DA 12
- 0550 IN THE SUPREME COURT OF THE STATE OF MONTANA

2013 MT 156N LEWIS AND CLARK COUNTY, a polit ical subdivisio n of the STATE OF MONTANA,

Plaint iff and Appellee,
v. ANDY SKINNER,

Defendan t and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and For the County

of Lewis and Clark , Cause No. CDV 10
- 865 Honorable Kathy

Seeley, Presiding Judge COUNSEL OF RECORD:

For Appellant: Robert T. Cummins , A

ttorney at Law ; Helena, M ontana For Appellee : Leo J. Gallagher, Count y Attorney ; K. Paul Stahl and Kat ieJerstad, Deputy County A ttorneys; Helena, Montana

Submitted on Briefs: May 1, 2013 Decided: June 11, 2013
Filed:

_______________________________ ___________ Clerk June 11 20132

Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by me morandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Andy Skinner (Skinner) appeals from a May 29, 2012 order of the First Judic ial District Court, Lewis and Clark County, granting summary judgment to Lewis and Clark County (the County). We affirm. ¶3 Skinner is the owner of real property located in Lewis and Clark County, Montana (hereinafter referred to as Astor Placer). In Novem ber 2007, the Lewis and Clark County Attorney’s Office was notified that Skinner was blocking public access on two roads that
cross Astor Placer . The two roads are commonly known as the Canyon Creek
- Gould Road and the Virginia Creek
- Gould Road. On Septem ber 10, 2010, the County filed a declaratory judgment action seeking a determination that the Canyon Creek
- Gould Road and the Virginia Creek
- Gould Road are public roads, and requesting that Skinner be enjoined from obstructing the roads and denying public access where they cross his property. S kinner denied the roads are public. He further argued that a prior court order resolved the status of the roads, thereby rendering the issues raised in the County’s complaint res judicata. Both parties filed for summary judgment. The District Court held a hearing on the matter, and in May 2012, issued an order that granted the County’s motion and denied Skinner’s motion
. Skinner appeals.3

¶4 This Court reviews a district court’s grant of summary judgment de novo, usin g the same standards as the district court under M. R. Civ. P. 56(c). Styren Farms, Inc. v. Roos , 2011 MT 299, ¶ 10, 363 Mont. 41, 265 P.3d 1230. We review for correctness a district court’s legal conclusion that no genuine issues of material fact exist and that the mo vin g party is entitled to judgment as a matter of law. Turner v. Wells Fargo Bank, N.A. , 2012 MT 213, ¶ 11, 366 Mont. 285, 291 P.3d 1082. ¶5 In granting summary judgment to the County, the District Court determined the parties disagreed over the interpretation of documents and applicability of case law, but that
no genuine issues of material fact existed. W e agree. The Astor Placer was located by Duncan McDougall (McDougall) in 1886. M cDougall amended the location of his claim in 1888, and a patent was issued and filed in the County Clerk and Recorder’s office in 1889. The survey of McDougall’s claim shows a line running east to west through Astor Placer labeled, “County Road to Jay Gould.” ¶6 In 1887

—after McDougall first located the Astor Placer but before he amended the location and received a patent

—four landowners petitioned the county commissioners to establish a seven- mile
- long county road from Canyon Creek to the Jay Gould Minin g District, which was located immediately west of McDougall’s claim, (Canyon Creek
- Gould Road). The petition provides that “all the persons through whose land the said road is to be laid hereby donate the right of way through said land; and this petition is signed by all persons through or by whose land the said road passes.” M cDougall’s signature is not on the4

petition. The commissioners granted the petition and declared the roadway a “public highway.” ¶7 There is no petition in the County’s records relating to the Virginia Creek
- Gould Road. H owever, the County provided several other documents to the District Court that reference the creation of the Virginia Creek
- Gould Road in the early 1900s and the petition submitted by affected freeholders. Additional documentation shows that the Virginia Creek
Gould Road crosses a portion of the Astor Placer. ¶8 On appeal, Skinner points to several documents, as well as the absence of some
—such
as the petition relating to the Virginia Creek
- Gould Road

—to argue that the Canyon Creek
Gould Road and the Virginia Creek
- Gould Ro ad were not properly dedicated as public roads by statutory process. In Reid v. Park Co. , 192 Mont. 231, 627 P.2d 1210 (1981), the Court recognized the difficulties of reconstructing detailed histories of county roads created many years ago. There, we adopted 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.” Reid, 1 92 Mont. at 236, 672 P.2d at 1213. Additionally, in Ashby v. Maechling, 2010 MT 80, ¶ 29, 356 Mont. 68, 229 P.3d 1210, we noted: Requiring production of documentary evidence of events that occurred long ago can be impracticable, and there is a disputable presumption that official duty has been regularly performed. D iscrepancies in the description or location of a road in old county documents are not sufficient to turn a county road into private property.5

(Internal citations omitted.) After reviewing the record, we conclude the District Court correctly determined that the documentation, taken as a whole, shows that the County properly established the Canyon Creek
- Gould Road and the Virginia Creek
- Gould Road as public roads. There were no genuine issues of material fact and summary judgment was appropriate as a matter of law
. ¶9 Skinner also asserts that the District Court erred in refusing to determine that the issues raised by the County’s complaint are res judicata. S kinner maintains that a quiet titl e action in the 1980s extinguished any public status that the two roads may have had. However, the record demonstrates that the quiet title action was dismissed in 1988 without resolution as to the status of the roads. Therefore, the District Court corre ctly determined the doctrine of res judicata does not apply in this matter. ¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable me morandum opinions. The issues in this case are legal and are controlled by settled Montana law, which the District Court correctly interpreted. ¶11 Affirmed. /S/ MICHAEL E WHEAT

We concur: /S/ BETH BAKER /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ JIM RICE6