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: ForAppellant: Yardley and Yardley, Livingston,Montana For Respondent: Bruce E. Becker,County Attorney, Livingston, Montana

Submitted on Briefs: September 17, 1980 Decided:

Filed:

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## 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 DistrictCourt refusing to quiet title in a road crossing his property and alsoholding that Park County, one of the defendants,had established a public road pursuant to statutes then in effect. The landowner brought the action inApril 1979. Park County,as one of the defendants,claimed that the Park County Commissionhad 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 statutoryproceedings in 1905 and that any defects in the procedurewere cured by section 32- 103,R.C.M. 1947 (nowrepealed). The trial courtdid 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 firstclaims 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 commissionershad properly established a public road in 1905. The landowner also contends that in any event, the trial court cannotbe 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 toVicars' Gate (described later) is a public road acquired by prescriptive use. Based onWarren v. ChoteauCounty (1928),82Mont. 115, 265 P. 676,which holds that no facts will be presumed inthe aid of jurisdiction to establish a road and therefore that the jurisdictionmust 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 defectivebecause: the County failed to produce a copy of thepetition showing a description of the road or that it

was signed by ten qualified petitioners (and this allegation isundisputed); that the records failed to show that the commissionersgave notice to the affected landowners (this allegation isundisputed). 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 thispresumption 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 Statev. Auchard (1898),22Mont. 14, 55 P. 361, ruled that the curative statute remedies all the defects in theproceedings undertaken to establish a public road. But even Auchard holds that the curative statutewill not

cure a jurisdictionaldefect. 22Mont. at 16. The record of the county commissioner proceedings from 1903-1905 fails to establish that the county commissionershad 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 in1898 and Warren in 1928. At those times, it was not an onerous duty to impose on a county that it show ithad jurisdiction to createpublic roads on the face of the records. To presently adhere to the same requirement imposes

an unrealisticburden on the public toprove on the face of the record that itspublic officialshad 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 sufficienthere. We hold also that thepublic 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 firstproceed to the curative statutewhich the trial court applied. The trial court ruled that it cured any defects that may have taken place during the 1905proceedings when an obvious effortwasmade by the county commissioners to establish a road. The curative statute, section 32-103, R.C.M. 1947, in existence until 1959,provides: "Allhighways, 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, ormade suchby the partition of real property, are public highways." In 1905, this statutewas codified as section 2600 of the Political Code of 1895. The trial court ruled that once jurisdictionwas acquired by -- the petition of -- the landowners, which was accepted -- by the commissioners -- at 

## - theirApril 10, 1904,meeting, the statute remedied all defects. Theproblem, however, is that the proceedings of the commissioners of recordfail to showon 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 statutesprovide that ten freeholders canpetition 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 alsoprovide for a hearing so the public could make itsviews 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 awritten conveyance of the rightof-way be filed in the office of the county clerk and recorder

or that a copy of the judgmentbe filed and recordedby the clerk in the event that the road is acquired by condemnation proceedings. To establish its case, the County introduced the minutes from sixmeetings of the county commissioners held between 1903 and 1905. The commissioners first considered the road onApril 10, 1903. Itsminutes 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 actionmay be taken by the Board at their June meeting.l1 Minutes from latermeetings show that the commissioners took further steps toward establishing a road. On February10, 1904, they ordered the road opened. The minutes on that day, show: "In the road as petitioned forby Frank W. Redfield, et al., Fred J. Redfield, Patrick Richard, Frank Richard, and George T. Sevals camebefore 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 HollaceA. Cook. The Board awarded the sum of $15.00 as damages to HollaceA. Cook, and ordered the road opened as petitioned for.I' As we stated earlier, strict adherence toAuchard and Warren would requireus 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 themwere freeholders. There is no record here that ten people had petitioned to create a road,nor is there a record that those signingwere freeholders. To strictly followWarren nowwould mean thatwewould hold proceedings in 1905 to be jurisdictionally defective. That iswhy 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 roadwas created somany years agomay well be unsurmountable. Here, thepotential hardship is not bad becausewe also hold that the public acquired the road in questionby prescriptive use. But, if we did not now overrule Auchard and Warren on the jurisdictional issue, a private landownermay, in a particular case,be able to keep the public fromgoing 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 issuebefore an appealwas taken. In supportof 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 submittedproposed 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. Ifwe reversed the trial court

on the curative statute issue, itwould be in the County's interest to also have a judgmentholding 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 casewould have to be remanded for a decision on that issue. A decisionmay well have prompted another appealby either party receiving the adversedecision. This Court would then be facedwith deciding two appealswhich could have been decided in one appealwhere the trial courthad 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 itnow stands,we are faced with a record sufficient to establish a prescriptive use, but with no trial court ruling on this issue. In thefuture,we urge both sides of a lawsuit to take proper action to get rulings on all issues raised so thatwe do not have to decide appeals on a piece-mealbasis. 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 issuewas submitted to the trial court through depositions rather than through live-witness testimony at trial. Nine depositions were admitted in evidence, and all of thesewere offered on the issue of prescriptive use. In the normal case, itwould be the task of the trial court to weigh the credibility and demeanor of the witnesseswho appear before itat trial, and therefore,wewould 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 judgehad before him only awritten 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),150Mont. 139, 141, 432 P.2d 382, 384; In Re Estate of Jensen (1969), 152Mont. 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 "willaffirm 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 establishedby adverse use beyond theVicars' Gate. (The landowner concedes that thepublic has established a road by adverse

use to the north side of theVicars' 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 additionalbrief ifwe believe it necessary to reach this issue. That, of course, ismore than a little presumptuous on the part of the County. Cases

on appeal cannotbe 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, ithas made the task of this Court immenselymore difficult. For thepublic to acquire a prescriptive use itmust be shown that the road followed a definite course, continuously and uninterruptedly for the prescribed period of time. Peasleyv. 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 whichwe agree. It found that the road had followed a definite course since the early 1900's when itwas 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 attemptby the Park County Commissioners to create a road, and later use of the road by the public with which no one interferredwith 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'placewhere 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 rightwas claimed to have come into existence. Of these eleven witnesses, nine of them testifiedby way of deposition. The area involved is located about sevenmiles south of Livingston. Through this property runs a road known as the Little Mission Creek Road. This road travels south across the landowner'sproperty for about onemile and continues for a shortdistance beyond. The road provides access to National Forest Land and to other private land. The LittleMission 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 "SevalRanch." 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 previouslymentioned, 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 theVicars' Gate are buildings

once owned by the Vicar family,but now owned by the landowner who here started the quiet title action after barricading theVicars' Gate. His agent testified the barricade was constructed in order to prevent injury to the road by vehicular travel of the public. Although therewas a clear attempt to create a road, the County, for some reasondid not obtain a deeded right of way for the roadwhich crossed the property involved. It is clear,however, that JamesVicars, the plaintiff's predecessor in interest, received a deed from the Northern Pacific

### ÿ ail way Company onAugust 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 commissionersacquired 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 formany 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 theseyears. Itwas also established that the County had maintained the road to the north side of "Vicars'Gate" from 1934 through 1968. Onewitness, J. L. Lawellin, who worked for the County in 1936, testified that during that year, the County graded the road past theVicars-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 asVicars' Gate. Several witnesses testified thatmaintenance 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 63years (1905through 1968) was asserting an interest in the road and maintaining the road in some fashion.

### his would not be likely unless the County felt therewas a legal obligation to do so. This brings us toVicars' Gate. In face of all the evidence, the landownerhere admits that the public acquired a prescriptive use of the road to the north side ofVicars' Gate. But, he claims that the public

use stopped at thatpoint. The evidence establishes thatwhen Vicars' Gate was firstplaced across the road, it was not for the purpose of blocking public traffic, but for the purpose of keeping cattle and other livestock fromwandering south of the gate. The evidence also establishes that the public regularly used the road southof theVicars' Gate. JohnHayden,who formerly lived on the land now owned by theplaintiff-landowner, says he first built the gate at Vicars' Place between the years 1922and 1934,but that he could not remember theyear. He said that he did notbuild 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 therewas no evidence that the gatewas ever locked before 1969,whthe 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 ofVicars' 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 theywent to town. IlmaMalcolm,who lived on the Seval's Ranch from 1906 to 1924, used the road south of Vicars' Place "hundredsof times." Even after shemovedaway 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 ForestLand, and to go to her parents' ranch during branding seasonsand fall round-up. EthylAlt and her family used the road to look for huckleberries during the 1920's and 1930's and to go fishing and campingwith her husband during the 1940's. J. L. Lawellin and George Urbach used the road from the 1930's until 1969, when itwas barricaded by the plaintifflandowner. During this time,Lawellin used the road at least six times a year. Twopeople 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 southof theVicars' 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 "justa dirt, kind of rocky road," "poorcondition," "rutty,"etc. Severalwitnesses testified that in the early years of the road, a horse and buggy orwagon, or a high-centered car, could be taken over the road. According to John Hayden, who lived at theVicars' Place from about 1923 to 1935,horse and buggies were the normal

means of transportation during that time,because therewere very few automobiles. Twowitnesses testified that during the spring,the road was not passable with a car and that it

was necessary to walk. 

### Aswe alreadymentioned, it appears thatmost of the time the County maintained the road to the south side ofVicars1Gate, and that local residents and ranchers maintained most of the road on the south side of theVicars1Bridge. Several witnesses testified that they had always thought the road was a public road. Not onewitness 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 establishedby use of statutory proceedings then in existence and that a prescriptive use

was also established for thepublic to use the road in question.

We Concur:

Chief Justice 

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Justices This cause submittedprior to January 5, 1981.