                               NO. 84--28
                IN THE SUPREMF: COURT OF THE STATE OF MONTANA

                                    1984




CARBON COUNTY, a political
subdivision of the State of
Plontana,
                    Plaintiff and Appellant,


ALBERT G. SCHWEND, et al. ,
                    Defendants and Respondents.




APPEAL FROM:    District Court of the Thirteenth Judicial District,
                In and for the County of Carbon,
                The Honorable Diane G. Barz, Judge presiding.

COULSSEL OF RECORD:
         For Appellant:
                Hibbs, Sweeney, Colberg & Koessler; Jon E. Doak
                argued, Billings, Montana
         For Respondents :
                Sandal1 & Cavan; Addison Sessions argued, Billings,
                Montana (Parker, Schwend)
                Moulton, Bellingham, Longo & Mather, Billings,
                Montana (First Bank-Billings)
                Gary L. Beiswanger, Billings, Montana (Burleson)
                Peterson, Schofield & Leckie, Billings, Montana
                Eugene & Ruth Tippets, pro se, Colstrip, Montana



                               Submitted:    September 14, 1984
                                 Decided:    October 11, 1994


Filed:   !JLi , 1 384




                                           -- ---   ----   -   --
                               Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
        Carbon County filed a lawsuit in the Thirteenth Judicial
District Court of Montana against Albert G. Schwend, et. al.,
in 1976, claiming a right-of-way over the Sage Creek Road.
Judgment was entered May 2, 1977, determining, among other
things, section three of Sage Creek Road not to be public.
        On March 30, 1982, County filed an independent action in
equity,     pursuant       to    the    last    sentence     of    Rule    60(b),
M.R.Civ.P.,       to reopen the 1977 judgment.              County's complaint
was based on newly discovered evidence that the Carbon County
commissioners had, in 1912, dedicated section three of the
Sage Creek Road in accordance with the statutory provisions
for road dedication in effect in Montana at that time.
Defendants    Schwend, Parker and              Reed    filed a motion          for
judgment on the pleadings, to which County responded with a
motion for summary judgment.                Following a hearing, the trial
judge issued an order on September 15, 1983, denying County's
motion and finding that (1) reasonable diligence would have
produced the "new evidence" in time for the 1976-77 lawsuit
and (2) the "new evidence" would not have altered the results
of the original trial.            We affirm the order of the District
Court.
        Section    three    of    Sage      Creek    Road    is   basically    an
undeveloped       road   located       in   the Pryor Mountains           in   the
southeast     corner     of     Carbon      County    between     the    southern
boundary of the Crow Indian Reservation and the Wyoming state
line.     It crosses Forest Service land in numerous locations,
as well as land owned by some of the defendants to this suit.
     Carbon County began its efforts to have Sage Creek Road
determined open and public in 1966.                   However, that lawsuit
was dismissed for failure to prosecute in 1971.                         k private
attorney, William Jensen, was then hired by County in 1976 to
pursue its claim that Sage Creek Road is a county road.
     There are three ways by which a road may become open and
public:   common-law dedication by the private owners; adverse
user or prescription; and statutory dedication by the county.
In 1912, statutory dedication of public roads was controlled
by sections 1340 and 1341, R.C.M.            1907 and sections 1390
through 1410, R.C.M.     1907.      Those sections set forth the
following requirements for the opening of a road:
     1.   A written petition, signed by any ten freeholders of
a road district and requesting that the road he opened, must
be presented to the county commissioners.
     2.   Three    viewers   must   be   appointed   by    the   county
commissioners to view the road.          They must also present a
report to the commission containing the estimated cost of the
opening and. their opinion as to whether or not the road
should be opened.
     3.   A hearing on the viewer's report must be held by the
county commission.
     4.   The county commission must declare by order that the
road is to be public and open and that order must be recorded.
in the commission's minutes.
     5.   If the county commission orders a survey of the
road, the county surveyor must survey and plat the road and
record his notes with the county clerk.
     6.   The county commission must determine the appropriate
compensation to be given the owners of the affected land and
order payment of that compensation.
     In preparation for the 1976-77 lawsuit, Jensen reviewed
the Carbon County road index, the Carbon County road books
and the Carbon County surveyor files.          He also interviewed:
Carbon    County   commissioners;    Emery    Lufkin,     an   original
homesteader in the area; and Craig               Silvernale, a Forest
Service lands specialist.          Mr. Lufkin, now deceased, stated
in a deposition that the road had never been a county road.
No Forest Service records brought to Jensen's attention by
Silvernale supported County's claim.           In short, little or no
evidence of Sage Creek Road becoming a county road by any of
the three methods was found, and County lost its 1976-77
lawsuit.
       In August 1981, Gary Wetzsteon, a Forest Service lands
specialist who replaced Silvernal-e when he retired, informed
Jensen that the Forest Service had discovered references to a
1912 county proceeding to dedicate the Sage Creek Road.                  In
an    affidavit, Wetzsteon        stated    that Mr.    Eugene Tipperts
brought him a 1912 map of Carbon County showing Sage Creek
Road    to   be   a   county   road   and   a.sked him    to    pursue   an
investigation to determine whether the Sage Creek Road was in
fact statutorily dedicated as a county road.               That map had
been introduced by County as an exhibit in the 1976-77 trial.
       The 1912 map contained the names of all settlers along
the Sage Creek Road, so Wetzsteon reviewed all Forest Service
documents concerning those homestead entries.             The documents
were in Seattle.         Those files made specific reference to
proceedings before the county commissioners concerning the
Sage    Creek     Road   during   the   summer    and    fall   of   1912.
Therefore, Wetzsteon had George Schaller review all records
of proceedings of that commission for calendar year 1912.
Mr.    Schaller found a petition requesting that the road be
dedicated, a viewers' report of the road and the following
four entries in the commissions' minutes referring to the
Sage Creek Road.
       June loth, 1912 - "Road petition signed by Henry
       Spencer and others for road running up Sage Creek
       was examined and the following were named to view
     said road; C.R.. Beeler, John Brimrner and Chas.
     Lufkins. "
     June 26th, 1912 - "Viewers report on Sage Creek
     road was examined and the 25th day of June (sic -
     July) was the day set for hearing on said road."
    July 25th, 1912 - "Hearing on viewers report on
    Sage Creek road was taken up and report approved
    and County Surveyor was instructed to survey and
    plat said road as a county road."
    October 3rd, 1912 - "Government Supervisor Smith of
    this Division appeared before the Board and
    explained that he had at his disposal $1000 - a
    portion of the money distributed Montana from
    Forest Receive Sales; this money to be expended on
    improvement of roads in the Sage Creek country   he      -
    suggested that the County and Government unite on
    improving the Sage Creek Road -- an order was made
    by the Commissioners whereby Road Supervisor Beeler
    be authorized to do not to exceed $500 .OO work on
    the said road.
    "Surveyor was instructed to survey the said road &
    make an estimate of the work to be done thereon."
No survey or plat of the road was ever located.
     On the basis of the information presented Jensen by
Wetzsteon, County sought to reopen the 1977 judgment.              The
District Court refused to do so and County appeals.          Numerous
issues are raised.     However, the only issues relevant to this
decision are:
     1.    Did County carry the burden of          showing that it
exercised    reasonable   or   due   diligence   in   attempting     to
discover the "new evidence" prior to the 1976 lawsuit?
     2.    Would the "newly discovered evidence" have produced
a different result in the 1976 trial?
    A     basic   criteria   for granting new trials on           newly
discovered evidence is that the newly discovered evidence
could not have been discovered and produced at trial with the
exercise of reasonable or due diligence.           Kartes v. Kartes
(1977), 175 Mont.      210, 214, 573 P.2d        191, 193.       County
contends that the exercise of reasonable and due diligence by
its attorney prior to the 1976-77 lawsuit failed to produce
the necessary evidence for determining that the road had been
statutorily dedicated.
        Jensen reviewed the records in which County's clerk had
a duty to record any reference to statutory dedication of a
road, duly examined living witnesses most likely to have
firsthand knowl-edge of such a statutory dedication and souqht
all relevant information from the Forest Service.          However,
despite the statutory mandates that roa.ds may only be opened
by order of the county commission and that such orders must
be    recorded   in   the   commission's   minutes,   as   well   as
information indicating that such an order may have been made
in 1912, County's attorney failed to search the commission's
1912 minutes until 1981.
        The 1912 commission's minutes, the petition for the road
and   the   road viewer's report have all been        in County's
possession since 1912.      A diligent search in 1976 would. have
resulted in their discovery.       "Where the moving party in a
motion for new trial on the ground of 'newly discovered'
evidence has had the books and documents in possession, from
which he later 'discovers' the 'new evidence', the motion
will be     denied, even though the evidence itself may           be
material.      Rand v. Kipp   (1902), 27 Mont.   138, 142, 69 P.
714."    Martes, 175 Mont. at 215, 573 P.2d at 194.
        Although material., the evidence discovered in 1981 is
neither complete nor decisive with respect to whether or not
Sage Creek Road was statutorily dedicated in 1912.         However,
our decisions, in Rand, supra, and Kartes, supra, make it
unnecessary to determine the question of whether the evidence
would have produced a different result at the 1976 trial.
        The trial court judge has wide discretion in determining
whether or not to grant a motion for a new trial on the basis
of newly discovered evidence.       Kerrigan v. Kerrigan (1943),
115 Mont.    136, 139 P.2d   533.   The trial court judge did not

abuse her discretion in the case at bar.         The October 6, 1983

order   of   partial   summary   judgment   by   the   District   Court

denying County's motion for a new tria
                                            w
We concur:


Chief Justice
