                             No.    92-037
          IN THE SUPREME COURT OF THE STATE OF MONTANA




N. DALE HERREID and MARLENE A.
HERREID, Husband and Wife,                        i-i
                                                  va..,:7,,.:
                                                  F>>>*,d
                                                  ,.,:          :,
          Plaintiffs and Appellants               &       %
                                                                2:"     ..j




CLIFFORD S. HAUCK and SANDRA K.
HAUCK, Husband and Wife,
          Defendants and Respondents.



APPEAL FROM:   District Court of the Nineteenth Judicial District,
               In and for the County of Lincoln,
               The Honorable Robert S. Keller, Judge presiding.


COUNSEL OF RECORD:
          For Appellants:
               Lawrence H. Sverdrup, Sverdrup & Barnes, Libby,
               Montana
          For Respondents:
               David W. Harman, Attorney at Law, Libby, Montana


                                   Submitted on Briefs:               April 2, 1992
                                              Decided:                October 15, 1992
Filed:
J u s t i c e ~ i l l i a mE, Hunt, Sr., delivered the opinion of the Court.
     Appellants brought this action in the Nineteenth Judicial
District Court, Lincoln County, to quiet title to a portion of
Spruce Street which had been vacated by the City of ~ i b b yand
Lincoln County. The District Court held that the Herreids were the
owners of the south half of the vacated street and that the Haucks
were the owners of the portion of the north half of the vacated
street which abutted their property.
     We affirm.
     Appellants raise two issues for our consideration:
      1.   Does      76-3-305, MCA, require that a vacated street

revert to the adjacent property owner within the subdivision?
      2.   Does a vacated street which was a "right of use" only
revert to the successors of the grantor of the "right of useM?
      Additionally, respondents cross-appealed with the issue of
whether they obtained ownership of the disputed property through
adverse possession or prescriptive easement. However, the District
Court did not address this issue in its order, and therefore, the
issue will not be discussed in this opinion.
      On April 18, 1952, George Hennessy executed a quitclaim deed
to Lincoln County covering the vacated property.           Lincoln County
appeared in this action and disclaimed any ownership interest in
the vacated property. All of such property was annexed by the City
of Libby on October 2, 1967.
     The property in dispute is a portion of a 30-foot wide strip
of Spruce Street that was vacated by the City of Libby pursuant to
Ordinance 985 on October 3, 1977, abutting in part the real
property of the respondents on the north and the real property of
the appellants on the south, as shown below.




     Since 1977, no one has paid property taxes on the abandoned
portion of the Spruce Street strip, nor has the county assessed any
property taxes since 1977 because the property has been listed as
"exempt" for county and state property taxation.
     In 1977, the City of Libby assessed the vacated Spruce Street
property for lighting, road maintenance, and sprinkling. The city
special assessments have been forwarded to the County Treasurer and
placed on the real property tax rolls continuously since 1977. The
method of the assessment by the City of Libby was to divide the
vacated Spruce Street in half.         The appellants were assessed on a
square footage basis for the entire south 15 feet of the vacated
street. Respondents and their neighbors have been assessed for the
north one-half of the vacated street.                Respondents have been
assessed for the north one-half of the vacated street that extends
beyond    their    east   boundary.        Respondents     have    paid     their
assessments to the City of Libby.
      By stipulation, respondents have abandoned any claim to the
following described property:
      All that portion of vacated Spruce street lying East of
      the following described line: Commencing at the South
      East corner of Lot 2, Block 4, F r a r y and Olson Addition
      to Libby Montana, thence south on a line parallel to the
      East line of Section 9, Township 30 North, Range 31 West
      P.M.M. a distance of 15 feet, more or less, to a point on
      the center line of Spruce Street vacated by the city of
      Libby pursuant to Ordinance 985 on October 3, 1977.
      With these findings of fact, the District Court ruled that the
quitclaim deed executed by George Hennessy on April 18, 1952, was
a grant of use and not a grant of title to the land.              In addition,
the District Court held that the fee in Spruce Street reverted to
the abutting landowners, with each abutting landowner taking from
t h e edge of h i s or her property t o the center of t h e s t r e e t ,   It is

from this order that appellants appeal.
      Does 5 76-3-305, MCA, require that a vacated street revert to
the adjacent property owner within the subdivision?
       Appellants argue that because they are the only abutting
landowners from the original plat, the entire abandoned street
reverts to them pursuant to 5 76-3-305, MCA.    Section 76-3-305(1),
MCA, states in pertinent part:
            Any plat prepared and recorded as herein provided
       may be vacated either in whole or in part as provided by
       7-5-2501, 7-5-2502, subsections (1)and (2) of 7-14-2616,
       7-14-2617, subsections (1) and (2) of 7-14-4114, and
       7-14-4115, and upon such vacation the title to the
       streets and alleys of such vacated portions to the center
       thereof shall revert to the owners of the properties
       within the platted area adjacent to such vacated
       portions.
       We agree with the District Court that the statute is clearly
dispositive as to the southern half of Spruce Street but does not
deal. directly w i t h t h e disposition of the northern half of the

street which abuts another subdivision,        Because respondents'
property is not located within the Nennessy Plat nor the Amended
Hennessy P l a t , respondents would take nothing under 5 76-3-305,
MCA.    There are, however, some statutes and case law which will.
serve as light posts down this dark abandoned road.
       We have stated that:
            A highway which is lawfully vacated or abandoned
       ceases to be a highway and, insofar as the public has a
       mere easement of way, the title reverts to the owners of
       the fee discharged from the servitude.
Bailey v. Ravalli County (1982), 201 Mont. 138, 146, 653 P.2d 139,


       Section 70-16-202, MCA, states that an owner whose land is
bounded by a road is presumed to own to the center of the road
unless the contrary is shown.        In addition, 5 70-20-307, MCA,
explains that:
          A transfer of land bounded by a highway passes the
     title of the person whose estate is transferred to the
     soil of the highway in front of the center thereof unless
     a different intent appears from the grant.
     This Court interpreted the above statutes to mean that a
boundary to and with the side of a street carries the fee to the
center of the street unless a contrary intent appears from the
deed.   This Court also held that:
     [Ulpon abandonment that the fee in the street reverts to
     the abutting landowners, with each abutting landowner
     taking fee from the edge of his or her property to the
     center of the street.
Bailey, 653 P.2d at 143.
     Although the quitclaim deed executed by George Hennessy
denominated four strips of property, including the vacated street,
as llright-of-wayland" to Lincoln County, the deed is a normal
quitclaim deed with the clear intent to transfer all right, title,
and interest in the property to the county.        When the county
disclaimed any interest in the property, the abandonment of the
street by the city was sufficient to transfer title to the abutting
landowners. Therefore, we hold that the District Court did not err
in ruling that upon the City of Libby's abandonment of Spruce
Street, that the fee in the street reverted to the abutting
landowners, with each landowner taking fee from the edge of their
property to the center of the street.
     W e need n o t d i s c u s s t h e second i s s u e because of o u r h o l d i n g

above.

     Af f inned.


                                                                    1"
                                                    Justice


W e concur:




                              -   1




     Jus
                                        October 15, 1992

                                 CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Lawrence H. Sverdrup
Sverdrup & Barnes
503 California Ave.
Libby, MT 59923

David W. Harman
Attorney at Law
120 W. Sixth St.
Libby, MT 59923

Scott B. Spencer
Lincoln County Attorney
512 California Ave.
Libby, MT 59923

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT


                                                     BY:
                                                       Depu
                                                            p
                                                     STATKOF MONTANA
