Lead Opinion
delivered the Opinion of the Court.
¶1 Kent Peterson, Kathleen A. Peterson, Lisle E. Wood, Pauline P. Wood (now known as Pauline P. Thomas), Jonathan B. Clark, and Vidgis J. Clark
¶2 The parties raise a number of issues related to the easement at issue here; however, the dispositive question on appeal is as follows: Did the District Court err in concluding that the federal government expressly reserved a public road across the Landowners’ properties by referring in an 1896 federal land patent to a mineral survey that depicted a road labeled “ROAD”?
FACTUAL AND PROCEDURAL BACKGROUND I. Overview of Patenting Under the General Mining Act of 1872
¶3 A brief overview of the process of securing a patent to a mining claim is
¶4 The holder of a perfected mining claim may secure fee title to the land by applying to the United States Department of the Interior for a patent
II. The Land and Road at Issue
¶5 The Cobban Placer, the Plymouth Rock Placer, and the Plymouth Rock Extension Placer are three parcels of land situated side by side in the East Ridge area of Butte, Montana. The Cobban Placer (the westernmost parcel) was located by William F. Cobban and William H. Lewis in 1892, and the federal government issued the patent in 1896; the Plymouth Rock Placer (the middle
¶6 OLR plans to construct a tram, a tramway station, a parking lot, a carousel, associated amusement park rides, and other tourism-related improvements on the Plymouth Rock Extension Placer. The tram is intended to carry visitors up to Our Lady of the Rockies, a 90-foot statue atop the Continental Divide overlooking Butte. Ridership estimates for the first year of operation vary between 14,075 and 60,285 depending on a variety of factors, including ease of accessibility (construction of an exit ramp off Interstate 15 versus use of the existing frontage road) and marketing efforts.
¶7 At issue in this case is the specific route by which OLR would like to provide public access to the proposed tramway station. It appears from the 1893 survey of the Cobban Placer (Mineral Survey No. 4200), the 1897 survey of the Plymouth Rock Placer (Mineral Survey No. 5153), and the 1897 survey of the Plymouth Rock Extension Placer (Mineral Survey No. 5154) that a road historically traversed the Cobban Placer and the Plymouth Rock Placer and terminated on the Plymouth Rock Extension Placer.
¶8 The following depiction of the road in relation to the parcels and lots is provided in the record (labels added):
[[Image here]]
¶9 OLR filed the instant action on September 3, 2003, seeking a declaratory judgment that the stretch of road traversing the Cobban Placer is not a “private access driveway,” as claimed by the Landowners, but rather a “public” road 60 feet in width “available for all uses of a public road by the public.” In support of this claim, OLR argued the following three theories: (1) congressional grant or dedication pursuant to § 2477 of the Revised Statutes of the United States
¶10 The District Court held a hearing on the parties’ motions on July 23, 2004, and entered findings of fact and conclusions of law on November 24, 2004. Addressing OLR’s express-reservation theory, the court stated that “[a]n express easement by reservation arises when the purchaser’s deed refers to a plat where the easement is clearly depicted” (citing Pearson v. Virginia City Ranches Ass’n,
¶11 As for the nature of the road depicted on MS 4200, the court concluded that it is “public” for a number of reasons. First, the court reasoned that the Cobban Placer “belonged” to the United States at the time it was surveyed (in 1893) and that any road on the land, therefore, was public. Second, the court opined that at the time the Cobban Placer patent was issued (in 1896), the road was the only ingress and egress for persons seeking access to the Plymouth Rock Placer and the Plymouth Rock Extension Placer, both of which still “belonged” to the federal government. Lastly, the court observed that the road had been depicted on a number of surveys and maps over the last century, “often times being identified as a public road.” It appears from this that the court attributed legal significance to the label “public” where it appeared on said surveys and maps.
¶12 The District Court held that there were no genuine issues of material fact as to OLR’s express-reservation theory and that, as a matter of law, the federal government expressly reserved a public road across the Cobban Placer when it referred in the Cobban Placer patent to MS 4200. As for OLR’s R.S. 2477 and common-law dedication theories, the court determined that these two theories could not be resolved on summary judgment. With respect to the former, the court held that factual questions remained as to whether the public accepted the federal government’s offer under R.S. 2477 by establishing a public highway in a maimer recognized under state law. With respect to the latter, the court likewise ruled that factual questions remained regarding the public’s acceptance of the alleged common-law dedication of the road to the public. Moreover, the court observed that the parties had “presented conflicting evidence regarding the following issues: (1) the actual commercial or public uses of the Road, if any, and the duration of such uses; (2) the nature and extent of county maintenance of the Road; and (3) the width of the Road, if it is determined to be a public road or easement.” Accordingly, the court denied OLR’s motion for summary judgment with respect to the R.S. 2477 and common-law dedication theories. The court also denied the Landowners’ cross-motion for summary judgment.
¶13 The Landowners now appeal from the grant of summary judgment on OLR’s express-reservation theory. Neither party appeals from the District Court’s denial of summary judgment on OLR’s R.S. 2477 and common-law dedication theories.
STANDARD OF REVIEW
¶14 We review a district court’s ruling on a motion for summary judgment de novo, applying the same criteria of M. R. Civ. P. 56 as did the district court. Cole v. Valley Ice Garden, L.L.C.,
I. Preliminary Matters
¶15 Before addressing the parties’ arguments, it is necessary to dispose of four preliminary matters concerning the issues before us and the law applicable to those issues.
¶16 First. The parties do not dispute whether OLR itself may use the roadway across the Cobban Placer for ingress to and egress from the Plymouth Rock Placer and the Plymouth Rock Extension Placer. In their opening brief, the Landowners state that they “never have denied that a primitive road passes beyond [the Woods’] parcel, over the Clark parcel, to the Plymouth Rock Placer parcels, and never have denied that the road provides private access for the owners of those parcels.” The Landowners do not identify the source of this private easement; however, that point is immaterial to our analysis, since the specific dispute in this case is whether the general public may use the roadway to access the Plymouth Rock Placer and the Plymouth Rock Extension Placer.
¶17 Second. The scope of this appeal is confined to OLR’s express-reservation theory, which is the only theory on which the District Court granted summary judgment and is the only theory argued by the parties on appeal. Under this theory, a public road across the Cobban Placer was created by express reservation in the Cobban Placer documents of conveyance (the Cobban Placer patent, MS 4200, and MS 4200’s field notes). Notwithstanding, the Dissent presents a lengthy argument that a public road across the Cobban Placer was created under R.S. 2477. Yet, the District Court explicitly determined with respect to OLR’s R.S. 2477 theory that “questions of material fact exist and the issue cannot be resolved by summary judgment.” Neither party has appealed from this ruling. Accordingly, OLR’s R.S. 2477 theory is an issue to be addressed by the parties on remand, should they choose to do so; it is not an issue for this Court to decide on this appeal. Indeed, as OLR points out in its response brief on appeal, any discussion about R.S. 2477 is “irrelevant to this case.”
¶ 18 Third. The only facts that are pertinent to our analysis herein are those which pertain to the creation of MS 4200 and to the issuance of the Cobban Placer patent and over which there is no genuine dispute. The Dissent, however, inserts into this appeal a number of factual matters that are irrelevant, unproven, disputed by the parties, or contradicted by the record. For instance, the Dissent advises us that we should “examine the development of the Road at issue,” Dissent, ¶ 102, and the Dissent then purports to do so, opining that the road depicted on MS 4200 has been in existence and in use since 1889 when John T. Reese located the Plymouth Rock Placer, that the road constituted the sole means of access to the Plymouth Rock Placer and the Plymouth Rock Extension Placer, and that William F. Cobban and William H. Lewis were “familiar with” the road when they located the Cobban Placer in 1892, see Dissent, ¶¶ 106, 108, 110, 125, 130, 135, 136, 139. These factual matters, however, are not established in the record. No evidence has been presented in this case as to what roads, if any, existed in 1889 and 1892 in the area which ultimately became the Cobban Placer and the Plymouth Rock Placer and what route Reese actually used when he located his claim. There also is no evidence in the record establishing when the road at issue was constructed, who actually used it, and over what period of time they did so. According to the report provided by OLR’s expert in conjunction with the results of his research, his evidence established the existence of the road only since 1893, when the Cobban Placer was surveyed and MS 4200 was created.
¶19 Moreover, the question at hand is not whether a public road was established over the Cobban Placer by necessity, public use, or acceptance of a dedication to the public. Rather, as explained above, the question is whether the District Court correctly determined, as a matter of law, that the federal government created a public road by express reservation in the Cobban Placer documents of conveyance. For this reason, the Dissent’s dubious factual assertions, which largely relate to its R.S. 2477 argument, are not relevant to the issue on appeal.
¶20 Along these same lines, the Dissent relies on various maps and records pertaining to the subject properties. See e.g. Dissent, ¶¶ 111, 138. However, none of these maps and records is referred to in the Cobban Placer patent. As a matter of fact, all of these maps and records post-date the patent. Thus, the maps and records cited by the Dissent are entirely irrelevant for purposes of ascertaining the federal government’s intent when it issued the Cobban Placer patent in 1896. Again, the only documents and facts of record that are pertinent to our analysis are those which pertain to the creation of MS 4200 and to the issuance of the Cobban Placer patent and over which there is no genuine dispute.
¶21 Fourth. The last preliminary matter concerns the law applicable to our interpretation of the Cobban Placer patent. Although the Cobban Placer patent contains an express reservation of “a right of way... for ditches or canals constructed by the authority of the United States,” the patent contains no such express reservation of a “public road” across the Cobban Placer. Thus, OLR invokes a state-law doctrine, articulated by this Court during the last 22 years, under which an easement may be created by reference in an instrument of conveyance to a plat or certificate of survey which adequately describes the easement. (This doctrine is explained in detail below.) OLR contends that the federal government expressly reserved a public road across the Cobban Placer by referring in the Cobban Placer patent to MS 4200, which depicts a road that is labeled “Road.” The Dissent also presents a brief argument premised on this easement-by-reference doctrine. Dissent, ¶¶ 134-138. Yet, neither OLR nor the Dissent cites any authority that such a doctrine existed under Montana law when the Cobban Placer patent was issued or that parties to land transfers in 1896 even contemplated that easements could be created in this manner. More to the point, OLR and the Dissent cite no authority that the federal government’s intent in an 1896 land patent may be construed pursuant to a doctrine that evolved under state law 100 years after the fact.
¶22 In this regard, the Landowners, citing Ritter v. Morton,
¶23 Yet, at no point during this exchange does either party present a sufficiently comprehensive analysis as to which law-federal or state-governs the construction of the Cobban Placer patent, and this issue is not as straightforward as the Landowner’s citation to Ritter suggests. In United States v. Oregon,
¶24 If a state rule of construction does guide the interpretation of the Cobban Placer patent, the next issue is whether an easement-more specifically, a public road-could be created under Montana law in 1896 by a mere reference in an instrument of conveyance to a plat or survey depicting the easement. See Hash v. United States,
¶25 Notwithstanding the parties’ competing assumptions as to which law applies, however, we have determined that we need not decide these two choice-of-law issues because we conclude, for the reasons which follow, that neither federal law nor the state-law doctrine relied on by OLR supports OLR’s express-reservation theory.
II. Federal Law
¶26 OLR contends that MS 4200 and the corresponding field notes are part of the Cobban Placer patent. On this point, OLR is correct. In Cragin v. Powell,
It is a well-settled principle that when lands are granted according to an official plat of the survey of such lands, the plat itself, with all its notes, lines, descriptions, and land-marks, becomes as much a part of the grant or deed by which they are conveyed, and controls, so far as limits are concerned, as if such descriptive features were written out upon the face of the deed or the grant itself.
Cragin,
¶27 So ends OLR’s analysis under federal law. Yet, establishing that MS 4200 and the field notes are a part of the Cobban Placer patent is far from establishing that the federal government intended to reserve a public road across the Cobban Placer. In this regard, the Landowners cite Leo Sheep Co. v. United States,
¶28 OLR contends that Leo Sheep is inapplicable to this case because OLR’s theory is one of express, not implied, reservation of an easement. Yet, OLR’s theory is that a public road was reserved over the Cobban Placer by virtue of the reference in the Cobban Placer patent to MS 4200, and OLR cites no authority for the proposition that a reference in a federal land patent to a mineral survey which depicts a road labeled “ROAD” qualifies as an “express” reservation under federal law. In any case, we conclude that the rules of construction articulated in Leo Sheep are pertinent in construing the federal government’s intent when it issued the Cobban Placer patent.
¶29 Turning, then, to the language of the Cobban Placer patent, we observe that this document contains a number of express reservations to the grant. In particular, “there is reserved from the lands hereby granted, a right of way thereon for ditches or canals constructed by the authority of the United States.” In addition, the patent states that
the premises hereby conveyed may be entered by the proprietor of any vein or lode of quartz or other rock in place bearing . . . valuable deposits, for the purpose of extracting and removing the ore from such vein or lode, should the same, or any part thereof, be found to penetrate, intersect, pass through or dip into the mining ground or premises hereby granted.[11 ]
¶30 The inference prompted by the presence of certain express reservations in the patent and the absence of an express reservation of the particular right-of-way alleged by OLR (a public road) is that no such right-of-way was reserved. Leo Sheep,
¶31 OLR points out, however, that the reservation in the Cobban Placer patent for ditches or canals was required by 43 U.S.C. § 945 in all patents for lands taken up after August 30, 1890. But this only confirms that when the federal government wishes to include an express reservation in a patent, it is perfectly capable of doing so. OLR suggests that the United States would not have reserved an easement for public roads “in every patent.” But surely, had it wished to do so, Congress could have required that an express reservation of public roads be included in all patents under particular circumstances-e.g., when a road already existed across the mining claim at the time the claim was surveyed. Again, no such express reservation appears in the Cobban Placer patent, which compels the conclusion that no public road was reserved.
¶32 Nevertheless, OLR maintains that the reference in the patent to MS 4200, the depiction on MS 4200 of a road labeled “ROAD,” and the descriptions of this road (its width, location, and course) in the field notes demonstrate the federal government’s “clear intent” to reserve a public road. Yet, according to the 1890 Manual of Surveying Instructions for the Survey of the Public Lands of the United States and Private Land Claims, surveyors were required to note a wide variety of objects and data during a survey, including creeks, ponds, ravines, improvements (e.g., cabins, groves, forges), natural curiosities, and “[r]oads and trails, with their directions, whence and whither.” The purpose of these notations is made clear in the Surveyor General’s certification on MS 4200:
The Original Field Notes of the Survey of the Mining Claim . . . known as the Cobban Placer from which this plat has been made under my direction have been examined and approved, and are on file in this office, and I hereby certify that they furnish such an accurate description of said Mining Claim as will, if incorporated into a patent, serve fully to identify the premises, and that such reference is made therein to natural objects or permanent monuments as will perpetuate and fix the locus thereof. [Emphases added.]
¶33 Given these stated purposes of MS 4200’s field notes, we conclude that the intent behind describing the road therein and depicting it on MS 4200 was to aid in the identification of the Cobban Placer and to fix the locus thereof. It is inconceivable that the federal government intended to reserve for public use every creek, trail, cabin, mineshaft, ravine, railroad, and so forth depicted and labeled on a mineral survey. Indeed, OLR’s argument overstates the function and authority of the Cobban Placer surveyor. See e.g. State v. Crawford,
¶34 Furthermore, it is highly improbable that the United States would reserve a public road to access two mining claims-the Plymouth Rock Placer and the Plymouth Rock Extension Placer-that had already been located and, thus, segregated from the public domain. See ¶¶ 3, 5, supra. Indeed, the testimony of OLR’s expert on this point is consistent with our conclusion. At the hearing, the District Court inquired whether, “if there’s a map that says ‘road,’ does that give you an indication that the public has access to that?” In response, the expert testified: “No. In that particular case, the only access that would be a public road is if it was public lands on both sides that the road was traversing through, and at the time it was dedicated, it was accessing public lands on both sides.” As just noted, the Plymouth Rock Placer and the Plymouth Rock Extension Placer had already ceased to be public lands by 1893 when the Cobban Placer was surveyed and MS 4200 was created. According to the interpretation offered by OLR’s expert, therefore, the label “ROAD” on MS 4200 is not indicative of a public road. For these reasons, we do not agree with OLR’s assertion that the Cobban Placer patent, MS 4200, and the field notes, taken together, demonstrate a “clear intent” to reserve a public road.
¶35 Finally, even if we could agree that the depiction of the road on MS 4200 constitutes an attempted reservation of a public right-of-way across the Cobban Placer, we would be forced to conclude that this reservation is void. In Silver Bow Mining & Milling Co. v. Clarke,
There was no law authorizing the land department to except the surface ground from the conveyance [of the Pawnbroker mining claim], or in any other manner toabridge the title of the purchaser; and in so doing, it exceeded its authority, and its act to that extent is void and of no effect upon the property conveyed. An exception that is void, leaves the patent to stand as though it contained no such exception.
Silver Bow M. & M. Co.,
¶36 In the case at hand, the reservation contained in the Cobban Placer patent of “a right of way... for ditches or canals constructed by the authority of the United States” was statutorily authorized; indeed, it was mandated. See 43 U.S.C. § 945 (“In all patents for lands taken up after August 30, 1890, under any of the land laws of the United States or on entries or claims validated by this Act, west of the one hundredth meridian, it shall be expressed that there is reserved from the lands in said patent described a right of way thereon for ditches or canals constructed by the authority of the United States.”). However, OLR cites no law-and we have found none-authorizing the Land Department to insert a reservation of a public road into the Cobban Placer patent. Necessarily, then, to the extent the depiction of the road on MS 4200 and the reference in the Cobban Placer patent to MS 4200 were intended together as a reservation of a public road, as OLR contends, this reservation is void and must be disregarded.
¶37 The Dissent asserts that we err by not interpreting the Cobban Placer patent pursuant to R.S. 2477. Dissent, ¶ 137. According to the Dissent, R.S. 2477 expresses an intent on the part of the United States to reserve public highways over mining claims. Thus, in the Dissent’s view, although the Cobban Placer documents of conveyance do not contain an express reservation of a public road, the federal government’s intent to reserve one may be gleaned from R.S. 2477. Setting aside the facts that this theory was not argued by OLR in the District Court, was not the basis of the District Court’s decision, and is not argued by OLR on appeal, the Dissent cites no authority whatsoever for the proposition that Congress intended R.S. 2477 to function as a reservation of public roads in federal land patents. Moreover, the Dissent’s theory flies directly in the face of the Supreme Court’s clear instruction not to imply rights-of-way based on an inferred intent, i.e., an intent not set forth expressly in the land patent or an applicable statute. See Leo Sheep,
¶38 But even if it could be said that R.S. 2477 somehow bears on our interpretation of the Cobban Placer patent, this provision merely stated that “[t]he right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” This language was nothing more than “an offer of the right of way for the construction of a public highway on some particular strip of public land.” State ex rel. Dansie v. Nolan,
¶39 Indeed, the notion of R.S. 2477 as some sort of implicit reservation was rejected long ago in Robertson v. Smith,
The defendants [the county commissioners of Meagher County] insist that any miner who locates a mining claim does so subject to right of the public under [R.S. 2477] to construct a highway over the same. There is no reservation of this kind in the grant to the miner. . . . The proper construction of the law upon these subjects is, I think, that miners have the right to occupy and explore unappropriated public mineral lands; that the public have a right to an easement for a highway over the unoccupied public domain, and that whichever is prior in time is prior in right. It is as inconsistent for the public to claim a right of way over an appropriated mining claim without giving the owner thereof a just compensation for his rights as it would be for a miner to claim the right to appropriate for mining purposes a portion of the public domain which had been devoted to the use of a public highway. The statute does not, by express terms, or by implication, make either of these rights superior to each other.
Robertson,
¶40 The Supreme Court “has traditionally recognized the special need for certainty and predictability where land titles are concerned,” and the Court is, therefore, “unwilling to upset settled expectations to accommodate some ill-defined power to construct public thoroughfares without compensation.” Leo Sheep,
¶41 The reference in the Cobban Placer patent to MS 4200 did not reserve a public road over the Cobban Placer under federal law.
III. State Law
¶42 As noted above, in support of its express-reservation theory, OLR invoked the state-law doctrine under which an easement may be created by reference in an instrument of conveyance to a plat or certificate of survey which adequately describes the easement. The District Court, accordingly, analyzed OLR’s claim pursuant to this doctrine.
¶43 Yet, the terms of the Cobban Placer patent are governed by the law in effect at the time the patent was issued, Hash v. United States,
¶44 Nevertheless, because the easement-by-reference doctrine is the sole basis of OLR’s state-law arguments, and because the doctrine correspondingly is the sole basis of the District Court’s decision on OLR’s express-reservation theory, we will address this issue by assuming, arguendo, that the doctrine applies retroactively to the Cobban Placer patent, and we will consider whether the doctrine provides for the creation of a public road across the Cobban Placer. We begin, however, by reviewing the doctrine and its evolution in our caselaw.
A. Easements Created by Reference to a Plat or Certificate of Survey
¶45 In Majers v. Shining Mountains,
[A] grantor, who induces purchasers, by use of a plat, to believe that streets, squares, courts, parks, or other open areas shown on the plat will be kept open for their use and benefit, and the purchasers have acted upon such inducement, is required by common honesty to do that which he represented he would do.
Ute Park,
¶46 In Benson v. Pyfer,
¶47 We applied these principles in favor of the sellers in Bache v. Owens,
¶49 We reached the same conclusion in Halverson v. Turner,
¶50 In analyzing these transaction documents, we observed that a land description is a necessary inclusion in an instrument conveying title so that the extent of the claim to the property may be determined, and a reference to a map or plat may be included to express, confirm, or amplify the land description. See Halverson,
¶51 By contrast, the 1968 plat at issue in Tungsten Holdings, Inc. v. Parker,
¶52 We discussed an important limitation on the easement-by-reference doctrine in Ruana v. Grigonis,
¶53 We addressed a related restriction on the doctrine in Kelly v. Wallace,
¶54 To summarize, our cases have recognized the creation of an easement where the deed explicitly referred to a recorded plat or certificate of survey on which the subject easement was adequately described. However, express depiction of an easement on a referenced plat or certificate of survey is not sufficient, in and of itself, to create an easement for the benefit of a stranger to the deed. In addition, an easement by reservation may be established only when the dominant and servient estates are split from single ownership.
¶55 An easement created in this manner-i.e., by reference in an instrument of conveyance to a plat or certificate of survey on which the easement is adequately described-must arise expressly, not by implication.
¶56 In Bache, for instance, the certificate of survey depicted Tracts 1 and 2 and a 30-foot-wide strip of land along the western boundary of Tract 2. The strip of land extended from Tract 1 to a state route on the other side of Tract 2, and it was “clearly and specifically” identified with the label “P.R.E.,” which the legend identified as “private roadway easement.” We held that in this manner, the Baches had reserved an easement over Tract 2 in favor of Tract 1. See Bache,
¶57 In sum, an easement created by reference in an instrument of conveyance to a plat or certificate of survey adequately describing the easement is an express easement. The term “express” is defined as “[cjlearly and unmistakably communicated; directly stated.” Black’s Law Dictionary 620 (Bryan A. Garner ed., 8th ed., West 2004); cf. § 28-2-103, MCA (defining an “express” contract as “one the terms of which are stated in words”). The term “expressed” is defined as “[djeclared in direct terms; stated in words; not left to inference or implication.” Black’s Law Dictionary 620. Consistent with these definitions, the intent to create an easement must be clearly and unmistakably communicated on the referenced plat or certificate of survey using labeling or other express language. This is the minimal requirement to establish the easement. An easement may not be inferred or implied from an unlabeled or inadequately described swath of land or other such depiction appearing on a plat or certificate of survey.
B. Application of the Doctrine to the Cobban Placer Patent
¶58 Relying on Majers, Bache, Halverson, Tungsten Holdings, Ruana, and Pearson, OLR maintains that the United States expressly reserved a public road across the Cobban Placer, for purposes of ingress to and egress from the Plymouth Rock Placer and the Plymouth Rock Extension Placer, when it issued the Cobban Placer patent. OLR asserts that all three of these parcels were “in common ownership” when the patent was issued in 1896; that MS 4200 and the corresponding field notes were incorporated into the patent; that a road traversing the Cobban Placer is “clearly depicted” on MS
¶59 The Landowners respond that the 1896 grant of the Cobban Placer does not come within our easement-by-reference doctrine for a variety of reasons. First, the Landowners point out that the Cobban Placer, the Plymouth Rock Placer, and the Plymouth Rock Extension Placer were each segregated from the public domain and became the property of the respective claimholders when the mining claims were located in 1892, 1889, and 1890, respectively. Therefore, the Landowners argue, when the Cobban Placer patent was issued in 1896, the three parcels were not “in common ownership.” Second, the Landowners assert that a mere reference in a federal land patent to a mineral survey that depicts a road is not evidence of an intent to reserve a public easement and that the designation “Road” on a mineral survey is, in and of itself, no more significant than the designations “Fence,” “Cabin,” “Creek,” “Mineshaft,” “Dam,” etc. Third, the Landowners contend that our easement-by-reference doctrine serves to create private, not public, easements. Lastly, the Landowners argue that our easement-by-reference doctrine only applies to plats and certificates of survey that have been filed and recorded with the county clerk and recorder. They contend that the safe and orderly transfer of land titles depends on the ability of purchasers and title examiners to find all documents pertaining to the title of the subject property at a central repository within each county and that the District Court’s approach in the case at hand undermines this established system.
¶60 We agree with the Landowners that the Cobban Placer documents of conveyance do not meet the requisites of our easement-by-reference doctrine; however, we need not address all of the points raised by the Landowners because the following two considerations are sufficient to resolve this issue.
¶61 First, we have only recognized the creation of privately-held easements under our easement-by-reference cases. We have never applied the doctrine to create a public road, and we decline to do so under the circumstances presented here. As the Landowners point out, the creation of public roads in 1896 was governed by specific provisions of law which generally required an official action on the part of the public authority. See Barnard Realty Co. v. City of Butte,
¶62 Second, as explained above, the intent to create the subject easement must be clearly and unmistakably communicated on the referenced plat or certificate of survey using express language. Here, however, there is no label or other express language on MS 4200 communicating an intent to reserve the depicted road as a “public” road. Nor is there any evidence in the field notes or in the Cobban Placer patent itself of an intent on the part of the federal government to reserve a public road across the Cobban Placer. The label “ROAD” on MS 4200 is not sufficient under any of our cases to create an easement in favor of the public. Moreover, the evidence in the record before us reflects that creating a public road was not the federal government’s intent. The Cobban Placer, the Plymouth Rock Placer, and the Plymouth Rock Extension Placer were segregated from the public domain in 1892, 1889, and 1890, respectively. At that point, each mining claimholder had the exclusive right to possession and enjoyment of all the surface included within the lines of his respective parcel. See ¶ 3, supra. It is highly improbable that
¶63 The Dissent argues that the federal government’s intent to reserve a public road across the Cobban Placer is clear in light of R.S. 2477. Dissent, ¶ 137. However, the fact that the Dissent is resorting to R.S. 2477 in order to ascertain the meaning of the label “Road” on MS 4200 only confirms that the federal government’s supposed intent to reserve a public road is not clearly and unmistakably communicated on MS 4200 using appropriate labeling or other express language.
¶64 For the foregoing reasons, we hold that the reference in the Cobban Placer patent to MS 4200 did not reserve a public road across the Cobban Placer under our easement-by-reference doctrine.
¶65 Before concluding, it is necessary to address the Dissent’s assertion that this Opinion somehow “reaches a result at odds with the practical realities of the history of property ownership in Montana, particularly with respect to the location and patenting of mining claims in and around Butte.” Dissent, ¶ 101. This diaphanous remark is based entirely on the Dissent’s own theory of this case-not on the theory actually argued by the parties-and on factual assumptions that are not supported by the record before us. Moreover, the Dissent’s assertion is disconnected from any property law applicable to the Cobban Placer patent. The Dissent fails to cite a single statute in effect in 1896 supporting a result contrary to the holdings reached herein. The Dissent likewise fails to cite any caselaw in effect in 1896 supporting a result contrary to the holdings reached herein.
¶66 It appears that the Dissent would graft R.S. 2477 onto this Court’s easement-by-reference doctrine and then apply this new public-road doctrine retroactively, and indiscriminately, to countless land transfers across the span of more than 100 years, resulting in the creation of untold numbers of unforeseen-and unintended-public servitudes across countless parcels of land in this state. The Dissent would do so without regard for “the special need for certainty and predictability where land titles are concerned,” Leo Sheep,
¶67 As a matter of construing the federal government’s intent in issuing the Cobban Placer patent, we may not upset long-settled expectations to accommodate a vague and unsubstantiated right to construct a 60-foot-wide public highway without compensation to the servient Landowners. Leo Sheep,
CONCLUSION
¶68 The federal government did not reserve a public road across the Cobban Placer by virtue of the reference in the Cobban Placer patent to MS 4200. Accordingly, we hold that the District Court erred in its determination that the road traversing the Cobban Placer is a public road pursuant to an express easement by reservation created
¶69 Reversed.
Notes
Jeffrey A. Beckett, Jeannie A. Stallings, Jennifer A. Kochel, and Jill A. Johns-who appeared with the Petersons, the Woods, and the Clarks as defendants in the District Court-did not file notices of appeal and are not parties to this appeal.
Act of May 10, 1872, ch. 152, 17 Stat. 91, codified at R.S. §§ 2319-2328, 2331, 2333-2337,2344, recodified as amended at 30 U.S.C. §§ 22-24,26-28, 29, 30, 33-35, 37, 39-42, 47.
A lode claim is a mining claim “to a well-defined vein embedded in rock,” whereas a placer claim is a mining claim “where the minerals are not located in veins or lodes within rock, but are usu. in softer ground near the earth’s surface.” Black’s Law Dictionary 1016 (Bryan A. Gamer ed., 8th ed., West 2004).
A patent, in this context, is “the deed of the government, state or federal, by which it passes title to its lands.” J. Grimes, Thompson on Real Property vol. 5B, § 2725, at 383 (1978).
OLR’s expert testified in the District Court concerning Survey No. 5154’s field notes, which detail the courses followed and the landmarks observed by the surveyor of the Plymouth Rock Extension Placer. The expert stated that “along the east end line” the surveyor encountered a road headed in an easterly direction. We note, however, that the east-end line referred to in Survey No. 5154’s field notes is “the east-end line of Sur. No. 5153,” i.e., the east-end line of the Plymouth Rock Placer (the middle parcel). Thus, Survey No. 5154’s field notes establish that the road crossed the east-end line of the Plymouth Rock Placer, which is the iwesi-end line of the Plymouth Rock Extension Placer. The field notes do not mention a road crossing the northern, eastern, or southern boundaries of the Plymouth Rock Extension Placer, and the road is depicted on Survey No. 5154 as terminating on the Plymouth Rock Extension Placer.
Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at R.S. 2477, recodified at 43 U.S.C. § 932, repealed by Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, § 706(a), 90 Stat. 2743, 2793.
In addition to these three theories, OLR raised a number of other theories during the course of the proceedings in the District Court. In its amended complaint, OLR alleged prescriptive use by the public; however, OLR did not pursue this theory at the summary judgment stage. Furthermore, when OLR first articulated its reservation theory (in its brief in support of its motion for summary judgment), OLR discussed easements implied from prior existing use, easements implied by necessity, and easements created by express reservation. OLR then argued that “the federal government reserved an implied easement across the Cobban Placer.” In response, the Landowners asserted that “an express reservation cannot be implied.” Thus, assuming that OLR was relying on the two implied-easement theories as well as an express-easement theory, the Landowners addressed all three. However, OLR subsequently clarified that it was arguing an “express easement by reservation.”
Included with the expert’s report is a Northern Pacific Railway map, dated 1890-1914, which shows a small portion of the road. However, this map depicts the road entering the Cobban Placer from the west, whereas MS 4200 depicts the road entering from the northwest. According to the report and the expert’s testimony, the shift from the northwest access point shown on MS 4200 to the west access point shown on the 1890-1914 map occurred sometime between 1893 and 1914. In other words, the map dated 1890-1914 necessarily post-dates MS 4200.
The Landowners also point out that OLR’s “federal common law” theory is raised for the first time on appeal. It was not argued in the District Court and, thus, was not considered by the District Court in evaluating OLR’s motion for summary judgment.
The Supreme Court also rejected the government’s theory of an implied easement by necessity, noting that because the government has the power of eminent domain, the easement was not a necessity. See Leo Sheep,
This provision or language similar thereto, which appeared in a number of land patents during this period, has been characterized as an “express reservation.” See Montana Mining Co. v. St. Louis Mining & Milling Co.,
Prior to July 1, 1895, a public highway could have been established by the act of the proper authorities, as provided by statute; by use by the public, for the period of the statute of limitations as to lands, of the exact route confined to the statutory width of a highway, later claimed to be a public highway; by the opening and dedication of a road by an individual owner of the land; or on a partition of real property. Effective July 1,1895, no route of travel could become a public highway until declared so by the public authorities or made so by the owner’s dedication of the land affected. See Nolan,
Concurrence Opinion
specially concurring.
¶70 The specific issue presented on this appeal is whether the District Court erred in its determination that, as a matter of law, the federal government created a public road by express reservation in the Cobban Placer documents of conveyance. I believe the Court’s Opinion correctly and fully resolves this issue.
¶71 As for OLR’s R.S. 2477 theory, the District Court considered this theory and determined that “questions of material fact exist and the issue cannot be resolved by summary judgment.” The Dissent states that the District Court erred in this respect. Dissent, ¶ 107. This remark, however, is gratuitous at best, given that neither party has appealed from the court’s ruling. Indeed, neither party raises OLR’s R.S. 2477 theory on appeal. The Dissent acknowledges this point. Dissent, ¶ 107. Nevertheless, the Dissent offers a lengthy argument that a public road across the Cobban Placer was created under R.S. 2477 as a matter of law. Dissent, ¶¶ 102-130. A review of the record reveals that the Dissent’s argument builds on and further develops the arguments articulated by OLR in its Response in Opposition to Defendants’ Motion for Summary Judgment.
¶72 In addition, the Dissent addresses the matter of termination. Dissent, ¶¶ 131-132. The Landowners argued this issue in their motion for summary judgment, claiming that any public road that may have existed across the Cobban Placer was extinguished by reverse prescription. The District Court ruled that the parties had “presented conflicting evidence to this Court regarding these questions of material fact [related to prescriptive use]” and, accordingly, denied summary judgment on this issue. The Landowners have not appealed from this ruling.
¶73 The propriety of the Dissent’s approach in light of the procedural posture of this case is self-evident and requires no further comment. That said, to the extent the Dissent’s various articulations of the law related to R.S. 2477 could be viewed as a guidebook for subsequent proceedings in the District Court on remand, I believe it is necessary and appropriate to explain why the Dissent’s R.S. 2477 analysis founders in several respects.
¶74 The Dissent stresses the principle that a mining claimant took title to his claim subject to any valid easements against the United States existing at the time the claim was located. Dissent, ¶¶ 105,119, 122, 124. No one disputes this point. Indeed, “a grant by the United States conveys all the interest that the United States has at the time of the grant, and no greater interest. . . . [T]he United States cannot, by patent, convey to any grantee a greater right than it has at the time of such grant.” Murray v. City of Butte,
¶75 Of course, these relatively unremarkable propositions assume the very matter to be decided under OLR’s R.S. 2477 theory-namely, whether there was a valid acceptance of theR.S. 2477 offer prior to February 20,1892, when the Cobban Placer was located. The Dissent asserts that John T. Reese accepted the offer. Dissent, ¶¶ 119, 139. Yet, the Dissent offers no basis whatsoever for this assertion other than the fact that Reese located the Plymouth Rock Placer in 1889 and the Plymouth Rock Extension Placer in 1890. The legal question of whether the R.S. 2477 offer was validly accepted cannot be answered based on nothing more than a document stating that someone located a mining claim at a particular place and time. Rather, the answer to this question depends on the legal rules governing the creation of public highways and on actual evidence-not mere conjecture-that these rules were satisfied. Standage Ventures, Inc. v. Arizona,
¶76 R.S. 2477 states, in its entirety, as follows: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” It is well-settled that R.S. 2477 is “an offer of the right of way for the construction of a public highway on some particular strip of public land.” State ex rel. Dansie v. Nolan,
¶77 Here, the Cobban Placer left the public domain on February 20, 1892, when William F. Cobban and William H. Lewis located this mining claim. See Opinion, ¶¶ 3, 5. Therefore, in order to determine whether there was a valid acceptance
Prior to July 1, 1895, a public highway could have been established either by the act of the proper authorities, as provided by the statute, or by use by the public, for the period of the statute of limitations as to lands, of the exact route confined to the statutory width of a highway, later claimed to be a public highway, or by the opening and dedication of a road by an individual owner of the land, or on a partition of real property.
Nolan,
¶78 It has not been argued in this case that a public road was established across the Cobban Placer prior to 1892 “by the act of the proper authorities” or “on a partition of real property.” Indeed, the District Court observed that OLR had not raised either of these two theories. As for “opening and dedication” by an individual landowner, this Court has previously held that R.S. 2477 does not come within the meaning of “dedication by the owner of the land” as contemplated by Montana highway laws. See Nolan,
¶79 With respect to the character and extent of the use, it must be shown that the road was “known and used as a highway common to all the people.” State v. Auchard,
¶80 The Wisconsin Supreme Court reached a similar conclusion with respect to acceptance of the R.S. 2477 offer:
As said in [Streeter v. Stallnaker,85 N.W. 47 , 48 (Neb. 1901)]: “The statute was a standing offer of a free right of way over the public domain, and, as soon as it was accepted in an appropriate manner by the agents of the public or the public itself, a highway was established.” This seems to us a very fair and reasonable construction of the law. Mere fugitive trespasses by private persons over public lands, even though continued for a considerable time, do not meet the requirement. It has been held that it may be accepted by the state by passage of a general law [Wells v. Pennington County,48 N.W. 305 (S.D. 1891)]; also by county authorities by surveying, platting, and marking out a road, though such acts were insufficient to constitute a laying out of a road under the general road law [Streeter, supra]; also by more than 20 years’ adverse use by the public generally [McRose v. Bottyer,22 P. 393 (Cal. 1889)]. It has never been held, however, that a few months’ desultory use by a few persons of a logging road or trail through the woods, with no acts by the public authorities of any kind, would constitute an acceptance of the offer made by the government.
Town of Rolling v. Emrich,
¶81 In the case at hand, it goes without saying that, thus far, there has been no evidence presented to establish by clear and convincing proof-or any other standard, for that matter (see Dissent, ¶ 130)-that the
¶82 The Dissent, however, attempts to circumvent this conclusion by offering a fifth method, not identified in Nolan or any other precedent, for establishing a public highway under Montana law prior to 1892-namely, use of public land by an individual for no particular amount of time. This novel theory, entirely of the Dissent’s own making, is not supported by any legal authority whatsoever. Nor is it established factually in the record now before us.
¶83 The Dissent’s theory proceeds as follows. The R.S. 2477 offer was open-ended and self-executing. Dissent, ¶¶ 104, 105, 115, 121. Reese accepted the offer when he located the Plymouth Rock Placer in 1889 and the Plymouth Rock Extension Placer in 1890. Dissent, ¶¶ 119,135, 139. (The Dissent does not actually state that locating the Plymouth Rock Placer and the Plymouth Rock Extension Placer required the construction of a public highway across the Cobban Placer, but this appears to be the Dissent’s premise.) Reese used the road that is at issue in this case. Dissent, ¶¶ 110, 135. It was not necessary for Reese to use the road for any particular amount of time in order to accept the R.S. 2477 offer, since acceptance does not require any particular duration of use. Dissent, ¶¶ 115-124. It also was not necessary for anyone but Reese to use the road, since acceptance does not require use by more than one individual. Dissent, ¶¶ 119, 129, 139. Therefore, a public highway across the Cobban Placer arose by operation of law and existed by 1892 when Cobban and Lewis located the Cobban Placer. Dissent, ¶¶ 106, 122, 135. Cobban and Lewis took title subject to this public highway. Dissent, ¶¶ 119, 122, 124, 131.
¶84 The most obvious flaw in the Dissent’s approach is its implausibility. If the R.S. 2477 offer could be accepted merely by an individual’s journeying across unenclosed public lands, then the entire countryside would consist of public highways. As noted above, this notion was rejected long ago, Nolan,
¶85 That aside, the Dissent’s syllogism is legally unsustainable. It is certainly true that Congress did not specify a particular method or procedure for accepting the R.S. 2477 offer. Nor did Congress require that the offer be accepted by application to, or approval by, the federal government. See San Juan County, Utah v. United States,
¶86 The same applies to the Dissent’s attempt to omit any requirement of public use for the statutorily-specified period of time. Dissent, ¶¶ 115-124. The Dissent cites numerous cases from other jurisdictions for the proposition that there is no specific period of use applicable to R.S. 2477. Dissent, ¶ 118.
¶87 I do agree with the Dissent’s suggestion that “prescription” is an inapt term for referring to the second method identified in Nolan of establishing a public highway-namely, “use by the public, for the period of the statute of limitations as to lands, of the exact route confined to the statutory width of a highway, later claimed to be a public highway,” Nolan,
¶88 Prior to July 1, 1895, a highway could be established by prescription. State v. Auchard,
¶89 That said, the Dissent reasons that because the use is not adverse, it would be “counter-intuitive” to require the use to occur for any particular amount of time. Dissent, ¶ 119. On this point, I could not disagree more with the Dissent. For one thing, the Dissent offers no alternative objective basis for determining whether the character and extent of public use were sufficient to constitute an acceptance of the R.S. 2477 offer. The Dissent simply asserts that the location of a mining claim constitutes an acceptance of a right-of-way over adjoining public land. Notably, the Dissent provides no guidance or insight as to what specific aspects of locating a mining claim-here, the Plymouth Rock Placer and the Plymouth Rock Extension Placer-involve use by the public, sufficient in character and extent, to constitute an acceptance of the R.S. 2477 offer.
¶90 More importantly, the Dissent’s proposed new theory of acceptance flies in the face of 137 years of Montana precedent, without any rationale for changing course at this late date. Five years after R.S. 2477 was enacted, the Court in Robertson v. Smith,
[R.S. 2477] does not devote any particular portion of the public domain to a highway. It gives a general right to the public of a right of way for that purpose over public lands, and should be construed only to offer to devote to that use any lands belonging to the general government, not reserved for public uses, that the public might, through its proper officers, select. Until the public then accepts the offer made, and seeks to devote some particular portion of the public domain for a highway, no rights accrue to the public over such lands. See The City and County of San Francisco v. David Calderwood et al.,31 Cal. 585 [1867]. No rights could have accrued to the public in the land, upon any portion of Cement gulch, until either the legislature declared the tollroad up the same a highway, or until the said county commissioners sought to locate one there.
Robertson,
¶91 Sixteen years later, the Court in Murray v. City of Butte,
¶92 Next, in City of Butte v. Mikosowitz,
The purpose of the congressional grant or dedication is to enable the public to acquire a roadway over public lands. The method by which the roadway is to be established is not specified; and it must be held, therefore, that the Congress intended that any acts by which the public might acquire a public roadway over private property, otherthan by purchase, would be sufficient to constitute an acceptance of this grant or dedication.
Mikosowitz,
¶93 The rule that acceptance of the R.S. 2477 offer by mere public use requires use for the statutorily-prescribed period has been repeated in numerous cases since Mikosowitz. See Nolan,
“The trial court based its judgment on the theory that the act of Congress granting a right of way for the construction of public highways over public lands not reserved for public use was a grant in praesenti, and became effective the moment the public began using the way as a public highway, and that it is not necessary that a way should be used for any specific time in order to constitute an acceptance of it as a grant under this statute. * * * But it was not said, or intended to be said, that a user for any lesser period than seven years would be sufficient for that purpose. On the contrary, to hold that a lesser period would suffice in this state would violate the terms of the grant made by Congress. The grant is for a right of way to establish a public highway, and a public highway must be established in some of the ways provided by statute before the grant takes effect. * * * The shortest period allowed by statute to establish a highway by user in this state is seven years, * * * and no user short of this period can therefore be held to be an acceptance of the grant contained in the act of Congress cited.”
Nolan,
¶94 As for the character and extent of the use, as explained above, our cases have consistently required the proponent to prove that the use was, in fact, “public” and over a definite and fixed course. See e.g. Auchard,
¶95 In the face of this long line of precedent requiring convincing evidence that the alleged highway was used for the statutorily-prescribed period of time and that the character and extent of the use was “common to all the people,” the Dissent now argues that we should abandon our established, predictable approach in favor of a wholly arbitrary scheme under which use for no particular amount of time and by no particular number of persons is sufficient to accept the R.S. 2477 offer. As noted, the Dissent offers no guidelines other than its conclusory assertion that whatever Reese did in the course of locating the Plymouth Rock Placer and the Plymouth Rock Extension Placer, it constituted an acceptance.
¶96 This approach was not contemplated by any of our cases during the time period in which R.S. 2477 was in effect (1866-1976), and I strongly disagree with injecting such ambiguity and subjectivity into this area of law — not only because of the uncertainty it would engender with respect to land titles in this state, but also because the Dissent’s approach lacks any persuasive justification. As the Tenth Circuit aptly observed in Southern Utah Wilderness Alliance :
Both right-of-way holders and public and private landowners faced with potential R.S. 2477 claims have an interest in preservation of the status quo ante. That is best accomplished by not changing legal standards. In [Sierra Club v. Hodel,848 F.2d 1068 (10th Cir. 1988)], this Court observed that “R.S. 2477 rightholders, on the one hand, and private landowners and [the Bureau of Land Management] as custodian of the public lands, on the other, have developed property relationships around each particular state’s definition of the scope of an R.S. 2477 road.”848 F.2d at 1082-83 . The same can be said of the existence of an R.S. 2477 road.
Southern Utah Wilderness Alliance,
¶97 Lastly, aside from the Dissent’s legally unsound position, the Dissent’s entire argument rests on factual assertions that are not established in the record before us. Indeed, it could fairly be said that the Dissent engages in wild speculation as to events and activities that may have taken place during the late 1880s and early 1890s in the area which ultimately became the Cobban Placer, the Plymouth Rock Placer, and the Plymouth Rock Extension Placer. Most notable among those, the Dissent asserts repeatedly that the road depicted on MS 4200 was constructed no later than, and has been in use since, 1889 when Reese located the Plymouth Rock Placer. The Dissent also surmises that this was not simply the only road indicated on the maps and surveys in the record before us, as the District Court found, but was actually the “sole” means of access to the Plymouth Rock Placer and the Plymouth Rock Extension Placer.
¶98 There is no factual basis in the record for either of these assertions. No survey or map in the record shows the road prior to 1893; no records indicate who built the road and when; and there is no evidence establishing what route(s) Reese used to access the Plymouth Rock Placer. All we know at this point is that the road was in existence by 1893, when it was described in MS 4200’s
¶99 As for whether the road over the Cobban Placer was used by the public, Mineral Survey No. 5154 (dated September 1897) depicts the road terminating on the Plymouth Rock Extension Placer. In other words, the road was a dead end. Moreover, as the Landowners pointed out in their reply brief in support of their motion for summary judgment, there is no evidence in the record of a substantial mining operation on either the Plymouth Rock Placer or the Plymouth Rock Extension Placer. Thus, even assuming the road existed as of 1889 when Reese located the Plymouth Rock Placer, the evidence presented by OLR thus far does not establish that that the road was “a way common to all” and that its use was “by the public generally.”
¶100 In concluding that a public highway exists, as a matter of law, over the Landowners’ properties pursuant to R.S. 2477, the Dissent has misstated both the law and the record. The question of whether the road across the Cobban Placer is a public highway is an issue properly addressed following the development of a complete factual record in the District Court and a correct application of the laws governing the creation of public highways in Montana prior to 1892.
In its discussion of OLR’s R.S. 2477 theory, the District Court stated that “there has been no argument the Road was obtained by action of authorities, prescription, or partition of real property.” However, in its response in opposition to the Landowners’ motion for summary judgment, OLR did assert that “the grant of the [road across the Cobban Placer] by the federal government was accepted by public use of the road for at least five years before July 1,1895.”
In particular, the Dissent cites Hughes v. Veal,
In this regard, I recognize that we may draw inferences from the record for purposes of evaluating OLR’s motion for summary judgment. However, as the Dissent is well aware, all reasonable inferences that might be drawn from the offered evidence are to be drawn in favor of the party opposing summary judgment. Farmers Co-op. Ass’n v. Amsden, LLC,
In this regard, OLR’s proposal is not merely to provide public access to the Plymouth Rock Extension Placer. It is to provide public access to the Our Lady of the Rockies statue as well. In other words, OLR proposes essentially to extend the alleged public right-of-way, by way of a tram, to the top of the Continental Divide. Whether this use is within the scope of any R.S. 2477 highway that may exist over the Landowners’ properties is questionable. See Southern Utah Wilderness Alliance v. Bureau of Land Management,
Dissenting Opinion
dissents.
¶101 The Court’s decision reaches a result at odds with the practical realities of the history of property ownership in Montana, particularly with respect to the location and patenting of mining claims in and around Butte. I dissent.
¶ 102 Courts in construing a statute “may with propriety recur to the history of the times when it was passed ...” in order to ascertain the reason for a particular provision. Leo Sheep Co. v. United States,
¶103 Talbott highlights the fact that Montana, like every other western state, is a public domain state. 25 Stat. 676 (1889). Montana’s lands passed from the public domain to private and State ownership by Act of Congress. The United States granted Montana specific tracts for schools and other public purposes in the 1889 Enabling Act. 25 Stat 676. Settlers acquired public lands under the Homestead Act of 1862, 12 Stat. 392, the Stock-Raising Homestead Act of 1916, 39 Stat. 862, and the Desert Lands Act of 1877,19 Stat. 377. Miners, like the people who patented the Cobban Placer, acquired public lands under the Lode Mining Act of 1866, 14 Stat. 251, and the General Mining Act of 1872, 17 Stat. 91. The United States used disposal of the public domain alternatively to civilize the wild frontier, to stimulate the American economy, and to provide structure for national transportation and distribution of American goods. Robert Tudor Hill, The Public Domain and Democracy: A Study of Social, Economic and Political Problems in the United States in Relation to Western Development 48 (AMS Press 1968). These goals and policies brought thousands of Americans to Montana during the late 19th century and early 20th century. See Hill, The Public Doman and Democracy at 16.
¶104 One step to promote the goal of developing mineral deposits involved the United States granting rights-of-way across the public domain for the construction of public highways through a provision of the 1866 Lode Mining Act, now commonly known as R.S. 2477. Act of July 26, 1866, ch. 262, § 1, 14 Stat. 251. Section 8 of the Act recognized and preserved rights-of-way already in existence on the public domain notwithstanding the issuance of future patents. R.S. 2477; Murray v. City of Butte,
¶105 Every acre of Montana land originated in the public domain. 25 Stat. 676 (1889). Every Montana landowner succeeded the original sovereign landowner. Many of these landowners took title to the portions of the public domain subject to existing easements granted pursuant to R.S. 2477. Murray,
¶106 Both the District Court and the Court recognized that the patent issued for the Cobban Placer incorporates the 1893 survey plat and field notes of survey for MS 4200. ¶ 26; Jefferis v. East Omaha Land Co.,
¶107 The District Court erred as a matter of law when it denied summary judgment to OLR on its R.S. 2477 claim. I address this issue even though neither party raised it on appeal in light of the fact that the Court undertakes a review of the entire record in determining the existence of a public road. Reid v. Park County,
¶108 William F. Cobban and William H. Lewis located the Cobban Placer in 1892. This location of the Cobban Placer in 1892 effectively removed it from the public domain. California Coastal Com’n v. Granite Rock Co.,
¶109 Pursuant to the General Mining Law of 1872, Cobban and Lewis had the Cobban Placer surveyed in 1893. They filed the survey, MS 4200, with the U.S. Surveyor General’s Office on May 20, 1893. Cobban and Lewis perfected title and received their patent for the Cobban Placer in 1896. Title passed to them from the U.S. Government. The deed transferring title from the U.S. Government to Cobban Placer referred to MS 4200 and the accompanying field notes.
¶
¶111 The Road does not constitute some amorphous sheep trail winding hither and yon across open country as did the one described in State v. Nolan,
* A Northern Pacific Railway Map dated 1890-1913;
* A GLO map dated 1913;
* The Anaconda Company’s “Hycon” base map dated 1952;
* The U.S. Geological Survey aerial photograph dated 1952;
* The U.S. Geological Survey “Homestake Quad” Map dated 1963-1978;
* A General Highway Map-Silver Bow County, indicating the road inventory for gas tax apportionment, dated 1948-1989;
* A Federal Aid, Local & City Road System, dated 1977-1986;
* A “Map of Butte & Vicinity” prepared by J. Miller of the Butte-Silver Bow/State of Montana Land Appraisal Office dated May 1986; and
* A “Cadastral Plat,” Montana Department of Revenue-Property Assessment Division Butte-Silver Bow Appraisal, indicating the “ROAD” as a county road dated January 1999.
¶112 The United States, through R.S. 2477, made an express offer in 1866 to dedicate unappropriated lands for highways. Lovelace v. Hightower,
¶113 The Court asserts that R.S. 2477 cannot demonstrate federal intent to create an easement in light of Leo Sheep,
¶114 Congress failed to include express easements in the Union Pacific Act of 1862 due to difficulty in enticing investors into the project of developing a transcontinental railroad. Congress originally included all of the odd-numbered lots within 10 miles on either side of the track for the railroad. Congress later upped the ante to 20 miles on either side of the track when the Union Pacific’s original subscription drive for private investment proved a failure. Leo Sheep,
¶115 The Court in City of Butte v. Mikosowitz,
¶116 Admittedly the Court in Nolan rejected as insufficient testimony that a sheep trail that had been used “since the early 90’s” constituted construction of a road for purposes of R.S. 2477. Nolan, 58 Mont. at 170,191P. at 154. The Nolan Court incorrectly stated that no public road could be established pursuant to R.S. 2477 without establishing public use for the requisite five-year statutory period before Section 2600 of the Political Code took effect on July 1, 1895. Nolan, 58 Mont. at 173-74,191P. at 154.1 must confess my own recent complicity in perpetrating this erroneous interpretation of R.S. 2477. See Watson v. Dundas,
¶117 The Court in Moulton rejected a claim of a public road leading to some forest lands in Fergus County because the proponents had failed to demonstrate public use for the requisite five-year period before July 1,1895. Moulton,
¶118 The Court’s statement in Moulton rejecting public use for any statutory period comports with the majority position. E.g., Lovelace,
¶119 It would be counter-intuitive to impose some sort of statutory period relevant to a prescriptive easement in connection with R.S. 2477. The United States expressly dedicated an offer of an easement. Lovelace,
¶120 For example, in Murray the plaintiff brought an action of ejectment against the City of Butte to recover possession of certain real property situated in Butte. The plaintiff relied upon a mineral patent that he had received from the United States. The City of Butte defended by offering to prove that various streets and roads existed at the time of plaintiffs location of the mining claim in question. Murray,
¶121 The Court, relying on R.S. 2477, determined that the City of Butte should have been allowed to prove that it had accepted the grant offered by R.S. 2477. Murray,
¶122 The Court rejected the plaintiffs argument that the City of Butte had failed to object to his patent application or claim an easement at that time. The Court recognized that “the United States cannot, by patent, convey to any grantee a greater right than it has at the time of grant.” Murray,
¶123 The Court and the Landowners concede that the Road constitutes a private easement across the Cobban Placer. ¶ 16. The Court fails to explain, however, how such a private easement came to exist. It dismisses as “immaterial” the matter of the private easement. ¶ 16. The Court concludes that the Cobban Placer patent’s omission of any expressed reserved easement for a public road defeats the notion of a public road. ¶ 34. The same patent makes no mention of any private easement either, yet the Court and the Landowners concede that the Road existed at the time that Cobban and Lewis located the Cobban Placer in 1892. This “immaterial” concession seems dispositive. Murray,
¶124 The Court in Murray confirmed that a claimant took title to a mining claim subject to any easements valid against the United States when the land comprised the public domain. Murray,
¶125 The Court curiously relies on Robertson v. Smith,
¶126 The South Dakota supreme court understood Congress’s intent in enacting R.S. 2477 as follows:
[T]o enable the citizens and residents of the states and territories where public lands belonging to the United States were situated to build and construct such highways across the public domain as the exigencies of their localities might require, without making themselves liable as trespassers. And when the location of the highway and roads was made by competent authority or by public use, the dedication took effect by relation as of the date of the act; the act having the same operation upon the lines of the road as if specifically described in it.
Wells,
¶127 The language of Section 2600 of the Political Code comports with this understanding. The statute provided in pertinent part that “[a]ll highways, roads, streets, alleys, courts, places and bridges laid out or erected by the public or now traveled or used by the public ... are public highways.” Section 2600 (emphasis added). Montana adopted the language of Section 2600 from the California code that had contained a similar provision since 1883. Bolinger v. City of Bozeman,
¶128 The term “now,” as used in Section 2600, “clearly indicates the intention to leave intact such rights as the public had already acquired....” Barnard Realty Co. v. City of Butte,
¶130 The standard for determining the existence of a public road is whether the record, taken as a whole, shows that a public road was created. Lee v. Musselshell County,
¶131 The District Court found that the Road, as depicted on MS 4200 in 1893, constituted the sole means of access to the Plymouth Rock and Plymouth Rock Extension claims. Cobban’s and Lewis’s segregation of the Cobban Placer from the public domain in 1892 had no effect on the public easement, unless his occupation of the claim could have the effect of extinguishing an existing easement. Easements terminate only by some method recognized by law. Gerald Komgold et al. Private Land Use Arrangements: Easements, Real Covenants, and Equitable Servitudes, § 6.01 (2d ed. Juris Publg. 2004). The common law recognizes numerous legal methods to terminate an easement including by terms of an agreement, completion of the purpose of the easement, adverse possession, overuse, alternation of dominant estate, abandonment, estoppel, merger, destruction of servient estate, and by tax deed, among others. Korngold, Private Land Use Arrangements: Easements, Real Covenants, and Equitable Servitudes, §§ 6.02-6.16.
¶132 The Legislature has recognized merger, destruction of the servient estate, acting in a way inconsistent with the easement, and abandonment of a prescriptive easement for the statutory period as methods to terminate an easement. Section 70-17-111(1)(a)-(d), MCA. Montana courts also recognize clear and unambiguous easement language, See Mularoni v. Bing,
¶133 I turn next to the ¡question of whether the incorporation of MS 4200 and the survey field jnotes into the patent issued for the Cobban Placer created an easement by plat. I do not agree with all of the Court’s analysis regarding our easement by plat jurisprudence. I will save most of these disagrefements
¶134 The Court rejects the notion that MS 4200 created a public easement across the Cobban Placer because it determines that easements by plat cannot create public roadways. The Court reasons that none of our previous decisions have recognized the creation of public roadways. ¶ 61. Conversely, none of our previous easement by plat decisions has determined that easements by plat may not be public. E.g. Loomis v. Luraski,
¶135 Moreover, none of the easement by plat cases addressed a situation, such as the one presented here, where the easement in question was created pursuant to an offer to the public by the United States, to create a public highway. Cobban and Lewis located the Cobban Placer on the public domain in 1892. The Road existed across their proposed claim as Reese had located the Plymouth Rock and Plymouth Rock Extension Placer in 1889 and 1890. The Road provided the only access to these claims. “[P]arties are presumed to contract with reference to the condition of the property at the time of the sale, provided the marks are open and visible.” Godfrey v. Pilon,
¶136 The Road was open and visible in 1893 when the Cobban Placer was surveyed. Godfrey,
¶137 With respect to the Court’s determination that MS 4200 does not clearly manifest the United States’s intent to reserve a public easement, I would point to the Court’s error in looking for the United States’s intent in the patent itself transferring title of the Cobban Placer to Cobban and Lewis. ¶ 29. The plain language of R.S. 2477 provided the United States’s express intent to grant a public easement. These public easements across the public domain encumbered future claimants of the public domain over which these public easements crossed. Murray,
¶138 We know that the patent here likewise incorporated MS 4200 and the survey notes. ¶ 26; Jefferis,
¶139 The Court cites Leo Sheep for the proposition that land titles have a special need for “certainty and predictability.” ¶ 66, (quoting Leo Sheep,