial, and therefore, we would not be at liberty to 

dispose of this case on appeal in the absence of a trial 

court ruling, But where a case is submitted on an issue 

based almost exclusively on depositions, we are in just as 

good a position as the trial court to assess the testimony. 

The trial judge had before him only a written record of the 

testimony, and we have the same written record before us. 

We are able to review the depositions just as the trial 

judge is able to review them. See, Kostbade v. Metier 

(1967), 150 Mont. 139, 141, 432 P.2d 382, 384; In Re Estate 

of Jensen (1969), 152 Mont. 495, 500, 452 P.2d 418, 421. 

The landowner implicitly acknowledges that this Court 

can rule on the prescriptive-use issue, for he devotes a 

good portion of his brief to this issue and does so on the 

basis that this Court "will affirm a correct result though 

achieved by a wrong theory." He contends, nevertheless, 

that there is no substantial evidence in the record to 

justify a conclusion that a public road has been established 
by adverse use beyond the Vicars' Gate. (The landowner 

concedes that the public has established a road by adverse 

use to the north side of the Vicars' Gate. ) 

The County, unfortunately, has not responded at all on 

the issue of prescriptive use, but rather has asked this 

Court to allow it to file an additional brief if we believe 

it necessary to reach this issue. That, of course, is more 

than a little presumptuous on the part of the County. Cases 

on appeal cannot be decided on a piece-meal submission of 

issues and the County should know this. Therefore, the 

County should have filed a brief reaching the issue of 

prescriptive use. Having failed to do so, it has made the 

task of this Court immensely more difficult. 

For the public to acquire a prescriptive use it must be 

shown that the road followed a definite course, continuously 

and uninterruptedly for the prescribed period of time. 

Peasley v. Trosper (1936), 103 Mont. 401, 406, 64 P.2d 109, 

110. The statutes then in effect required that the adverse 

use continue for at least a period of ten years. The trial 

court made several findings on the use of the road, with 

which we agree. It found that the road had followed a 

definite course since the early 1900's when it was first 

established; that this road had been used from 1904 to 1970 

without interruption; but i+ made no finding that the public 

used the road crossing the landowner's property in a manner 

adverse to the interest of the owner. The facts clearly 

show an early attempt by the Park County Commissioners to 

create a road, and later use of the road by the public with 

which no one interferred with for a period of almost 70 

years. The landowner concedes this, however, he claims that 

the public's use of this road stopped at the VicarsJ Sate, 

the'place where his agent erected the barricade in 1970. 
Testimony on the use of the road came from thirteen 

witnesses. Eleven of these thirteen witnesses testified to 

the use of the road before 1969, the period during which the 

prescriptive right was claimed to have come into existence. 

Of these eleven witnesses, nine of them testified by way of 

deposition. 

The area involved is located about seven miles south 

of Livingston. Through this property runs a road known as 

the Little Mission Creek Road. This road travels south 

across the landowner's property for about one mile and 

continues for a short distance beyond. The road provides 

access to National Forest Land and to other private land. 

The Little Mission Creek Road forks near the center of 

the landowner's land. One fork turns west for less than 

one-half mile and ends at the nearby "Seval Ranch." The 

other fork, the one at issue in this lawsuit, continues 

south. Immediately to the south of this fork is a gate 

commonly known as "Vicars' Gate." As previously mentioned, 

the landowner concedes that the public has established a 

prescriptive use of the road up to the north side of the 

"Vicars' Gate." Just south of the Vicars' Gate are buildings 

once owned by the Vicar family, but now owned by the landowner 

who here started the quiet title action after barricading 

the Vicars' Gate. His agent testified the barricade was constructed in order to prevent injury to the road by vehicular 

travel of the public. 

Although there was a clear attempt to create a road, 

the County, for some reason did not obtain a deeded right of 

way for the road which crossed the property involved. It is 

clear, however, that James Vicars, the plaintiff's predecessor 

in interest, received a deed from the Northern Pacific 
ÿ ail way Company on August 3, 1946, which expressly noted 

that the land was subject to an easement "in the public for 

any public roads heretofore laid out or established, and now 

existing over and across any part of the premises." This 

deed covers the land involved in this lawsuit. 

There is clear evidence that the County did lay out a 

road in the early 1900's in the area involved. Although we 

have held that the records of the County in the early 1900's 

fail to establish that the county commissioners acquired 

jurisdiction to create the road by the statutory procedures 

then in effect, the evidence is nonetheless clear and undisputed 

that the County did assume control over the road and maintained 

it for many years. 

A surveyor's field book shows that the road had been 

surveyed and that the County had worked on the road during 

the years 1905, 1909 and 1910. The surveyor's book does not 

show, however, what parts of the road the County had worked 

during these years. It was also established that the County 

had maintained the road to the north side of "Vicars' Gate" 

from 1934 through 1968. One witness, J. L. Lawellin, who 

worked for the County in 1936, testified that during that 

year, the County graded the road past the Vicars-ate all 

the way to the National Forest. George Stebbins, an employee 

of the County Road Department from 1937 to 1968, testified 

that the road was graded by his crew once or twice a year-- 

but only as far as Vicars' Gate. Several witnesses testified 

that maintenance of the road south of vicar^' Gate was 

performed by the local farmers and ranchers. 

This evidence undisputably establishes that the County, 

for at least 63 years (1905 through 1968) was asserting an 

interest in the road and maintaining the road in some fashion. 
his would not be likely unless the County felt there was a 

legal obligation to do so. This brings us to Vicars' Gate. 

In face of all the evidence, the landowner here admits that 

the public acquired a prescriptive use of the road to the 

north side of Vicars' Gate. But, he claims that the public 

use stopped at that point. 

The evidence establishes that when Vicars' Gate was 

first placed across the road, it was not for the purpose of 

blocking public traffic, but for the purpose of keeping 

cattle and other livestock from wandering south of the gate. 

The evidence also establishes that the public regularly used 

the road south of the Vicars' Gate. 

John Hayden, who formerly lived on the land now owned 

by the plaintiff-landowner, says he first built the gate at 

Vicars' Place between the years 1922 and 1934, but that he 

could not remember the year. He said that he did not build 

the gate to keep the public out, but rather to keep the 

neighbors' milk cows from straying too far up the road. 

Most of the witnesses remembered a gate to be located at 

Vicars1 Place, and some even thought there were several 

gates. But there was no evidence that the gate was ever 

locked before 1969,wh the plaintiff-landowner first locked 

the gate and later erected a barricade. 

There is no question that people regularly used that 

part of the road extending to the south of Vicars' Gate. 

Erna Haskins, who lived south of Vicars' Place, used the 

road from 1912 to 1918 to get to school. After 1918, she 

and her family continued to use the road several times a 

year when they went to town. Ilma Malcolm, who lived on the 

Seval's Ranch from 1906 to 1924, used the road south of 

Vicars' Place "hundreds of times." Even after she moved 
away from the ranch in 1924, she continued to use the road 

to visit neighbors. Margaret Seiveno used the road from 

1925 to 1949 to drive cattle to the National Forest Land, 

and to go to her parents' ranch during branding seasons and 

fall round-up. Ethyl Alt and her family used the road to 

look for huckleberries during the 1920's and 1930's and to 

go fishing and camping with her husband during the 1940's. 

J. L. Lawellin and George Urbach used the road from the 

1930's until 1969, when it was barricaded by the plaintifflandowner. During this time, Lawellin used the road at 

least six times a year. 

Two people who appeared at trial to testify, said that 

during the 1930's and 1940's they used the road to help 

their uncle trail sheep and that they used the road every 

week or two to pick up their mail and supplies. These 

witnesses, Donald Wood, and Harry Dodge, are nephews of 

Louie Olson, who lived south of the Vicars' Place. 

The road was never ideal for traveling. Erna Haskins 

said that during the 1910'~~ it was just a cow trail. Other 

witnesses described the road as "just a dirt, kind of rocky 

road," "poor condition," "rutty," etc. Several witnesses 

testified that in the early years of the road, a horse and 

buggy or wagon, or a high-centered car, could be taken over 

the road. According to John Hayden, who lived at the Vicars' 

Place from about 1923 to 1935, horse and buggies were the normal 

means of transportation during that time, because there were 

very few automobiles. Two witnesses testified that during 

the spring, the road was not passable with a car and that it 

was necessary to walk. 

As we already mentioned, it appears that most of the 

time the County maintained the road to the south side of 
Vicars1 Gate, and that local residents and ranchers maintained 

most of the road on the south side of the Vicars1 Bridge. 

Several witnesses testified that they had always 

thought the road was a public road. Not one witness testified that he had ever asked permission to use the road, even 

beyond Vicars ' Gate. 

The evidence overwhelmingly supports a ruling that by 

the time the plaintiff-landowner locked the gate and later 

barricaded the road, the public had long since established 

its right to use the road as a public road. 

The judgment is affirmed. The District Court is 

directed to enter an appropriate order and judgment declaring 

that a public road was established by use of statutory 

proceedings then in existence and that a prescriptive use 

was also established for the public to use the road in 

question. 

We Concur: 

Chief Justice 

A 

Justices 

This cause submitted prior to January 5, 1981.