No. 85-02 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

- ..,. 

ALLEN SHELDON and JANET SHELDON, 

Pla.intiffs and. Appellants, 

FLATHEAD COUNTY, et al. 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable J. M. Salansky, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hash, Jellison, O'Brien & Bartlett; James C. Bartlett, 

Kalispell, Montana 

For Respondent: 

Ted 0. Lympus, County Attorney, Kalispell, Montana 

Lane K. Bennett, Deputy County Attorney, Kalispell 

Submitted on briefs: May 30, 1985 

Decided: October 15, 1985 

Filed: DGT 1 5 1985 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Plaintiffs appeill a judgment entered against them in 

the Eleventh Judicial District, Flathead County, on October 

16, 1984, following a bench trial on an action to quiet 

title. The court decreed that Patrick Creek Road is a 

sixty-foot-wide declared county right-of-way and public road 

in its entirety and as it crosses plaintiffs' real property. 

We affirm. We hold that Reid v. Park County (1981), 

627 P.2d 3210, 38 St.Rep. 631, controls and that it is sufficient if the record as a whole supports a finding that a 

public road was created in 1902. Here, the record supports 

the finding that Patrick Creek Road was statutorily created 

and declared a county road. Pursuant to section 2602, Montana Political Code of 1895, j.t had the statutory width of 

sixty feet when proceedings were silent as to the width of 

the right-of-way. 

The issue upon appeal is whether the court properly 

determined Patrick Creek Road, as it passes through plaintiffs' property, to be a statutory road mandating a finding 

of a sixty-foot right-of-way, or whether it is a road by 

prescription with a prescriptive easement limited to width of 

actual use. 

In 1962 Allen and Janet Sheldon purchased real property 

in Flathead County, Montana. Patrick Creek Road passed 

through their property, a country road which was about "wagon 

wheel" width, i.e., twenty-five feet, for the past eighty 

years. A predecessor in interest, H. H. Disbrow, had signed 

a petition to the county commissioners on April 28, 1902, 

al-ong with at least nine other freeholders in the Patrick 

Creek area, initiating proceedings under sections 2750 
through 2771, Montana Political Code of 1895, to create a 

statutory road. The petition requested the establishment of 

a new highway in Road District No. 8 on the basis of public 

necessity, convenience and welfare, and recommended a general 

route which at Disbrow's property would run "thence in a 

Southerly course up and along said creek to the South line of 

section 18. . . ." 

The proposed highway was to extend through the property 

of Mrs. Emma Ingalls, Charles Conger, PI. Zeller, P. C. 

McStravick, C. J. W. Bolton, H. H. Disbrow and the "N. P. Ry. 

Co." as to section 7. Bolton and Zeller were noted on the 

petition as making no claims for damages. According to 

statute, the county commissioners issued a "Warrant to Viewers" on April 30, 1902, to begin to view and mark out the 

road, perform required duties an<? make report according to 

law. 

Three viewers obtained written statements from the 

property owners who were home on May 16, 1902, and on the 

same day filed the report of viewers to the board. of county 

commissioners. On May 16, 1902, Disbrow executed a consent 

giving right-of-way: "I, H H Disbro [sicl agree to give rite 

of way [sic] for County Road threw [sicl the west 1/2 of N. 

W. 1/4 of Sec 18 T22 R21N on East side of Lost Cr threw [sic] 

my land [signed] H. H. Disbrow." Conger agreed to sell "rite 

of ways on recourded [sic] route for $30.00 [per acrel and on 

petitioned rout [sic] for $22.50 [per acrel . . . ." Bolton 

agreed to give "60 foot rite of way," and Catherine ("Cate") 

McStravick agreed to give "60 ft rite of way for County 

Road," signing in her own name and "per P C McStravick." 

Ellen McCarthy stated that she "will" sell the right-of-way 

for sixty-foot county road through her land. 
Although these conveyances of the right-of-way were not 

recorded, they were in the file on the road in the county 

clerk and recorder's office. The commissioners held a public 

hearing and on June 20, 1902, ordered the county surveyor, 

B. S. Adams, to survey the road. Because of the surveyor's 

inaction, the commissioners decided to go down on August 18, 

1302, look over the proposed road and help open it. The 

commissioners' journal entry of November 17, 1902, noted 

acceptance of the landowners' petition, declared the roadway 

a public highway and ordered it open. Following further 

inaction, the commissioners ordered J. B. Gibson, county 

surveyor, to survey in 1904, which he finally did on October 

17, 18 and 19, 1904. The surveyor's record of survey based 

upon his field notes located the road on the east side of the 

creek in Section 18. 

Sheldons filed a complaint to quiet title on the road 

on April 9, 1.982. The court held trial without a jury on July 

19, 1984. The only witnesses were Allen and Janet Sheldon 

and Joan Beck, Chief Deputy of the Plat Room, Clerk and 

Recorder's Office, Flathead County. 

The Sheldons testified that they purchased the nearly 

3-60 acres in Section 18 in 1962. The porch of their dwelling, a log house built in about 1902, is about thirty feet 

from the edge of the traveled portion of the road. The road 

consists mainly of dirt, very little gravel, and has always 

been twenty-five-feet wide. In grading the road, the maintenance crews have ignored Sheldons' demands not to push the 

road wider. Sheldons testified that they received money from 

the federal government for the grant of a sixty-foot easement 

on a sixty-foot length of the road, "with the thinking that 
they quit using the road, that the property would go back to 

twenty-five feet, and it would be back to our iurisdiction." 

Appellants contend that while the county may have 

sought to take all necessary legal steps to esta.blish a. 

statutorily created public highway, it ignored or failed to 

comply with many required steps. Appellants claim that the 

roadway passing through their property was not created by any 

formal action of the State of Montana and that the existing 

public road was acquired by prescriptive use, limited to the 

greatest width actually used. 

We disagree. This record, taken as a whole, shows that 

a public road was created pursuant to the standard of Reid v. 

Park County (pllont. 1981), 627 P.2d 1210, 38 St.Rep. 631. 

There we he1.d that the county was not required to prove on 

the face of the record that public officials had jurisdiction 

to create a public road if the record, taken as a whole, 

shows that a public road was created. Reid, 627 P.2d at 

1213. We recognized that the curative statute (now repealed), § 32-103, RCM (1947), cured procedural defects which 

were not jurisdictional if the county had shown obvious 

efforts on the record to establish a road. Reid, 627 P.2d at 

We adopted the rule: 

. . . 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 crea.ted so many 

years ago may well be unsurmountable. 

. . . [ilf 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. 

Reid, 627 P.2d at 1213, overruling Warren v. Choteau County 

(1928), 82 Mont. 115, 265 P. 676, and State v. Auchard 

(1898), 22 Mont. 14, 55 P. 361. 

The record in this case (and the historical events in 

question) is more sufficient than what we were presented with 

in Reid to support the jurisdiction of the county and the 

statutory creation of Patrick. Creek Road. The entry in the 

commissioners journal on November 17, 1902, stated, " [tl he 

petition is hereby accepted, road declared. a public highway 

and ordered open." The record contains the actual petition 

signed by more than twenty residents of the area, including 

appellants~redecessor in interest, Disbrow. In Reid the 

county failed to produce any copy of the petition or show one 

was signed by the requisite ten qualified petitioners. Here, 

the record supports a finding that Disbrow agreed to give the 

right-of-way for a road on the east side of the creek where 

the road was actually located. 

Disbrow signed the petition with the other residents 

because they needed a road. In expecting the county to 

perform, they were requesting a statutorily created public 

road, which was ordered open by an official act of the commissioners. In Reid, there was no evidence of deeds or 

grants of right-of-way on the record. Here, Disbrow and 

others executed written consents after requesting the road. 

The viewers' report also noted those who agreed to give 

right-of-way, including Disbrow. 

Disbrow gave his consent for the right-of-way on May 

16, 1902. Nearly eighty years later Sheldons filed this 

action to quiet title. This passage of time further estops 
the appellants, and those who may claim under them, from 

challenging the existence of the statutory road. 

The historical events in question, as well as the 

record, support the District Court's conclusion that Patrick 

Creek Road is a statutorily created public road. Section 

2602, Montana Political Code of 1895, declares that the width 

of all public highways must be at least sixty feet. Where 

there are any procedura.1 defects in the statutory proceedings, the curative statute (now repealed), section 32-103, 

R.C.M. 1947, cures the defect, e.g., the failure to declare 

it a sixty-foot-wide public road, pursuant to 2602, Montana 

Political Code of 1895. 

The rule we adopted in Reid was in recognition of the 

burden today of tracing records back so long ago which were 

based upon the best efforts of sometimes less procedurally 

sophisticated county governments. We find no reason to 

overturn the District Court where the evidence does not 

preponderate against the findings (Matos v. Rohrer (Mont. 

1.983), 661 P.2d 443, 450, 40 St.Rep. 366, 375) and where we 

have clear precedent to affirm the judgment. 

Affirmed. 

We concur: