Lead Opinion
delivered the Opinion of the Court.
¶1 Public Lands Access Association, Inc. (PLAA) appeals from a 2012
¶2 James Kennedy (Kennedy) cross-appeals from a 2008 judgment of the Fifth Judicial District Court, Madison County, granting PLAA summary judgment on the issue of public access to the Ruby River from Lewis Bridge. We affirm in part, reverse in part, and remand for further proceedings.
¶3 We have consolidated the appeal and cross-appeal issues into the following issues:
1. Did the District Court correctly define the width of the public right-of-way at the intersection of Seyler Lane and the Ruby River?
2. In determining the width of the public right-of-way at the intersection of Seyler Lane and the Ruby River, did the District Court err by excluding evidence of recreational use?
3. Is the use of a public road right-of-way established by prescription limited to historic use, or does it extend to all public uses, including recreation?
4. Did the District Court err by rejecting certificates of survey (COS) as evidence of the width of the existing public right-of-way at the intersection of Seyler Lane and the Ruby River?
5. Did the District Court effectuate an unconstitutional taking of Kennedy’s property when it ruled that the public may access the Ruby River via the right-of-way granted by the Lewis Lane deed?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Duncan District Road, Lewis Lane, and Seyler Lane are county roads in Madison County, Montana. All three roads cross the Ruby River by way of bridges. The bridges were constructed by, and are currently maintained by, Madison County. Kennedy owns land that abuts the public rights-of-way on both Seyler Lane and Lewis Lane. ¶5 PLAA filed a complaint against Madison County in May 2004, alleging that individuals who owned property adjacent to the three bridges had erected fences along each county road to the ends of each bridge, preventing the public from using the rights-of-way to access the Ruby River. PLAA twice amended its complaint and ultimately sought, among other things, a declaratory judgment that the public may use Duncan District Road, Lewis Lane, and Seyler Lane, and their bridges and bridge abutments, to access the Ruby River. Kennedy intervened
¶6 The parties moved for summary judgment, and, after holding a hearing on the matter, the District Court issued an order on October 1, 2008. The court held, in part, that the public rights-of-way at Duncan District Road and Lewis Lane are each 60 feet wide, аnd the public is entitled to use the entire 60 foot width to access the Ruby River. With respect to Seyler Lane, the court determined at the hearing that, because the right-of-way was established by prescriptive use as opposed to statutory petition (Duncan District Road) or dedication or grant (Lewis Lane), additional fact finding was necessary to determine the width of the right-of-way and whether the public could use it to access the Ruby River. Summary judgment pertaining to Seyler Lane was therefore denied, and a trial was ordered to resolve the remaining issues.
¶7 The parties stipulated to the facts set forth below, through paragraph 15, prior to trial. Seyler Lane and Seyler Bridge were constructed by Madison County, but there are no records which verify the date of their original construction. Madison County re-constructed Seyler Bridge in its present location after a 1976 flood. Kennedy owns the fee title to the land underlying Seyler Bridge and the bridge approaches on Seyler Lane, including the bed and banks of the Ruby River. The Seyler Bridge surface is 24 feet wide. The area of the bridge surface between the guard rails on the bridge is 21.35 feet wide. The paved portion of the road approaching the bridge is approximately 20 feet wide and sits atop road fill that slopes down and away from the edge of the pavement. The bottom edge of the road fill is referred to as “toe of road fill.”
¶8 In June 2004, Madison County issued Kennedy an “Encroachment Permit for Fence on County Bridge Right-of-Way Madison, Montana” (the “Encroachment Permit”). Pursuant to the Encroachment Permit, Kennedy installed private fences at three of the bridge corners at Seyler Bridge. Some of the fences are located at the toe of road fill, while others are inside or outside the toe of road fill. The fences do not impede, block, or intimidate the public from reaching the Ruby River. ¶9 Madison County has assumed jurisdiction over Seyler Lane and Seyler Bridge and is responsible for maintaining them. Madison County maintains the paved surface of Seyler Lane, including the toe
¶ 10 Finally, and of particular import to this appeal, the parties agreed upon the following fact:
Seyler Bridge and its approaches on Seyler Lane is a county road right-of-way that was established by prescriptive use. There is no dispute that the public has the right to use the paved portion of Seyler Bridge and its approaches on Seyler Lane for travel across Seyler Bridge over the Ruby River.
¶11 A bench trial was held January 9-11, 2012, at which both parties presented exhibits and witness testimony. On April 16, 2012, the District Court issued its findings of fact, conclusions of law, and final judgment. We will refer to the findings and conclusions in more detail below. The gist of the District Court’s decision, however, was that PLAA failed to prove the existence of a public prescriptive easement beyond the fences at Seyler Bridge by clear and convincing evidence.
¶12 The final judgment provides:
1. Westerly and southerly of the Seyler Bridge, the public has a prescriptive right to travel and to use Seyler Lane between the fences and likewise upon the Seyler Bridge.
2. Madison County has a prescriptive right independent and separate from public use to lateral and subjacent support for Seyler Lane and Seyler Bridge, together with such additional land as is reasonable and necessary for maintenance and repair.
3. Except as described in paragraph 2 above, there is no public right whatsoever on either side of Seyler Lane outside the fences or beyond the traveled way where there is no fence.
¶13 PLAA appeals this decision, and Kennedy cross-appeals from the court’s order regarding the parties’ motions for summary judgment.
STANDARD OF REVIEW
¶14 We review for clear error a district court’s findings of fact. Boyne USA, Inc. v. Spanish Peaks Dev., LLC,
DISCUSSION
¶16 The issues PLAA raises on appeal relate to one overarching question: May the public use the Seyler Lane right-of-way to access the Ruby River? This inquiry breaks dоwn into two subsets of questions: What is the width of the Seyler Lane right-of-way, and may the public use the right-of-way for recreational purposes? We address these issues in turn.
¶17 Issue One: Did the District Court correctly define the width of the public right-of-way at the intersection of Seyler Lane and the Ruby River?
¶18 The parties stipulated, and the District Court found, that Seyler Bridge and its approaches on Seyler Lane is a county road right-of-way that was established by prescriptive use. Despite this finding, the court determined that the public could only use the portion of the right-of-way “between the fences and ... upon the Seyler Bridge.” It reserved use of the areas necessary for maintenance and repairs, which included lateral and subjacent support for Seyler Lane and Seyler Bridge and “such additional land as is reasonable and necessary,” exclusively for Madison County. By doing so, the District Court effectively split the public right-of-way into a narrower primary public right-of-way for travel and a wider secondary limited easement for maintenance and repairs, and explicitly excluded the public from using the County’s secondary easement.
¶19 For the reasons stated below, we reverse the District Court’s decision that the County has a secondary easement for purposes of construction, maintenance and repair that is separate from the public road right-of-way. In a public road right-of-way established by prescription, the areas necessary to support and maintain the road, as well as the land needed to make the road safe and convenient for public use, are included in the public right-of-way.
Secondary Easements
¶20 PLAA argues that, because Seyler Bridge and its approaches on Seyler Lane is a county road right-of-way acquired by prescriptive use, the public has obtained by prescription the right to use both the portion of the roadway actually traveled or paved and the land needed for the support and maintenance of the paved and traveled portion,
¶21 In support of finding that the county holds a secondary easement for repair and maintenance, the District Court relied upon the following cases: Laden v. Atkeson,
¶22 Our seminal case on secondary easements is Laden. There, the plaintiff landowners had an easement in a ditch that ran through the defendant’s land. The defendant did not contest this right, but did challenge the plaintiffs’ right to enter upon the defendant’s lands in order to reach the ditch and to use lands on the sides of the ditch for maintenance and repair. We ruled for the plaintiffs and recognized that “ ‘[t]he owner of a dominant estate having an easement, has the right to enter upon the servient estate and make repairs necessary for the reasonable and convenient use of the easement, doing no unnecessary injury to the servient estate.’ ’’ Laden,
¶23 Since Laden, we have recognized secondary easement rights in a number of cases involving private ditch easements. See e.g. Shammel v. Vogl,
¶24 At issue in the present case, in contrast to a private easement, is a county road acquired by prescriptive use. When a county road is established, the public acquires the right-of-way “and the incidents necessary to enjoying and maintaining it.” Section 7-14-2107(3), MCA. We previously have observed that Montana statutes “clarify that a public highway consists of more than the surface of a roadway,” and is not “limited to the driving surface.” DeVoe v. State,
¶25 This approach is consistent with the general rule that the width of a public prescriptive roadway extends beyond the traveled portion of the road to include areas necessary for its support and maintenance. See e.g., McKenzie Co. v. Reichman,
¶26 We agree with these authorities and hold that the concept of a limited secondary easement does not apply to determine the width of a public road right-of-way established by prescriptive use. Here, the parties stipulated that there is a county road right-of-way established by prescriptive use at Seyler Lane and Seyler Bridge. The issue is thus not whether a public road right-of-way exists, but rather the width of that already existing right-of-way. Pursuant to the above discussion, we determine the Seyler Lane public right-of-way is not confined to the
Width of Seyler Lane right-of-way
¶27 The District Court did not establish a definite width for the County’s secondary easement. Instead, it defined the easement by reference to “the lateral and subjacent support for Seyler Lane and Seyler Bridge” and to “such additional land as is reasonable and necessary for maintenance and repair.” Because we reverse the District Court’s conclusion that the County holds a separate secondary easement, we remand to determine the width of the single public road right-of-way. That determination must be made in accordance with the guidelines set forth in this opinion.
¶28 We begin with the well-recognized principle that the minimum 60-foot road width required by § 7-14-2112(1), MCA, does not apply to roads established by prescriptive use. Wohl v. City of Missoula,
¶29 A bridge is a part of the public road upon which it is built. Section 60-1-103(22), MCA; State ex rel. Furnish v. Mullendore,
¶30 Like the Seyler Lane roadway, whiсh requires areas beyond the traveled surface for its support and maintenance, Seyler Bridge’s upkeep necessitates use of adjacent land. Madison County maintains the subjacent and lateral support for Seyler Bridge. Bridge inspectors Daniel Gravage and Shane Escott testified that access to the Ruby River for purposes of performing essential bridge inspections requires use of neighboring land. Consistent with §§ 60-1-103(2) and 7-14-2107(3), MCA, the District Court should consider the land used for support and maintenance of the bridge in determining the width of the public’s right-of-way. The width of a county road or bridge acquired by prescription must be sufficient to encompass the incidents necessary to enjoying, supporting and maintaining the roadway.
¶31 This analysis regarding the width of the right-of-way is consistent with the Encroachment Permit Madison County issued to Kennedy in 2004. The Encroachment Permit allowed Kennedy to construct and maintain “a fence on the county bridge right-of-way for the purpose of keeping livestock off the county road[.]” Kennedy installed the fences at Seyler Bridge pursuant to this permit. The right-of-way’s boundaries are not defined by Kennedy’s fences that narrow at the bridge; rather, the fences cut through the public road right-of-way.
¶32 In sum, we reverse the District Court’s determination that the County holds a secondary easement that is independent of the public’s right-of-way. We remand for the court to consider the evidence in the record, and conduct whatever additional proceedings it deems necessary, to establish a definite width of the single, unified, public road right-of-way at Seyler Lane.
¶33 Issue Two: In determining the width of the public right-of-way at the intersection of Seyler Lane and the Ruby River, did the District Court err by excluding evidence of recreational use ?
¶35 This Court has held that “ ‘seasonal use by hunters, fisherman, hikers, campers, use by neighbors visiting neighbors, and persons cutting Christmas trees and gathering firewood are not sufficient to establish [prescriptive] use.’ ” Leisz v. Avista Corp.,
¶36 We conclude that the trial court’s blanket exclusion of recreational use evidence was improper. Recreational use may be one factor in “the nature of the enjoyment” by which the public road right-of-way was acquired by prescriptive use and, thus, may be considered in determining the width of the public road right-of-way. Further, in assessing the nature of such recreational use, we have recognized that implied acquiescence does not amount to permission, to defeat a showing of adverse use. Brown & Brown of MT, Inc., ¶ 26. In Lunceford v. Trenk,
¶37 On remand, the plaintiffs are entitled to present evidence of recreational use to inform the District Court’s determination of the width of the public right-of-way. As PLAA recognized during trial, that evidence will have to be confined to use pre-dating the 1985 statute that prohibits acquiring a prescriptive easement through “the entering or crossing of private property to reach surface waters.” Section 23-2-322(2)(b), MCA.
¶38 Accordingly, we remand for the District Court to consider the evidence in the record, and conduct whatever additional proceedings it deems necessary, to establish a definite width of the public road right-of-way at Seyler Bridge. The District Court should consider the lands used in connection with the bridge (§ 60-1-103(2), MCA); “the incidents necessary to enjoying and maintaining it” (§ 7-14-2107(3), MCA); and historical evidence of the “nature of the enjoyment by which it was acquired” (§ 70-17-106, MCA), including evidence of recreational use. Any recreational uses by the public beyond the width necessary for the construction, maintenance and repair of the roadway and the bridge would have to be established through clear and convincing evidence for the requisite statutory period. See Brown & Brown of MT, Inc., ¶ 19; Portmann,
¶40 The essential dispute here is whether the public can access the Ruby River from Seyler Lane for recreational purposes-specifically, whether the public can travel from Seyler Lane down to the high water mark of the river. The District Court determined it could not. The court’s holding was based on its finding that PLAA failed to submit sufficient evidence of adverse public use to establish a prescriptive
¶41 The District Court did recognize a prescriptive right for the County to use any land needed for maintenance and repair, but determined that such land is not available for public use. The court concluded that “County maintenance does not show usage by the public at large for purposes of public travel over areas utilized for maintenance of the road and bridge,” and that “[t]here is a distinction between the right of the government to maintain the roadway bridge and the right of the public to travel everywhere maintenance activity is undertaken.” Finally, the court determined that the “County prescriptive right to use maintenance areas cannot be transformed into a new traveled way.”
¶42 We have reversed the District Court’s conclusion that the areas needed for maintenance and repairs are not a part of the public right-of-way. We must now consider whether PLAA is required to show that particular areas within the public road right-of-way have been used adversely to access the Ruby River in order for the public to now use them as such. We determine it is not. Once a public road is established by prescriptive use, the use of that road is not limited to the adverse usage through which the road was acquired.
¶43 Section 70-17-106, MCA, provides that “[t]he extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired.” We have applied this statute in many cases involving private prescriptive easements and determined that it “limits owners of a prescriptive easement to the use that was established during the prescriptive period.” Kelly v. Wallace,
¶45 In Portmann, we held that “the rights acquired by adverse use can never exceed the greatest use of the land for the full prescriptive period.” Portmann,
¶46 Our review of case law from other jurisdictions reveals that the scope of use for public prescriptive easements generally is not construed as strictly as the scope of use for private prescriptive easements. “Numerous authorities hold that the scope of public prescriptive easements is broad enough to include reasonably foreseeable public uses.” Bruce & Ely, Law of Easements and Licenses in Land § 8:12, 8-42.
¶47 In Lovvorn,
The ultimate distinction between a public road and a private easement, however acquired, is that the private easement can be, and is, limited to specific individuals and/or specific uses while a public road is open to all members of the public for any uses consistent with the dimensions, type of surface, and location of the roadway. There is no logical way to advise the members of the public as to which portions of the public roads they travel are subject to specific historic uses, much less to enforce the use of the roads for only those limited purposes. Thus, we conclude that once a road has been declared to be public, all uses that are permissible*294 to the public under the laws of this state are permissible uses.
(Emphasis original). In Boykin v. Carbon Co. Bd. Of Comm’rs,
The use of a public highway right-of-way cannot be limited to historical uses as may be the case for private claimants of particular prescriptive easements. To rule otherwise would take us down a road we should fear to travel.... The use of the road may well increase in the future, and the method of such increased use сannot be foreseen. Such is the nature of a public highway right-of-way. To rule otherwise would defeat the very nature of a public road system.
Boykin,
¶48 Many other jurisdictions have similarly distinguished the scope of use of public prescriptive easements from that of private prescriptive easements. In Bentel v. Co. of Bannock,
¶49 In Montana, although we have not yet explicitly addressed the scope of use of public roads acquired by prescription, we have discussed our expansive interpretation of the uses of public highways in general. In Kipp v. Davis-Daly Copper Co.,
¶50 In Bolinger, we observed the following regarding a public prescriptive easement:
[T]he easement is not limited to the particular methods of use in vogue when the easement was acquired, but includes all new and improved methods, the utility and general convenience of which may afterwards be discovered and developed in aid of the general purpose for which highways are designed.
Where land is conveyed for a public highway the implication must be that it will be used as the convenience and welfare of the public may demand, although that demand may be augmented by the increase of population.
[T]he dedicator is presumed to have intended the property to be used in such a way by the public as will be most convenient and comfortable and according to not only the properties and usages known at the time of dedication, but also to those justified by lapse of time and change of conditions.
Bolinger,
¶51 When a public roadway is acquired through prescriptive use instead of a grant or dedication, the same issue pertaining to usage arises: Should public use of that easement be limited to the usage that existed at the time the easement was established, or, rather, should
¶52 In the case before us, the District Court determined that the public could not travel on the land between the fences at Seyler Bridge and the high water mark of the Ruby River. The use of the Seyler Lane right-of-way as access to the Ruby River is not dependent upon whether this use was established adversely during the prescriptive period. Foot travel over a roadway is, and has always been, a foreseeable use of the road surface as well as any shoulders, embankments and abutments supporting the roadway. Separate from the question of width, use of the road for access to the Ruby River is a reasonably foreseeable use of a public road right-of-way that crosses a river.
¶53 Issue Four: Did the District Court err by rejecting certificates of survey (COS) as evidence of the width of the existing public right-of-way at the intersection of Seyler Lane and the Ruby River?
¶54 PLAA maintains that the District Court erred by disregarding the COS presented by PLAA at trial and incorrectly concluded such surveys, as a matter of law, could not establish the existence of a prescriptive easement. The District Court did not determine that the certificates were inadmissible, nor did the court conclude that COS can never prove the existence of an easement. Rather, the court found that the specific surveys PLAA presented did not provide information on the dimensions of the Seyler Lane right-of-way.
¶55 Because we are remanding for the District Court to determine the width of the public road right-of-way and instructing the court to conduct whatever additional fact-finding it deems appropriate, it is not necessary for us to further address this issue at this time. This Opinion in no way precludes PLAA from presenting to the court on remand any COS that provide information regarding the dimensions of the right-of-way at issue.
¶57 Kennedy cross-appeals the District Court’s grant of summary judgment to PLAA on the issue of public access at Lewis Lane. In its 2008 order, the District Court determined that the public could use the 60-foot-wide right-of-way at Lewis Lane and Lewis Bridge to reach the Ruby River. Kennedy maintains that the court еrred for two reasons. First, he argues that the Lewis Lane right-of-way was never intended to be used for access to the Ruby River for fishing, hunting, wading, and boating. Second, Kennedy asserts that the District Court’s conclusion that the public may access the Ruby River where Lewis Lane crosses the Ruby River constitutes an unconstitutional taking of his property because he owns the riverbed underlying the public right-of-way.
¶58 We reject Kennedy’s contentions. The District Court did not err, or effectuate a taking, when it ruled the public may access the Ruby River via the right-of-way the County purchased in the Lewis Lane deed. Kennedy’s predecessor in interest expressly granted a public right-of-way without limiting its uses. Further, it is well-settled in Montana that the public may use the beds of non-navigable rivers for recreation without effectuating a taking.
¶59 We agree with the District Court that Kennedy’s contention that the 60-foot-wide right-of-way his predecessor in interest granted cannot be used for river access must fail. Deeds granting a “right-of-way” have, in some cases, been construed as granting a fee interest in land.
Whether or not a particular use amounts to a diversion from that for which the dedication was made depends on the circumstances of the dedication and the intention of the party making it. It has been held that such use is authorized as is fairly within the terms of the dedication and reasonably serves to fit the property for enjoyment by the public in the manner contemplated. In other words, the dedicator is presumed to have intended the property to be used in such way by the public as will be most convenient and comfortable and according to not only the properties and usages known at the time of the dedication, but also to those justified by lapse of times and change of conditions.
Bolinger,
¶60 Kennedy has failed to demonstrate that his predecessor did not intend to authorize access to the Ruby River from Lewis Lane for public fishing, wading, hunting or other uses. Assuming arguendo that the interest Kennedy’s predecessor granted in the deed to Lewis Lane was not a fee interest, the deed still permits the uses Kennedy contests. The deed dedicated a 60-foot-wide right-of-way for Lewis Lane, including Lewis Bridge and the land and water underlying it, as a County road. The deed expressly stated that the land was to be used as a “public highway” and if it should be abandoned from that use, would revert to the grantor and his heirs and assigns. Thus, the deed’s express terms dedicated the right-of-way for public use. It did not restrict the public from any use on that stretch of the road. Since this grant created a public right-of-way, we presume that Kennedy’s predecessor intended to provide for not only those public uses known at the time, but those justified by lapse of time and change of conditions. These include convenient and comfortable public uses, including access to the Ruby River. We therefore agree with the District Court that the public may use this right-of-way to access and enter the river. We also agree with the District Court’s reasoning that “where a county road intersects state waters, the portion of each which is congruent with the other creates two over lapping public rights of way.”
¶61 Kennedy’s takings argument is unpersuasive because Kennedy has no compensable property interest in the property he claims has been taken from him. Kennedy contends that, as owner of the
¶62 Kennedy’s argument fails for two reasons. First, when Kennedy’s predecessor in interest deeded Lewis Lane road to the County, he also granted the swath of riverbed underlying the bridge and within the right-of-way to the public. Kennedy’s predecessor did not exclude the land underlying the bridge from the deed conveying the right-of-way. The public retains the right to use this bought-and-paid-for right-of-way. Kennedy has no right to complain that the public is using the right-of-way the County purchased from Kennedy’s predecessor. Yet, even ifKennedy’s predecessor had not expressly granted a right-of-way to the County for use by the public, it is settled law in Montana that the public may use the beds of non-navigable rivers, up to the high watermark, for recreation. See §§ 23-2-301 to 21-2-322, MCA; Curran,
¶63 In Montana, waters within the state are State property held in trust for the people. Mont. Const, art. IX, § 3(3). Kennedy’s reliance on Ill. C. R. Co. v. Ill.,
¶64 Kennedy misconstrues Illinois Central to assert that his ownership of the streambed also gives him ownership of the water. The dicta from Illinois Central, to which Kennedy cites, operate to illustrate the difference between the State’s “ownership” of submerged
The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace.
Illinois Central,
¶65 In Montana, the public trust as to waters is enshrined in our laws and our Constitution. See Mont. Const, art. IX, 3(3); §§ 23-2-301 to 21-2-322, MCA. Article IX, § 3(3) of the Montand Constitution provides:
All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law.
The State does not only own navigable waters as a public trust; it also owns non-navigable waters. Galt,
¶67 Because the Montana Constitution grants the State ownership of all waters within its borders, Kennedy’s reliance on Causby,
¶68 Similarly, the State’s constitutionally-granted public trust ownership of all waters in Montana distinguishes this case from Kaiser Aetna. That case concerned a “fishpond” on private property in Hawaii, where owners had dredged a channel to connect the pond to the ocean. Kaiser Aetna,
¶69 It is settled law in Montana that public recreational use of State-owned waters is not a taking because title to non-navigable riverbeds does not pass to the public. As we stated in State ex rel. Perry v. District Court, “ ‘[decisions construing the Constitution should be followed, in the absence of cogent reasons to the contrary ... .’ ”
¶70 The terms of the deed granting the public right-of-way, along with the Montana Constitution, the public trust doctrine and this Court’s decisions in Curran, Hildreth and Galt, foreclose Kennedy’s argument. Kennedy’s predecessor in interest granted a right-of-way encompassing parts of the Ruby River’s bed to the County, and the public may use that right-of-way to access the Ruby River. Kennedy never owned a property right that allowed him to exclude the public from using its water resource, including the riverbed and banks up to the high water mark. Nothing has been taken from him. Kennedy has offered no convincing reason to disrupt what has long been settled constitutional law in Montana.
¶71 We conclude that the District Court erred by finding a secondary easement that is independent and separate from the public’s easement. The areas that are reasonably necessary to support and maintain Seyler Bridge, and to ensure the public’s safe and convenient use of it, are included in the Seyler Lane public road right-of-way. We therefore remand for the District Court to consider the evidence in the record and conduct whatever additional proceedings it deems necessary to establish a definite width of the public right-of-way, applying the principles stated in this Opinion.
¶72 We further determine that the scope of use of the public road right-of-way is not limited to the adverse usage through which it was acquired and that any foreseeable uses of a public road right-of-way, including recreational use, are permitted.
¶73 Finally, Kennedy’s takings argument does not hold water: He presents no persuasive argument that a compensable property interest has been taken from him or that we should overturn our precedent and disrupt long-settled constitutional law.
¶74 Reversed and remanded for further proceedings consistent with this Opinion.
Notes
The Montana Stockgrowers Association and Hamilton Ranches also intervened as defendants, but have since stipulated to being dismissed from the case.
It should be noted that in Montana there is a rebuttable presumption that the owner of land bounded by a road or street takes title to the middle of the road, unless a different intent appears from the deed. McPherson v. Monegan,
Concurrence Opinion
concurring.
¶75 The District Court made a finding of fact that “Seyler Bridge and its apрroaches on Seyler Lane is a county road right-of-way that was established by prescriptive use.” No party appeals this finding, all having stipulated to it before the trial court.
¶76 The Court correctly notes our long-standing requirement, grounded in § 70-17-106, MCA, that the width of a roadway acquired by prescription is determined “by the character and extent of its use[.]”
¶77 With due respect, Justice McKinnon’s Dissent is wrong in suggesting that the out-of-state authority cited by the Court does not support this holding. Dissent, ¶ 101. The cited case law uniformly makes clear that the width of a prescriptive public road “necessarily includes” both the “traveled surface area of the roadway” and the “adjacent land which is needed for the prescription to be maintained as a public road[.]” Keidel,
¶78 Justice McKinnon’s focus on the law of prescriptive easements begins with the proposition that a county road may not be acquired by prescriptive use, but must be formally accepted by the board of county commissioners. Dissent, ¶ 87. Her Dissent maintains that the laws regarding public highways should not inform the Court’s rulings in this case because the statutes do not apply to prescriptive easements. Dissent, ¶ 95.1 believe these characterizations of the law to be in error,
¶79 We have recognized that “a public easement is not the equivalent of a county road. An easement is a nonpossessory interest in land.” Pedersen v. Dawson Co.,
All highways, roads, streets, alleys, courts, places, and bridges, laid out or erected by the public, or now traveled or used by the public, or if laid out or erected by others, dedicated or abandoned to the public, or made such by the partition of real property, are public highways.
(later modified and renumbered as § 1612, R.C.M. (1921); § 32-103, R.C.M. (1947)). That section was repealed with the enactment of the Montana Highway Code in 1965 (1965 Mont. Laws, ch. 197). In its place, the new Highway Code defined “public highways,” a definition that remains today:
“Public highways” means all streets, roads, highways, bridges, and related structures:
(a) built and maintained with appropriated funds of the United States or the state or any political subdivision of the state;
(b) dedicated to public use;
(c) acquired by eminent domain,... ; or
(d) acquired by adverse use by the public, with jurisdiction having been assumed by the state or any political subdivision of the state.3
Section 60-1-103(22), MCA. Although not all public highways are county roads, all county roads are public highways. See § 60-1-201(1),
¶80 As the Court observes, we have held that a county road may be declared based upon prescriptive use. E.g., Swandal Ranch Co.,
¶81 Though not directly an issue here, the discussion is not academic and merits response. Because of Seyler Lane’s nature as a public roadway, the Court concludes that principles of primary and secondary easements do not control the determination of its width at Seyler Bridge. Rather, the width must be determined based on evidence of the “lands used in connection with the bridge” (§ 60-1-103(2), MCA), “the incidents necessary to enjoying and maintaining it” (§ 7-14-2107(3), MCA), and historical evidence of the “nature of the enjoyment by which it was acquired” (§ 70-17-106, MCA). Opinion, ¶ 38. In contrast, the Dissenting Justices would hold that Madison County has a right to lands beyond the reach of the general public, but only for the singular purpose of maintenance of the road and bridge. Dissents, ¶¶ 106,126. The distinction is important, and the Court’s construction correct, because once the width of the public road is established, the county does not have infinite rights to chip away at the landowner’s property boundary to meet its maintenance needs. As the Minnesota Supreme Court pointed out in Barfnecht v. Town Bd. of Hollywood Township,
¶82 By recognizing the legal effect of the District Court’s finding that Seyler Lane is a county road right-of-way that was established by prescriptive use, the Court avoids confusion between possessory and non-possessory interests and protects landowners from future encroachments outside the boundaries ofthe public right-of-way under the auspices of a secondary easement, once width is established. How those principles affect the ultimate outcome in this case, and whether the public has a right to access the Ruby River from Seyler Bridge, are not decided today but must await the development of further evidence in the District Court.
It bears noting that Madison County was a party to the stipulation.
Section 2603 of the Political Code of Montana, enacted in 1895, provided that use alone was insufficient to establish a public highway, “until so declared by the board of commissioners or by dedication by the owner of the land affected.” The statute was amended in 1913 to delete the prohibition against creating a public highway by use alone. See Richter v. Rose,
As the Court observes (Opinion, ¶ 9), and Madison County’s briefing makes clear, the County has assumed jurisdiction of Seyler Bridge.
I do not address Justice McKinnon’s separate discussion of Kennedy’s cross-appeal, except to note that its criticism of the Court based on Richter (Dissent, ¶ 114 n. 10) appears misplaced. At issue in Richter was an alleged common law dedication of a public right-of-way, whereas this case involves an express dedication by Kennedy’s predecessor.
Concurrence Opinion
dissenting in part and specially concurring in part.
¶83 I dissent from the Court’s decision as to Issues One through Three, regarding Seyler Lane and Seyler Bridge. In my view, the Court’s Opinion disregards more than a century of precedent governing prescriptive easements and undermines the balance the Legislature has struck between landowners and recreationists. As to Issue Five, I agree with the ultimate result the Court reaches regarding Lewis Lane and Lewis Bridge, but I do not agree with the Court’s reasoning. I thus specially concur as to that issue.
¶84 At the outset, I believe the parties’ formulation of certain stipulated “facts” has hindered our ability to render a legally sound decision in this case. The Pretrial Order, which was signed by the trial judge and counsel for each party, lists numerous facts that “are admitted, agreed to be true, and require no proof.” The confusion arises from the parties’ stipulation that “Seyler Bridge and its approaches on Seyler Lane is a county road right-of-way that was established by prescriptive use.” Elsewhere in the Agreed Facts, the parties appear to have stipulated that Seyler Lane is a “public highway,” as defined by § 60-1- 103(22)(d), MCA-meaning that Seyler Lane was “acquired by adverse use by the public, with jurisdiction having been assumed by [Madison County].” The question arises, therefore, as to the significance of the parties’ separate characterization of Seyler Lane as “a county road right-of-way that was established by prescriptive use.” For the reasons which follow, I believe this characterization is inaccurate and that the Court errs by incorporating it into the analysis of Seyler Lane’s width.
A. “County Roads” are not Established by Prescriptive Use
¶85 “Public highways” are classified as (a) federal-aid highways, (b) state highways, (c) county roads, and (d) city streets. Section 60-1-201(1), MCA. A “county road,” in turn, is defined as “any public highway opened, established, constructed, maintained, abandoned, or discontinued by a county in accordance with Title 7, chapter 14.” Section 60-1-103(7), MCA (emphasis added); see also § 60-1-201(3), MCA. This specific definition of “county road” controls over the general definition of “public highways.” Brookins v. Mote,
1. petition by freeholders, approval by resolution, and opening by the board of county commissioners (see generally Title 7, chapter 14, part 26, MCA);
2. dedication for public use in the county and approval by resolution of the board of county commissioners;
3. acquisition by eminent domain pursuant to Title 70, chapter 30, MCA, and acceptance by resolution as a county road by the board of county commissioners;
4. an exchange with the State as provided in § 60-4-201, MCA;
5. recognition of a legal route by a district court pursuant to § 7-14-2622, MCA;
6. acceptance by resolution of the board of county commissioners, following a public hearing, of a road that has not previously been considered a county road but that has been laid out, constructed, and maintained with state or county funds; or
7. acceptance and approval by resolution of the board of county commissioners of a road that is abandoned by the State.
¶87 While a public highway may be acquired through presсriptive use by the public, a public highway is not a county road until the board of county commissioners formally approves it as a county road pursuant to the methods outlined above.
¶88 For this reason, the fact that Madison County’s attorneys signed the Pretrial Order stipulating that Seyler Lane is a “county road,” Concurrence, ¶ 75 n. 1, is not sufficient to establish that Seyler Lane is, as a matter of law and fact, a county road. A county’s intent to establish a county road must be expressed through its board of commissioners. Pedersen, ¶ 20. Likewise, the fact that Madison County “has assumed jurisdiction of Seyler Bridge,” Concurrence, ¶ 79 n. 3, does not transform Seyler Lane into a county road. In fact, Madison County asserted in the District Court that its right to maintain Seyler Lane and Seyler Bridge arose from a prescriptive easement separate from the general public’s prescriptive easement to travel on the roadway. In its post-trial Proposed Conclusions of Law, Madison County proposed that “Madison County and the public have gained a prescriptive easement to travel on the paved portion of Seyler Lane,” but that “Madison County has gained a prescriptive easement to repair, replace and maintain the paved portion of Seyler Lane” and that “Madison County has also gained a prescriptive easement to maintain areas beyond the travelled surface and adjacent subsurface” (emphases added). These separate prescriptive easements for maintenance would have been unnecessary if the County believed-as the Court and the Concurrence mistakenly suggest-that Seyler Lane is a county road governed by county road statutes. See § 7-14-2107, MCA (when the county commissioners aсquire property for county roads, the public gains “the right-of-way and the incidents necessary to enjoying and maintaining it” (emphasis added)). Significantly, Madison County did not cite this statute in its Proposed Conclusions of Law as authority to maintain Seyler Lane.
¶89 A reference to “county road” requires application of statutory provisions, while a reference to “prescription” invokes a century of common law jurisprudence governing the creation, width, and scope of prescriptive easements. The parties’ reference to “a county road right-of-way,” while simultaneously stating that it was “established by prescriptive use,” is legally inconsistent and thus hinders our ability to provide a sound decision. The Court’s failure to properly address this distinction will not only provide confusing precedent, but will
¶90 The Concurrence asserts “we have held that a county road may be declared based upon prescriptive use,” citing Swandal Ranch Co. v. Hunt,
¶91 In spite of the parties’ imprecision in referring to Seyler Lane as “a county road right-of-way that was established by prescriptive use,” the Court and the Concurrence nevertheless treat Seyler Lane as though it is a county road whose width is determined by certain statutes. Citing §§ 7-14-2107(3) and 60-1-103(2), MCA, the Court observes that “[t]he width of a county road or bridge acquired by prescription must be sufficient to encompass the incidents necessary to enjoying, supporting and maintaining the roadway.” Opinion, ¶ 30; see also Opinion, ¶¶ 24, 29, 38. The Concurrence also contends that these two statutes “inform the determination of the Seyler Bridge’s width.” Concurrence, ¶ 76.1 believe this approach is mistaken for three reasons.
¶92 As an initial matter, there is no indication in the record that the parties believed the width of the public right-of-way over Seyler Lane and Seyler Bridge should be determined by the Title 7 and Title 60 statutes on which the Court and the Concurrence rely. That approach is of the Court’s and the Concurrence’s own devising. As far back as the July 2008 hearing on the cross-motions for summary judgment, and in more recent District Court filings such as the Pretrial Order, the parties referred to Seyler Lane indiscriminately as a “public highway by prescription,” a “public prescriptive road,” a “public prescriptive right-of-way,” and a “county road.”
¶93 Second, the Court and the Concurrence fail to cite any statutory basis for applying Title 7 and Title 60 statutes to determine the width of a public road established by prescription. Significantly, § 70-17-106, MCA, contradicts this approach. It states that “[t]he extent of a servitude is determined by [1] the terms of the grant or [2] the nature of the enjoyment by which it was acquired.” Section 70-17-106, MCA. “[T]he terms of the grant” applies in the case of an express easement,
¶94 Third, the Court’s approach is also contrary to precedent. In State v. Portmann,
¶95 Like the Title 7 statute addressed in Portmann, the two statutes invoked by the Court here were “never intended to apply to prescriptive easements.”
¶96 The Concurrence nevertheless posits that these statutes incorporate the principles reflected in caselaw. Concurrence, ¶ 77. While the statutes may appear to be consistent with common law principles, however, the Court and the Concurrence have construed them as authority for expanding the width of a prescriptive right-of-way, in violation of the longstanding rules that “the user determines the nature and the extent of the easement or title acquired” and “the public may obtain title by adverse possession of that only which it has occupied during the full statutory period.” Portmann,
¶97 I am aware of no precedent in this Court’s history-and neither the Court nor the Concurrence cites any-for using §§ 7-14-2107(3) and 60-1-103(2), MCA, to determine the width of a public road established by prescription. These statutes were not intended for that purpose, and the Court’s approach here is contrary to well-established precedents which hold that the width of a prescriptive public road is determined by actual “use” and “occupation.” Maynard v. Bara,
C. Common Law Principles Dictating the Right-of-Way’s Width
¶98 A party seeking to establish a prescriptive public easement must show (by clear and convincing evidence) open, notorious, adverse, continuous, and uninterrupted use of the claimed easement for the full
¶99 Here, the parties have stipulated that the foregoing elements have been met and that “the public has the right to use the paved portion of Seyler Bridge and its approaches on Seyler Lane for travel across Seyler Bridge over the Ruby River.” The question is what rights, if any, the public has outside the paved portion of Seyler Lane. In this regard, the parties argue fundamentally different theories as to the legal significance of the stipulated facts. In Kennedy’s view, the right-of-way to which the parties stipulated does not give the public any rights оutside the paved portion of Seyler Lane. As such, Kennedy contends that PLAA must establish a separate prescriptive “footpath” leading from the pavement down to Ruby River; in other words, PLAA must prove, by clear and convincing evidence, that the public followed a definite, fixed course between the pavement and the water openly, notoriously, adversely, continuously, and uninterruptedly for the full prescriptive period. In PLAA’s view, however, the right-of-way to which the parties stipulated includes not only the paved portion of
¶100 In my view, PLAA’s theory-and this Court’s tacit adoption of it-is contrary to over a century of precedent governing prescriptive easements. Where the public claims a right-of-way founded on prescriptive use, this Court has been unequivocal that “[t]he occupancy or use by the public of one portion of the road does not avail it in its claim to another portion not occupied by it.... [T]he public may obtain title by adverse possession of that only which it has occupied during the full statutory period.” Maynard,
¶ 101 Various out-of-state cases recognize that while the dimensions of a prescriptive public road are determined by the public’s actual use of the land in question as a roadway during the prescriptive period, the right-of-way necessarily includes an incidental right to use adjacent land to the extent reasonably necessary to support and maintain the traveled surface area, such as shoulders, slopes, and ditches. Semmerling v. Hajek,
¶102 In fact, the Semmerling court rejected such an argument:
Here, there is... no evidence that the public used the grassy areas on either side of the road for road purposes. To the contrary, the evidеnce established that public use was limited to the paved portion of the road. The trial court certainly was not required to conclude in the absence of any other evidence that, just because*317 the Township mowed those areas, the prescriptive easement encompassed those areas.
¶ 103 In Barfnecht, the court considered a statute which provided for the acquisition of highways by adverse public use. It stated that any road used and kept in repair for at least six years as a public highway is deemed dedicated to the public to the width of two rods (33 feet) on each side of the center line thereof. Barfnecht,
arises from the fact that [adverse public] use serves to give the owner notice that, if he means to dispute the rightfulness of the public use, he must assert his right within a statutory period by physical action or suit. The statute provides a statute of limitations, the running of which estops an owner from denying the existence of a public easement. Public use cannot be said to apply to lands not actually used. There is no reason that an owner should know that he is required to dispute the rightfulness of a nonexistent user. A property owner thus receives no notice as to a public claim on any property in excess of that which has actually been used.
Barfnecht,
¶ 104 As for the other out-of-state cases, Teadtke and Yturria did not involve issues of maintenance and support in relation to an easement’s
¶105 My disagreement with the Court, therefore, is with the notion that the adjacent land needed to support and maintain a prescriptive public road may be used by the public for other purposes, such as traversing down to a stream. Admittedly, the Court’s Opinion is inconsistent in this regard. On one hand, we are told that “[rlecreational use ... may be considered in determining the width of the public road right-of-way.” Opinion, ¶ 36. The Court thus implicitly allows recreational use to determine the width of a right-of-way beyond that necessary for maintenance. On the other hand, however, we are told that “[a]ny recreational uses by the public beyond the width necessary for the construction, maintenance and repair of the roadway and the bridge would have to be established through clear and convincing evidence for the requisite statutory period.” Opinion, ¶ 38. Contrary to the language in ¶ 36, the language in ¶ 38 indicates that any recreational use beyond the width necessary for maintenance will have to be proved as a separate prescriptive easement. How the parties and the District Court are to analyze recreational use on remand is, therefore, ambiguous.
¶ 106 Nevertheless, to the extent the Court is permitting recreational use to expand the width of the stipulated right-of-way beyond the paved surface of Seyler Lane, I strongly disagree. The Montana and out-of-state precedents cited above are clear, at least in my view, that the width of a prescriptive public road is defined by the definite, fixed course that the public actually used during the period of prescription. As we stated in Portmann, to “give the fullest recognition to the
¶107 My conclusion is supported not only by the aforementioned precedents, but also by various statutes which limit where particular public uses may occur within a single right-of-way. Although a public right-of-way may be wide enough to encompass several uses-such as vehicular travel, pedestrian travel, bicycle travel, and maintenance work-this does not mean that all of these uses may occur everywhere within the right-of-way. The public’s right to use one area for a specific purpose does not give it the right to use that area for an entirely different purpose. Vehiсular travel, for example, is confined to the roadway. See § 61-8-321(1), MCA (requiring vehicles to be operated on the right half of the roadway); § 61-1-101(66), MCA (defining “roadway” as “that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder”). Pedestrians are prohibited from walking on the roadway if a sidewalk is available, and are otherwise required to walk “on the shoulder, as far as practicable from the edge of the roadway.” Section 61-8-506, MCA. Similar restrictions exist with regard to bicyclists, § 61-8-605, MCA, and snowmobiles, § 23-2-631, MCA.
¶108 The cases the Court cites at ¶ 24 of the Opinion do not support the conclusion that maintenance work by Madison County employees in the area along the paved portion of Seyler Lane gives the public the right to use that same area for other, nonmaintenance purposes. In McClurg v. Flathead County Commissioners,
¶109 In holding that there is a “single, unified, public road right-of-way,” any portion of which may be used by the public for travel, Opinion, f ¶ 32, 52, the Court disregards long and well-established precedent recognizing that the right to use adjacent land for support and maintenance of a prescriptive public road is incidental to the right to travel on that road. While the Court consumes a large portion of today’s Opinion faulting the District Court’s characterization of this right as a “secondary easement,”
¶110 The Court attempts to distinguish these cases on the ground
¶111 Public prescriptive easements are founded on the definite,
D. Remand is Unnecessary
¶112 Lastly, I do not believe it is necessary to remand this case for a determination of the Seyler Lane right-of-way’s width. Pursuant to the parties’ stipulation, the prescriptive public road consists of the paved portion of Seyler Lane and Seyler Bridge, which varies between 20 and 24 feet in width. PLAA has failed to establish that the public has a right to travel anywhere off the paved portion of the road and bridge. While the prescriptive road includes an incidental right to use any adjacent land that is reasonably necessary to maintain and support the traveled surface area, the width of that maintenance and support area is not a question presented in this lawsuit. Kennedy does not dispute that Madison County may access his property to maintain and support the roadway, and Kennedy does not claim that Madison County has exceeded this right. Thus, in my view, there is no need to remand for a determination of the width of the incidental right of maintenance and support. What PLAA wants in this lawsuit is to obtain recognition of a right in the general public to travel over the adjacent land to get to the river. PLAA is clear that it is “not seeking to acquire a new prescriptive easement beyond the existing Seyler Lane right-of-way.” Rather, PLAA contends that the right to access the
II. Access at Lewis Lane and Lewis Bridge
¶113 Lewis Lane and Lewis Bridge are also on Kennedy’s land. In 1910, Kennedy’s predecessor dedicated Lewis Lane to Madison County with the following language:
A strip of land thirty feet wide on each side of the center of the County road, as at present laid out, running across the S.E.1/4 of Section 23, in Township 4 South of Range 6 West M.P.M. It is intended to convey by this deed a right of way sixty feet wide and running entirely through said S.E.1/4 of Section 23, for a County road.
The District Court concluded that the public could use this 60-foot-wide right-of-way to reach Ruby River. The court noted that Lewis Bridge is less than 60 feet wide, which leaves room alongside the bridge for the public to walk down to the river and still be within the physical boundaries of the 60-foot-wide easement.
¶114 Kennedy contends that the District Court erred. He argues that the 1910 deed does not express any intent to authorize access to the river for public recreation.
[wjhether or not a particular use amounts to a diversion from that for which the dedication was made depends on the circumstances of the dedication and the intention of the party making it. It has been held that such use is authorized as is fairly within the terms of the dedication and reasonably serves to fit the property for enjoyment by the public in the manner contemplated. In other words, the dedicator is presumed to have intended the property to be used in such way by the public as will be most convenient*324 and comfortable and according to not only the properties and usages known at the time of the dedication, but also to those justified by lapse of time and change of conditions.
¶115 Here, Kennedy’s predecessor dedicated Lewis Lane without any explicit qualifications or limitations on the use of the road: “It is intended to convey by this deed a right of way sixty feet wide and running entirely through said S.E. 1/4 of Section 23, for a County road.” Kennedy nevertheless contends that, during the period when his predecessor made this dedication, the public did not have the right to use nonnavigable streams-such as Ruby River-for recreational purposes. See Herrin v. Sutherland,
III. Kennedy’s Takings Argument
¶116 As an alternative to his arguments concerning the public rights-of-way over Seyler Lane and Lewis Lane, Kennedy argues that the District Court’s and this Court’s recognition of the public’s right to engage in recreational use of Ruby River as it flows through his land amounts to an unconstitutional taking of his property. His theory, which is premised on his ownership of the bed of Ruby River, appears to be that if the public has no right to use Ruby River in the first place, then the public has no need to get there by crossing his land alongside Seyler Lane and Lewis Lane.
¶ 117 In this regard, Kennedy asserts that a landowner has the right to control the space above his land. He cites a number of out-of-state cases for this principle, including Illinois Central Railroad Co. v. Illinois,
¶ 118 Kennedy argues that our 1984 decisions in Montana Coalition for Stream Access, Inc. v. Curran,
¶119 Citing Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection,
¶120 Nevertheless, the judicial and legislative takings alleged by Kennedy occurred in 1984 and 1985, when the right of landowners to exclude the public from the waters over privately owned streambeds, recognized 59 years earlier in Herrin, was changed by our decisions in Curran and Hildreth and the ensuing statutes enacted by the Legislature. Kennedy did not own the Ruby River streambed in 1984 or 1985, and thus nothing was taken from him. When he purchased his property in 1993, Curran and Hildreth were the law of this State, and he thus acquired no right to exclude the public from using Ruby River during anytime when he has owned his property. Simply acknowledging, in the context of the present lawsuit, the rights held by the public under Curran and Hildreth does not effect any taking of Kennedy’s property.
CONCLUSION
¶121 “[Significant controversy has еxisted related to public access to streams and rivers from county road and bridge rights-of-way.” Laws of Montana, 2009, ch. 201, preamble to House Bill 190. In 2007 and 2008, “a group of stakeholders met to address the controversy and agreed in principle that a legislative solution was preferable.” Laws of Montana, 2009, ch. 201, preamble to House Bill 190. That legislative solution took the form of House Bill 190, which the Legislature passed in 2009. Nearly every member of the 2009 Legislature voted in favor of the bill; the final vote was 96 to 3 in the House and 48 to 2 in the Senate. The bill struck a balance, allowing the public to gain access to
¶122 With today’s decision, this Court nullifies the exclusion of prescriptive easements from the 2009 legislation and alters the balance struck by the Legislature. We do so by ignoring a century of precedent recognizing that the public may obtain a prescriptive easement over only the land which the public adversely possessed-confined to the way actually occupied during the prescriptive period-and that the incidental right of support and maintenance extends to only the adjacent land that is reasonably necessary for these purposes and must be exercised in such a way as not to needlessly increase the burden on the servient estate. The Court effectively grants a public prescriptive easement where the Legislature has determined none should exist. I believe the Court’s decision lacks any support in precedent and embroils this Court in a controversy that we are not properly suited to resolve. I would apply our well-settled principles of prescriptive easements and hold that PLAA has failed to establish a public right of passage from Seyler Lane to Ruby River.
¶123 I dissent from the Court’s decision to the contrary.
As to Issue Four, the Court is remanding this case for further proceedings on the width of the Seyler Lane right-of-way. As the Court acknowledges, the District Court “found that the specific surveys PLAA presented did not provide information on the dimensions of the Seyler Lane right-of-way.” Opinion, ¶ 54. The Court then states, however, that PLAA is not precluded “from presenting to the [District Court] on remand any COS that provide information regarding the dimensions of the right-of-way.” Opinion, ¶ 55. To the extent the Court is implying here that PLAA’s surveys may somehow be relevant, I believe the District Court has considered this issue already and that the District Court’s evidentiary determinations were appropriate. PLAA has not shown that the District Court abused its discretion when deciding the evidentiary value of the surveys, and I thus would affirm the District Court’s rulings under Issue Four.
Contrary to statements by the Court (Opinion, ¶ 18) and the Concurrence (Concurrence, ¶ 75), the District Court did not make a “finding,” based on evidence, that Seyler Lane is a county road. Because the stipulated facts were “admitted, agreed to be true, and require no proof’ (emphasis added), those facts were not issues at trial. Indeed, following a review of the trial transcript, it is clear that the parties were focused on other issues in the case. Correspondingly, in their respective Proposed Findings of Fact submitted post-trial, PLAA and Kennedy each distinguished between the “agreed facts” (the ones to which they had stipulated pretrial, as set forth in the Pretrial Order) and the “determined facts” (the ones found “based upon the evidence presented at trial”). The “county road” designation was a stipulated fact, not one “found” by the District Court as the Court and the Concurrence mistakenly identify.
The one exception to this statement is recognition of a legal route by a district court pursuant to § 7-14-2622, MCA. Although the board of county commissioners must be notified in advance, the proceeding may be commenced in the district court by any “directly affected person.” Section 7-14-2622(1), MCA. Nevertheless, this sort of proceeding does not apply to “prescriptive easements.” Section 7-14-2622(5), MCA.
1 note that the term “county roads established by prescriptive use” appears in two statutes enacted in 2009. See §§ 7-14-2622(5), 23-2-312(3), MCA. The origin of this terminology-which is inconsistent with the provisions just discussed-is not clear. It may have derived from a 2000 opinion of the Montana Attorney General, upon which House Bill 190 (2009) was based. See Laws of Montana, 2009, ch. 201, preamble; Mont. Atty. Gen. Op. 48-13,2000 Mont. AG LEXIS 6 (May 26, 2000) (providing an opinion on access to Ruby River аt three bridge crossings, including Seyler Bridge, and referring to “county roads and bridges created by prescription”). The terminology also could have derived from the District Court’s September 30, 2008 order in the present litigation, which refers to the roads at issue, including Seyler Lane, as “county roads.” (PLAA states in its opening brief on appeal that the District Court’s 2008 order was “essentially codified” in §§ 7-14-2134(4), 23-2-312, and 23-2-313, MCA.) Regardless of its origin, however, “county road” means a public highway established by a county in accordance with statutory formalities. Pedersen, ¶ 20; §§ 7-14-2101, 60-1-103(7), 60-1-201(3), MCA.
It should be noted that “highway” and “road” are not the same as “county road.” “Highway” and “road” are “general terms denoting a public way for purposes of vehicular travel and include the entire area within the right-of-way.” Section 60-1-103(19), MCA. “County road” means “any public highway opened, established, constructed, maintained, abandoned, or discontinued by a county in accordance with Title 7, chapter 14.” Section 60-1-103(7), MCA.
The statutory period was five years prior to 1893, ten years from 1893 to 1953, and five years since 1953. Yellowstone River, LLC v. Meriwether Land Fund I, LLC,
I agree with PLAA that the District Court was incorrect in stating that “[Recreational use is insufficient to establish a prescriptive easement.” In Public Lands Access Assn. v. Boone and Crockett Club Foundation, Inc.,
As noted, Madison County essentially claimed a “secondary easement” in the District Court proceedings. Supra ¶ 88.
The Court today adopts another distinction: that, unlike private prescriptive easements, the scope of uses within public prescriptive easements is broad enough to include reasonably foreseeable public uses. Opinion, ¶¶ 46-51. Although I do not disagree with this holding, I find it irrelevant because the parties here do not dispute the public uses that may occur within the stipulated right-of-way.
The Court faults Kennedy for “failting] to demonstrate that his predecessor did not intend to authorize access to the Ruby River from Lewis Lane for public fishing, wading, hunting or other uses.” Opinion, ¶ 60. However, under our precedent, it is not Kennedy’s burden to show that his predecessor did not intend to grant such access. Rather, the party claiming the easement (PLAA) has the burden to prove the facts necessary to establish the easement, i.e., that Kennedy’s predecessor did intend to authorize public access to Ruby River for recreation. Richter v. Rose,
See College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
Concurrence Opinion
concurring in part and dissenting in part.
¶124 Much has already been said in the preceding opinions, and I am loath to contribute to the complexity of the case, but I believe the Court’s easement analysis is fundamentally flawed and that easement law will be significantly reordered by the Opinion in a manner inconsistent with longstanding principles.
¶125 Citing only to foreign authority, the Court states that “the general rule” is that “the width of a public prescriptive roadway extends beyond the traveled portion of the road to include areas necessary for its support and maintenance.” Opinion, ¶ 25 (emphasis added). The Court further holds that “the width of a county road or bridge acquired by prescription must be sufficient to encompass the incidents necessary to enjoying, supporting and maintaining the roadway.” Opinion, ¶ 30 (emphasis added); see also ¶ 26. I disagree that the width or area of an easement is so determined. The width of a roadway easement obtained by prescription, as the Court notes but does not enforce, is “ ‘determined as a question of fact by the character and extent of its use ....’” Opinion, ¶ 28 (quoting Portmann,
¶126 Then, “ ‘[w]hen an easement or other property right is created, every right necessary for its enjoyment is included by implication.’ ” Mattson v. Mont. Power Co.,
¶127 However, the Court has departed from these principles and has instead created a new “super easement,” or what is denominates as a “single, unified, public road right-of-way,” Opinion, ¶ 32, wherein -the necessary incidents of the easement’s enjoyment, and the area associated with the necessary incidents, become part of the easement width itself-expanding the area of the easement beyond that actually acquired by the public’s use or occupancy. See Opinion, ¶¶ 26, 32. It cites inapplicable statutes as authority for doing so, as noted by Justice McKinnon. Dissent, ¶ 95. The error here is that the necessary incidents are of a different character than the acquired easement, and
¶128 Nonetheless, the Court declares the additional area or width accommodating the incidents of a publicly acquired prescriptive easement has the character of the easement itself, such that all other “uses that are reasonably foreseeable” may be made, Opinion, ¶ 51, and that “all uses that are permissible to the public under the laws of this state are permissible uses,” Opinion, ¶ 47 (citing Lovvorn,
¶ 129 I agree with the Court that recreational use should likewise be considered in determining the area of the easement that was acquired by the public. I join the Court in remanding for consideration of that evidence under Issue 2, but I would limit that remand to the easement principles discussed above. Because Seyler Lane is a public road acquired by prescription, and PLAA’s claim is based upon prescriptive use, the issue on remand-“the scope of a public road right-of-way established by prescription],” Opinion, ¶ 51-necessarily requires application of these principles. I join the Court on Issues 4 and 5.