321 P.3d 38
Mont.2014Background
- PLAA sued Madison County (Kennedy intervened) seeking declaration that public may use three county roads/bridges (Duncan, Lewis, Seyler) to access the Ruby River; prior summary judgment held Duncan and Lewis rights-of-way 60' wide and usable to access the river; Seyler reserved for trial.
- Parties stipulated Seyler Bridge and approaches were acquired by prescriptive use and that the public may use the paved portion of Seyler Bridge and approaches for travel.
- Kennedy owns the underlying fee including the riverbed at Seyler; Madison County issued Kennedy an encroachment permit allowing fences on bridge right-of-way; fences sit at or near toe of road fill.
- District Court held (2012) public had prescriptive travel rights only between fences and on the paved bridge; county had a separate prescriptive ‘‘secondary easement’’ for lateral/subjacent support and maintenance, and PLAA failed to prove a broader public prescriptive easement to the water.
- On appeal the Montana Supreme Court reversed in part: it rejected a separate county-only secondary easement, held maintenance/support areas are part of the public right-of-way where reasonably necessary, allowed consideration of historical recreational use in determining width (subject to statutory limits), and affirmed that Lewis Lane 60' deeded right-of-way allows public river access and does not constitute a taking.
Issues
| Issue | Plaintiff's Argument (PLAA) | Defendant's Argument (Kennedy/Madison County) | Held |
|---|---|---|---|
| 1. Proper definition/width of public ROW at Seyler Bridge | ROW established by prescription includes paved surface plus adjacent land reasonably necessary for support, maintenance, shoulders and access to river | County/Dist. Ct.: public use limited to paved traveled way; county has separate maintenance easement not open to public | Reversed/dist. Ct. erred: no separate county-only secondary easement; ROW includes land reasonably necessary to support/maintain and for safe/convenient public use; remanded to fix definite width by evidence of use and maintenance needs |
| 2. Admissibility/role of recreational use in establishing width | Historical recreational use is relevant to the ‘‘nature of the enjoyment’’ and may inform width determination | Dist. Ct.: recreational use insufficient as a matter of law to establish prescriptive easement; should be excluded | Court: blanket exclusion was error; recreational use may be considered (but use post-1985 statutory prohibition limited); on remand recreational use may be weighed as evidence for width if proven for requisite period |
| 3. Whether scope of public prescriptive ROW is limited to historic use | PLAA: once public road is established by prescription, reasonably foreseeable public uses (including recreation/access to water) are permitted beyond historic forms of use | Dist. Ct./Kennedy: use of prescriptive road limited to the historic adverse use that created it; county maintenance does not show public travel right over maintenance areas | Court: scope of public prescriptive ROW is not strictly confined to historic adverse use as with private easements; includes reasonably foreseeable public uses incident to purpose of road (including access to river) |
| 4. Did recognizing public access at Lewis Lane effect an uncompensated taking? | PLAA: Lewis deed granted 60' ROW including bridge and underlying land; public access to river is within deed/existing law | Kennedy: deed did not authorize recreational river access; public access across streambed is a taking of his property (streambed owner) | Court: deed conveyed ROW including bridge/underlying land or at least an easement allowing access; Montana law (Curran/Hildreth and statutes) permits public recreational use of state-owned waters up to high-water mark and that use is not a compensable taking; cross-appeal rejected |
Key Cases Cited
- State v. Portmann, 149 Mont. 91, 423 P.2d 56 (Mont. 1967) (width of prescriptive roadway determined by character/extent of use; statutory minimum width for laid-out roads does not govern prescriptive roads)
- Laden v. Atkeson, 112 Mont. 302, 116 P.2d 881 (Mont. 1941) (secondary easement: right to enter servient tenement for reasonable repairs is incident to an easement)
- Montana Coalition for Stream Access v. Curran, 210 Mont. 38, 682 P.2d 163 (Mont. 1984) (public may use surface waters capable of recreational use regardless of streambed ownership)
- Montana Coalition for Stream Access v. Hildreth, 211 Mont. 29, 684 P.2d 1088 (Mont. 1984) (public recreational use includes beds and banks up to ordinary high-water mark)
- Bolinger v. City of Bozeman, 158 Mont. 507, 493 P.2d 1062 (Mont. 1972) (interpretation of dedications: uses reasonably within the dedication and foreseeable by lapse of time are permitted)
- Swandal Ranch Co. v. Hunt, 276 Mont. 229, 915 P.2d 840 (Mont. 1996) (evidence of public use and county maintenance can support finding of a public prescriptive road)