                                                                                    January 16 2014


                                       DA 12-0312

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2014 MT 10



PUBLIC LANDS ACCESS ASSOCIATION, INC.,

          Petitioner and Appellant,

     v.

THE BOARD OF COUNTY COMMISSIONERS OF
MADISON COUNTY, STATE OF MONTANA, and
C. TED COFFMAN, FRANK G. NELSON and
DAVID SCHULTZ, constituting members of said
Commission; and ROBERT R. ZENKER, in his
capacity as the County Attorney for Madison
County, State of Montana,

          Respondents and Appellees.

JAMES C. KENNEDY, MONTANA STOCKGROWERS
ASSOCIATION and HAMILTON RANCHES, INC.,

          Respondent/Intervenor and Cross-Appellant.



APPEAL FROM:       District Court of the Fifth Judicial District,
                   In and For the County of Madison, Cause No. DV-29-04-43
                   Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                   J. Devlan Geddes (argued), Goetz, Gallik & Baldwin, P.C.; Bozeman,
                   Montana

            For Appellees:

                   Susan B. Swimley (argued), Attorney and Counselor at Law; Bozeman,
                   Montana

                   Tara DePuy, Attorney and Counselor at Law; Livingston, Montana


            For Appellee and Cross-Appellant:
                Colleen M. Dowdall, Worden Thane P.C.; Missoula, Montana

                Peter D. Coffman (argued), Matthew T. Parrish, Dow Lohnes PLLC; Atlanta,
                Georgia

         For Intervenor State of Montana:

                Timothy C. Fox, Montana Attorney General, Matthew T. Cochenour
                (argued), Assistant Attorney General; Helena, Montana


         For Amici:

                Rebecca R. Swandal, Swandal, Douglass & Gilbert, P.C.; Livingston,
                Montana
                (Attorney for Property and Environment Center)

                Matthew O. Clifford, Attorney at Law; Oakland, California
                (Attorney for Montana Council of Trout Unlimited)

                Margo B. Ogburn, Wittich Law Firm, P.C.; Bozeman, Montana
                (Attorney for United Property Owners of Montana)



                                                       Argued: April 29, 2013
                                                     Submitted: May 15, 2013
                                                      Decided: January 15, 2014


Filed:

                __________________________________________
                                   Clerk




                                            2
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Public Lands Access Association, Inc. (PLAA) appeals from a 2012 judgment of the

Fifth Judicial District Court, Madison County, denying the public access to the Ruby River at

Seyler Lane and Seyler Bridge.

¶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



                                              3
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 as a defendant.1

¶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, and 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.




       1
        The Montana Stockgrowers Association and Hamilton Ranches also intervened as
defendants, but have since stipulated to being dismissed from the case.
                                              4
¶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 and shoulder, as well as the areas beyond the travelled surface and

adjacent subsurface, by mowing, snow plowing, and weed spraying. Madison County also

maintains the subjacent and lateral support of Seyler Bridge, including the bridge abutments,

wing walls, and bridge spans.

                                               5
¶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



                                               6
¶14    We review for clear error a district court’s findings of fact. Boyne USA, Inc. v.

Spanish Peaks Dev., LLC, 2013 MT 1, ¶ 28, 368 Mont. 143, 292 P.3d 432. Clear error exists

if substantial credible evidence fails to support the findings of fact, if the district court

misapprehended the evidence’s effect, or if we have a definite and firm conviction that the

district court made a mistake. Spanish Peaks, ¶ 28. We review for correctness a district

court’s conclusions of law. Spanish Peaks, ¶ 28.

¶15    We review a district court’s ruling on motions for summary judgment de novo, using

the same M. R. Civ. P. 56 criteria used by the district court. Mt. West Bank, N.A. v. Cherrad,

LLC, 2013 MT 99, ¶ 25, 369 Mont. 492, 301 P.3d 796.

                                       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 down 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,”


                                              7
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, including

shoulders and ditches. PLAA asserts that the District Court’s recognition of a secondary

easement “was unnecessary and improperly limited the public’s use of the rights acquired in

the Seyler Lane prescriptive easement by granting a de facto private easement to the County

for maintenance activities” (emphasis in original).

¶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, 112

Mont. 302, 116 P.2d 881 (1941); Guthrie v. Hardy, 2001 MT 122, 305 Mont. 367, 28 P.3d

467; Kelly v. Wallace, 1998 MT 307, 292 Mont. 129, 972 P.2d 1117; and Ferguson v.

                                              8
Standley, 89 Mont. 489, 300 P. 245 (1931). Unlike the case at hand, however, these cases all

involved private easements. None involved a public road.

¶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, 112 Mont. at 306, 116 P.2d at 884 (internal quotations omitted). Such a

right is called a “secondary easement,” and is a “mere incident of the easement that passes by

express or implied grant, or is acquired by prescription.” Laden, 112 Mont. at 305-06, 116

P.2d at 883 (internal quotations omitted). We stated that the secondary easement “can be

exercised only when necessary and in such a reasonable manner as not to needlessly increase

the burden upon the servient tenement.” Laden, 112 Mont. at 306, 116 P.2d at 884

(quotation omitted).

¶23    Since Laden, we have recognized secondary easement rights in a number of cases

involving private ditch easements. See e.g. Shammel v. Vogl, 144 Mont. 354, 396 P.2d 103

(1964); O’Connor v. Brodie, 153 Mont. 129, 454 P.2d 920 (1969); Sharon v. Hayden, 246

Mont. 186, 803 P.2d 1083 (1990); Kephart v. Portmann, 259 Mont. 232, 855 P.2d 120

(1993); Engel v. Gampp, 2000 MT 17, 298 Mont. 116, 993 P.2d 701; Musselshell Ranch Co.

v. Seidel-Joukova, 2011 MT 217, 362 Mont. 1, 261 P.3d 570. In 1981, the Montana

                                                9
Legislature codified secondary easement rights. Section 70-17-112, MCA, provides that an

owner of a canal or ditch easement has a secondary easement to enter the servient tenement

to inspect, repair, and maintain the canal or ditch.

¶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, 281 Mont. 356, 369-70, 935 P.2d 256, 264 (1997). Our case law is

also clear that the establishment of a public road by prescriptive use contemplates the general

public’s use of the roadway as well as the land needed for construction, repairs and

maintenance. We do not separate the different uses to create two distinct interests—a public

road for travel and a secondary easement for the County’s maintenance—as the District

Court did. Rather, we recognize one public road right-of-way. See Rasmussen v. Fowler,

245 Mont. 308, 312, 800 P.2d 1053, 1056 (1990) (finding a public prescriptive road

easement based upon evidence of county maintenance of the road as well as other public

uses); McClurg v. Flathead County Comm’rs, 188 Mont. 20, 24, 610 P.2d 1153, 1156 (1980)

(finding a public prescriptive road easement based in part upon evidence of “grading, laying

gravel and other maintenance of the road”); Smith v. Russell, 2003 MT 326, ¶¶ 14-17, 21,

318 Mont. 336, 80 P.3d 431 (finding that the public’s use of a road coupled with Toole

County’s maintenance of the road established a public highway); Hitshew v. Butte/Silver

Bow Co., 1999 MT 26, ¶ 18, 293 Mont. 212, 974 P.2d 650 (“[T]he public’s use coupled with

                                              10
a county government’s regular maintenance of a roadway without the landowner’s

permission is evidence of adverse use.”); Swandal Ranch Co. v. Hunt, 276 Mont. 229, 235-

36, 915 P.2d 840 (1996) (determining that evidence of regular county road maintenance

supported the element of adversity in a claim to a public prescriptive road easement); PLAA

v. Jones, 2004 MT 394, ¶ 33, 325 Mont. 236, 104 P.3d 496 (finding a public prescriptive

road easement based upon evidence of public use, including recreational use, and Teton

County’s periodic maintenance of the road).

¶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, 812 N.W.2d 332, 344 (N.D.

2012) (“The width of a prescriptive road must be determined by actual use over the

prescriptive period and may include shoulders and ditches needed to support and maintain

the traveled portion of the road.”); Nikiel v. Buffalo, 7 Misc. 2d 667, 670 (N.Y. Sup. 1957)

(“[T]he width and extent of a highway established by prescription or use . . . is not

necessarily limited to the beaten path or traveled tract. It carries with it . . . such width as is

reasonably necessary for the safety and convenience of the traveling public and for ordinary

repairs and improvements. A highway established by user includes the traveled tract and

whatever land is necessarily used or is incidental thereto for highway purposes.”); Yturria

Town & Improv. Co. v. Hidalgo Co., 125 S.W.2d 1092, 1094 (Tex. App. 1939) (“When a

road is established by prescription, the right is not limited to the beaten path used, but may

be made to include sufficient land for drainage ditches, repairs and the convenience of the

traveling public.”); Keidel v. Rask, 290 N.W.2d 255, 258 (N.D. 1980) (“The width of a

                                                11
prescriptive public road established in the absence of a law specifying its width . . .

necessarily includes not only the actual traveled surface area of the roadway, but also any

adjacent land which is needed for the prescription to be maintained as a public road,

including any land reasonably necessary for ditches, shoulders, and slopes.”); Teadtke v.

Havranek, 777 N.W.2d 810, 820 (Neb. 2010) (“If the public has acquired the right to a

highway by prescription, it is not limited in width to the actual beaten path, but the right

extends to such width as is reasonably necessary for public travel.”); Campbell v. Covington

Co., 137 So. 111 (Miss. 1931) (In a highway established by prescription, “the public are not

limited to the actual width used by them –the beaten path. The prescriptive right carries with

it the beaten path and whatever is necessary to make the beaten path a usable highway . . .

.”); see also Jon W. Bruce and James W. Ely, Jr., The Law of Easements and Licenses in

Land § 7:12, 7-29 (Thomson Reuters 2013) (“In the case of a prescriptive roadway,

particularly one acquired by the public, the width may extend beyond the paved or packed

road surface to include areas used for cars to pass each other, for drainage ditches, and for

shoulders.”).

¶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 portion of the road actually traveled.      Instead, its width extends

                                              12
beyond the traveled way and includes whatever land is reasonably necessary to support and

maintain the road and for the road to be safely and conveniently used.

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, 2013 MT 46, ¶ 42, 369 Mont. 108, 300 P.3d 1119; State v.

Portmann, 149 Mont. 91, 98, 423 P.2d 56, 56 (1967). Rather, the width of a roadway

acquired by prescription is “determined as a question of fact by the character and extent of its

use and may be more or less than the width of highways established by statute.” Portmann,

149 Mont. at 95, 423 P.2d at 58 (citing State ex rel. Game, Forestation and Parks Commn. v.

Hull, 97 N.W.2d 535 (Neb. 1959)) (also citing Descheemaeker v. Anderson, 131 Mont. 322,

326, 310 P.2d 587, 589 (1957) (“the public may obtain title by adverse possession of that

only which it has occupied during the full statutory period.”)). See also Lovvorn v.

Salisbury, 701 P.2d 142, 144 (Colo. App. 1985) (width of public road established by

prescriptive use is to be made by reference to the width established by the use). Therefore,

                                              13
the District Court must consider, in addition to the land necessary to support and maintain

the road, historical evidence of the nature of the enjoyment by which the public acquired the

right-of-way. Section 70-17-106, MCA.

¶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, 53 Mont. 109, 113-15, 161 P. 949, 951-52 (1916)

(“a bridge is part and parcel of the highway upon which it is built. . . . If the highways

belong to the public, it must follow that anything permanently affixed to them, either in the

way of repairs or in the form of completed structures, such as bridges and the like, become a

part of them, and as much of public right as the highways themselves.”); State ex rel. Foster

v. Ritch, 49 Mont. 155, 156-57, 140 P. 731, 731 (1914) (“A bridge is to be treated as but a

portion of a public highway.”) A bridge includes “all appurtenances, additions, alterations,

improvements and replacements and the approaches to the bridge, lands used in connection

with the bridge, and improvements incident or integral to the bridge.” Section 60-1-103(2),

MCA. This statute makes clear that Seyler Bridge, including its appurtenances, additions,

alterations, improvements and replacements and the approaches to the bridge, lands used in

connection with the bridge, and improvements incident or integral to the bridge, is part of the

Seyler Lane county road right-of-way. This public road right-of-way must be considered

along with evidence of the public’s use in determining width.

¶30    Like the Seyler Lane roadway, which 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

                                              14
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?

¶34    PLAA argues that the District Court erred by excluding evidence of historical

recreational use by the public in determining the width of the public road right-of-way at

                                              15
Seyler Bridge. During the trial, the court determined there was no “basis to utilize

recreational use for purposes of establishing a prescriptive right” and, accordingly,

prohibited PLAA from presenting evidence of recreational use of the Seyler Lane right-of-

way. Following trial, PLAA submitted an offer of proof regarding recreational use at Seyler

Bridge. The court subsequently issued its Findings of Fact and Conclusions of Law,

concluding that “[r]ecreational use is insufficient to establish a prescriptive easement.”

¶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., 2007 MT 347, ¶ 37,

340 Mont. 294, 174 P.3d 481 (brackets in original) (quoting McCauley v. Thompson-Nistler,

2000 MT 215, ¶ 38, 301 Mont. 81, 10 P.3d 794). We have not, however, held that

recreational use may never be considered. See e.g. Brown & Brown of MT, Inc. v. Raty,

2012 MT 264, ¶ 34, 367 Mont. 67, 289 P.3d 156 (concluding that “the undisputed evidence

establishes that residential and recreational uses were within the scope of the prescriptive

easement”); Schmid v. Pastor, 2009 MT 280, ¶ 21, 352 Mont. 178, 216 P.3d 192 (finding

recreational use sufficient to give notice to the servient owner of an adverse claim to support

a narrow prescriptive easement for recreational, but not residential, purposes); PLAA v.

Jones, 2004 MT 394, ¶ 33, 325 Mont. 236, 104 P.3d 496 (considering recreational use

among other factors establishing prescriptive use of road).

¶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

                                              16
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, 163 Mont. 504, 518 P.2d 266 (1974), we affirmed a judgment finding a

prescriptive easement and declaring a public roadway, rejecting the argument that the use

was permissive. We followed long-established law that, to prove the existence of a public

road by prescription, “it must be shown that the public followed a definite course

continuously and uninterruptedly for the prescribed statutory period together with an

assumption of control adverse to the owner.” Lunceford, 163 Mont. at 508, 518 P.2d at 268.

We noted that “[the] testimony indicated that the use was not permissive, that no request for

permission to use the road was asked nor given to a vast majority of the users. Plaintiffs

assumed they had a right to use the road and used it.” Lunceford, 163 Mont. at 509, 518 P.2d

at 268. “Our case law has long recognized that ‘[c]ontinuous use’ does not mean constant

use; rather, if the claimant used the property in dispute whenever he desired, without

interference by the owner of the servient estate, the use was continuous and uninterrupted.”

Brown & Brown of MT Inc., ¶ 34 (citations omitted).

¶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.



                                             17
¶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, 149 Mont. at 95-96, 423 P.2d at 58.

¶39 Issue Three: 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?

¶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 easement over the land between the

fences that abut Seyler Bridge and the high water mark of the Ruby River; and on its

conclusion that usage of a prescriptive road is limited to the original use during the

prescriptive period.

¶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


                                             18
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, 1998 MT 307, ¶ 31, 292 Mont. 129, 972 P.2d 1117.

However, in cases in which we have found that a public prescriptive road has been

established, we have not held that the scope of use was limited to the historic use through

which the road was acquired. See e.g. Swandal Ranch Co., 276 Mont. 229, 915 P.2d 840;

Granite Co. v. Komberec, 245 Mont. 252, 800 P.2d 166 (1990) (overruled on other grounds

by Warnack v. Coneen Family Trust, 266 Mont. 203, 879 P.2d 715 (1994)); Johnson v.

                                              19
McMillan, 238 Mont. 393, 778 P.2d 395 (1989) (overruled on other grounds by Warnack,

266 Mont. 203, 879 P.2d 715); McClurg, 188 Mont. 20, 610 P.2d 1153; Hitshew v.

Butte/Silver Bow Co., 1999 MT 26, 293 Mont. 212, 974 P.2d 650; Clark v. Heirs & Devisees

of Dwyer, 2007 MT 237, 339 Mont. 197, 170 P.3d 927; Jones, 2004 MT 394, 325 Mont. 236,

104 P.3d 496.

¶44    The District Court’s conclusion that use of a prescriptive road is limited to the original

use during the prescriptive period relied upon a 2000 Attorney General Opinion (AG

Opinion) and State v. Portmann, 149 Mont. 91, 423 P.2d 56 (1967). The AG Opinion

provides that “for county roads and bridges established by prescription, their use as access to

waters is dependent upon their width and use during the prescriptive period,” and cites to

Kelly and Portmann for support. 48 Op. Att’y Gen. no. 13, § III(c) (2000). Notably, Kelly

involved a private easement, and Portmann is not on point.

¶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, 149 Mont. at 96, 423

P.2d at 58. However, at issue in Portmann was not the scope of use of an easement, but

rather the width of the easement. The Court did not examine the scope of permitted uses

within the prescriptive roadway. Portmann thus does not stand for the proposition that the

scope of use of a public prescriptive road is limited to historical adverse usage through which

the road was acquired. Rather, as discussed above, it supports our conclusion that public

uses should be considered in determining the width of the public road right-of-way.

¶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

                                              20
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, 701 P.2d at 144, the Colorado Court of Appeals determined that a public

prescriptive easement created through historical vehicular travel could also be used to trail

cattle. The court reasoned:


       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 to the public under the laws
       of this state are permissible uses.

(Emphasis original). In Boykin v. Carbon Co. Bd. Of Comm’rs, 124 P.3d 677 (Wyo. 2005),

the Wyoming Supreme Court adopted the same rule, and held that the restrictive use

principle applicable between private parties did not apply to claims for the establishment of

public highway right-of-ways. The court adopted the district court’s reasoning:

       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 cannot 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, 124 P.3d at 686-87 (citing Heath v. Parker, 30 P.3d 746, 750 (Colo. 2001)).




                                              21
¶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, 656 P.2d 1383 (Idaho 1983), the Idaho Supreme Court found that the general rule

that prescriptive easements are limited to the actual use which gave rise to the easement

applies to private, not public, prescriptive easements. The Court recognized that “[i]n more

contemporary decisions, other jurisdictions have held the scope of such [public prescriptive]

easements comprehensive enough to include reasonably foreseeable public uses of such

roadways . . . .” Bentel, 656 P.2d at 1386. The court held that a highway easement acquired

by prescription was no less comprehensive than one acquired by grant, dedication or

condemnation. Bentel, 656 P.2d at 1386. See also Pickett v. Cal. Pac. Utils., 619 P.2d 325,

327 (Utah 1980) (adopting a rule that “the easement in a public highway, which the public

acquires, includes every reasonable means for the transmission of intelligence, the

conveyance of persons, and the transportation of commodities, which the advance of

civilization may render suitable for a highway.”); Trigg v. Allemand, 619 P.2d 573, 578

(N.M.App. 1980) (“Once a road is found to be open to the public and free and common to all

citizens, they should be open for all uses reasonably foreseeable.”); Westlake v. Duncan,

Dieckman & Duncan Min. Co., 307 S.W.2d 220, 222 (Ark. 1957) (“[I]n case of a private

easement, as contrasted with a public highway, it is not permissible to impose a burden

which is greater than the use which brought the private easement into existence. We do not

find, however, that the same rule has been applied to a public highway acquired by

prescription.”).



                                             22
¶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., 41 Mont. 509, 516, 518, 110

P. 237, 240 (1910), the Court recognized that highways may be used “in any manner or for

any purpose which is reasonably incident[al] to the appropriation of them to public travel”

and “for all uses to which [they] might reasonably be put in view of improved methods and

the increasing needs of the public . . . .” We explained that “a highway is created for the use

of the public, not only in view of its necessities and requirements as they exist, but also in

view of the constantly changing modes and conditions of travel and transportation . . . .”

Kipp, 41 Mont. at 517, 110 P. at 240.

¶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, 158 Mont. at 514, 520-21, 493 P.2d at 1065-66, 1069 (quoting Cater v.

Northwestern Tel. Exch. Co., 63 N.W. 111, 112 (Minn. 1895); Collop v. United R.R.s of San

                                               23
Francisco, 228 P. 59, 61 (Cal. App. 1924); Wattson v. Eldridge, 278 P. 236, 238 (Cal.

1929)).

¶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

usage accommodate the passage of time and the public’s ongoing needs? Just as the Court

has determined that the uses of a dedicated public highway change over time, so do the uses

of a public roadway acquired by prescription. Pursuant to the above discussion, we

determine the scope of a public road right-of-way established by prescriptive use is not

strictly limited to the adverse usage through which the easement was acquired, as it is in the

case of private prescriptive easements. The scope includes public uses that are reasonably

incident to the uses through which the easement was acquired and uses that are reasonably

foreseeable. Hence, once a public prescriptive road is established, the fact that a certain

public use was not adverse does not mean that the use is not permitted.

¶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.

                                              24
¶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.

¶56 Issue Five: 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?

¶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 erred 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

                                             25
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.2 Bruce & Ely, Law of Easements and Licenses in Land § 1:22, 1-57, n. 3.

Express language in a deed granting a “right-of-way” may, alternately, be considered to

create an express easement. Bruce & Ely, Law of Easements and Licenses in Land § 1:24, 1-

60 to 1-62; see Kenneally v. Clark, 2011 U.S. Dist. LEXIS 122357, 9-10 (D. Mont. Sept. 21,

2011) (discussing rules about defining express easements). Generally, a public easement

described in a deed will be upheld as long as the deed’s language sufficiently locates the

easement. State by Mont. State Fish & Game Comm’n v. Cronin, 179 Mont. 481, 486, 587

P.2d 395, 399 (1978). The language is construed in accordance with the clear intent of the

parties. Cronin, 179 Mont. at 486, 587 P.2d at 399. In Bolinger, we explained:


       2
         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, 120 Mont. 454, 458-59, 187 P.2d
542, 544 (1947).
                                             26
       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, 158 Mont. at 521, 493 P.2d at 1069 (quoting Wattson, 278 P. at 238).

¶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




                                              27
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 streambed underlying the non-navigable Ruby River, he has the right to

control access to the waters above, including the right to exclude persons from wading into

the river or floating on the water. He maintains that declaring a public easement between the

high water marks of the Ruby River at Lewis Lane amounts to an unconstitutional taking of

his private property without due process and just compensation. In making this claim,

Kennedy argues our Stream Access Law is unconstitutional and challenges our decisions in

Mont. Coalition for Stream Access v. Curran, 210 Mont. 38, 682 P.2d 163 (1984), and Mont.

Coalition for Stream Access v. Hildreth, 211 Mont. 29, 684 P.2d 1088 (1984).

¶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 if Kennedy’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 water mark, for recreation. See §§ 23-2-301 to 21-2-

322, MCA; Curran, 210 Mont. at 53, 682 P.2d at 171; Hildreth, 211 Mont. at 35-36, 684

                                              28
P.2d at 1091; Galt v. State, 225 Mont. 142, 148, 731 P.2d 912, 916 (1987). Our precedent

makes manifestly clear that this public use does not constitute a compensable taking of

private property: No title passes with the use right.

¶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., 146 U.S. 387, 13 S.

Ct. 110 (1892) (henceforth, “Illinois Central”), U.S. v. Causby, 328 U.S. 256, 66 S. Ct 1062

(1946) and Kaiser Aetna v. U.S., 444 U.S. 164, 100 S. Ct. 383 (1979), to assert he may

control use of the water overlying the section of riverbed he owns, is misplaced. We have

already explained that our Constitution, statutes and precedent preclude a riparian landowner

from excluding public use of a streambed.

¶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 lands

and the State’s ownership of public lands it could sell. Illinois Central, 146 U.S. at 452, 13

S. Ct. at 118 (“[The State’s] title [to the beds of Lake Michigan] necessarily carries with it

control over the waters above them . . . . But it is a title different in character from that

which the State holds in lands intended for sale.”). The key distinction, the U.S. Supreme

Court pointed out, was that the State’s ownership of submerged lands “is a title held in trust

for the people of the State that they may enjoy the navigation of the waters, carry on

commerce over them, and have liberty of fishing therein freed from the obstruction or

interference of private parties.” Illinois Central, 146 U.S. at 452, 13 S. Ct. at 118. The State

could not grant title to submerged lands where “abdication is not consistent with the exercise

                                              29
of that trust which requires the government of the State to preserve such waters for the use of

the public.” Illinois Central, 146 U.S. at 452, 13 S. Ct. at 118 (emphasis added). Even upon

transfer, the State’s control for purposes of the trust can never be lost. Illinois Central, 146

U.S. at 453, 13 S. Ct. at 118. The U.S. Supreme Court stated:

       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, 146 U.S. at 453, 13 S. Ct. at 118. In fact, Illinois Central illustrates the

principle that the State must protect the public’s opportunity to use and enjoy the waters it

holds in trust for the people “freed from the obstruction or interference of private parties.”

Illinois Central, 146 U.S. at 452, 13 S. Ct. at 118.

¶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

Montana 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, 225 Mont. at 147, 731 P.2d at 915; see Mont. Const. art. IX, § 3(3).

¶66    Our decisions in Curran and Hildreth, as codified, protect the public’s right to

recreationally use its non-navigable waters, free from interference by private landowners. In

Curran, codified at § 23-2-302, MCA, we held that “any surface waters that are capable of

                                               30
recreational use may be so used by the public without regard to streambed ownership or

navigability for nonrecreational purposes.” Curran, 210 Mont. at 53, 682 P.2d at 171. We

reaffirmed Curran’s holding that any waters capable of recreational use could be so used in

Hildreth. Hildreth, 211 Mont. at 35, 684 P.2d at 1091. There, we observed that, because the

Montana Constitution provides the State owns the waters for the benefit of its people, and

places no limit on their use, “this Court cannot limit their use by inventing some restrictive

test.” Hildreth, 211 Mont. at 35, 684 P.2d at 1091. The public has a broad use right to

surface waters and private landowners may not place obstacles that impede the public’s

exercise of its right.   Curran, 210 Mont. at 52-53, 682 P.2d at 170-71. This use right is not

a property right, or an interest in the landowners’ property. See § 23-2-309, MCA. Rather, it

amounts to a recognition of the physical reality that in order for the public to recreationally

use its water resource, some “minimal” contact with the banks and beds of rivers is generally

necessary. See Galt, 225 Mont. at 147, 731 P.2d at 915.

¶67    Because the Montana Constitution grants the State ownership of all waters within its

borders, Kennedy’s reliance on Causby, 328 U.S. at 259, 66 S. Ct 1064-65, to assert he may

control use of the Ruby River’s waters is also misplaced. Causby involved use of airspace

over a chicken farm that interfered with the farmers’ business. See Causby, 328 U.S. at 259,

66 S. Ct. at 1064-65. To hold that a riparian owner “owns” the “space” overlying a riverbed,

when that space is occupied by water, would be to divest the State of title to waters it owns

by virtue of article IX, § 3(3), of the Montana Constitution.

¶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

                                              31
private property in Hawaii, where owners had dredged a channel to connect the pond to the

ocean. Kaiser Aetna, 444 U.S. at 166-68, 100 S. Ct. at 386-87. Significantly to the majority

opinion, Hawaiian fishponds like the one at issue had always been considered private

property in Hawaii. Kaiser Aetna, 444 U.S. at 166, 179, 100 S. Ct. at 386, 392-93. Kaiser

Aetna’s recognition that a fishpond could constitute private property hinged on State law.

Here, Montana’s Constitution grants the State ownership of waters within the state. Mont.

Const. art. IX, § 3(3). Thus, Kaiser Aetna—and Hawaiian law—cannot support the

proposition that a Montana riparian owner owns the water overlying the bed of a non-

navigable river.

¶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, “ ‘[d]ecisions construing the Constitution should be

followed, in the absence of cogent reasons to the contrary . . . .’ ” 145 Mont. 287, 310, 400

P.2d 648, 660 (1965) (quoting State ex. rel. Kain v. Fischl, 94 Mont. 92, 20 P.2d 1057

(1933)). Some insignificant use of the riverbeds and river banks is, and always has been,

necessary to the public’s use and enjoyment of its resource. That use does not amount to an

easement or any other “interest” in land. See § 23-2-309, MCA. In Curran we explained

that since “the question of title to the bed is irrelevant to determination of navigability for

use, and Curran has no claim to the waters,” no taking of private property could occur.

Curran, 210 Mont. at 53, 682 P.2d at 171. We also observed in Hildreth, where Hildreth

brought a similar claim, that no taking of private property occurs in public use of beds and

banks of waters up to the high water mark because title does not pass with the use right.

                                              32
Hildreth, 211 Mont. at 36-37, 684 P.2d at 1092. As observed by the United States District

Court in Madison v. Graham, no private property right is “being extracted” from Kennedy:

“In fact, the public has no interest at all in the private streambed per se, but only in the

publicly-owned surface waters that traverse the streambed.” Madison v. Graham, 126 F.

Supp. 2d 1320, 1324 (D. Mont. 2001). We can see no reason to overturn these longstanding

interpretations of our Constitution and our laws.

¶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.

                                      CONCLUSION

¶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.

                                              33
¶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.


                                                       /S/ MICHAEL E WHEAT

We concur:

/S/ KURT KRUEGER
District Judge Kurt Krueger sitting for former Justice Brian Morris
/S/ MIKE MENAHAN
District Judge Mike Menahan sitting for Chief Justice Mike McGrath
/S/ PATRICIA COTTER
/S/ BETH BAKER


Justice Beth Baker, concurring.

¶75       The District Court made a finding of fact that “Seyler Bridge and its approaches 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.1 We therefore

begin with the undisputed fact that at issue is a public road. The primary issue on appeal is,

having been acquired by prescriptive use, how wide is the public road where the bridge

crosses the river? I agree with the Court’s decision to remand this issue for further


1
    It bears noting that Madison County was a party to the stipulation.

                                                  34
development in the District Court. I also concur with the Court’s disposition of Kennedy’s

cross-appeal. I write separately to address the principal misconception of law on which I

believe the Dissent falters.

¶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[.]” Opinion, ¶ 28. In that regard, the law requires proof by clear and

convincing evidence of “open, notorious, exclusive, adverse, continuous, and uninterrupted

use over the five-year statutory period.” Brown & Brown of MT, Inc., ¶ 19. See also

Swandal Ranch Co., 276 Mont. at 233, 915 P.2d at 843. Thus, “the public may obtain title

by adverse possession of that only which it has occupied during the full statutory period.”

Portmann, 149 Mont. at 95, 423 P.2d at 58. The Court also observes two additional statutes

that inform the determination of the Seyler Bridge’s width: § 7-14-2107(3), MCA (when

county road established, public acquires right-of-way “and the incidents necessary to

enjoying and maintaining it”), and § 60-1-103(2), MCA (bridge includes, among other

things, “the approaches to the bridge [and] lands used in connection with the bridge”).

¶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, 290 N.W.2d at 258.

For similar reasons, her Dissent mischaracterizes the Court’s decision as “expand[ing]” the

public’s right of way. Dissent, ¶ 106. The Court’s conclusion is simply that the width of

                                            35
Seyler Road at the Seyler Bridge “is determined by the terms of the grant or the nature of the

enjoyment by which [the roadway] was acquired.” Section 70-17-106, MCA. The language

of the statutes—§§ 60-1-103(2) and 7-14-2107(3), MCA—incorporates the principles

reflected in the case law that “the width of a prescriptive road must be determined by actual

use over the prescriptive period and may include shoulders and ditches needed to support and

maintain the traveled portion of the road.” Reichman, 812 N.W.2d at 344. That the

prescriptive right does not allow the public “‘to lay out and construct an extended and

enlarged highway’” (Dissent, ¶ 102 (quoting Campbell, 137 So. at 112)) is precisely why a

definite width of the public road right-of-way must be determined.

¶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. I believe these

characterizations of the law to be in error, an error that leads the Dissenting Justices astray in

their ultimate conclusion that the law governing primary and secondary easements controls

the analysis in this case.

¶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., 2000 MT 339,

¶ 23, 303 Mont. 158, 17 P.3d 393 (citing Kuhlman v. Rivera, 216 Mont. 353, 358, 701 P.2d




                                               36
982, 985 (1985)). With one brief interval,2 it has long been the law in Montana that a public

road may be established by prescriptive use. See State v. Nolan, 58 Mont. 167, 172, 191 P.

150, 152 (1920). Section 2600 of the 1895 Political Code provided:

       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), MCA (classification of public highways).

¶80    As the Court observes, we have held that a county road may be declared based upon

prescriptive use. E.g., Swandal Ranch Co., 276 Mont. at 233, 915 P.2d at 843. No party to

2
  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, 1998 MT 165, ¶ 28,
289 Mont. 379, 962 P.2d 583.
3
  As the Court observes (Opinion, ¶ 9), and Madison County’s briefing makes clear, the County has
assumed jurisdiction of Seyler Bridge.

                                                37
this case contests that point. “The law, doubtless, is that a highway may be established by

prescription as well as by proceedings taken in conformity with legislative authority[.]”

State v. Auchard, 22 Mont. 14, 15-16, 55 P. 361, 362 (1898). The Dissent’s contrary

suggestion notwithstanding (Dissent, ¶ 90), this Court in Swandal Ranch Co. expressly

affirmed a district court judgment that “declared a Park County road” by prescriptive use.

Swandal Ranch Co., 276 Mont. at 232, 236, 915 P.2d at 842, 844. Distinct from an

easement, there is a public possessory interest in a roadway acquired by adverse use. Justice

McKinnon largely focuses on a matter that is not at issue in this case: whether Seyler Lane

is a county road acquired by prescriptive use.

¶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,

                                             38
232 N.W.2d 420, 424 (Minn. 1975), the government may accomplish its future needs for

“upgrading, widening, or improving public ways” acquired by prescription through the

process of eminent domain. The Colorado case cited by the Court includes a similar

analysis. There, the court agreed that if the width of a public road established by prescriptive

use “is to be expanded or the location changed, acquisition of additional land must be

established by eminent domain or otherwise.” Lovvorn, 701 P.2d at 144. Finally, in my

view, the analysis suggested by Justice Rice will apply to roads and bridges subject to a

public prescriptive easement, but not to cases such as this one, where there is no dispute that

the right of way at issue is a public road.

¶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 of the 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.4

                                                      /S/ BETH BAKER




4
 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.

                                                 39
Justice Laurie McKinnon, 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.1

      I. Width and Use of Public Right-of-Way at Seyler Lane and Seyler Bridge

¶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


       1
          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.

                                                40
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.2

              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, 2012 MT

283, ¶ 28, 367 Mont. 193, 292 P.3d 347 (a specific statute controls over a general provision

to the extent of any inconsistency); accord § 1-2-102, MCA.

¶86    A “public highway” may be acquired by adverse (i.e., prescriptive) use by the public.

Section 60-1-103(22)(d), MCA. The statutorily prescribed methods for acquiring a “county

road,” in contrast, do not include “by prescriptive use.” Pursuant to Title 7, chapter 14,
       2
           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.

                                                 41
MCA, a “county road” may be established in any of the following ways (which are set forth

in § 7-14-2101(2)(b) and (3), MCA):

       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 prescriptive 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.3 There is no evidence,

and nothing stated in the parties’ Agreed Facts, that the Madison County Board of

Commissioners approved Seyler Lane as a county road. Simply calling something a “county

road” in the course of litigation—as the parties appear to have done here—does not make it

one. “Implicit in all of Title 7, Chapter 14 as well as our prior decisions is that county roads
       3
         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.

                                               42
cannot be created without the county’s intent, expressed through its board of commissioners,

to do so.” Pedersen v. Dawson Co., 2000 MT 339, ¶ 20, 303 Mont. 158, 17 P.3d 393

(emphasis added); see also Garrison v. Lincoln Co., 2003 MT 227, ¶ 16, 317 Mont. 190, 77

P.3d 163 (emphasizing that our caselaw “does not pave the way for modern day citizens to

disregard currently applicable statutes governing the creation of public roads”).

¶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 acquire

                                              43
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 ultimately prove difficult for the District Court to apply on remand.4

¶90    The Concurrence asserts “we have held that a county road may be declared based

upon prescriptive use,” citing Swandal Ranch Co. v. Hunt, 276 Mont. 229, 233, 915 P.2d

840, 843 (1996), in support of this assertion. Concurrence, ¶ 80. In Swandal Ranch, we

specifically noted that we were not considering the creation of a county road through

statutory procedures, but were instead addressing Park County’s claim that it “had


       4
         I 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 at 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.

                                                44
established a public easement through prescriptive use” over Wallrock Road. 276 Mont. at

231, 234, 915 P.2d at 842, 843 (emphasis added). As the Concurrence recognizes, “ ‘a

public easement is not the equivalent of a county road.’ ” Concurrence, ¶ 79 (quoting

Pedersen, ¶ 23). Although we referred to Wallrock Road at times as a “county road,” we did

so primarily in the context of acknowledging that the Park County Commissioners’ attempt

to declare a county road in October 1950 had been “legally inadequate [under] . . . the

statutory process.” Swandal Ranch, 276 Mont. at 233-34, 915 P.2d at 843. The specific

issue addressed in our opinion was “whether use of the road was permissive or adverse.” See

Swandal Ranch, 276 Mont. at 232-36, 915 P.2d at 843-45. Contrary to the Concurrence’s

suggestion, there is no indication that we considered whether prescriptive use could establish

a “county road,” as distinguished from a “public easement,” under the statutes governing the

creation of county roads. Moreover, such a holding would have been inconsistent with the

fact that “county roads cannot be created without the county’s intent, expressed through its

board of commissioners, to do so.” Pedersen, ¶¶ 20-23.

                      B. “County Road” Statutes are Inapplicable

¶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

                                              45
determination of the Seyler Bridge’s width.” Concurrence, ¶ 76. I 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.”5 The parties did not attribute the same meaning to the term

“county road” as the Court and the Concurrence have. Instead, PLAA and Kennedy

correctly recognized that the right-of-way’s width is governed by common law principles

(which I discuss in the next section below).

¶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, while “the nature of the enjoyment by which it

       5
         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.

                                               46
was acquired” applies in the case of a prescriptive easement. Nothing in this statute indicates

that the width of a prescriptive public road is determined by Title 7 or Title 60 statutes.

Rather, consistent with common law principles, § 70-17-106, MCA, recognizes that

prescriptive easements are determined by use.

¶94    Third, the Court’s approach is also contrary to precedent. In State v. Portmann, 149

Mont. 91, 423 P.2d 56 (1967), we specifically addressed whether a statute providing that

“[t]he width of all public highways . . . must be sixty feet” (now codified, as amended, at

§ 7-14-2112(1), MCA) applied to extend the width of a public road acquired by prescription.

We held that applying this statute to determine the width of such a road would be

“inconsistent with the general rule that the user determines the nature and the extent of the

easement or title acquired.” Portmann, 149 Mont. at 94, 423 P.2d at 58. We reaffirmed that,

to “give the fullest recognition to the traditional requirements of adverse possession,” the

public “may obtain title by adverse possession of that only which it has occupied during the

full statutory period.” Portmann, 149 Mont. at 95-96, 423 P.2d at 58 (internal quotation

marks omitted). We concluded that the 60-foot-width statute “was intended by the

Legislature to apply only to public roads which were laid out by the official act of the proper

public officials and was never intended to apply to prescriptive easements.” Portmann, 149

Mont. at 96, 423 P.2d at 58. We further held that “the rights acquired by adverse use can

never exceed the greatest use made of the land for the full prescriptive period.” Portmann,

149 Mont. at 96, 423 P.2d at 58. In so doing, we acknowledged authority from other

jurisdictions—namely, State ex rel. Game, Forestation and Parks Commission v. Hull, 97

N.W.2d 535 (Neb. 1959) (the width of a highway acquired by prescription is determined as a

                                              47
question of fact by the character and extent of its use and may be more or less than the width

of highways established by statute), and Mulch v. Nagle, 197 P. 421 (Cal. App. 1st Dist.

1921) (a road established through public use does not fall within the statutory minimum for

public roads; the minimum width applies only to roads formally laid out by the proper public

authorities).

¶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.” 149 Mont. at 96, 423 P.2d at

58. Section 60-1-103(2), MCA, concerns “bridge[s] constructed by the department [of

transportation]”; it says nothing about prescription. Section 7-14-2107(3), MCA, states that

“[b]y taking or accepting interests in real property for county roads, the public acquires only

the right-of-way and the incidents necessary to enjoying and maintaining it.” This provision,

however, is part of a statute that concerns county roads established through the “petition”

process. See § 7-14-2107(1), (2), MCA. The statute says nothing about what the public

acquires through prescriptive use.

¶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, 149 Mont. at 94-95, 423 P.2d at 58

(internal quotation marks omitted). Section 7-14-2107(3), MCA, clearly is intended to limit

                                              48
the interest that the public acquires when a county condemns or contracts for a right-of-way

to “only” the right-of-way and the incidents necessary to enjoying and maintaining it. The

Court and the Concurrence twist this provision’s meaning by suggesting, first, that it applies

to public highways created by prescription and, second, that it expands the width of a

prescriptive public right-of-way.

¶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, 96 Mont. 302, 307, 30 P.2d 93, 95 (1934); Portmann, 149 Mont. at 95-96,

423 P.2d at 58. I would apply this law, and the common law rules discussed below, in

determining the width of the Seyler Lane right-of-way.

           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 statutory period.6 Graham v. Mack, 216 Mont. 165, 172-73,

699 P.2d 590, 595 (1984); Wareing v. Schreckendgust, 280 Mont. 196, 204-06, 930 P.2d 37,

42-43 (1996); Heller v. Gremaux, 2002 MT 199, ¶ 12, 311 Mont. 178, 53 P.3d 1259.

Additionally, the party must show that the public pursued a definite fixed course, without

       6
         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, 2011 MT 263, ¶ 23
n. 9, 362 Mont. 273, 264 P.3d 1065.

                                               49
any deviation, for the full statutory period.7 Pope v. Alexander, 36 Mont. 82, 89, 92 P. 203,

205 (1907); Peasley v. Trosper, 103 Mont. 401, 405-06, 64 P.2d 109, 110-11 (1936);

Brannon v. Lewis & Clark Co., 143 Mont. 200, 203-04, 387 P.2d 706, 708-09 (1963);

Swandal Ranch, 276 Mont. at 233, 915 P.2d at 843.

¶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 outside 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 Seyler Lane, but also “sufficient land” alongside the pavement for ditches,
        7
          I agree with PLAA that the District Court was incorrect in stating that “[r]ecreational use is
insufficient to establish a prescriptive easement.” In Public Lands Access Assn. v. Boone and
Crockett Club Foundation, Inc., 259 Mont. 279, 856 P.2d 525 (1993)—the primary authority cited
by the District Court on this issue—we did not hold that public use is insufficient if it is recreational;
rather, we held that public use is insufficient if it is occasional. 259 Mont. at 285, 856 P.2d at
528-29. There is no reason why traveling a definite, fixed course over private land in an open,
notorious, adverse, continuous, and uninterrupted manner for the full statutory period should not
ripen into a prescriptive right-of-way merely because the people who do so are recreationists.
Nevertheless, for reasons discussed below, I believe the District Court ultimately reached the correct
result.

                                                   50
repairs, and other public uses—such as “accessing the Ruby River.” PLAA states that it “is

not seeking to acquire a new prescriptive easement beyond the existing Seyler Lane right-of-

way.” Rather, PLAA believes the stipulated right-of-way is wide enough to enable the

public to reach the river.

¶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, 96 Mont. at 307, 30 P.2d

at 95; accord State v. Auchard, 22 Mont. 14, 16, 55 P. 361, 362 (1898) (the right is “confined

to the very way claimed and traveled during the period”).

¶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, 630 N.E.2d 496, 501 (Ill.

App. 2d Dist. 1994); Platt v. Ingham Co. Road Commn., 198 N.W.2d 893, 894 (Mich. App.

1972); Barfnecht v. Town Bd. of Hollywood Township, 232 N.W.2d 420, 423 (Minn. 1975);

Campbell v. Covington Co., 137 So. 111, 112 (Miss. 1931); Teadtke v. Havranek, 777

N.W.2d 810, 820 (Neb. 2010); Nikiel v. City of Buffalo, 165 N.Y.S.2d 592, 597 (N.Y. Sup.

Ct. 1957); Keidel v. Rask, 290 N.W.2d 255, 258 (N.D. 1980); McKenzie Co. v. Reichman,

                                             51
2012 ND 20, ¶¶ 31-33, 812 N.W.2d 332; Yturria Town & Improvement Co. v. Hidalgo Co.,

125 S.W.2d 1092, 1094 (Tex. App.—San Antonio 1939). However, contrary to the Court’s

discussion (Opinion, ¶ 25), these cases do not hold that the maintenance and support area

may also be used for public travel.

¶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 evidence 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 the Township mowed those areas, the prescriptive easement
       encompassed those areas.

630 N.E.2d at 501; accord Campbell, 137 So. at 112 (“The prescriptive right carries with it

the beaten path and whatever is necessary to make the beaten path a usable highway, but this

does not mean that the prescriptive right carries with it the right in the public to lay out and

construct an extended and enlarged highway . . . .”). By the same reasoning, the fact that

Madison County maintains the areas alongside the paved portion of Seyler Lane does not

mean that the public’s right of travel extends to 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, 232 N.W.2d at 422. The plaintiffs

argued that recognizing a prescriptive right-of-way greater in width than the area actually

used by the public during the period of prescription would amount to an unconstitutional




                                              52
taking of private property. The court, however, construed the statute so as to avoid this

result. The court observed that a prescriptive public easement

       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, 232 N.W.2d at 423 (footnote and paragraph break omitted). The court held,

therefore, that “[p]rivately owned land cannot become public road by adverse use beyond the

portion so used merely by a statutory pronouncement to that effect.” Barfnecht, 232 N.W.2d

at 423. Likewise, here, Title 7 and Title 60 statutes cannot be used to expand the Seyler

Lane right-of-way beyond the width to which the parties stipulated—“the paved portion” of

the road—without implicating an unconstitutional taking of private property.

¶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 width. Nikiel was based on a New

York statute which provided that the width of prescriptive public highways is at least three

rods (49.5 feet). 165 N.Y.S.2d at 596-97. This is contrary to Montana law, which states that

the width of prescriptive public roads is limited to the area actually occupied and used during

the statutory period. Portmann, 149 Mont. at 95-96, 423 P.2d at 58. The Platt decision is

consistent with this principle; the court there held that “though the width of a prescriptive

easement in a public highway includes shoulders and ditches needed and actually used, it

does not include the allowance of a width for shoulders and ditches not used but needed”—

                                              53
the point being that the easement’s width is determined by actual use. 198 N.W.2d at 894

(emphases added). Lastly, Keidel distinguished the “actual traveled surface area of the

roadway” from the “adjacent land which is needed for the prescription to be maintained as a

public road.” 290 N.W.2d at 258; accord McKenzie, ¶ 31. Neither Keidel nor McKenzie

held that the adjacent land may be used as an expanded travel area.

¶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 “[r]ecreational 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,

                                             54
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 traditional requirements of adverse possession,” the public “may

obtain title by adverse possession of that only which it has occupied during the full statutory

period.” 149 Mont. at 95-96, 423 P.2d at 58 (internal quotation marks omitted). Here,

pursuant to the parties’ stipulations, the occupied area consists only of “the paved portion” of

Seyler Lane. Of course, as explained, a prescriptive road includes an incidental right to use

adjacent land—such as shoulders, slopes, and ditches—that is reasonably necessary to

support and maintain the roadway. Obviously, without such land, the road would become

unusable as a public right-of-way. But I am aware of no authority—and neither PLAA nor

the Court nor the Concurrence cites any—which holds that the land needed to support and

maintain the beaten path may be transformed into part of the beaten path. That is the crux of

my disagreement with our Opinion. In my view, the Court is fundamentally mistaken in

holding that the land alongside the beaten path may be used for purposes in addition to

simple maintenance and support.

¶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.    Vehicular travel, for example, is confined to the roadway.              See

                                               55
§ 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, 188 Mont. 20, 24, 610 P.2d 1153,

1156 (1980), Rasmussen v. Fowler, 245 Mont. 308, 312, 800 P.2d 1053, 1056 (1990),

Swandal Ranch, 276 Mont. at 234-36, 915 P.2d at 844-45, Hitshew v. Butte/Silver Bow

County, 1999 MT 26, ¶ 18, 293 Mont. 212, 974 P.2d 650, and Public Lands Access Assn. v.

Jones, 2004 MT 394, ¶ 33, 325 Mont. 236, 104 P.3d 496, we held that evidence of

maintenance by local authorities supports a finding of adversity. We were concerned in

these cases with whether a prescriptive right-of-way had been proved, not with how wide it

was. As for Smith v. Russell, 2003 MT 326, 318 Mont. 336, 80 P.3d 431, this case did not

involve a road established by prescription.

¶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, ¶¶ 32, 52, the Court disregards long and

well-established precedent recognizing that the right to use adjacent land for support and

                                              56
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,”8 Opinion, ¶¶ 18-32, the fact remains

that, whatever the right is called, it is incidental to the right of travel on the roadway and it is

limited to the purpose for which it exists: maintenance and support. This principle is simply

an application of the maxim that “ ‘[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., 2009 MT 286, ¶ 37, 352 Mont. 212, 215 P.3d 675 (quoting Sullivan v. Donohoe,

191 N.E. 364, 365 (Mass. 1934)); see also Laden v. Atkeson, 112 Mont. 302, 305-06, 116

P.2d 881, 883-84 (1941) (the right to enter upon the servient tenement for the purpose of

repairing an easement is “ ‘a mere incident of the easement’ ”). The incidental right of

maintenance and support is to be exercised only when necessary and in such a manner as not

to needlessly increase the burden upon the servient tenement. Laden, 112 Mont. at 306, 116

P.2d at 884; Shammel v. Vogl, 144 Mont. 354, 365-66, 396 P.2d 103, 109 (1964); O’Connor

v. Brodie, 153 Mont. 129, 140, 454 P.2d 920, 926 (1969); Sharon v. Hayden, 246 Mont. 186,

189-90, 803 P.2d 1083, 1086 (1990); Kephart v. Portmann, 259 Mont. 232, 238, 855 P.2d

120, 124 (1993); Engel v. Gampp, 2000 MT 17, ¶ 43, 298 Mont. 116, 993 P.2d 701;

Musselshell Ranch Co. v. Seidel-Joukova, 2011 MT 217, ¶ 18, 362 Mont. 1, 261 P.3d 570.

¶110 The Court attempts to distinguish these cases on the ground that they involved private

easements and not “a county road acquired by prescriptive use.” Opinion, ¶ 24. The Court,


       8
        As noted, Madison County essentially claimed a “secondary easement” in the District Court
proceedings. Supra ¶ 88.

                                                57
mistakenly, construes provisions within Title 7 and Title 60 to support this distinction. The

law of prescription, however, is governed by this Court’s precedents. See Swandal Ranch,

276 Mont. at 233, 915 P.2d at 843 (“The elements of prescriptive easement have been

defined through case law.”). The only distinction our cases have made between public and

private prescriptive easements is the element of exclusivity, which is not required to establish

a public prescriptive easement.9 Heller v. Gremaux, 2002 MT 199, ¶ 12, 311 Mont. 178, 53

P.3d 1259. Kennedy does not deny that Madison County may access his property to

maintain and support the Seyler Lane right-of-way. At issue here is whether common law

principles of prescription permit the width of a prescriptive easement, whether private or

public, to be expanded beyond the area that was used and occupied during the prescriptive

period, such that the area alongside the original traveled way may also be used for travel.

Under our precedents, the clear answer to this question is no. Maynard, 96 Mont. at 307, 30

P.2d at 95 (“The 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.”); Auchard, 22 Mont. at 16, 55 P. at 362

(the prescriptive right is “confined to the very way claimed and traveled during the period”).

The out-of-state cases discussed above are in accord. As Kennedy points out, “if the area

used for maintenance could be transformed into a new traveled way, then the easement could

be expanded forever simply by paving over that area, which would create a right to more

maintenance, ad infinitum.” Likewise, the District Court observed in its Conclusions of Law

       9
         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.

                                                 58
that the County’s “right to use maintenance areas cannot be transformed into a new traveled

way. The travel easement could be expanded forever simply by paving the areas used for

maintenance which could create a right to use yet more land for lateral and subjacent

support. Such a result would be impossible to square with Portmann . . . . It also defies

common sense.”

¶111 Public prescriptive easements are founded on the definite, fixed course established

during the prescriptive period. There is an incidental right to use adjacent land as support for

the traveled way, but there is no authority for our holding that the land used for support and

maintenance may also be used by the general public as a supplemental area of travel. In my

view, we are misapplying statutory provisions and prescriptive easement law in order to

facilitate public access to Ruby River. Stream access laws are for the Legislature to consider

and design. House Bill 190, passed by the Legislature in 2009, resulted in a new statute that

authorizes any person to gain access to surface waters for recreational use by using (a) a

public bridge, its right-of-way, and its abutments, and (b) a county road right-of-way.

Section 23-2-312(1), MCA. Other legislation permits fencing within the right-of-way for

livestock control or property management, as long as the fencing provides for public passage

to surface waters. Sections 7-14-2134(4), 23-2-313(1), MCA. Importantly, this legislation

expressly excludes a certain category of public roads from its application: those established

through prescriptive use. Section 23-2-312(3), MCA. Our disregard of precedent—justified

by a distinction artificially drawn, for the first time, today between private and public

easements—upsets the balance achieved by the 2009 Legislature between recreationists and

landowners.

                                              59
                                 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 river is encompassed within the right-of-way to which

the parties stipulated. PLAA has failed to establish any legal basis for such a right, however.

I accordingly would affirm the District Court’s judgment as to Seyler Lane and Seyler

Bridge.

                        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:

                                               60
       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.10 This presents a

question of deed interpretation. In Bolinger v. City of Bozeman, 158 Mont. 507, 493 P.2d

1062 (1972), we agreed with the principle that

       [w]hether 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 time and change of
       conditions.

158 Mont. at 521, 493 P.2d at 1069 (emphasis and internal quotation marks omitted).


       10
          The Court faults Kennedy for “fail[ing] 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, 1998 MT 165,
¶ 35, 289 Mont. 379, 962 P.2d 583.

                                                61
¶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, 74 Mont. 587, 596-97,

241 P. 328, 331 (1925). As we stated in Bolinger, however, 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 time and change of conditions. 158

Mont. at 521, 493 P.2d at 1069. In this regard, the 2009 Legislature clarified that a person

may gain access to surface waters for recreational use by using (a) a public bridge, its right-

of-way, and its abutments, and (b) a county road right-of-way. Section 23-2-312(1), MCA.

The unqualified language of the 1910 deed is consistent with a dedication for such use.

                           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.

                                              62
¶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, 146 U.S. 387, 452, 13 S. Ct. 110, 118 (1892) (title to the

lands under the navigable waters of Lake Michigan “necessarily carries with it control over

the waters above them”); U.S. v. Causby, 328 U.S. 256, 264, 66 S. Ct. 1062, 1067 (1946)

(“[t]he landowner owns at least as much of the space above the ground as he can occupy or

use in connection with the land”); Kaiser Aetna v. U.S., 444 U.S. 164, 100 S. Ct. 383 (1979)

(owner of private pond had right to exclude the public from boating on the pond); People v.

Emmert, 597 P.2d 1025, 1027 (Colo. 1979) (“ownership of the bed of a non-navigable

stream vests in the owner the exclusive right of control of everything above the stream bed”);

and Butler v. Frontier Telephone Co., 79 N.E. 716, 718 (N.Y. 1906) (“space above land is

real estate the same as the land itself”). He also cites our 1925 decision in Herrin, where we

stated: “[I]t is held uniformly that the public have no right to fish in a nonnavigable body of

water, the bed of which is owned privately.” 74 Mont. at 596-97, 241 P. at 331.

¶118 Kennedy argues that our 1984 decisions in Montana Coalition for Stream Access, Inc.

v. Curran, 210 Mont. 38, 682 P.2d 163 (1984), and Montana Coalition for Stream Access,

Inc. v. Hildreth, 211 Mont. 29, 684 P.2d 1088 (1984), effectively overruled Herrin—a point

that the State of Montana, which has intervened in this appeal, concedes—and thereby

divested landowners of a valuable property right, namely, the right to exclude the public

from the waters above privately owned streambeds.11 In Curran, the Court held that a


       11
         See College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666,
673, 119 S. Ct. 2219, 2224 (1999) (“The hallmark of a protected property interest is the right to

                                               63
landowner has no right to control the use of the surface waters of a stream flowing through

his property to the exclusion of the public, except to the extent of his prior appropriation of

part of the water for irrigation purposes. 210 Mont. at 52, 682 P.2d at 170. The Court

further held that “any surface waters that are capable of recreational use may be so used by

the public without regard to streambed ownership or navigability for nonrecreational

purposes.” Curran, 210 Mont. at 53, 682 P.2d at 171. The Court supplemented this holding

in Hildreth to include “the bed and banks up to the ordinary high water mark.” 211 Mont. at

35-36, 684 P.2d at 1091.         The Legislature codified these holdings in 1985.              See

§§ 23-2-301(12), -302(1), MCA.

¶119 Citing Stop the Beach Renourishment, Inc. v. Florida Department of Environmental

Protection, 560 U.S. 702, 130 S. Ct. 2592 (2010), Kennedy contends that our decisions in

Curran and Hildreth effected an unconstitutional judicial taking of property without just

compensation. Citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102

S. Ct. 3164 (1982), he contends that the enactment of statutes based on Curran and Hildreth

amounted to an unconstitutional legislative taking of property. The State responds that these

“claims” are barred by the statute of limitations. The State cites § 27-2-207, MCA, which

prescribes a limitation on “the commencement of an action” for injury to property. Yet,

Kennedy has not commenced an action for injury to property. He has no cross-claims or

counterclaims pending. He asserts no claims for damages due to a taking or inverse

condemnation of property. He states that he is asserting his takings argument as a defense to



exclude others.”); Kafka v. Mont. Dept. of Fish, Wildlife & Parks, 2008 MT 460, ¶ 51, 348 Mont. 80,
201 P.3d 8 (“the most significant of all the indicia [of property is] . . . the right to exclude”).

                                                64
PLAA’s claim that the public has the right to cross his land in order to access and use Ruby

River. As we have recognized, “statutes of limitations . . . [are] limitations on actions only

and not of defense.” Hagerty v. Hall, 135 Mont. 276, 280, 340 P.2d 147, 149 (1959). Thus,

I believe the State’s procedural argument is misplaced.

¶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 “[S]ignificant controversy has existed 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.

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The bill struck a balance, allowing the public to gain access to surface waters for recreational

use at public bridges and county road rights-of-way, while allowing landowners to run their

fences up to the edge of the bridge as long as the fences did not prevent public passage to

surface waters. The bill expressly excluded a certain category of public roads from its

application: those established by prescriptive use.

¶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.


                                                   /S/ LAURIE McKINNON
Justice Jim Rice, concurring in part and dissenting in part.




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¶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, 149 Mont. at 95, 423 P.2d at 58 (emphasis added)). As Portmann further

explains about public highway prescription cases, “‘the public may obtain title by adverse

possession of that only which it has occupied during the full statutory period.’” Portmann,

149 Mont. at 95, 423 P.2d at 58 (citation omitted) (emphasis added). The precise area of a

public prescriptive easement is that which the public used or occupied during the prescriptive

period, as determined by the evidence. This is the law of Montana, consistent with the

statutory directive that the “extent of a servitude is determined by . . . the nature of the

enjoyment by which it was acquired.” Section 70-17-106, MCA.



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¶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., 2009 MT 286,

¶ 37, 352 Mont. 212, 215 P.3d 675 (citation omitted). As the Court notes, a public road

obtained by prescriptive use “contemplates the general public’s use” of additional area

necessary for “repairs and maintenance.” Opinion, ¶ 24. This is so, because in addition to

the easement itself, those “necessary incidents” without which the easement cannot be

enjoyed must accompany the easement. “The right to enter upon the servient tenement for

the purpose of repairing or renewing an artificial structure constituting an easement, is called

a ‘secondary easement,’ a mere incident of the easement that passes by express or implied

grant or is acquired by prescription.” Sharon v. Hayden, 246 Mont. 186, 190, 803 P.2d 1083,

1086 (1990) (citation omitted). About necessary incidents, we have likewise explained that

“[t]hese rights are in the nature of a ‘secondary easement,’ i.e., ‘[a]n easement that is

appurtenant to the primary or actual easement; the right to do things that are necessary to

fully enjoy the easement itself.’” Mattson, ¶ 37 (citing Black’s Law Dictionary 587 (Bryan

A. Garner ed., 9th ed., West 2009)). Although the Court eschews the term “secondary

easement,” this has long been fundamental easement law, as explained in ¶ 109 of Justice

McKinnon’s dissenting opinion.

¶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

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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 do not merge with it. The incidents

are not part of “[t]he extent of a servitude” because they are not “the nature of the enjoyment

by which it was acquired.” Section 70-17-106, MCA. They are acquired only “‘by

implication.’” Mattson, ¶ 37 (citation omitted). “Of course, nothing passes by implication as

incidental to the grant of an easement except that which is reasonably necessary to its fair

enjoyment.” Mattson, ¶ 37. Incidents, as an implied interest, cannot merge with an

easement because they are subject to change, both expansion and contraction, depending

upon the circumstances that are necessary for the easement’s enjoyment.

¶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, 701 P.2d at 144). The Court thus uses

authority standing for the proposition that a publicly acquired prescriptive easement can be

used for all public purposes, and then extends that proposition to any area necessary for the

implied incidents as well, opening the entirety of the area that is incidentally necessary for

the easement’s use to full public enjoyment of “all uses that are permissible.” Opinion, ¶ 47.

I believe this is a sweeping departure from established law and agree with ¶ 100 of Justice

McKinnon’s dissent in this regard. If the area incidentally necessary can be so used, then, as

Kennedy argues, “the easement could be expanded forever” because an additional area will

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always be incidentally necessary for use of the primary area. If “[f]oot travel over . . .

embankments and abutments” is reasonably foreseeable, as the Court posits, Opinion, ¶ 52, I

surmise that most any other use would be as well. I dissent from this holding under Issue 1,

and to those portions of Issue 3 expanding the necessary incidents of an easement to other

uses and enjoyment.

¶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 prescripti[on],” Opinion, ¶ 51—

necessarily requires application of these principles. I join the Court on Issues 4 and 5.


                                                  /S/ JIM RICE




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