*1 Having' appellant’s considered specifications of error and finding prejudicial error therein, denying order a new trial and the judgment of conviction are affirmed.
MR. CASTLES, JUSTICES BOTTOMLY, AN6STMAN and ADAIR, concur.
AUGUST DESCHEEMAEKER, ALPHONSE CROSS , EVERTZ and AMUNDSEN, GEORGE CLARENCE Plain
tiffs in Intervention and Appellants, v. LUDWIG AN DERSON, et al., Plaintiffs Defendants Interven tion and Respondents, and CARBON COUNTY, MON Ap TANA, etc., et al., Defendants Intervention pellants. No. 9445. February
Submitted April 29, 1957. Decided 1957. *2 Mr. J. H. County McAlear and F. Conwell, Atty., Mr. Robert Lodge, appellants. Red for
Mr. M. Parcells, L. Columbus, respondents. Mr. McAlear, Mr. Conwell orally. Mr. argued Parcells MR. JUSTICE CASTLES:
This is appeal judgment quieting from a title in certain parcels County respondents, plaintiffs of land in in County Appellants below. are Carbon and individuals who plaintiffs in dispute were The is intervention. confined to a roadway extending from what known is as the Joliet-Columbus part' the respondents’ Road across land is as to what known Appellants public Joliet-Cole Creek Road. contend that a road Respondents exists; exists. contend that no road the road owned them at and traveled sufferance public generally respondents’ with consent. respondents’
The land was Richardson, homesteaded (now deceased) patent year obtained who 1919. Prior patent, mortgaged to the date of Richardson wife mortgage to a loan -company. land This was assigned to one who, Kinsella later the mortgage foreclosed and obtained premises sheriff’s certificate sale. pur-- were Ludwig Anderson, who respondent,
chased from Kinsella wife, respondent, Margit portion deeded a of them to his and, taxes other than paid The thereafter Anderson. Andersons boundary along claimed the southern aforementioned dispute there is no to their fee title. as right-of-way There is and was no record way. (1) that: disputed appellant contended by prescription, (2) that obtained a of travel there was a Richard- dedication of the son, accepted, that it was and that as laid out i. binding e., successors interest of respondents. specifications going of error appellants recite ten findings law, fact
court’s and conclusions of 0all encompassed are in the above two contentions. We will discuss findings they apply the evidence and the court’s of fact of these each contentions. space briefs de- amount
Although considerable highways Mon- analysis the establishment *3 an voted to statutory as we proceedings, view this case tana under statutory proceedings record of the since no application County, appears records either any sort county the proceedings of commis- titles or as to as to record sioners. found, by it must be be either any public
If can applicable Rules law prescriptionor dedication. in way by prescription this case were aof establishment 401, 405, 406, 103 Mont. 64 Peasley Trosper, v. in discussed it was said: 109, 110. that case (2d) Pac. is, in this case Was question solution primary
“The finding trial court in to warrant sufficient highways road? are a Public road was particular 1935, 1612 R.C. by section now enumerated [R.C.M. or defined lanes, highways, roads, ‘All 32-103], follows: 1947, section M. by bridges laid out or erected alleys, courts, places, streets, public, used or if laid traveled or public, or now out. 325 by others, public, or or erected abandoned to dedicated or high- partition property, made such of real are ways’. ‘‘ Mont. Realty City Butte, 48 the case of Barnard Co. v. 102, 1064, construing above statute Pac. this court in Auchard, said: think, however, ‘We said in State v. as we 14, 361, Mont. those Pac. that the intention was to declare public highways which had been established public authorities, recognized gener or were them and used ally by public, by prescription or which had such become use, Any or provision adverse at the time the was enacted. other in would, opinion, legislation open views our render the objection. Constitution, 14, to serious constitutional art. 3’. cross-assignment of error is made on behalf
“Although no in brief that plaintiff, intimated, argued, it is if not finding in error in not that a road had been court was evidence, in by prescription. addition to that established forth, county graded the road. set disclosed that the had never supervisor charge county of a road Some relief workers county-owned at using appliances, tools and one time made repairs bridge irrigation road; on this some on a across ditch county. paid by the What we said the relief workers were not Maynard Bara, 93, the case of conclusively trial demonstrates court was correct by prescription user; holding that no road was established public highway it ‘In therein written: order to establish title, by proof prescription, without color of of travel over statutory definitely period, for the must show strip use of the identical of land over which Pope Alexander, 36 Mont. claimed. 565. This Martin, supra Violet court the case of [62 “ way 211], said: To arrive at conclusion that a *4 road, public lands of another is a the evidence must be convinc- public definite, course, ing pursued have fixed con- uninterruptedly, coupled assump- it with an and tinuously and 326 adversely
tíon of control claim or color of use under right, merely by permission, of and not it for the owner’s over statutory period (five years adoption the 1895 before the years rights since), prescriptive Code and ten without which by quoted approval cannot This attach.” statement was with supra 504, Irish, court in the ease of Moulton v. [67 permit 218 A Pac. fixed and definite course does not 1053]. any Martin; supra. occupancy deviation. Violet v. use by public portion of one the road does not avail it its portion occupied by claim to another it. case the may by possession obtain title of that adverse statutory occupied during period. has the full Scott v. Jardine * * * Co., 485, M. &M. 406. Before Gold Pac. may by prescription lands be established over the another, convincing that the use the evidence must be clear and by merely permitted was adverse by Martin, supra. Violet that a the landowner. fact years a road has passage of been for barred or other opened parties passing obstructions to be and closed over always strong been considered as designated support pass of a mere license to the way. Quinn Anderson, 746; Huffman v. Cal. 417; Hall, Striedel, De la Guerra 159 Cal. Cal. case, supra, Our own decision Violet is in gates, reference to the obstruction of a road ac with foregoing cordance with the statement. Evidence use by gates, standing alone, is in of a road obstructed highway by prescription’.” establish a sufficient necessary to whether the case, instant In the openly, used that a road was prescription requirements along a definite course uninterruptedly, continuously, right to use and travel the under a claim general public year unde Prior to the some part as follows: road was in no definite or fixed lands had across the fined travel the owner of year Mr. In the course. surveyor, County and Cooley, Mr. land, *5 to sixty pursuant Winkler off a an oral roadway marked foot alleged agreement permission granting conversation. This oral to given providing use the land as to was fence was built so exclude roadway premises. rest Although alleged there conflict in the as to record whether or early years by gate was enclosed at each end agreement, quite oral it is clear that since 1928 there were gates. Prior appellants’ Winkler witness testified on examination, part: direct
“Q. you At the time built along sixty the fence foot right-of-way, you put gates sir, did A. No, on either end? gates. no
“Q. you gates Well, When did first see A. there? there was gates I think along there ’28, there about they sometime but open through were when I went maintainer, they with the wasn’t shut.”
Then on cross-examination, the same witness testified: “Q. saw, during You never all your time experience, you never saw gates on that road ? A. gates There was they but wasn’t shut when I through, they went always were opened up when I through. went
“Q. gates were there though, you at all times when went there? gate A. There was posts there, imagine I there was a I gate there, paid any never it, attention to because I never had get occasion to out and look for.it. “Q. gates? No, weren’t You interested in A. I wasn’t.” appellants’ witnesses, Laughery, Another of testified that gates respondents’ there were on each side on, land from 1917 except county put “after the fence and done some work it; I gates years know there were not for several and then the I suppose they fence went down and put had to up be keep it belonged.” stock where partial quotes appellants’ aforementioned main wit- early years
nesses on the adverse public use is set out judge to show that even had the district accepted testimony of the appellants’ exclusively, there witnesses would still be to find that use was within
sufficient evidence supra. was, in Peasley Trosper, There rules stated addition, testimony throughout the effect that the case to roadway, were open across end of the sometimes and some- each times closed. law, testi- addition, within the aforementioned rules of
mony right-of-way prescription was adduced that the claimed yards wide, frequently and that as much as hundred Certainly sixty strip go varied from foot around coulees. strip of land cannot said to show “use of the identical *6 ’’ is over the which claimed. necessary We not it recite of various evi- do feel all the to. dentiary matters, approve the rules estab- testified We roadway the by prescriptive placing of a use burden lishment being adverse, on to show that use as the exclusive previously uninterrupted statutory period for the as set out. appellants secondly that there was a The contend dedication Richardson, it roadway public by of that was ac- the the binding the cepted, and that as laid out the dedication was on trial successors in interest of Richardson. this connection the had been a court found that the road never dedicated as thereto, by any title person having full and exclusive so; do anyone authority or who had the statements amounted no than regard made Richardson in this to more roadway long as giving permission the of to use said so Appellants findings. error were maintained. cite as to these his land mort 1921, Richardson had related, in As previously foreclosed, mortgage was later company. This a loan gaged to dedication, the mortgagee eArenkneAvof made the allleged dedication. knew of the mortgagee even made roadway of a oral dedication appellants that an the contend Here though the land even without mortgagor of was made mortgagee. approval of the knowledge or mortgagor or a presented whether question Thus the knowledge roadway without a a land can make mortgage The Avas recorded. mortgagee.- approval of or roadway by plat record of a dedication no There was county ivas proceedings, foreclosure In the or otherwise. of a dedication joined a defendant. mortgagor, between of an oral conversation surveyor. There was evidence county then and the county expen- presented small amount public, of use a going to nothing else fence, but and a diture establishment of dedication. stated may general rule as to make a dedication who 404, as follows: Dedication, 6, page 26 C.J.S. section ‘‘ dedicate, any grant capacity to person capable making
* * Dedication, page Further in 26 C.J.S. ‘‘ an unlimited Generally, except the owner of is stated: authorized simple, expressly estate or an estate in fee or some one * * * by him, The owner of can make dedication of may be effec equitable estate make a dedication which will and, rights property mortgagor may tive while a his divest dedicated, mortgagee.” he rights cannot affect the of the jur- in other an examination cases apparent
It is bring forth arise which fact situations that certain isdictions prevent estoppel similar doctrines application instant general rules. above-quoted application knowledge any matter other case, showing is no assignee which would mortgagee concerning or about general rule. exceptions to application of call for the *7 must be necessary facts to constitute a dedication Proof of Jur., Dedication, 16 Am. unequivocal. satisfactory and clear, 83, page 422, note 15. highways by Montana, the establishment of Albertose, 499, 507, City Helena v. recognized. been 361; Auchard, Kauf 817; v. State 770; City Bil City Butte, 48 Mont. 138 Pac. man v. (2d) 636; 117 Mont. 161 Pac. Packing Co., lings Pierce 76 Pac. Greaves, Mont. Sherlock that this indicates court has reading Montana cases A of the required proof necessary a dedication to constitute clear, satisfactory unequivocal. and clear, unequivocal addition to a lack of satisfactory and proof the capacity as to dedicator of the dedicate, proof we believe the dedica tion testimony, memory, as to oral conversation back by contradictory followed evidence as to whether or adverse, not the use permissive only fails to establish a dedication, common-law the trial and eourt was not in finding error had alleged road never been dedicated as a road. stated, judgment
For reasons herein the trial court is affirmed.
MB. CHIEF JUSTICE HARRISON and MR. JUSTICES ANGSTMAN, concur. BOTTOMLY ADAIR: MR. JUSTICE not in all said the fore- the result but
I concur opinion. going MONTANA, ED Respondent, OF
STATE Plaintiff Appellant. PESCHON, Defendant WARD No. 9599. January April 30, 1957. 21, 1957. Decided Submitted (2d) 591.