*1 OUR LADY OF THE ROCKIES, INC., non-profit corporation,
a Montana Appellee, Plaintiff and
KENT PETERSON, KATHLEEN A. PETERSON, WOOD,
LISLE PAULINE WOOD, n/k/a PAULINE THOMAS, CLARK, JONATHAN B. J. JEFFREY CLARK,
VIDGIS A. BECKETT, JEANNINE A. JENNIFER A. STALLINGS,
KOCHEL and JILL A. JOHNS, Appellants.
Defendants No. 05-057. January 16,
Submitted
Briefs
April
Decided
For J. Appellee: P.C., Richard Roth & Butte. Opinion
JUSTICE NELSON delivered the of the Court. Peterson, Peterson, Kent Wood, Kathleen A. Lisle E. Pauline P. (now Thomas), Clark,
Wood known as Pauline P. Jonathan B. “Landowners”) Vidgis (collectively, J. Clark1 appeal from the order of District, the District Court for the Second Judicial Silver County, Bow granting partial summary judgment in favor of Our Lady of the (“OLR”). Rockies, Inc. We reverse. The parties raise a number of issues related to the easement at however, here;
issue dispositive question appeal is as follows: Did the concluding District Court err in that the federal government expressly reserved a across Landowners’ properties *3 referring in an 1896 federal land patent survey to a mineral depicted a road labeled “ROAD”?
FACTUAL AND PROCEDURAL BACKGROUND I. Patenting Overview of Mining Under General Act of 1872 A process brief overview of the of securing patent a mining to a
claim is helpful understanding the facts and issues of case. Mining 1872,2 Under the Act private may General a citizen enter federal for explore deposits. lands mineral valuable California Co., 575, 107 Coastal v. 572, 1419, Com’n Granite Rock 480 U.S. S. Ct. (1987).
1422 If a deposit located, mining mineral valuable claim 1 Jeffrey Beckett, Stallings, Kochel, A. A. Jeannie Jennifer A. and Jill A. appeared Petersons, Woods, Johns-who with the and the Clarks as defendants appeal. appeal parties the District Court-did not file notices of and are not to this 2 91, May 10, 1872, 152, 2319-2328, 2331, Act of ch. 17 R.S. §§ Stat. at codified 2333-2337,2344, 22-24,26-28, 29, 30, 33-35, 37, as amended at 30 U.S.C. §§ recodified 39-42, 47.
396 Babbitt, Co. may filed for a lode or claim.3 R.T. Vanderbilt v. placer 1997). (9th If 1061, perfected 113 F.3d Cir. the claim is statutory requirements, it and with other properly staking complying enjoyment of all possession has the exclusive right claimant of his location. Coastal the surface included within lines California 76, 575,107 1422; Com’n, King, S. at Talbott v. 480 U.S. at Ct. (1886). of the 97-99, 434, property P. 435-36 The area becomes the domain-i.e., and, thus, segregated grounds from the locator cease to be lands when within the boundaries the location St. title to the land. location is made-but the United States retains Co., Milling 171 U.S. Mining Mining & Co. v. Montana Louis Com’n, 575, 107 (1898); 19 S. Coastal 480 U.S. at Ct. California 1422; Talbott, 442; Mining 9 P. at Silver Bow S. Ct. at (1885). Clarke, Milling & v. Co. Possessory indefinitely, provided in the claim can be held interest fee performed, necessary filings and the annual assessment work is all made, deposit are and the valuable mineral continues payments (9th Co., Babbitt, v. 105 F.3d Independence Mining Inc. exist. 1997). Cir. may fee to the perfected mining claim secure title The holder of of the Interior by applying Department
land
United States
Mining
complying
requirements
General
patent4
promulgated thereunder.
Coastal
regulations
Act and
California
Mining,
Com’n,
Independence
107 Ct. at
480 U.S.
S.
filing
land
requirement
proper
One
II. The Land and Road at Issue Placer, Placer, Plymouth Rock Plymouth and the Rock Extension Placer are three parcels by land situated side side (the Ridge Butte, in the East area of Montana. The Cobban Placer parcel) by westernmost was located William F. Cobban and William H.
Lewis in and the government 1896; federal issued the patent (the Plymouth parcel) by Rock Placer middle was located John T. Reese and the patent Plymouth was issued in and the (the Rock Placer easternmost parcel) Extension was located John T. Reese in and the was issued 1898. The Cobban Placer has been since subdivided into lots now owned a number of Plymouth Landowners. The Placer the Plymouth Rock and Rock Placer, subdivided, Extension neither of has which been are now It appears owned OLR. from photographs aerial taken in 2002 and included in all forested, the record that three parcels partially are (residences the Cobban Placer contains a number structures outbuildings), Plymouth Plymouth and that the Rock Placer and the Rock largely undeveloped. Extension are plans tram, station, lot, OLR to construct a tramway parking carousel, rides, associated amusement park other tourism-
related improvements Rock Extension Placer. The Rockies, tram is to carry up Lady intended visitors to Our a 90- overlooking foot statue Continental atop Ridership Divide Butte. 14,075 year vary
estimates for first between operation 60,285 variety factors, depending including accessibility on a ease of (construction ramp exit off Interstate 15 versus use of the road) frontage existing marketing efforts. At the specific issue in case is route which OLR would like tramway access It provide public proposed appears station. (Mineral 4200),
from the 1893 No. Survey the Cobban Placer *5 (Mineral Plymouth Survey No. survey the the Rock Placer Placer 5153), Plymouth the Extension and the 1897 Rock (Mineral 5154) the Survey historically that a road traversed No. the Plymouth Placer terminated on Cobban Placer and the Rock According the notes Plymouth Rock Extension Placer.5 field surveys, these road varied between 6 and with the corresponding edge it the present, paved feet At the road is enters western wide. road and the It then becomes a 12-foot-wide dirt Cobban Placer. gate it the Woods’ remains as such until reaches metal behind (about way the Cobban garage across detached two-thirds Placer). heading remainder ofthe Beyond gate (i.e., the east across the Placer), the is an Plymouth the Rock road Cobban Placer toward middle. unmaintained, grass growing down the single-track lane parcels depiction of the road in relation following The added): (labels the record provided lots Survey expert concerning No. 5154’s field District testified Court OLR’s surveyor
notes, landmarks observed detail courses followed and the which “along line” expert end The stated that east Plymouth Rock Extension Placer. however, note, easterly We surveyor a road headed direction. encountered Survey “the line field notes is east-end to in No. 5154’s that the east-end line referred of Sur. No. (the parcel). 5153,” i.e., Plymouth Rock middle Placer the east-end line of Thus, line of Survey that the road crossed east-end No. field notes establish 5154’s Placer, Plymouth Rock Extension Plymouth the iwesi-end line of Rock which is eastern, northern, crossing a road field do mention *6 addition, the argued Landowners if the alternative that an use, easement does scope exist for the easement’s is a 12-foot- road, wide “60-foot, dirt not a public highway 2-lane barreling through [the properties.” Landowners’] The District Court held a hearing parties’ July on the motions on
23, 2004, and entered findings of fact and conclusions on of law 24, 2004. November Addressing theory, OLR’s express-reservation court stated that express “[a]n easement reservation arises when purchaser’s plat deed refers to a clearly where the easement is depicted” (citing Ass’n, Pearson Virginia City 12, Ranches 2000 MT 21). 52, 21, 688, ¶ 993 P.2d The court further stated that the reference the plat “must be put purchaser sufficient to on notice’ ‘inquiry being that the is property conveyed pursuant to a particular (citing Turner, recorded document” Halverson v. (1994)).
168, 173, 1285, regard, P.2d In this the court patent Survey observed that the Cobban Placer refers to Mineral No. July 26, 1866, Act of ch. 14 Stat. § codified 932, repealed by Policy Management 43at U.S.C. Federal § Land and Act of
recodified 94-579, 706(a), Pub. L. No. § Stat. theories, In addition these three OLR raised a number other theories during OLR proceedings complaint, the course of the Court. In District its amended however, alleged prescriptive public; pursue theory use OLR did not this summary Furthermore, judgment stage. at the when OLR first articulated its (in theory support summary judgment), reservation its for brief its motion OLR implied prior existing use, implied by necessity, discussed easements and from easements by express argued easements created reservation. OLR then that “the federal government implied response, reserved an across In easement Placer.” express Thus, implied.” assuming Landowners that OLR “an asserted that reservation cannot be relying implied-easement express- was on two well theories as as an theory, However, subsequently easement clarified the Landowners addressed all three. OLR arguing “express it that was easement reservation.” (“MS 4200”). locations, distances, survey depicts This and boundaries,
bearings as number of Cobban Placer well a including ditch, creek, road, a a improvements objects, and natural cabin, ravine, railroad, survey and a all of which are labeled. The Surveyor in the United Office in originally was filed States General’s Helena, Montana, May 20, presently on file at on and Office, Thus, Management, Billings. Bureau Land State Montana that and accessible to the the court reasoned “MS was recorded access the public, any person ‘inquiry such notice’ could conclusion, In the court reaching review its contents.” not a rejected the Landowners’ contention MS was clerk and county document because it was not filed with “recorded” recorder. As the nature of the road on MS the court depicted for First, it “public” for a of reasons. the court
concluded number at the “belonged” reasoned that the Cobban Placer the United States (in 1893) land, surveyed it and that road on the time was therefore, public. Second, opined that at the time the was court (in 1896), only Cobban Placer was issued Plymouth Rock ingress egress persons seeking access to the Placer, still Rock Extension both which “belonged” government. Lastly, to the federal the court observed over the depicted surveys maps the road had been on a number of being appears “often times identified as road.” It century, last legal significance court to the label from this that attributed surveys maps. it said “public” appeared where genuine that there were no issues of The District Court held *7 that, theory as and as express-reservation material fact to OLR’s law, government the reserved a road expressly matter of federal Placer Placer when it referred the Cobban across the Cobban dedication MS As for OLR’s R.S. 2477 and common-law two could not theories, the court determined that these theories former, to the the court summary judgment. respect on With resolved public accepted the remained to whether questions held that factual establishing public under R.S. 2477 government’s the federal offer to the recognized respect state law. With in a maimer under highway remained latter, questions factual the court likewise ruled that alleged the common-law acceptance the regarding public’s Moreover, court observed public. of the road dedication following conflicting regarding “presented had evidence parties (1) Road, any, if uses ofthe the actual commercial issues: (2) uses; of county the duration of such the nature and extent (3) Road, Road; if it maintenance width determined be a road Accordingly, or easement.” court judgment denied motion with summary respect OLR’s R.S. 2477 and common-law dedication The theories. court also denied summary judgment. Landowners’ cross-motion for grant The now from appeal summary Landowners ¶13 judgment on OLR’s express-reservation theory. party appeals Neither judgment from the on summary District Court’s denial of OLR’s and common-law dedication theories.
STANDARD OF REVIEW ruling We review a district on summary court’s a motion for novo,
judgment de applying same criteria of M. R. Civ. P. 56 as did Garden, L.L.C., Valley court. Cole v. Ice the district 115, 4, 2005 MT ¶ 56(c) 99, 4, 275, 327 Mont. 113 P.3d provides ¶ 4. Rule “[t]he ¶ judgment sought shall be rendered if the pleadings, forthwith admissions depositions, interrogatories, file, answers together affidavits, if any, show that genuine there is no issue toas material fact and moving party is entitled to a judgment as a matter of law.” The evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences are to be drawn therefrom favor the party opposing summary Attorneys Redies v. judgment. Liability Soc., Protection 9, MT 26, 233, 930, ¶ P.3d 26. The ¶ determination that ¶ the moving party is or to judgment entitled as a matter law is conclusion, legal Hughes Lynch, which we review for correctness. 177, 8, 8, 2007 MT Hi-Tech ¶ 338 Mont. ¶ P.3d ¶ Motors v. Bombardier Corp., Motor 2005 MT ¶ 117 P.3d
DISCUSSION Preliminary
I. Matters Before addressing parties’ arguments, necessary it is dispose preliminary concerning four matters before us issues and the applicable law to those issues. parties may First. not dispute do whether OLR itself use the
roadway ingress egress across Cobban Placer for to and from the the Plymouth Rock Rock Extension Placer. In brief, they their opening Landowners state that “never have denied a primitive passes beyond parcel, [the Woods’] over Clark *8 Plymouth parcels, denied to the Rock Placer and never have parcel, private parcels.” access for the owners of those provides that the road easement; identify private the source of this The Landowners do however, analysis, specific since point is immaterial our roadway general public may use the dispute in this case is whether the Rock Plymouth Plymouth Rock Placer and the Extension access Placer. express- scope appeal The of this is confined to OLR’s Second. only theory on which the District theory,
reservation which is the only theory argued by the summary judgment Court and is the granted theory, across the Cobban appeal. on Under this road parties in the Cobban Placer by express Placer was created reservation (the patent, Placer MS conveyance documents of Cobban notes). Notwithstanding, presents field Dissent MS 4200’s road the Cobban Placer was lengthy argument that across Yet, determined explicitly under R.S. 2477. the District Court created theory “questions of fact to OLR’sR.S. 2477 material respect by summary judgment.” Neither exist and the issue cannot be resolved appealed ruling. Accordingly, from OLR’s R.S. party has this remand, theory parties on should is an issue be addressed so; this on this they to do it is not an issue for Court decide choose Indeed, points response appeal, OLR out its brief appeal. 2477 “irrelevant to this case.”
discussion about R.S. analysis are only pertinent The facts that are to our herein Third. of MS 4200 and to issuance pertain those which creation genuine dispute. there is no and over which Dissent, however, into number of factual appeal inserts this irrelevant, disputed by the unproven, parties, matters that are instance, us that record. For the Dissent advises contradicted Dissent, issue,” of the Road at development we should “examine so, the road opining to do purports and the Dissent then since 1889 when MS has been in existence and in use depicted on Placer, that road Plymouth Rock John T. Reese located the Plymouth Rock Placer means of access to the constituted sole Placer, F. Plymouth and that William Cobban Rock Extension they “familiar road located with” the when William H. Lewis were 1892, Dissent, 106, 108, 110, 125, see Cobban Placer in ¶¶ however, matters, are not established These factual roads, as to what case presented record. evidence has been No ultimately area which became any, in 1889 and 1892 if existed route Rock Placer and what Placer and the the Cobban actually Reese used when he located his claim. There also is no establishing evidence in the record issue when it, constructed, actually period they who used and over what time *9 to the According report provided by expert conjunction did so. OLR’s research, the his results of his evidence established the existence road only surveyed since when the Placer Cobban was MS 4200 was if early created.8 But even the road did exist as there is the nothing establishing record it made “public” was pursuant any creating the methods of road under Montana law prior when the Placer segregated Cobban 3, 5, from the supra; domain. See State ¶¶ ex rel. Dansie v.
Nolan, The District Court findings Indeed, made no of fact as to of these matters. the court parties observed that the presented conflicting had regarding evidence Road, “the actual commercial or public any, uses of the if and the Thus, duration of such uses.” the suggestion Dissent’s these are matters established in the record is false. Moreover, question the hand is not whether a public road was
established over the by necessity, use, Cobban Placer acceptance public. Rather, above, a dedication to the as explained the question correctly is whether the District determined, Court as a law, matter of the government federal by created a road express reservation in the Cobban Placer documents conveyance. reason,
For this the Dissent’s dubious assertions, largely factual which relate to its 2477 argument, are not relevant issue on appeal. Along lines, these same Dissent relies on various maps and pertaining
records to the subject properties. e.g. Dissent, See ¶¶ However, maps none of these and records is referred to in the fact, Cobban Placer patent. As a matter of all of these maps and post-date patent. Thus, records by cited maps records entirely are ascertaining Dissent irrelevant purposes federal government’s intent when it patent issued the Cobban Placer in 1896.
Again, only facts of pertinent documents and record are to our expert’s report Railway map, Included with the is a Northern Pacific dated 1890- portion However, depicts map which a small shows road. the road entering west, depicts entering from Cobban Placer whereas MS the road According report expert’s testimony, from the northwest. the northwest to the and the the shift from point point shown MS 4200 west access access shown on the words, map map 1890-1914 occurred sometime between 1893 and 1914. In other necessarily post-dates dated 1890-1914 MS 4200. of MS 4200 and to the
analysis pertain are those which to the creation Placer and over which there no patent issuance of the Cobban genuine dispute. applicable Fourth. The last matter concerns law preliminary Although patent.
to our Placer interpretation Cobban right express reservation of “a patent Cobban Placer contains an authority way... of the United for ditches canals constructed States,” express “public no reservation of a patent contains such Thus, invokes road” across the Cobban Placer. OLR a state-law doctrine, during years, last 22 under articulated this Court instrument in an may which an easement be created reference conveyance adequately which describes plat to a or certificate of below.) (This in detail OLR explained the easement. doctrine is government expressly contends that the federal reserved referring across the Cobban Placer labeled “Road.” The Dissent also depicts
MS a road that is which argument easement-by-reference on this presents premised a brief Dissent, Yet, nor the Dissent 134-138. neither OLR cites doctrine. ¶¶ *10 law when any authority that such a doctrine existed under Montana that patent parties Placer or land transfers the Cobban issued in could be created this contemplated even easements authority OLR cite no point, manner. More to the and the Dissent may patent an land be government’s the federal intent under law 100 to a doctrine that evolved state pursuant construed after the fact. years Morton, 513 Landowners, citing In Ritter v. F.2d regard, this the (9th law 1975), governs that federal the point Cir. out premises the ofthe patent quantum a federal land
construction of that, to “well established conveys. responds pursuant it OLR which to an official law,” granted according are federal common where lands lands, part a the survey plat itself becomes plat such However, the by conveyed. are grant or deed which lands cited correctly out not one of the federal cases point Landowners an reference a recognizes OLR the creation of easement Furthermore, Landowners survey. to mineral patent federal land a a to be set out required in 1896 reservation contend that federal law itself, depiction from a a not divined expressly in the mineral survey.9 referenced Yet, present either a point during exchange party at no this does
sufficiently comprehensive analysis to which law-federal state-governs and this patent, the construction straightforward is not as as the Landowner’s citation to Ritter issue suggests. Oregon, (1935), In United States v. 295 U.S. S. Ct. Supreme “[t]he Court stated that construction of grants is a federal a question
United States state and involves the questions only consideration of state as it may so far be determined a adopted as matter of federal law that United States has impliedly and assented to state rule of construction as applicable its (citations conveyances.” Oregon, 295 U.S. at S. Ct. at 621 omitted); United Pappas, see also States F.2d 1345 n. 8 (9th (“Unless 1987) Congress intention, Cir. expresses contrary patents federal will be construed according law of state in lies.”). Thus, appears which it that the issue threshold here whether United adopted States and assented rule to a state construction. If a state rule of guide construction does interpretation patent,
Cobban Placer issue next is whether easement-more specifically, public road-could be created under law in Montana aby conveyance mere reference in an instrument of to a plat depicting States, the easement. See Hash v. United 403 F.3d (Fed. 2005) (“[T]he patentees] Cir. property rights [land these governed by are the law in effect at time they acquired their land.”); Homes, Inc., United States v. Gates Mountains Lakeshore (9th 1984) 732 F.2d (considering Cir. it law as stood at 1901). i.e., the time of grant, above, the land in March As noted OLR simply assumes an easement could created by this method in single without citation to a case supporting position. For their part, the Landowners contend that easement-by-reference doctrine relied on OLR is not apply “modem” “does century-old Yet, retroactively conveyance.” Federal land while this *11 vintage, doctrine is indeed of recent the notion of an easement created operation by presumed grantor of law to effect the intent of the is Sieben, 234-35, longstanding. e.g. 226, See Herrin v. 127 P.
323, (1912); Mining Mining Co., Pioneer Co. v. Bannack Gold point theory Landowners also out OLR’s “federal common is raised law” appeal. thus, argued and, the for first time on It was not the District Court was not evaluating summary judgment. considered the District Court in OLR’s motion for 254, 262-65, Thus, 198 P. 750-51 the Landowners’ easement-by-reference the doctrine “modem”
observation that is does fully question not answer whether an easement could be created law in in an of referring under Montana instmment conveyance plat survey depicting to a the easement. Notwithstanding competing assumptions as to which parties’ however, we applies,
law we have determined that need decide conclude, two the reasons these choice-of-law issues because we follow, neither law relied which federal nor state-law doctrine express-reservation theory. OLR supports OLR’s II. Law Federal *12 itself.
patent
Yet,
under
analysis
establishing
So ends OLR’s
federal law.
a part
patent
MS 4200 and the field notes are
of the Cobban Placer
is
establishing
government
far from
that the federal
to
intended
reserve
regard,
road across the
Placer. In this
the
Cobban
Landowners
States,
cite Leo
Co. v.
Sheep
(1979),
United
440 U.S.
S. Ct. 1403
Supreme
recognize
which
in
the
Court declined to
a reservation of an
by
government
easement
the federal
build
road across land
originally granted
was
to the Union Pacific Railroad under the
Union
Act of
Act
specific
Pacific
1862. This
set out a few
reservations
grant-e.g.,
to the
the grant was not to include mineral lands and land
Thus,
to which
given
there were homestead claims.
the existence of
these explicit exceptions,
Supreme
the
noted
Court
that it had in the
past “refused to add
by divining
list
some ‘implicit’
congressional
Sheep,
intent.” See Leo
S. Ct. at and the Supreme Court stated that it “unwilling was imply rights-of-way, with impact the substantial implication such would have property rights granted years ago, over stronger absence of a case for their than implication the Government here,” makes Leo Sheep, 440 U.S. at S. Ct. at 1411.10 OLR contends that Sheep inapplicable Leo this case because theory OLR’s is one of express, implied, reservation Yet, easement. OLR’s theory that a road was reserved over the Cobban Placer virtue of the reference the Cobban Placer patent authority to MS and OLR proposition cites no a reference in a federal land patent depicts a mineral which qualifies “express” labeled “ROAD” as an reservation under any case, federal law. In we conclude that rules of construction articulated Leo Sheep pertinent construing are the federal government’s intent when patent. it issued Cobban Placer then, Turning, language patent, to the we rejected Supreme government’s theory implied Court also of an by necessity, noting government power easement domain, that because has the eminent 679-80, 99 necessity. Sheep, easement not a See Leo 440 U.S. at S. Ct. at 1409-10. express that this document contains a number of reservations
observe grant. hereby In “there is reserved from lands particular, way thereon for ditches or canals constructed granted, right addition, authority states that of the United States.” In conveyed may premises hereby proprietor entered bearing . any quartz place or lode of or other rock . . vein extracting removing for the deposits, purpose valuable lode, same, thereof, part ore from such vein or should the intersect, through or into penetrate, pass dip be found to *13 hereby granted.[11] or mining ground premises a express But there is no reservation of road-let alone a road-anywhere patent. in the express prompted by presence The inference the of certain patent express and the absence of an reservation
reservations
(a
road)
is that no
particular right-of-way alleged
the
OLR
of
Sheep,
at
99 S.
right-of-way was reserved. Leo
440 U.S.
Ct.
such
Indeed, on
direct
attention to
point,
at 1410.
this
the Landowners
our
(Fed.
2005),
States,
F.3d
the land
Hash v. United
Cir.
where
rights
at
to the United
certain specified
issue reserved
States
patents
(namely, previously
rights, previously
and accrued water
vested
canals)
for
or
but
rights,
rights-of-way
mineral
and
ditches
did
granted
(a
government
reversionary
right alleged by
the
the
not mention
rights-of-way).
in
railroad
See
underlying
interest
land
discontinued
Hash,
imply
court refused to
a reservation
F.3d at 1314.
Hash
rights
right
light
well-recognized
property
“the
rule that
of this
in
of
grantor
are
reserved
the
cannot be inferred to
explicitly
that
not
Hash,
court
been
MS MS 4200 of a road labeled and the “ROAD,” (its course) width, location, descriptions of this road in the field government’s notes demonstrate the federal “clear intent” to reserve Yet, a public road. to the 1890 Manual according Surveying Survey Instructions the Public Lands the United States and Claims, surveyors Private Land required variety were to note wide objects during data survey, creeks, ravines, including ponds, improvements (e.g., cabins, groves, forges), curiosities, natural trails, “[r]oads directions, with their whence and whither.” The purpose these notations is made clear in the Surveyor General’s certification on MS 4200:
The Original
Survey
Field
of Mining
Notes of
Claim . . .
*14
the
known as
Placer
plat
Cobban
from which this
has been made
my
under
direction have
approved,
been examined and
and are on
office,
hereby certify
file in
I
they
this
and
that
furnish such an
will,
accurate
Claim
description
Mining
incorporated
said
if
patent,
into a
fully
identify
premises,
serve
and that such
objects
permanent
reference
made therein to natural
monuments
as will
and
perpetuate
the locus
fix
thereof.
[Emphases added.]
Given
purposes
these stated
we
notes,
MS 4200’s field
conclude
describing
that the intent behind
the road
depicting
therein and
it on
MS 4200 was to aid in the identification of the Cobban Placer and to
fix the locus thereof. It is
government
inconceivable that the federal
creek, trail, cabin,
public
every
mineshaft,
intended to reserve for
use
ravine, railroad,
survey.
and so forth
on a mineral
depicted
labeled
Indeed,
argument
authority
OLR’s
overstates the function and
(Ariz.
surveyor.
Crawford,
Placer
See
State v.
e.g.
P.2d
1968).
a
App.
Crawford,
government argued
surveyor’s
In
survey plat
on a
referred to
right-of-way
public
of a
notation
explicit
tantamount
to an
was
reservation or
patent
landowner’s
itself and that
patent
the landowner was
exception
bound
thereby. Crawford, 441 P.2d
589. The court rejected this
argument outright, stating that the existence of the right-of-way in
laws
question depended
pertinent
regarding
on the
Arizona
highways. Crawford,
Land patent had inserted into the for the Pawnbroker issued Lode This Claim. claim was located in *15 excluding from and exception “excepting in 1880. as follows: stated surface, all the rights upon patent property said all town-site blocks, houses, lots, streets, alleys, municipal or other buildings, improvements mining on the surface said Pawnbroker claim.” Silver 407-08, Co., Addressing & M. at at 571. Bow M. Mont. P.
validity
exception,
this
the Court first stated the settled principle
patent
mining
location,
that
for a
claim relates
and is
“[a]
back
then made.” Silver Bow & M.
purchase
consummation
M.
Mont,
words,
Co.,
at
580. In
patentee
5 P. at
other
“the
obtains
right
patent]
under
if
[the
same
he would have obtained
patent
immediately
had issued
after the
and compliance
location
statute,”
the terms of the
act
“[n]o
unauthorized
of the land-officer
issuing
Co.,
the patent can defeat this title.” Silver Bow M. &
M.
its
Continuing
analysis,
P. at
the Court
Department
observed that the Land
within
“must act
of its
scope
authority,
goes beyond
jurisdiction,
and as authorized
law. If it
its
the patent
Co.,
would be so far void.” Silver
M. &
Bow
M.
Silver Bow M. & M. 5 P. hand, In the case at reservation contained in the Cobban right way... Placer of “a patent for ditches canals constructed authority statutorily indeed, States” authorized; United (“In patents it was mandated. See 43 U.S.C. 945 all for lands taken § up August 30, 1890, under any after of the land laws of the United Act, States or on entries or claims validated west of the one meridian, hundredth it there is from expressed shall reserved right way the lands said thereon for described ditches States.”). However, authority canals constructed of the United no none-authorizing OLR cites law-and we have found the Land Department to insert a reservation of a road into the then, patent. Necessarily, depiction to the extent of the road *16 MS 4200 patent MS and the reference the Cobban Placer to road, of as OLR together public
were intended as a reservation contends, disregarded. this reservation is void and must be not the Cobban interpreting Dissent asserts that we err Dissent, According to patent pursuant Placer to R.S. 2477.
Dissent, part ofthe United States expresses an intent on R.S. Thus, in Dissent’s highways mining to reserve over claims. public view, conveyance do not although the Cobban Placer documents of road, public federal express contain an reservation of may gleaned from R.S. 2477. government’s intent to reserve one theory argued by in the Setting aside the facts that this was not OLR decision, Court, District was not the basis of the District Court’s authority appeal, not OLR on the Dissent cites no argued is Congress for the intended R.S. 2477 proposition whatsoever public patents. of roads in federal land function as a reservation Moreover, theory directly Supreme in the face ofthe the Dissent’s flies on an imply rights-of-way instruction not to based Court’s clear i.e., expressly inferred intent, patent an intent not set forth 678-82, Leo 99 S. Ct. applicable Sheep, statute. See U.S. regard, fact that theory 1409-11. In this overlooks the Dissent’s (according to opening was issued its patent of provisions of the Revised Statutes language) pursuance “[i]n States, Six, legislation Chapter Thirty-two, the United Title of Chapter Title 32 the Revised Statutes supplemental thereto.” 2477, however, is 2318 to 2352. Section comprised of Sections Thus, 11, Title of the Revised Statutes. Chapter contained in interpreting granted which was inapposite R.S. 2477 is for to 2352. pursuance of on our But it that R.S. 2477 bears even if could be said somehow merely patent, provision
interpretation of the Cobban Placer
over
right way
highways
of
for the construction
“[t]he
stated
This
uses,
hereby granted.”
lands,
public
not reserved for
for the
right way
nothing more than “an
language was
offer
particular strip
public highway
of a
on some
construction
173,
intended to
roads
regard
body government.
without
for the
ofthe affected
wishes
local
(“[R.S.
Crawford,
operate
See
was
in Robertson v.
The defendants Meagher County] [the commissioners of insist that miner a mining subject who locates claim does so right public to under [R.S. 2477] to construct highway a over the same. grant There no reservation of this kind in the to the miner. . . . proper The construction of the upon law these is, think, subjects I right occupy that miners have the to explore lands; unappropriated public mineral that the have public right a an highway to easement for a unoccupied public over the domain, and that prior right. whichever is in time is prior in It is as inconsistent the public right for to claim a of way over an appropriated claim mining giving just without the owner thereof a compensation rights for his a as it would be for miner claim the to right for appropriate purposes portion mining public a which domain had been devoted to the of a public highway. use not, by terms, by The statute does express implication, or make rights superior either of these to each other.
Robertson, 417-18; St. accord Louis & San Francisco R. Co. July public highway by Prior to a could have been the act established proper authorities, by statute; by provided by public, period
of
as
use
for the
lands,
statutory
the statute of limitations as to
of the exact route confined to the
width
highway,
public highway; by
a
opening
later claimed to be a
and dedication of a
by
land;
partition
property.
July
an
individual owner of
or on a
of real
Effective
1,1895,
public highway
no route of travel
become a
could
until declared so
Nolan,
authorities
or made so
See
the owner’s dedication of the land affected.
Realty
Butte,
172,173,191 P.
City
102,109-
Barnard
Co. v.
Mont. at
10,136
1064,1067
(Okla. 1911)
Love,
(observing
118 P.
260-61
offer,”
“reservation”);
standing
amounted to “a
not a
see also Southern
Alliance,
F.3d at
n. 17
that the Land
(noting
Utah Wilderness
express
declined to treat R.S. 2477
reservation of a
Department
grant (citing Douglas County,
a
a land
right-of-way
patent
for
(1898))).
reject
Washington,
the Court settled thoroughfares power accommodate some ill-defined to construct compensation.” Sheep, U.S. at 99 S. Ct. at without Leo agree-we which will not divine 1413-14.Given sentiment-with we United implicit part some intent States reserve more than the nothing road across based on 6-foot-wide road MS 4200’s field notes notation implication impact of this road on MS 4200. The such an depiction rights in this state which derive from property would have on those century patents granted ago more than a is substantial federal implausible disregarded and cannot be on such an inference. based to MS 4200 did not reference the Cobban Placer law. road over the Cobban Placer under federal reserve III. Law State above, theory, noted ofits OLR support express-reservation As may under an easement
invoked state-law doctrine which conveyance plat in an instrument of created reference which describes the easement. The adequately certificate *18 analyzed claim Court, accordingly, pursuant District OLR’s as does on the doctrine on again appeal, doctrine. OLR relies Dissent. Yet, are patent governed Cobban Placer terms
¶43 issued, States, time Hash v. United in effect at the law (Fed. 2005); United States v. Gates F.3d Cir. (9th 1411,1413 1984), MountainsLakeshoreHomes, Inc., Cir. 732 F.2d arguments does OLR or Dissent point respective at no in their and law any authority establishing that under Montana produce referring merely by in a federal land road could be created a Rather, a labeled “ROAD.” depicting a road patent to mineral simply OLR and the assume that could be Dissent correctly created in this manner-an that the Landowners assumption dispute. Nevertheless, easement-by-reference because the doctrine is the arguments, basis of OLR’s state-law and the doctrine
sole because the sole correspondingly is basis of District Court’s decision on we express-reservation theory, OLR’s will address this issue assuming, arguendo, applies retroactively doctrine Cobban Placer and we consider whether the doctrine patent, will provides for the creation road across the Cobban Placer. We begin, however, by reviewing the doctrine and its evolution in our caselaw.
A. Easements Created Reference to a or Plat Certificate of Survey Mountains, In Majers Shining P.2d 1375
(1986), Shining acquired 7,000-acre Mountains subdivided ranch. In sell lots, Shining order to prepared Mountains plats assigned recorded subdivision which to each number lot and designated areas roadways. common The purchase and sale prepared by contracts Shining Mountains specifically referred to the plats. Majers, recorded See 219 Mont. at P.2d 1376. On facts, these we held that purchasers acquired private had designated easements for the Majers, uses. See Mont. at doing, P.2d at 1378. In so we that selling observed lots with reference map to a or plat designating streets, parks, or other areas open creates implied streets, parks, covenant that the open or other areas exist and shall designated. be used in manner Majers, See 370-71, 711 rule, P.2d at 1377-78. The noted, rationale for this we “ ” ‘the use plat inducing made of the the purchasers.’ Majers, 219 Mont. at (quoting P.2d Ute Park Summer Homes Ass’n (N.M. 1967)). Co., v. Maxwell Land Grant 427 P.2d More specifically, explained: as the Ute Park court grantor,
[A] induces purchasers, by plat, who use of a to believe streets, courts, squares, parks, open other areas shown on the plat kept open benefit, will their use and the purchasers upon inducement, required have acted such honesty common he he represented do that which would do. Park,
Ute
at 253.
P.2d
Pyfer,
In
(1989),
Benson v.
3-304, MCA,
is
to a properly
sold with reference
recorded
when
into)
(i.e.,
part
the document
plat
incorporated
becomes
plat,
179,
Benson,
in
See
tracts of land owned
parties’
predecessor
interest,
Dahlia
Halverson. In
Dahlia transferred the
Shirley
western tract to
Turner while retaining the eastern tract. The deed referred to a
recorded
survey
certificate of
that
showed a 30-foot-wide road
easement extending from the northeast
corner of Turner’s tract
westerly for a distance of 188.52 feet. This easement was to provide
access from Dahlia’s retained and otherwise-landlocked tract
to a
street running north from the northern boundary of Turner’s tract. See
Halverson,
170-71,
268
at
land description
necessary
is a
inclusion in an instrument conveying
title so that the extent of the claim to the property may
determined,
be
and a reference to a map
plat may
or
express, confirm,
included to
or amplify the land description.
Halverson,
See
at
P.2d
Furthermore,
at 1288.
reference in documents of conveyance to
plat
which
an
describes
easement establishes the easement, but in
determining the existence of an
easement
reservation in the
documents
conveyance,
it is necessary
grantee
property being burdened by the servitude have knowledge of its use or
necessity.
its
Halverson,
See
172,173,
Mont. at
885 P.2d at
Applying
these principles, we noted that
although the
description of the property being conveyed by the Dahlia-Turner deed
did not contain language expressly reserving an
Dahlia,
easement to
it did refer to the recorded certificate of survey which “clearly
show[ed]” and “adequately described” the 30-foot-wide road easement.
Halverson,
See
172,173,
Parker, 282 Mont. (1997), P.2d 641 depicted a meandering strip of land 40 feet wide and approximately 2,700 feet long, which identified simply as “lot 34.” This parcel a roadway, resembled and the district court found that there was “no other conceivable purpose parcel of configuration . reasonably Yet, . . could nothing serve.” Holdings, plat specifically Tungsten identified lot 34 as such. See Thus, Mont. at at 642. we held that the mere fact P.2d long configuration gave appearance lot 34’s it “the narrow it as roadway” developers “may [a] or that have intended
roadway” Tungsten create a easement. See was not sufficient to P.2d We Holdings, explained at 642-43. or writing” reservation must be created reserved
“[e]asements
deed
which
“Tungsten
point
plat
can
to no
contains
Tungsten
language dedicating
identifying
roadway.”
lot 34 as a
Holdings,
reference doctrine Ruana
single
in that case were
from
properties
split
issue
Later,
into a
tract and a southern tract.
ownership in 1977
northern
in interest
to the northern tract claimed
the successors
However,
for their
over the southern tract.
easement existed
benefit
easement,
language
of the 1977 deed did not create or reserve this
to which the 1977 deed referred did not
survey
certificate
Ruana,
444-45, 448-49,
Mont. at
this easement either. See
depict
1249-50, 1252-53.Although subsequent
subdividing
P.2d at
deeds
into
referred to certificates of
parcels
the southern tract
smaller
*21
easement,
clearly depict
specifically identify
did
and
claimed
that
Ruana,
450,
1252, 1253,
449,
Mont. at
913 P.2d at
we noted
see
275
Halverson,
can
by
“an easement
reservation
be
that under Bache and
land,
subject
when,
conjunction
with a division
established
of
survey
of
and the certificate of
easement is shown on
certificate
conveyance,”
deed
incorporated
is referred to and
survey
added). Thus,
Ruana,
(emphasis
275
at
P.2d at 1253
we
Mont.
split
that the
transaction documents which
the northern
held
Ruana,
ownership
“decisive,”
single
from
were
southern tracts
1252;
these
did not
448,
at
913 P.2d at
and because
documents
easement,
that the northern tract
the claimed
we concluded
describe
tract,
Ruana,
the southern
see
not benefit from this easement over
did
450-51,
Wallace, 307, plaintiffs P.2d 1117. The MT 292 Mont. conveyance in the deeds of to an easement claimed references and the defendants predecessors in interest the defendants’ between in favor of the to reserve an easement as a matter oflaw were effective “[a]n that while Kelly, disagreed, explaining 47. See We plaintiffs. ¶ by established reference by may reservation be easement conveyance adequately to a COS which document recorded describes easement,” by “creation of an easement in [this] reservation grantor party conveyance requires manner be to the right previously-held that he intend to reserve his own to use the Kelly, parcel.” servient estate after he sells the 48. We noted ¶ divided may rule be depart general we from that an easement cannot stranger give in favor deed in created of a to the order to effect to the grantor’s intent a nonparty. Kelly, (citing to benefit See Medhus ¶ (1979)). Dutter, 669, However, v. 184 Mont. 603 P.2d we shown,” 49, emphasized “clearly Kelly, that such intent must see be ¶ depiction and we held that an express plat easement on referenced grantor’s is not sufficient to demonstrate the intent create an easement for of a nonparty, Kelly, the benefit see See also Loomis Luraski, 27-37, MT ¶¶ 36 P.3d ¶¶ 27-37. ¶¶ summarize, To recognized our cases have the creation of an easement where the deed referred explicitly plat to a recorded survey subject certificate of on which the easement was adequately However, described. express depiction of an on a easement referenced plat survey sufficient, itself, or certificate of not to create an easement for the stranger addition, benefit of a In deed. by
easement may reservation only established when the dominant and servient split single estates are from ownership. An manner-i.e., by easement created in this reference in an conveyance
instrument of to a plat or certificate of on which the easement is adequately expressly, by described-must arise implication. Hoyem Galt, In G. 300,292 Albert Trust 1998 MT 968 P.2d “[a]n we observed that implication easement severance, operation created law at the time rather than instrument,” only types written and that are implied “[t]here two (1) easements: an intended based on easement a use that existed when (2) severed, the dominant and servient estates were an easement by necessity.” Trust, Hoyem By contrast, we stated in Halverson “[a]n easement reservation must arise from the written Halverson, documents of conveyance.” Mont. at P.2d Ruana, 1251; accord Tungsten Mont. at 913 P.2d at *22 Holdings, 642; Pearson, 18, 20. at Mont. at P.2d ¶¶ When (or language the deed itself contains no reserving granting) an easement, easement-by-reference our contemplates doctrine that an or adequately depicted plat described easement on a referenced survey certificate of is sufficient to establish easement. Bache, instance, In of survey depicted certificate Tracts of strip along boundary
and 2 and a
of land
the western
30-foot-wide
strip
Tract 2. The
of land extended from Tract 1 to a state route on
“clearly
Tract
it
specifically”
other side of
and was
identified
“P.R.E.,”
legend
“private
with the label
which the
identified as
manner,
roadway
held
this
had
easement.” We
that in
Baches
Bache,
Tract
favor of Tract 1. See
reserved an easement over
2 in
282, 286,
Halverson,
P.2d at 643. sum, an an created reference in instrument In easement survey describing the
conveyance plat adequately to a or certificate of as The term is defined express “express” easement is an easement. communicated; Black’s unmistakably directly stated.” “[cjlearly and ed., ed., 2004); 28- Dictionary 620 A. 8th West (Bryan § Law Garner cf. “express” contract as “one the terms of which (defining MCA words”). “[djeclared in “expressed” are The term defined stated in words; terms; implication.” stated in not left to inference direct definitions, the Dictionary Black’s 620. Consistent these Law unmistakably clearly intent create an easement must be using referenced or certificate plat communicated requirement This is the minimal labeling express language. or other may implied An inferred or the easement. easement not be establish or other inadequately described swath from an unlabeled or survey. plat certificate of appearing on depiction such Placer Patent B. the Doctrine to Application *23 Relying on Majers, Bache, Halverson, Tungsten Ruana, Holdings, ¶58 Pearson, OLR maintains that the United States expressly reserved public a road Placer, across the for purposes ingress to and egress from the Plymouth Rock Placer and the Plymouth Rock Placer, Extension when it issued the Cobban Placer patent. OLR asserts that all three of parcels these were “in common ownership” patent when the 1896; was issued in that MS 4200 and the corresponding field notes incorporated were into the patent; that a traversing road the Cobban Placer “clearly depicted” on MS and that “public” this road is because it “continued to and public from property on the east and the west of the Cobban Placer.” respond Landowners grant the 1896 of the Cobban Placer does not come within our easement-by-reference doctrine for a variety First, of reasons. point Landowners out that the Cobban Placer, Plymouth Placer, Rock and the Rock Extension Placer were each segregated from domain and became the property respective claimholders when the mining claims were located respectively. Therefore, Landowners argue, when the Cobban Placer patent was issued in 1896, the parcels three were not “in common ownership.” Second, the Landowners assert that a mere reference in a federal patent to a survey mineral depicts a road not evidence of an intent reserve easement and that the designation “Road” on a is, mineral survey itself, and of no more significant than the designations “Fence,” “Cabin,” “Creek,” “Mineshaft,” “Dam,” Third, etc.
the Landowners contend that our easement-by-reference doctrine private, serves to create public, easements. Lastly, the Landowners argue that our easement-by-reference only doctrine applies plats and certificates survey that have been filed and recorded with the county clerk and recorder. They contend that the safe orderly transfer of depends land titles ability on the purchasers and title examiners to find all documents pertaining to the title of the subject property at a central repository within county each and that District Court’s approach in the case at hand undermines this system. established agree We with the Landowners that the Cobban Placer documents
of conveyance do not meet requisites of our easement-by-reference doctrine; however, we need not points address all of the raised Landowners because following two considerations are sufficient resolve this issue. First, only recognized we have the creation of privately-held easement-by-reference under our cases. We have never
easements
road,
and we decline to do so
applied
doctrine
create
out,
presented
point
As the Landowners
under
circumstances
here.
by specific
governed
provisions
the creation of
roads in 1896 was
generally
part
law which
an official action on the
required
Butte,
Realty
City
public authority. See Barnard
Co. v.
Nolan,
(1913);
rel.
State ex
Dansie
172-73,
¶62 on clearly unmistakably and communicated the easement must survey Here, plat using express language. referenced or certificate however, language no or other on MS 4200 express there is label “public” a communicating depicted an intent to reserve the road as the the Nor is there evidence in field notes or in Cobban road. part government of an intent on the of the federal patent itself “ROAD” on a road the Cobban Placer. The label public to reserve across any of our cases to create an easement MS 4200 is not sufficient under Moreover, the in the record before us in favor of the evidence public. creating public government’s road was not the federal reflects that Placer, Placer, and the the Rock intent. the segregated public were from Plymouth Rock Extension Placer respectively. point, At that each in domain right possession claimholder mining had the exclusive respective the lines of his enjoyment of all the surface included within States, improbable It that the United supra. highly See is parcel. ¶ patent in would reserve it issued the Cobban Placer when which had parcels Placer to access two road across the Cobban public Placer) (the Plymouth Rock Extension public years domain six left (the Placer) were, Plymouth Rock earlier and which years and seven Reese). (John T. possession exclusive the claimholder Indeed, opined plat OLR’s that the label “road” on a expert providing is not indicative of a road unless road is access to on issue. property and from lands both sides of See ¶ supra. agree We therefore do not OLR’scontention that the mere with of a labeled on depiction clearly “ROAD” MS 4200 unmistakably “public” communicates an intent to reserve a road. argues The Dissent federal government’s intent light
reserve road across the Cobban Placer is clear in Dissent, However, the fact that Dissent 2477. resorting meaning to R.S. order to ascertain the label only on government’s MS confirms federal “Road” intent supposed clearly to reserve a road is not communicated unmistakably on 4200 using appropriate labeling MS express language. other reasons, For the foregoing hold that reference we Cobban Placer to MS 4200 did reserve a road across easement-by-reference Cobban Placer under our doctrine. concluding, Before it necessary address Dissent’s assertion that Opinion this somehow “reaches a at odds result with the practical history Montana, realities of property ownership particularly respect patenting mining the location and Dissent, claims in and diaphanous around Butte.” This remark entirely is based theory on Dissent’s own case-not on theory actually argued parties-and assumptions factual supported Moreover, are not record before us. the Dissent’s assertion is disconnected any property applicable from law patent. Cobban Placer The Dissent to cite single fails statute in effect *25 in 1896 supporting contrary a result to the holdings reached herein.
The Dissent likewise fails to cite caselaw in effect in 1896 supporting a contrary holdings result to the herein. reached appears graft It that the Dissent ¶66 would R.S. 2477 onto this Court’s easement-by-reference doctrine then apply public-road new this doctrine retroactively, indiscriminately, to countless land transfers span across the more than years, resulting in the creation of untold numbers unintended-public of unforeseen-and servitudes parcels across countless land in this state. The Dissent would do so regard special certainty without for “the and predictability need concerned,” at Sheep, where titles are Leo 440 U.S. 99 S. Ct. regard
at that impact” implying without for “the substantial rights rights-of-way property granted years would have on over 100 ago, Leo at Ct. at Sheep, 440 U.S. 99 S. construing government’s As a the federal intent matter
¶67
issuing
may
upset
long-settled
not
patent,
the Cobban Placer
we
vague
right
to accommodate a
and unsubstantiated
expectations
public highway
compensation
construct a 60-foot-wide
without
681-82, 687-88,
Sheep,
CONCLUSION government The federal did reserve road across ¶68 the Cobban Placer virtue of the reference Cobban erred Accordingly, MS 4200. we hold that the District Court in its the road the Cobban Placer traversing determination that express easement reservation created in pursuant road to an conveying MS 4200 and referred to in the documents of the Placer. Reversed. JONES, GRAY, sitting for JUSTICE
DISTRICT JUDGE CHIEF COTTER and RICE concur. JUSTICES NELSON, concurring. specially
JUSTICE District presented appeal The issue on this is whether the specific that, law, in its as a matter of the federal Court erred determination express in the Cobban government created a reservation conveyance. Opinion I Placer documents of believe Court’s correctly fully this resolves issue. this theory, As for OLR’s R.S. 2477 the District Court considered fact exist and the
theory “questions and determined that material states by summary judgment.” Dissent issue cannot be resolved Dissent, 107. This respect. erred in this District Court remark, however, best, given party has gratuitous that neither Indeed, ruling. party neither raises OLR’s appealed from the court’s acknowledges point. theory appeal. The Dissent R.S. 2477 Dissent, Nevertheless, lengthy argument the Dissent offers created under R.S. road across the Cobban Placer was Dissent, A review of the record 102-130. a matter law. ¶¶ develops further argument builds on and reveals that the Dissent’s *26 Response Opposition OLR in its to arguments articulated Summary Judgment. for Defendants’ Motion addition, In Dissent the matter of termination. addresses
¶72 Dissent, in their argued 131-132. The Landowners this issue motion ¶¶ any may summary judgment, claiming have was extinguished existed across the Cobban Placer reverse prescription. parties “presented The District Court ruled that the had conflicting evidence to this Court these of material regarding questions and, accordingly, [related fact to prescriptive summary use]” denied judgment on this The have not from appealed issue. Landowners this ruling. propriety The of the approach light procedural Dissent’s
posture requires of this case is self-evident and no further comment. said, That to the extent the various of the Dissent’s articulations law guidebook related to R.S. 2477 could be as a for subsequent viewed remand, proceedings in the District Court I it is necessary believe appropriate explain why to the Dissent’s 2477 analysis R.S. respects. founders in several The Dissent stresses the that a principle mining claimant took subject
title
his claim
against
valid easements
United
existing
Dissent,
States
at the time the
105,119,
claim was located.
¶¶
disputes
Indeed,
124. No one
point.
grant by
“a
the United
conveys
States
all the interest
that the United
has at
States
the time
grant,
greater
of the
. .
cannot,
[T]he
no
interest.
.
United States
by patent, convey
any grantee
right
greater
than it has at the time
grant.” Murray
City Butte,
of such
v.
P.
(1887)
City
(citing
Cases,
397, 12
Butte
Lode
Smoke-House
P.
(1885)).
(1887),
Hawke,
115 U.S.
Thus, a acceptance valid of the 2477 offer the date prior location upon against which a based was was “valid government, against grantees and therefore valid the subsequent government, question, subject who must take the land in to any against government easement which valid at the time of the Murray, City location.” 14 P. at accord Butte Mikosowitz, Conversely, “where one from the acquires legal equitable United States title prior acceptance dedication, to an grant [R.S. 2477] effective he and his subject successors interest do not hold to an easement for Pruden, the subsequent highway.” establishment of a United States v. (10th 1949) added).
172 F.2d Cir. (emphasis course, relatively Of propositions these unremarkable assume the theory-namely, R.S. 2477 very matter to be decided under OLR’s acceptance prior there was a valid of theR.S. 2477 offer whether February 20,1892, when the Cobban Placer was located. Dissent *27 Dissent, accepted asserts that John T. Reese the offer. 139. ¶¶ Yet, the offers no basis whatsoever for this assertion other Dissent Plymouth in 1889 the fact that Reese located the Rock Placer than legal question Placer in 1890. The of Rock Extension validly accepted the R.S. 2477 offer was cannot be answered whether nothing stating more than a document that someone located based Rather, mining particular place at a and time. the answer to a claim legal governing on the rules the creation of question depends this conjecture-that and on evidence-not mere public highways actual Ventures, Arizona, Inc. v. 499 F.2d Standage these rules satisfied. were (9th 1974). 248, 250 Cir. way states, entirety, right in as “The of for R.S. 2477 its follows: lands, public for highways public
the construction of
over
reserved
uses,
that R.S. 2477 is “an offer of
hereby granted.”
It is well-settled
on some
right
way
public highway
for the construction of a
Nolan,
ex Dansie v.
58 Mont.
strip
land.” State
rel.
particular
167, 173,
150, 152
It is
that this offer
191 P.
also well-settled
by
public highway
in a
only
accepted
can
the “construction” of
by the laws of the state
which
land is
manner authorized
Nolan,
173, 191 P.
standing
58 Mont. at
at 152.
cases
for
situated.
Pruden,
cases);
(citing
at
points
legion.
are
See
172 F.2d
these
(and
(1923)
Irish,
504, 507,
218 P.
Moulton
therein);
Alliance v.
cited
hut see Southern Utah Wilderness
cases
(10th
2005)
Cir.
Management, 425 F.3d
Bureau
Land
interpretation
of R.S.
(concluding
governs
“that federal law
acceptance
right
determining
required
for
what
but
statute,
from long-established
law ‘borrows’
way under the
federal
law,
provides
law
convenient
to the extent that state
principles
state
intent”).
effectuating congressional
for
appropriate principles
February 20,
Here,
Cobban Placer left
domain on
H.
located this
F.
Lewis
when William
William
3, Therefore, in
to determine
5.
order
mining
Opinion,
claim. See
¶¶
applied
as
acceptance
of the R.S. 2477 offer
there was valid
whether
identify
Placer,
necessary
the methods for
it is
first
to the Cobban
years prior
law in the
establishing
highway under Montana
165, 27, Rose,
¶
MT
1892. See Richter v.
¶
Alliance,
Prior to could have been authorities, by proper provided established either the act of the statute, by by by public, period use of the statute lands, confined of limitations as to route exact statutory highway, width of a later claimed to abe highway, and dedication of a opening road land, individual owner of the or on a of real partition property.
Nolan,
Richter,
191 P. at
accord
It
been
argued
has not
this case that a
prior
“by
established across
Cobban Placer
to 1892
act of the
proper
Indeed,
authorities” or “on a
partition
property.”
real
District Court observed
OLR had
not raised either of these two
“opening
landowner,
theories. As for
and dedication” by an individual
previously
Court has
held that R.S. 2477 does not come within the
meaning
of “dedication
owner
contemplated by
of the land” as
highway
Nolan,
Montana
172-73, 191 P.
laws. See
only
That
public,
period
leaves
“use
for the
of the statute of
lands,
limitations
toas
of the exact route
statutory
confined to the
*28
width of a highway, later claimed to be a public highway.”
July
Prior to
1, 1895,
Nolan,
period
years.1
175, 191 P.
was five
See
Co.,
427, 430,
420,
25 Mont.
65 P.
421
Accordingly, OLR was
(see
required
demonstrate,
to
convincing
clear and
evidence Watson
Dundas,
104,
41,
v.
164,
41,
2006 MT
332
973,
Mont.
P.3d
¶
136
41),
alleged public
that the
road across the Cobban Placer existed
February
since at
20, 1887,
public
least
and that the
used this road in
the requisite
five-year
manner
period.
Nolan,
for a
See
least five highway a common all that the road was “known and used as
shown
(1898)
361,
Auchard, 22
55 P.
people.”
State v.
Mont.
curiam)
omitted).
(citation
quotation
and internal
marks
(per
”
“
Furthermore,
‘convincing’
public
must be
that the
OLR’sevidence
”
“ definite,
course, continuously
uninterruptedly,’
fixed
‘a
pursued
Moulton,
508,
of
at
218 P.
statutory period
years.
for the
five
335,
Martin,
205 P.
(quoting
at 1055
Violet
(1922)).
“definite,
precise
“a
A
fixed course” is
course with clear and
Violet,
and of
character.”
205 P.
permanent
limits
journeying
might
casual
over what
thereafter
“[T]he
at 223.
mere
trail,
way
for a
road could not constitute
right
become
Nolan, Mont.
191 P. at
thereby made, public highway.”
at
Ore-Purchasing,
generally presently ripen as will into such an adverse claim inaugurate will (citation omitted)). owner.” right may against which be asserted Nolan, that it the intention “[i]t As we stated in is inconceivable was say persons or more Congress Legislature and of two open quarter of a dozen trails across an crossing random each government grant ofthe acceptance ofland could constitute an section trails, quarter the entire section thus become as to each such Nolan, way.” irregular divergent rights series of but a 191 P. at Court reached a similar conclusion with Supreme The Wisconsin of the R.S. offer: respect acceptance (Neb. 1901)]: Stallnaker, N.W.
As said in [Streeter standing right way offer a free over the “The statute was a and, domain, accepted appropriate as it as soon itself, highway agents or the manner very seems to us a fair and reasonable was established.” This *29 by private fugitive trespasses of the law. Mere construction lands, though for a even continued persons over time, It has been held requirement. do not meet the considerable by general a law accepted by passage it the state may (S.D. 1891)]; by also Pennington County, N.W. [Wells v. road, a platting, marking out county by surveying, authorities laying out of a to constitute a though such acts were insufficient [Streeter, by supra]; law also more general road road under by years’ public generally [McRose than 20 adverse use (Cal. 1889)]. held, Bottyer, however, P. 393 It has never been desultory that a months’ few of a by persons logging few use through woods, road or trail no by acts any kind, would acceptance authorities constitute by government. offer made (Wis. 1904). Emrich, Rolling
Town 99 N.W. hand, In saying that, far, it goes case without thus there been presented by has no evidence convincing establish clear and (see 130)-that standard, proof-or any Dissent, other for matter pursued permanent definite and fixed course of a Placer, character continuously uninterruptedly, over years 20,1892, for five prior February and that the was road known used highway as a to all people. common Not even the Dissent argues that such evidence exists the record before For us.
reason, and notwithstanding contrary the Dissent’s assertion the District Court did not err in denying summary judgment on OLR’s R.S. 2477 claim. Dissent, however, The attempts to circumvent this conclusion
offering method, a fifth not precedent, identified in Nolan or other establishing public highway for prior under Montana law 1892-namely, use of an individual particular for no amount of theory, entirely time. This novel of the Dissent’s own making, is supported by any legal authority not Nor whatsoever. is it factually established in the record now before us. The theory proceeds Dissent’s follows. offer was
open-ended Dissent, and self-executing. 115, 121. Reese ¶¶ accepted the offer when he located the Plymouth Rock Placer in 1889 Plymouth and the Rock Dissent, Placer in 119,135, Extension ¶¶ (The does actually Plymouth Dissent not state that locating the Rock Placer and the required Rock Extension Placer Placer, construction of a highway across the Cobban but this appears to be the premise.) Dissent’s Reese used the is at Dissent, 110, 135. necessary issue this case. It for Reese ¶¶ any particular to use the road for accept amount of time order to offer, R.S. 2477 since acceptance require any particular does not Dissent, duration of use. 115-124. It necessary also was not ¶¶ anyone road, acceptance but Reese to use the since require does not Dissent, 119, 129, 139. Therefore, use more than one individual. ¶¶ across public highway by operation the Cobban Placer arose of law and existed when Cobban and Lewis located the Cobban *30 subject Dissent, 106, 122, 135. and Lewis took title
Placer. ¶¶ Dissent, 119, 122, 124, 131. this highway. ¶¶ approach The is its most obvious flaw Dissent’s merely by accepted If the 2477 offer could be implausibility. R.S. lands, the entire across unenclosed then journeying
individual’s above, countryside public highways. of As noted this would consist Nolan, P. at rejected long ago, notion 58 Mont. at was Rolling, attempt and the Town N.W. Dissent’s of entirely unpersuasive. resurrect it is It aside, syllogism legally That unsustainable. Dissent’s method
certainly Congress specify particular or true did require accepting Congress the R.S. 2477 offer. Nor did procedure for to, by application approval by, the federal accepted offer be States, Utah United 503 F.3d government. County, See San Juan v. (10th 1068, 1084 Hodel, 1163, 1168 2007); Cir. Sierra Club v. 848 F.2d (10th 1988), part Village other Los grounds, Cir. overruled on of (10th 1992) Marsh, Cir. 956 F.2d Albuquerque Ranchos de banc). (en Indeed, rights way of of “the establishment R.S. entry, no no no required application, no administrative formalities: license, side; no act deed the federal formal of patent, no and no on of states localities in whom the part on the public acceptance Alliance Bureau was Utah Wilderness right vested.” Southern of (10th 2005). However, 735, 741 F.3d Cir. these Management, Land thesis that an individual could support facts do not the Dissent’s regard without for the laws of unilaterally public highway establish a contrary, To the particular state in which the land situated. required acceptance of the R.S. 2477 offer uniformly courts held that establishing method for of an authorized implementation Pruden, See United States v. highway under laws of state. (10th 504, 507, 218 1949); Irish, Moulton v.
F.2d Cir. words, grant “the referred In other establishing construction or upon effective became County, San Juan with the state laws.” highways, in accordance added). may The Dissent choose to at 1168 (emphasis F.3d under creating public highways manufacture additional methods theory, approach but its R.S. 2477 Montana in 1892 to suit law “open- 2477 offer was ground that the R.S. on the cannot sustained 104). (see Dissent, self-executing” ended and attempt to omit applies to the Dissent’s The same period of time. statutorily-specified for the use
requirement from other numerous cases Dissent, The Dissent cites 115-124. ¶¶ jurisdictions period there proposition specific for the is no of use Dissent, course, the applicable question to R.S. 2477. 118.2 Of accepted depends whether the R.S. 2477 offer was on the laws prior governing public highways Montana creation of Consequently, Kansas, which highway cases articulate laws Colorado, Nebraska, California, Dakota, Oregon, Mexico, South New Washington, point determining are not whether purposes the offer was relation accepted Cobban Placer. Dissent Moulton, also relies on our statement 218 P. at *31 1055, that holding “[w]e do not wish to be understood as by years prior 1, continuous use of a road for five to public July 1895, necessary was to a public highway unappropriated establish over to public requirements lands order meet the of the statute.” See Dissent, statement, however, 117. This must ¶ be understood in The proponents context. of the public highway in Moulton had that, if question “conceded . . . the road public ever became a it highway, by Moulton, was use or prescription only.” created 67 Mont. 507, 1, 1895, 218 P. at Prior to July period 1054. for acquiring by prescription thus,
title
was five years;
the case
tried
on the
theory that
1,
use of
road at
had to
back
July
issue
date
to
Moulton,
508,
1890.
therefore, appears simply to
acknowledgement
be an
that there were
other methods of establishing public highways in Montana prior to
Nolan,
See
173,
1895.
Mont. at
58
inapt
for
to the second method identified in Nolan of
establishing a public highway-namely,
public,
“use
for the
period of
lands,
the statute of
as to
limitations
of the exact route
statutory
confined to the
highway,
width of a
later claimed to be a
Nolan,
public highway,”
173,
Rose,
165,
1998 MT
962
379,
583,
P.2d
restated
we
this
quoted language
“prescriptive
period
from Nolan as
use for the
of time
2
(Kan.
particular,
Veal,
Hughes
1911),
In
the Dissent cites
v.
required by ¶ cases, McCauley subsequent in a number of see terminology 215, 21, 301 81, 21, 10 794, Mont. P.3d Thompson-Nistler, MT ¶ ¶ Ranch, 337, 21; County 17, v. 5 MS 2004 MT Angus ¶ Powell Rockin’ ¶ 17, 1210, Yet, 204, Mont. while I conclude that 102 P.3d 17. ¶ 2477,1 do with “prescriptive” inapplicable agree use R.S. statutory requiring period Dissent that use for the time to R.S. applied “counter-intuitive” July highway Prior could be established Auchard, P.
prescription. State
(1898)
curiam).
(per
convincing
had
proponent
present
evidence
(i.e.,
course
with
pursued
a definite
fixed
a course
character)
permanent
way
clear and
limits
of a
over the
precise
(five
claimed,
years).
continuously
period
the time
set
law
Auchard,
Martin,
demonstrate that use an (i.e., right of use adverse the landowner without owner’s Violet, at 223. 205 P. As the Dissent permission). R.S. “adverse” out, acceptance ofthe 2477 offer cannot be points Dissent, all, offer; to the United States. After 2477 was 2477, therefore, was government’s and use under R.S. federal Thus, suggest acceptance it is offer permission. incorrect use. by public “prescriptive” use is *32 adverse, said, That the Dissent reasons that the use is not because
¶89 for require any to the use to occur it would be “counter-intuitive” Dissent, point, I could of 119. On this not particular amount time. thing, the For the offers no disagree Dissent. one Dissent more objective determining for whether the character and alternative basis an of the acceptance of use were to constitute public extent sufficient of simply The that the location R.S. 2477 offer. Dissent asserts mining acceptance right-of-way adjoining ofa over claim constitutes an as guidance insight no or to Notably, provides land. Dissent public claim-here, Plymouth locating mining of specific aspects what use by Rock Placer-involve Rock and the Extension extent, character and constitute public, sufficient acceptance 2477 offer. of theory of new importantly, proposed More the Dissent’s precedent, without years in the of Montana
acceptance flies
face of
years
date.
after
at this late
Five
any
changing
rationale for
course
enacted,
Smith,
v.
[R.S. does not particular portion public 2477] devote of highway. general right domain to a It gives public to the of a right lands, of for that way purpose public over and should be only to offer devote use any belonging construed to that lands uses, general government, public not for reserved that the public might, through proper officers, its select. the public Until made, then the offer accepts particular and seeks to devote some portion public of for highway, rights domain no accrue to the City County over such lands. The See San Francisco of al., v. David rights Calderwood et Cal. [1867]. No could land, have upon portion accrued Cement until gulch, legislature either declared up the tollroad highway, the same a until county the said commissioners sought to locate one there. added).
Robertson, 1 at Thus, 417 (emphases interpreted by the Court in acceptance of the Montana R.S. 2477 offer required action the proper authorities. later, years Butte, Sixteen in Murray City Court 7 Mont. (1887), 14 P. suggested proof “actual user and
occupation” by prove could be sufficient acceptance R.S. 2477 offer. Murray, See 14 P. at so doing, 657. In the Court from borrowed the doctrine of for public dedication “ use, observing as follows: particular ‘There is no form ceremony necessary in the dedication of land to use. required All that is land, is the assent being of the owner of the and the its used fact of purposes appropriation.’ ’’Murray, intended 7 Mont. (emphasis at P. at 656-57 in Murray) (quoting City Cincinnati (1832)). Lessee,
v. White’s
U.S.
Pet. 431
The
did
Court
indicate what character and extent of public
required;
use was
however,
question
arguably
was
given
immaterial
(and
court)
particular
City
proof
offered
refused
the trial
testimony by
of the original
one
locators of the
mining claim the
claim,
effect that when he located the
“public”
there were
streets and
(the
issue)
highways
already
Murray,
ones
in existence. See
the to a over lands. public The method roadway specified; not and it
which the to be established is held, therefore, Congress must intended that acts be roadway private by acquire public a over public might which the by than would be sufficient to constitute property, purchase, other acceptance grant an of dedication.
Mikosowitz, respect at P. With to the of strip at 595. issue, City’s at we evidence-which touched the land concluded that disputed made of character extent of use jury’s finding had used ground-supported strip “that been more, roadway years July a to public generally prior as for five evidence, thus, a road 1895”; the “was sufficient to establish subject passed if it had been the prescription, over which Mikosowitz, at 102 P. private ownership.” Hence, acceptance to effectively tethered of the R.S. 2477 offer we public private property; a over and with acquiring roadway methods of case, respect factual circumstances we particular ground the manner and disputed concluded use necessary public private property by a road over extent to establish public accept the R.S. 2477 offer over prescription was sufficient land. acceptance public of the R.S. 2477 offer mere use The rule that repeated has been
requires statutorily-prescribed period use for the Nolan, 173-74, 191 cases since Mikosowitz. See numerous 1054, 1055; Parker 152-53; Moulton, 507-08, 218 P. at P. at 67 Mont. 75, 77-78, 758 292, 293 (1988); Rose, v. Elder, P.2d Richter Nolan, In 165, 28, 289 Mont. 962 P.2d ¶ 1998 MT Anderson, following Vogler quoted approvingly language from we (Wash. 1907): act judgment theory “The trial court based its way for the construction Congress granting right a use was a lands not reserved for highways over grant praesenti, effective the moment and became it is not way public highway, began using the for time order necessary way any specific that a be used should grant under this statute. it as acceptance constitute * * * said, user said, that a But it or intended for that period years would be sufficient any lesser than seven would that a lesser contrary, period On the hold purpose. grant made the terms of suffice in this state would violate right way for a to establish grant Congress. established in some public highway must be
highway, and *34 * ** ways by grant the provided statute before takes effect. by by shortest statute to user period highway allowed establish * * * years,
in
period
this state is seven
and no user short of this
acceptance
grant
can therefore be held to be an
contained
Congress
the act of
cited.”
(asterisks
Nolan,
174-75,
original)
cases have consistently proponent prove that the use was, fact, “public” e.g. and over a definite and fixed See course. (“The
Auchard,
265 P. Maynard 93, 95 (1934); P.2d Southern Utah Wilderness Alliance v. Bureau cf. (10th 2005) Land Management, (noting 425 F.3d Cir. that for Department “highway” R.S. 2477 purposes, Interior defined highway as follows: “A have large is a over which the right passage every thoroughfare and includes which is used books, is, English and public, language ‘common to all the ” (citations King’s subjects.’ quotation and some internal marks omitted)). convincing long precedent requiring In the face of line of highway statutorily- was for the alleged
evidence that used the character and extent of use prescribed period time argues Dissent we should people,” “commonto all the now established, wholly of a predictable approach our favor abandon no of time arbitrary particular scheme under which use for amount accept persons number of is sufficient to particular no noted, guidelines other than 2477 offer. As the Dissent offers no Reese did in the course of conclusory its assertion whatever locating Plymouth Rock Placer and the Rock Extension Placer, acceptance. it constituted an contemplated by any during This of our cases approach was (1866-1976), I time in which R.S. 2477 was in effect period subjectivity into
strongly disagree injecting ambiguity such engender uncertainty it only this area oflaw—not because of would *35 state, the Dissent’s respect to land titles in this but also because justification. the Circuit any persuasive aptly lacks As Tenth approach : in Southern Utah Wilderness Alliance observed private holders and landowners right-of-way Both and claims have an interest potential faced with R.S. 2477 accomplished status ante. That is best preservation quo the Hodel, Club v. 848 F.2d changing [Sierra standards. In legal (10th 1988)], Court that “R.S. 2477 Cir. this observed and hand, private [the landowners rightholders, on the one lands, ofthe on Management] of Land as custodian Bureau each other, developed property relationships the have around scope the of an R.S. 2477 road.” 848 particular state’s definition of of an R.S. The same can be said of the existence F.2d at 1082-83. 2477 road. Alliance, Southern 425 F.3d at see also
Southern Utah Wilderness (“This Alliance, unanimity at 765 Wilderness 425 F.3d Utah But weight.”). is entitled to interpretation great many years over a duration use under R.S. 2477 from if we were to sever duration of even I could not prescription, statutory period applicable use under the period time and utter abandonment complete subscribe use. None of the showing sufficient guidelines or clear (see such an supra) support Dissent 86 n. cited the authorities approach. the legally position, unsound the Dissent’s Lastly, aside from are not factual assertions that argument rests on
Dissent’s entire Indeed, fairly could be said before us. it in the record established Dissent in wild to events and activities that engages speculation the as the may place during early have taken late 1880s and 1890s Placer, ultimately area which became the Rock Plymouth Cobban Placer, Plymouth among and the Rock Extension Placer. Most notable those, repeatedly depicted asserts Dissent road than, since, has use MS was constructed no later been in Plymouth when located Reese Rock Placer. The Dissent also only surmises that was not on the simply maps this road indicated surveys us, found, in the record District before as the Court but actually Plymouth was the “sole” means of access to the Rock Placer Plymouth Rock Placer. Extension There is no factual basis in the record for either these assertions. map prior No record shows the road 1893; no indicate when; records who built road and and there is no route(s) establishing evidence what Reese Plymouth used access the point Rock Placer. All know at this we is that road was existence when was it described MS 4200’s field as a *36 judgment, there is no of mining evidence record a substantial 3 regard, recognize may In I we the that draw inferences from record for purposes is well evaluating judgment. However, summary of OLR’s motion for as the Dissent aware, might all reasonable inferences be drawn from the offered evidence party opposing summary judgment. Co-op. are be drawn in to Farmers Ass’n of favor Amsden, LLC, 286, 24, 690, 24, 445, 24; v. MT 2007 171 P.3d ¶ ¶ ¶ Larsen Agency, Inc., 270, 11, 11, 7,338 407, v. Western States 956, MT 339 ¶ Ins. 2007 Mont. 170 P.3d ¶ 11; Dept. of Transp., 169, Stokes v. ex rel. ¶ ¶ State Montana 2007 MT Mont. 7, 865, 7; 165, 132, Co., ¶ 162 P.3d Shelton v. State Farm Auto. 2007 ¶ Mut. Ins. MT 13, 531, Here, 13, 378, party summary 337 opposing ¶ Mont. 160 P.3d ¶ ¶ Landowners; thus, judgment theory 2477 OLR’s R.S. is all reasonable inferences might from the evidence be drawn offered are to drawn in the Landowners’ favor.
438 Plymouth Plymouth Rock Placer or the Rock
operation on either the of Thus, assuming the road existed as 1889 Extension Placer. even Placer, Plymouth presented located the Rock the evidence when Reese way “a OLR far not establish that the road was thus does Violet, “by generally.”4 its use the public common to all” and that Min., Glaus, Mont. P. at Brimstone Inc. v. cf. 175, 28, (holding MT 77 P.3d ¶ ¶ company for by agents mining that use of the road at issue in during relatively periods short of time exploratory purposes and did use the public). months not constitute continuous summer exists, law, as a of concluding public highway In that a matter pursuant the Landowners’ to R.S. the Dissent properties over question of whether both the law and the record. The has misstated public highway the road the Cobban Placer is is issue across following development of a factual complete addressed properly application Court and a correct of laws record in the District to public highways prior of in Montana governing the creation JUSTICE MORRIS dissents. practical odds with the The Court’s decision reaches result at Montana, property particularly of history ownership
realities of the mining respect of claims patenting with to location I dissent. around Butte. construing “may propriety recur 102 Courts statute it ...” in order to ascertain the
history
passed
of the times when was
States,
Sheep
v. United
Leo
Co.
particular provision.
reason
The Court
be well
99 S. Ct.
would
U.S.
of
light
at issue in
development
of
Road
advised to examine
and the
history surrounding
development of the American West
history,
from
much of Montana
cases
Butte
domain. Like
example,
the Court in
early decisions
this Court. For
dominated the
(1886),
competing
439
Mining
Mining
1872,
Act of 1866
claims
and
General
Act of
26,
arising
patent for the “Butte”
site
on September
from
town
issued
Talbott,
77-78,
6
1877.
Mont. at
western is a domain 25 state. Stat. 676 Montana’s lands passed private ownership from the domain to and State Congress. Act granted specific of The United States Montana tracts for schools other public purposes Enabling and 1889 Act. 25 Stat 1862, 676. acquired public Settlers lands under the Homestead Act of 12 392, Stock-Raising 1916, 862, Stat. Homestead Act of 39 Stat.
and 1877,19 Miners, the Desert Lands Act of people Stat. 377. like the Placer, who patented the acquired public lands under the Lode 1866, 14 Mining Act of Stat. Mining and General Act of 17 Stat. The disposal 91. United States used of the public domain frontier, alternatively civilize the wild to stimulate the American economy, to provide and structure transportation for national and of goods. Hill, distribution American Robert Tudor The Domain Public Democracy: Social, and Study A Economic and Political Problems in (AMS the United States Relation to Development Western Press 1968). goals brought These and policies thousands of Americans to during Montana the late 19th and century early century. Hill, 20th See The Public Doman and Democracy at 16. step promote goal
¶104 One of developing deposits mineral involved the United rights-of-way States granting across the domain for the of public highways through construction provision Act, Mining commonly 1866 Lode now known as R.S. Act of July 26, 1866, 262, 1, 14 ch. recognized Stat. 251. Section 8 of the Act § preserved rights-of-way already in the public existence on domain notwithstanding patents. 2477; Murray the issuance of future v. (1887). Butte,
City grant 14 P. “open- ended self-executing.” Hodel, Sierra v. Club 848 F.2d (10th 1988) Village Cir. overruled on other grounds by Los Ranchos (10th 1992). Marsh, de Albuquerque 956 F.2d Cir. Every originated acre of the public Montana land domain. (1889).
25 Stat.
Every
original
Montana landowner succeeded the
sovereign
Many
landowner.
of these landowners took title to the
portions
subject
to existing
granted
domain
easements
pursuant
Murray,
to R.S. 2477.
judicial or other declaration....” 2007). (10th U.S., Cir. F.3d recognized Court and the Court Both District survey plat incorporates for the the 1893
patent issued Cobban Placer field v. East Omaha *38 certainly future put any purchasers the field notes on accompanying Cobban public of the existence easement across the inquiry notice across the domain importantly, public Placer. More Road existed and H. the Cobban when William F. William Lewis located Cobban by operation of law Placer in 1892. This fact creates a road Irish, 504, 510, 218 P. pursuant to 2477. Moulton 67, 1053, (1923); P. at 657. Murray, Mont. at a matter of law when it denied The District Court erred as ¶107 summary I judgment OLR on R.S. 2477 claim. address this issue to its appeal light in fact that though party even neither raised it on determining a review of the entire record the Court undertakes 231, 236, County, Reid Park 192 Mont. existence of a road. (1981). situations, 1210, 1213 to such applies 627 P.2d This standard ability on here, rely concern exists over the to as one where extremely old. of the record because record completeness County, MT 317 Mont. ¶ Garrison v. Lincoln A reveals that this error 77 P.3d 16. review the entire record fact, law, than of material any genuine prevented rather issues its claim summary judgment from OLR on granting District Court road R.S. 2477. pursuant that the Road was F. and H. Lewis located the Cobban Cobban William William ¶108 effectively This Cobban Placer Placer in 1892. location Com’n v. from Coastal removed it domain. California (1987). Co., 575, 107 S. The 480 U.S. Ct. Granite Rock south the Cobban land to the west and Road initiated through Cobban Placer to access Placer and extended Placer the time that Rock Extension Plymouth Plymouth Rock Lewis located Cobban Placer. Cobban and Mining Law of Cobban Pursuant the General They survey, filed the surveyed Placer
Lewis had the Cobban Surveyor May Office on the U.S. General’s MS their title and received perfected Cobban and Lewis the U.S. to them from passed 1896. Title the U.S. transferring The title from Government Government. deed accompanying field notes. to MS 4200 and Cobban Placer referred crossing the depicts MS 4200 the easement claim and labels it Surveyors Plymouth “ROAD.” mapped neighboring Rock Claims Plymouth Mining Rock Extension Placer Claim in 1897. Both surveys depict surveys only the Road. Both the “ROAD” as the depict provide however, in existence, access. The Road has been (Reese) least since 1889 and 1890 John Reese when T. located the Plymouth placer Rock and The Rock Extension claims. Road sole the Plymouth constituted means of access to Rock and Plymouth Rock Extension claims. The Road does not amorphous sheep constitute some trail
winding yon open hither and as did country across the one described Nolan, 167, 172-73, 191 150, 151-52 in State v. In fact, the appeared interruption Road has without and in same following location on the maps aerial since 1893: photographs * A * A Railway Northern Pacific Map 1890-1913; dated map GLO dated 1913; * The Company’s “Hycon” map 1952; Anaconda base dated * Geological Survey 1952; U.S. aerial photograph dated * Geological Survey Quad” The U.S. “Homestake Map dated 1963- * A Highway Map-Silver General County, Bow indicating the *39 inventory gas road for apportionment, 1948-1989; tax dated * Aid, A City Federal System, 1977-1986; Local & Road dated * A Butte & “Map Vicinity” prepared by of J. Miller of the Butte- Silver Bow/State Montana Land Appraisal May Office dated 1986; and * Plat,” A “Cadastral Department Montana of Revenue-Property Assessment Division Appraisal, Butte-Silver Bow indicating the “ROAD” county January as a dated 1999. States, through 2477, The United express
¶112 R.S. made an offer in 1866 to dedicate unappropriated highways. lands for Lovelace v. (N.M.
Hightower, 864, 866 Mitchell, 1946); 667, 168 P.2d Smith v. 58 P. (Wash. 1899). expressly provides: 668 R.S. 2477 right way “[t]he for lands, highways public the construction of not public over reserved for uses, granted.” is hereby question implied “No dedication Lovelace, involved.” 168 866 in The (emphasis original). P.2d at left 1892, domain in after well the United States’s express dedication of the public easements 1866 across domain through R.S. 2477. The Court asserts 2477 cannot demonstrate federal light 668,
intent to create easement Sheep, an Leo 440 U.S. 99 S.
442 Sheep proposed 1403. 36. Leo concerned the creation of
Ct. roadway necessity granted by the United easement across land pursuant to to the Union Pacific Act States the Union Pacific Railroad unique grant. Sheep, land Leo U.S. of 1862 and its checkerboard 680-81, Supreme 99 Ct. The U.S. Court determined S. grant Pacific. As a specifically
Act
listed reservations to
Union
result, the
to add
the list of
reserved lands
expressly
Court refused
divining
‘implicit’ congressional
Act
intent.”
“by
contained in the
some
679,
Sheep,
Pacific Act of 1862 due
investors
originally
of developing
Congress
a transcontinental
railroad.
project
miles on either
included all of the odd-numbered lots within 10
side
Congress
track
the railroad.
later
the ante to 20 miles on
upped
for
original subscription
Pacific’s
either side of the track when the Union
proved
Sheep,
Leo
440 U.S. at
private
drive
investment
failure.
in light
Ct.
1408. It
not
of these
surprising
99 S.
at
difficulties, therefore,
Congress
elected not to encumber
any
Union
easements. The Court
granted to the
Pacific
reserved
in the Act
recognize implied
refused to
easements not enumerated
679,
S.
Sheep,
circumstances. Leo
440 U.S.
99 Ct.
under these
(1912)
323,
P.
Sieben,
Herrin
cf.
implied
(noting that
the United States must have reserved
granted
Railway Company)
Pacific
easement over land
the Northern
McDonald,
grounds by
other
Simonson
overruled on
Sheep’s
recognizing
Leo
restriction on
P.2d
not apply,
easements in the Union Pacific Act of
does
implied
however,
that arises from the
to the Cobban Placer’s
easement
in R.S. 2477.
express
States’s
dedication of easements
United
Mikosowitz, 39
City
The Court in
Butte v.
acquire
“to
(1909),
sought
noted that R.S.
enable
Mikosowitz,
roadway
Mont. at
102 P. at
lands.”
over
rejected
particular
that R.S. 2477 dictated a
Court
notion
Mikosowitz,
102 P.
establishing
form
such road.
court
that state
local
Washington supreme
agreed
at 595. The
offer of dedication
accepting
role in
officials need
have
*40
dedication,
offer of
to bind the
made
the United States: “An
dedicator,
city
county,
or other
accepted by
not be
need
general public.” Okanogan
authorities,
may
accepted by
but
(Wash. 1905)
Cheetham,
262,
overruled on other
County v.
P.
264
80
146, 147-48
Okanogan County, 100 P.
McAllister v.
grounds by
443
deny
any
To
the fact that
local authorities need not take
action to
accept
deny
the dedication “would be to
the whole doctrine of
Cheetham,
public accepts
dedication.”
P. 264. R.S. 2477 constitutes an dedication of easements Lovelace, 866. across domain. 168 P.2d at Admittedly rejected the Court in Nolan as insufficient testimony a sheep early trail that had been used “since the 90’s” Nolan, constituted of a purposes construction road for of R.S. 2477. 170,191P.
Mont. at at incorrectly 154. Nolan Court stated that no could public road be established pursuant 2477 without establishing public statutory use for the requisite five-year period 1, before Section 2600 of the Political Code took on July effect Nolan, 173-74,191P. 58 Mont. at my at 154.1 must confess own recent complicity perpetrating this interpretation erroneous of R.S. 2477. Dundas, 104, 42,
See Watson v. 2006 MT 332 Mont. ¶ ¶ 973, P.3d 42. We noted Watson that Watson had failed cite any authority five-year to indicate that the statutory requirement before July 1, 1895, to a public establish right-of-way by prescription did not Watson, apply. contrary authority surely existed, however, Such as evidenced the clear statement announced the Court Moulton. rejected The Court in Moulton a claim a leading some Fergus County forest lands in because the proponents had
failed to demonstrate use the requisite five-year period for July 1,1895. Moulton, before 508-09, 218 P. at 1054-55. In reaching conclusion, however, “[w]e the Court cautioned that do not wish to be understood as that the holding continuous use a road for years prior July 1, five necessary public highway establish a over unappropriated public lands order requirements Moulton, to meet [R.S. 2477].”
218 P. at (citing Murray, 656; Hughes 14 P. v. (Kan. 1911)).
Veal,
Stalnaker, 1901); Pennington County, 85 N.W. Wells v. (S.D. (Cal. 1891); Bottyer, N.W. McRose v. 394-95 *41 444 agreed
1889); Smith,
example,
Hughes
P.
in
58
at 668.
the court
For
necessary
long
by
“[a]
[sic]
that
user
is
to
effectual
(the
in
acceptance of a
where the owner
United States
this
dedication
instance)
consent,
given
standing
out a
offer to
holding
has
and is
¶120 recover certain real against City possession of Butte to of ejectment plaintiff patent The upon Butte. relied mineral property situated The of Butte City he from the United States. had received offering streets and roads existed at prove defended that various time mining question. Murray, of the claim in plaintiffs of location City 66, 14 P. The court refused to allow the 7 Mont. at at 656. trial Murray, Butte to introduce the this Court reversed. proof P. at at Court, City relying on determined that the The grant prove accepted have been allowed to that it had
Butte should
at
14 P. at
The Court
Murray, Mont.
offered
R.S. 2477.
ceremony necessary in the
form of
particular
“‘[t]here
noted that
no
of the
required
land to
use. All that is
the assent
dedication of
land,
being
public purposes
fact of
used for the
and the
its
owner
P. at 656-57
Murray,
appropriation.’”
intended
(1832)
Lessee,
31 U.S.
City Cincinnati White’s
(quoting
omitted).
(internal emphasis
City argument
that the
rejected
plaintiffs
The Court
claim an
application
object
failed to
his
Butte had
“the United States
recognized
The Court
that time.
easement at
cannot, by patent, convey any grantee greater right
than it has at
time
grant.” Murray,
P. at 657. The Court
against
concluded that an easement valid
the United States would be
against
City
valid
The
should
plaintiff.
Butte
have been allowed
prove
question
plaintiff
the roads
existed before the
had
his
property. Murray,
logic
located
Mont. at
P. at 657. The
Murray
dictates
the existence of the Road
across
Cobban
Placer at the
of its
acceptance
time
location
1892 demonstrates the
public right-of-way
authorized
R.S. 2477.
Lewis
mining
subject
Murray,
took title to their
claim
to the Road.
constitutes a easement Cobban across the Placer. 16. The ¶ however, private Court fails to how such explain, a easement came to It as private exist. dismisses “immaterial” the matter the easement. 16. The the Court concludes that Placer patent’s
¶ Cobban omission of any expressed reserved for public easement road defeats the notion public road. 34. The makes any same no mention of either, private yet easement the the Court and Landowners concede the Road existed at the that time Cobban and located Lewis the Cobban in 1892.This “immaterial” dispositive. concessionseems Murray, at 14 P. The in Murray Court
¶124 confirmed that claimant took title to a mining claim subject against easements valid the United States the comprised when the public Murray, domain. Similarly,
P. at 657.
the
in Hughes recognized
court
that where the
States,
United
the
domain,
as
owner of the public
consents to the
length
easement “the
of time of the
use
public
important,
is not
for
by
upon acceptance
rights
use the
public
of the
to an easement
immediately passed
Hughes,
and vested.”
¶125
Robertson
(Mont.
1871),
Terr.
proposition
that R.S. 2477 constituted
sort of implicit
Meagher County
some
reservation.
39. There
sought
lay
out a public
pursuant
mining
road
to R.S. 2477 across a
claim
already
had been
from the public
located
removed
domain.
Robertson,
correctly rejected
public
based “prior in time” right.”Robertson, Mont. at 418. Here the Road was as and Lewis public it existed across domain at time Cobban They located the Placer in 1892. took title to Cobban Placer subject Murray, 7 at 657. existing road. Mont. at P. supreme Congress’s court intent The South Dakota understood enacting R.S. 2477 as follows: territories
[T]oenable the citizens and residents the states and to the United States were situated public belonging where lands domain highways to build and construct such across as might require, making their without exigencies of localities And trespassers. liable as when location themselves bypublic highway by competent authority and roads was made use, act; the dedication took effect relation as date of as having operation upon the same the lines the road if act it. specifically described in Wade,
Wells, added); (emphasis at 306 see also 72 P. 48 N.W. comports language Section 2600 of the Political Code The understanding. provided pertinent part The statute with this roads, streets, courts, bridges highways, alleys, places and laid “[a]ll ... traveled or used are out or erected now added). adopted Montana highways.” (emphasis Section that had of Section 2600 from the California code language Bozeman, City Bolinger since 1883. provision contained similar McRose, 22 507, 511, 493 1062, 1064 (1972); P.2d see also at 394. 2600, “clearly indicates the “now,” term as used in Section already had rights
intention to leave intact such
*43
Butte,
102, 110, 136
Realty
City
Co. v.
48
acquired....” Barnard
contrast,
Legislature expressed its intent
By
P.
by use
July
highway
a
could not be established
that after
public
part
on the
of the
accompanied by
unless
some action
Co.,
110,
do not circumstances require proof strict that the satisfy statutory standards in cases where very light the documentation is old in of the rely fact that it is more difficult completeness on the record.
Lee, 14, 17. know, however, do ¶¶ We that the Road has used been and in existence since 1889 when Reese Plymouth located the Rock Placer claim. Road, The District Court found that depicted MS
4200 in constituted the sole means of access to the Rock and Plymouth Rock Extension claims. Cobban’s and Lewis’s segregation of the Cobban Placer from the domain in 1892 had public easement, no effect on occupation unless his claim could have the effect of extinguishing existing an easement. Easements only by terminate some recognized by Komgold method law. Gerald et Easements, Covenants, al. Use Arrangements: Land Real Private (2d 2004). Servitudes, Equitable Publg. 6.01 ed. Juris § The common recognizes law legal numerous methods terminate an easement including by agreement, terms completion purpose easement, overuse, possession, estate, adverse alternation of dominant abandonment, estate, estoppel, merger, of servient destruction deed, Korngold, tax among Arrangements: others. Private Land Use Easements, Covenants, Equitable Servitudes, Real 6.02-6.16. §§ Legislature recognized merger, has destruction estate, way easement, acting servient in a inconsistent with the *44 448 as prescriptive statutory period
abandonment of easement for the 70-17-111(1)(a)-(d),MCA. methods to terminate an Section easement. recognize unambiguous Montana courts also clear and easement 32, 405, Bing, 215, MT 306 language, ¶ See Mularoni v. 2001 Mont. ¶ 32, by prescription, Corp., 34 easement Leisz v. Avista ¶ P.3d 347, 294, 16, 16, 16, 481, Mont. P.3d 2007 MT 174 ¶ ¶ ¶ statute, Rod & Club v. pursuant County abandonment Park Gun 372, 376-77, 517 (1973); Department of Hwys., 163 Mont. P.2d 7-14-2615, The MCA, extinguish Section as methods to an easement. abandon, however, unambiguous. Smith v. intent to must be clear and 19-20, 80 431, Russell, 326, 336, MT P.3d ¶¶ ¶¶ occupation upon 19-20. Cobban’s and'Lewis’s location and ¶¶ not ambit of Cobban Placer claim does fall within the recognized methods to terminate an easement Montana. incorporation next of MS ¡question I turn of whether the issued for
4200 and the field into the the Cobban jnotes agree I do all of the plat. not easement created jurisprudence. our I will analysis regarding plat Court’s easement however, focus disagrefements day, of these for another save most its primary arguments support on the that the Court advances to two holding Court public by plat no easement exists. The first asserts public does not create easements. by platdoctrine that the easement clearly does 61. The Court next determines that MS 4200 ¶ grant the United Statés’s intent or reserve a manifest objection easement. 62.1 will address each in turn. rejects Court 4200 created a The notion MS it determines that
easement across the Cobban Placer because
The
reasons
by plat
public roadways.
easements
cannot create
Court
creation of
previous
recognized
that none of our
decisions have
none of
easement
roadways.
Conversely,
previous
our
by plat may not be
has
that easements
plat decisions
determined
Luraski,
223, Mont.
36 P.3d
Loomis
2001 MT
public. E.g.
v.
12, Mont.
862;
Ass’n., 2000 MT
Virginia City
v.
Ranches
Pearson
Wallace,
972 P.2d
Kelly
993 P.2d
v.
292 Mont.
(1998);
Parker,
P.2d 641
Tungsten Holdings Inc. v.
282 Mont.
(1996);
P.2d 1247
(1997);
v.
275 Mont.
Grigonis,
Ruana
(1994);
Bache
Turner,
885 P.2d
Halverson
cases
Owens,
Nothing in those
Bannack Gold 198 751 (internal omitted). emphasis quotation marks was open The Road visible in 1893 when the
¶136
Cobban
surveyed. Godfrey,
445,
Placer was
165
Cobban and Lewis would have been
with the
when they
Road
located the Cobban Placer
1892 as
provided
only
the Road
access
public
across the
domain
Godfrey,
445,
to it.
not manifest the United intent a public States’s reserve easement, I point would to the Court’s error in looking for United States’s patent transferring intent itself title of Placer to Cobban and 29. The plain language ¶ Lewis. of R.S. 2477 provided express grant United States’s intent to a public easement.
These the public easements across domain future encumbered claimants of the domain over which these public easements crossed. Murray, Mont. at P. at 657. More importantly, Ventures, Standage Arizona, court in Inc. v. State 499 F.2d (9th 1974), “palpably Cir. derided as insubstantial” a claim that a pursuant road had been created to R.S. due express absence of an patents. reservation the landowner’s The argument “particularly court dismissed this since official plat an disclosing the easement referred the patents thereby to in Ventures, incorporated Inc., Standage reference.” F.2d at (9th 1942)). (citing Otley, United States F.2d Cir. that the here incorporated We know likewise MS 4200 Jefferis, notes. survey 134 U.S. at S. Ct. at ¶ eight involving
522. The District Court identified no fewer than
deeds
and 1998 that
portions
transfers
Cobban Placer between 1961
refer to
4200. MS 4200 and the
notes identified
Road.
MS
surveys
identified five additional
Likewise the District Court
surveys
Each
five
MS 4200
identified the Road.
of these
refers to
surveys
express concern
that refer to MS 4200. The Court’s
other
generations
peace
“past, present,
of mind of
and future
of Montana
landowners,”
light
rings hollow in
of the evidence in
whole
have
these
on notice of the
put
record that should
Landowners
property.
of a
easement across their
presence
Sheep
proposition
The
cites Leo
for the
titles
Court
special
“certainty
(quoting
need for
and predictability.”
have
1413.)
Ct.
Sheep,
Leo
JUSTICES LEAPHART and WARNER dissent. Placer. The notes depicted Placer, Plymouth the road is Rock Extension southern boundaries of on Placer. Survey terminating Rock Extension on the No. 5154 as Proceedings III. in the District Court filed September seeking OLR the instant action on declaratory judgment traversing that the stretch of road the Cobban driveway,” not a “private access as claimed Landowners, but a “public” rather road 60 feet in width “available for claim, all a public support uses of road In OLR public.” (1) argued following congressional grant three theories: pursuant dedication Revised Statutes the United § (“R.S. (2) (3) 2477”), dedication, express States6 common-law of public government reservation the federal when it issued patent.7 parties Cobban Placer filed cross-motions summary judgment and briefed each of these three theories. In
Notes
notes corresponding OLR 4200 and field are contends MS On correct. In point, of the OLR is part patent. (1888), Powell, 691, 9 Ct. Supreme 128 U.S. S. Court Cragin stated: granted It is a that when lands are principle well-settled lands, plat survey to an official such according plat itself, notes, lines, land-marks, descriptions, all its and they part grant or deed are becomes as much which concerned, as if such conveyed, controls, and so far as limits are ofthe deed or descriptive upon features were written out face grant itself. Dewey & Chapman Ct. at see also Cragin, U.S. 9 S. Dist., 196-97, 34 S. Co. Francis Levee 232 U.S. Ct. Lumber v. St. Vanina, (1914); Copper Pittsmont Co. v. (1924). Here, plat is an official MS 4200 patent does Mining Although Claim. the Cobban Placer Cobban Placer “according to” specifically being granted that the land is not state Omaha Land Supreme Court East MS stated Jefferis (1890), Co., plat S. that “where 134 U.S. Ct. 518 referred courses, distances, land, the containing description deed as in a are as much upon to be particulars plat other appearing and the true the land ascertaining description regarded, they expressly as if had been enumerated parties, intent of added). 522 (emphasis 10 Ct. at Jefferis, 134 U.S. at S. deed.” being as “that granted patent identifies the The Cobban Placer Surveyor designated by claim mining premises, certain PLACER pursuant it the land 4200,” describes Lot No. General notes, lines, Accordingly, MS with all its 4200’s notes. MS field patent as landmarks, part the Cobban Placer descriptions, upon the face written out descriptive features were if such
notes 6-foot- Nevertheless, wide dirt road traversing the Cobban Placer. the Dissent opines locating that the process Plymouth Rock required public highway. the construction of a Assuming true, to be however, we do not know whether Reese constructed particular 6- issue; indeed, foot-wide dirt road at we do not whether know he continuously definite, “a used fixed course” over the Placer or Plymouth instead accessed Rock Placer from points different entry, including lay land that to the north.3 As for whether the road over the Cobban Placer used (dated 1897) public, Survey Mineral September depicts No. 5154 on the terminating Rock Extension In Placer. other words, the Moreover, road was a dead pointed end. Landowners in their support out brief in reply summary of their motion for
notes MS Jefferis Co., 178, 194-95, 10 U.S. S. Ct. MS Land